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110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-601

======================================================================



 
       COMBUSTIBLE DUST EXPLOSION AND FIRE PREVENTION ACT OF 2008

                                _______
                                

 April 22, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. George Miller of California, from the Committee on Education and 
                     Labor, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 5522]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Education and Labor, to whom was referred 
the bill (H.R. 5522) to require the Secretary of Labor to issue 
interim and final occupational safety and health standards 
regarding worker exposure to combustible dust, and for other 
purposes, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Combustible Dust Explosion and Fire 
Prevention Act of 2008''.

SEC. 2. FINDINGS.

  Congress finds the following:
          (1) An emergency exists concerning worker exposure to 
        combustible dust explosions and fires.
          (2) 13 workers were killed and more than 60 seriously injured 
        in a catastrophic combustible dust explosion at Imperial Sugar 
        in Port Wentworth, Georgia on February 7, 2008.
          (3) Following 3 catastrophic dust explosions that killed 14 
        workers in 2003, the Chemical Safety and Hazard Investigation 
        Board (CSB) issued a report in November 2006, which identified 
        281 combustible dust incidents between 1980 and 2005 that 
        killed 119 workers and injured 718. The CSB concluded that 
        ``combustible dust explosions are a serious hazard in American 
        industry''.
          (4) A quarter of the explosions occurred at food industry 
        facilities, including sugar plants. Seventy additional 
        combustible dust explosions have occurred since 2005.
          (5) Material Safety Data Sheets (MSDSs) often do not 
        adequately address the hazards of combustible dusts, and the 
        OSHA Hazard Communication Standard (HCS) inadequately addresses 
        dust explosion hazards and fails to ensure that safe work 
        practices and guidance documents are included in MSDSs.
          (6) The CSB recommended that OSHA issue a standard designed 
        to prevent combustible dust fires and explosions in general 
        industry, based on current National Fire Protection Association 
        (NFPA) dust explosion standards.
          (7) The CSB also recommended that OSHA revise the Hazard 
        Communication Standard (HCS) (1910.1200) to clarify that 
        combustible dusts are covered and that Material Safety Data 
        Sheets contain information about the hazards and physical 
        properties of combustible dusts.
          (8) OSHA has not initiated rulemaking in response to the 
        CSB's recommendation.
          (9) OSHA issued a grain handling facilities standard (29 
        C.F.R. 1910.272), in 1987 that has proven highly effective in 
        reducing the risk of combustible grain dust explosions, 
        according to an OSHA evaluation.
          (10) No Occupational Safety and Health Administration 
        standard comprehensively addresses combustible dust explosion 
        hazards in general industry.
          (11) Voluntary National Fire Protection Association standards 
        exist which, when implemented, effectively reduce the 
        likelihood and impact of combustible dust explosions.

SEC. 3. ISSUANCE OF STANDARD ON COMBUSTIBLE DUST.

  (a) Interim Standard.--
          (1) Application and rulemaking.--Notwithstanding any other 
        provision of law, not later than 90 days after the date of 
        enactment of this Act, the Secretary of Labor shall promulgate 
        an interim final standard regulating combustible dusts. The 
        interim final standard shall, at a minimum, apply to 
        manufacturing, processing, blending, conveying, repackaging, 
        and handling of combustible particulate solids and their dusts, 
        including organic dusts (such as sugar, candy, paper, soap, and 
        dried blood), plastics, sulfur, wood, rubber, furniture, 
        textiles, pesticides, pharmaceuticals, fibers, dyes, coal, 
        metals (such as aluminum, chromium, iron, magnesium, and zinc), 
        fossil fuels, and others determined by the Secretary, but shall 
        not apply to processes already covered by OSHA's standard on 
        grain facilities (29 C.F.R. 1910.272).
          (2) Requirements.--The interim final standard required under 
        this subsection shall include the following:
                  (A) Requirements for hazard assessment to identify, 
                evaluate, and control combustible dust hazards.
                  (B) Requirements for a written program that includes 
                provisions for hazardous dust inspection, testing, hot 
                work, ignition control, and housekeeping, including the 
                frequency and method or methods used to minimize 
                accumulations of combustible dust on ledges, floors, 
                equipment, and other exposed surfaces.
                  (C) Requirements for engineering, administrative 
                controls, and operating procedures, such as means to 
                control fugitive dust emissions and ignition sources, 
                the safe use and maintenance of dust producing and dust 
                collection systems and filters, minimizing horizontal 
                surfaces where dust can accumulate, and sealing of 
                areas inaccessible to housekeeping.
                  (D) Requirements for housekeeping to prevent 
                accumulation of combustible dust in places of 
                employment in such depths that it can present 
                explosion, deflagration, or other fire hazards, 
                including safe methods of dust removal.
                  (E) Requirements for employee participation in hazard 
                assessment, development of and compliance with the 
                written program, and other elements of hazard 
                management.
                  (F) Requirements to provide written safety and health 
                information and annual training to employees, including 
                housekeeping procedures, hot work procedures, 
                preventive maintenance procedures, common ignition 
                sources, and lock-out, tag-out procedures.
          (3) Procedure.--The requirements in this subsection shall 
        take effect without regard to the procedural requirements 
        applicable to regulations promulgated under section 6(b) of the 
        Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)) 
        or the procedural requirements of chapter 5 of title 5, United 
        States Code.
          (4) Effective date of interim standard.--The interim final 
        standard shall take effect 30 days after issuance. The interim 
        final standard shall have the legal effect of an occupational 
        safety and health standard, and shall apply until a final 
        standard becomes effective under section 6 of the Occupational 
        Safety and Health Act (29 U.S.C. 655).
  (b) Final Standard.--
          (1) Rulemaking.--Not later than 18 months after the date of 
        enactment of this Act, the Secretary of Labor shall, pursuant 
        to section 6 of the Occupational Safety and Health Act (29 
        U.S.C. 655), promulgate a final standard regulating combustible 
        dust explosions.
          (2) Requirements.--The final standard required under this 
        subsection shall include the following:
                  (A) The scope described in subsection (a)(1).
                  (B) The worker protection provisions in subsection 
                (a)(2).
                  (C) Requirements for managing change of dust 
                producing materials, technology, equipment, staffing, 
                and procedures.
                  (D) Requirements for building design such as 
                explosion venting, ducting, and sprinklers.
                  (E) Requirements for explosion protection, including 
                separation and segregation of the hazard.
                  (F) Relevant and appropriate provisions of National 
                Fire Protection Association combustible dust standards, 
                including the ``Standard for the Prevention of Fire and 
                Dust Explosions from the Manufacturing, Processing, and 
                Handling of Combustible Particulate Solids'' (NFPA 
                654), ``Standard for Combustible Metals'' (NFPA 484), 
                and ``Standard for the Prevention of Fires and Dust 
                Explosions in Agricultural and Food Processing 
                Facilities'' (NFPA 61).

SEC. 4. REVISION OF THE HAZARD COMMUNICATION STANDARD.

  (a) Revision Required.--Notwithstanding any other provision of law, 
not later than 6 months after the date of enactment of this Act, the 
Secretary of Labor shall revise the hazard communication standard in 
section 1910.1200 of title 29, Code of Federal Regulations, by amending 
the definition of ``physical hazard'' in subsection (c) of such section 
to include ``a combustible dust'' as an additional example of such a 
hazard.
  (b) Effect of Modifications.--The modification under this section 
shall be in force until superseded in whole or in part by regulations 
promulgated by the Secretary of Labor under section 6(b) of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)) and shall 
be enforced in the same manner and to the same extent as any rule or 
regulation promulgated under section 6(b).
  (c) Effective Date.--The modification to the hazard communication 
standard required shall take effect within 30 days after the 
publication of the revised rule.

                               I. PURPOSE

    The purpose of this legislation is to direct the 
Occupational Safety and Health Administration to issue a 
standard regulating worker exposure to combustible dust 
explosion and fire hazards. Although the hazards of combustible 
dust explosions and fires and how to prevent them have been 
well recognized for many decades, and despite the recent sugar 
dust explosion and fire at Imperial Sugar in Port Wentworth, 
Georgia, the Occupational Safety and Health Administration has 
not taken any significant regulatory action to prevent worker 
exposure to combustible dust explosions and fires.

    ii. committee action including legislative history and votes in 
                               committee


Action in previous Congresses

    There was no action on combustible dust in previous 
Congresses.

                             110th Congress


Hearing on ``Have OSHA standards kept up with workplace hazards?''

    On April 24, 2007, the Workforce Protections Subcommittee, 
led by chairwoman Lynn Woolsey (D-CA), conducted an oversight 
hearing titled ``Have OSHA Standards Kept up With Workplace 
Hazards?'' in order to address the lack of OSHA standards 
issued over the past six years. The witnesses discussed the 
obstacles to issuing OSHA standards, opportunities to speed up 
the process and the human cost of failing to issue needed 
protective standards. Witnesses included Assistant Secretary of 
Labor Edwin Foulke, Scott Schneider, Director of Occupational 
Safety and Health for the Laborers' Health and Safety Fund of 
North America, Frank Mirer, PhD, Professor of Environmental and 
Occupational Health Sciences, Hunter School of Urban Public 
Health, New York, Baruch Fellner an attorney at Gibson, Dunn 
and Crutcher, and Eric Peoples, a former employee of Glister-
Mary Lee popcorn factory, victim of bronchiolitis obliterans 
(popcorn lung).

Introduction of H.R. 5522, the ``Combustible Dust Fire and Explosion 
        Prevention Act of 2008''

    On March 4, 2008, the ``Combustible Dust Fire and Explosion 
Prevention Act of 2008,'' as H.R. 5522, was introduced in the 
110th Congress by Chairman George Miller, joined by 
Representative John Barrow (D-GA) as a lead co-sponsor.

Full Committee hearing on H.R. 5522

    On March 12, 2008, the full Education and Labor Committee, 
led by Chairman George Miller, held a hearing on H.R. 5522, the 
``Combustible Dust Fire and Explosion Prevention Act of 2008''. 
The witnesses discussed the need for an enforceable standard 
that prevents combustible dust explosions and the existence of 
effective, well-recognized voluntary standards that could form 
the basis of an OSHA standard. The witnesses included Acting 
Chair of the Chemical Safety Board, William Wright, Assistant 
Secretary of Labor Edwin Foulke, Tammy Miser whose brother was 
killed in a combustible dust explosion, David Sarvadi, 
representing the U.S. Chamber of Commerce, and Amy Spencer, 
representing the National Fire Protection Association.

Full Committee markup of H.R. 5522

    On April 9, 2009 the Committee on Education and Labor met 
to markup H.R. 5522, Combustible Dust Fire and Explosion 
Prevention Act of 2008. The Committee adopted by voice vote an 
amendment in the nature of a substitute offered by Mrs. Woolsey 
which moved some requirements originally in the Interim 
Standard to the Full Standard. The substitute also removed the 
requirement to add a specific definition of ``combustible 
dust'' to the Hazard Communication Standard, but left the 
requirement that combustible dust be included as a ``physical 
hazard.''
    Mr. Wilson offered an amendment in the nature of a 
substitute that would have delayed a decision about the 
necessity of a combustible dust standard until completion of 
the Department of Labor's investigation of the February 7, 2008 
explosion that occurred at Imperial Sugar, and based on data 
gathered from the Combustible Dust National Emphasis program. 
The amendment was defeated by a voice vote.
    The Committee voted to favorably report H.R. 5522 by a 
voice vote.

                        III. SUMMARY OF THE BILL

    H.R. 5522 requires OSHA to issue an Interim Final 
combustible dust standard within 90 days and a permanent 
standard within 18 months.
    The bill lays out a number of specific items that would be 
required under the Interim Final Standard. While many of these 
items are currently being enforced by OSHA as part of its 
National Emphasis Program, the Interim Standard would spell out 
detailed requirements for preventing combustible dust 
explosions and fires instead of forcing businesses to 
``interpret'' safe practices from current OSHA standards that 
are not directly related to this hazard. OSHA would be relieved 
of normal procedural requirements for the Interim Standard.
    The Interim Standard would also require additional items 
not now required by OSHA, such as a written dust control 
program, hazard assessment, worker training and employee 
participation in the development and conduct of the dust 
control program.
    In the Final Standard, OSHA would be required to ``review 
and adopt appropriate and relevant provisions of National Fire 
Protection Association combustible dust standards'' and add 
several specific items not included in the Interim Standard 
such as ``building design,'' and ``management of change 
requirements.'' OSHA would go through the normal rulemaking 
procedures for the final standard, including feasibility 
analyses, public comment and public hearings.
    The bill would also require OSHA to include ``combustible 
dust'' in the definition of physical hazards in OSHA's Hazard 
Communication Standard, (CFR 1910.1200).

                   IV. STATEMENT AND COMMITTEE VIEWS

    The Committee on Education and Labor of the 110th Congress 
is committed to ensuring that the federal government does 
everything within its power to ensure that workplaces are safe 
and that the health and safety of American workers is 
protected, consistent with the goals of the Occupational Safety 
and Health Act of 1970.
    H.R. 5522 addresses the protection of workers from 
combustible dust explosions and fires. The committee considers 
combustible dust hazards to be an emergency. On February 7, 
2008, a massive explosion ripped through the Imperial Sugar 
Refinery in Port Wentworth, Georgia. Thirteen workers have 
died. More than 60 others were injured, many critically. Many 
of those who survive face life-long disability and 
disfigurement from severe burns resulting for the explosion and 
fire. The U.S. Chemical Safety and Hazard Investigation Board 
(CSB) and the Occupational Safety and Health Administration 
have launched major investigations into the causes of the 
explosion and have preliminarily concluded that the explosion 
was caused by combustible sugar dust.\1\
---------------------------------------------------------------------------
    \1\Statement of CSB Investigations Manager Stephen Selk, P.E., 
Updating the Public on the Investigation of the Imperial Sugar Company 
Explosion and Fire, Savannah, Georgia, February 18, 2008.
---------------------------------------------------------------------------
    The hazards of combustible dusts are nothing new. In 2006, 
following a series of fatal combustible dust explosions in 
2003, the CSB conducted a major study of combustible dust 
hazards.\2\ The CSB identified 281 combustible dust incidents 
between 1980 and 2005 that killed 119 workers and injured 718, 
and extensively damaged industrial facilities. A total of 24% 
of the explosions occurred in the food industry, including 
several at sugar plants. The CSB report concluded that 
``combustible dust explosions are a serious hazard in American 
industry, and that existing efforts inadequately address this 
hazard.''
---------------------------------------------------------------------------
    \2\US Chemical Safety and Hazard Investigation Report, Combustible 
Dust Hazard Study, Report No. 2006-H-1, November 2006.
---------------------------------------------------------------------------
    The CSB found that there is no comprehensive federal 
Occupational Safety and Health Administration standard that 
effectively controls the risk of dust explosions in general 
industry. The Board therefore recommended that OSHA issue a 
mandatory standard. Yet, to this date, more than a year after 
the CSB report was issued, OSHA has no plans to develop a 
mandatory combustible dust standard.
    OSHA has failed to act to protect workers even though 
effective measures to protect workers from combustible dust 
explosions are well recognized. Voluntary standards issued by 
the National Fire Protection Association (NFPA) provide 
effective and detailed measures that can be taken to prevent 
these tragic explosions. And OSHA's Grain Facilities Handling 
Standard, issued in 1987, partially in response to a number of 
catastrophic grain dust explosions, has effectively reduced the 
number of fatalities in this industry.
    As the Imperial Sugar explosion tragically made clear, 
however, voluntary standards are not enough. Without an OSHA 
standard, many employers are unaware of the hazards of 
combustible dusts and control methods, and others have failed 
to comply with voluntary standards.

Combustible dust hazards

    Dust from any organic material or metal that can burn, can 
also explode if the particles are fine enough, and if they are 
mixed with air in a confined area. As little as \1/32\nd of an 
inch of dust (the width of a paperclip), spread over just 5% of 
a room surface presents a significant explosion hazard, 
according to the National Fire Protection Association.\3\
---------------------------------------------------------------------------
    \3\NFPA 654, Standard for the Prevention of Fire and Dust 
Explosions from the Manufacturing, Processing, and Handling of 
Combustible Particulate Solids.
---------------------------------------------------------------------------
    Typically, a small event or ``primary'' explosion occurs 
which then suspends significant amounts of nearby dust from 
floor or rafters in the air, causing a much larger 
``secondary'' explosion, which may then cause even larger 
cascading secondary explosions. Because of the scale of 
destruction, the initiating event is often never identified.
    Preliminary findings of the CSB indicate that the Imperial 
explosion falls into this pattern:
    Like many catastrophic dust explosions, this was a multi-
stage event. There was a primary event, the nature of which 
remains unknown. The primary event most likely dislodged sugar 
dust that had accumulated over a long period on surfaces around 
the facility. This dislodged dust was the fuel for additional 
explosions. Devastating explosions propagated through a large 
section of the refinery, destroying the sugar packaging plant 
and causing catastrophic injuries to multiple employees and 
contractors.
    This facility was decades old and had many horizontal 
surfaces where dust could collect. These included overhead 
floor joists, rafters, ductwork, piping, and equipment. 
Witnesses have described substantial, snow-like accumulations 
of sugar dust on these surfaces.
    Most employees and contractors had received little training 
on the explosion hazard from the accumulated dust.
    No witnesses have indicated that the facility had a program 
to fully implement NFPA standards for combustible dust.\4\
---------------------------------------------------------------------------
    \4\H.R. 5522, The Combustible Dust Explosion and Fire Prevention 
Act of 2008, Hearing before the Committee on Education and Labor, 110th 
Congress, 2nd Session (2008) (Written testimony of William Wright) 
[Hereinafter Wright Testimony].
---------------------------------------------------------------------------
    The hazards of combustible dusts have been known for 
centuries. In 1923, the National Fire Protection Association 
issued its first combustible dust standard. Today, NFPA has 
seven separate combustible dust standards which are generally 
updated every five years.
    When the Occupational Safety and Health Act was passed in 
1970, Congress authorized the newly formed Occupational Safety 
and Health Administration to adopt any national consensus 
standards ``unless [the Secretary of Labor] determines that the 
promulgation of such a standard would not result in improved 
safety or health for specifically designated employees.'' 
Although OSHA adopted a number of consensus standards, 
including NFPA standards, the agency chose not to adopt any 
NFPA combustible dust standards.
    Combustible dust hazards were the subject of a major 
Chemical Safety Board (CSB) study issued in 2006. The study 
concluded that combustible dust explosions were a major problem 
in American industry and that there was no mandatory OSHA 
standard to prevent them in General Industry. (There is a grain 
handling standard which addresses grain dust in grain silos, 
issued in 1987, that has been highly effective in preventing 
explosions and saving lives, according to an OSHA evaluation.)
    In its 2006 study, the CSB found that the voluntary 
standard issued by the National Fire Protection Association was 
effective if employers complied, but that there was no 
government entity except for OSHA that could require facilities 
to comply with the safe work practices detailed in the NFPA 
standard.
    Based on the results of its investigation, the CSB made 
five recommendations to OSHA:\5\
---------------------------------------------------------------------------
    \5\U.S. Chemical Safety and Hazard Investigation Report, 
Combustible Dust Hazard Study, Report No. 2006-H-1, November 2006.
---------------------------------------------------------------------------
    1. Issue a standard designed to prevent combustible dust 
fires and explosions in general industry. Base the standard on 
current National Fire Protection Association (NFPA) dust 
explosion standards.
    2. Revise the Hazard Communication Standard (HCS) 
(1910.1200) to clarify that the HCS covers combustible dusts, 
and that Material Safety Data Sheets (MSDSs) must include 
important information about combustible dusts.
    3. Communicate to the United Nations Economic Commission 
for Europe (UNECE) the need to amend the Globally Harmonized 
System (GHS) to address combustible dust hazards.
    4. Provide training through the OSHA Training Institute 
(OTI) on recognizing and preventing combustible dust 
explosions.
    5. While a standard is being developed, identify 
manufacturing industries at risk and develop and implement a 
national Special Emphasis Program (SEP) on combustible dust 
hazards in general industry.

OSHA has not proceeded aggressively to prevent worker exposure to 
        combustible dust fires and explosions

    In 2005, in response to three fatal dust explosions in 
2003, OSHA issued a Safety and Health Information Bulletin, 
Combustible Dust in Industry: Preventing and Mitigating the 
Effects of Fire and Explosions. No public announcement was made 
at the time the SHIB was issue and the SHIB was not distributed 
to companies at risk.
    In October 2007, almost a year after the release of the CSB 
report, OSHA launched a combustible dust National Emphasis 
Program (NEP).\6\ Under the NEP, each of OSHA's 90 Area Offices 
received a list of locations that may have dust hazards and 
were required to randomly choose one to inspect in the coming 
year. The 21 states that run their own OSHA programs are not 
required to participate in the NEP. On March 11, 2008, OSHA 
reissued the NEP, raising the total number of annual 
inspections to around 300.\7\
---------------------------------------------------------------------------
    \6\Occupational Safety and Health Administration, CPL 03-00-006--
Combustible Dust National Emphasis Program, October 18, 2007.
    \7\Occupational Safety and Health Administration, CPL 03-00-008--
Combustible Dust National Emphasis Program (Reissued), March 11, 2008.
---------------------------------------------------------------------------
    On February 8, 2008, immediately following the Imperial 
Sugar explosion, Representatives George Miller and Lynn Woolsey 
sent a letter to OSHA asking that the agency ``take immediate 
steps to issue a standard to prevent combustible dust 
explosions as recommended to your agency by the Chemical Safety 
Board (CSB) in November 2006.''\8\
---------------------------------------------------------------------------
    \8\Letter from Reps. George Miller and Lynn Woolsey to Secretary of 
Labor Elaine Chao, February 8, 2008.
---------------------------------------------------------------------------
    And on February 19, 2008, the United Food and Commercial 
Workers union and the International Brotherhood of Teamsters 
petitioned OSHA for a combustible dust standard.
    In early March 2008, OSHA created a new Web page and sent 
letters and fact sheets to 30,000 employers with combustible 
dust hazards warning them to ``take necessary steps'' to 
prevent such explosions. OSHA also offers free training from 
state consultation programs although there is little evidence 
that sufficient numbers of consultants have been trained in the 
causes and prevention of combustible dust hazards.\9\
---------------------------------------------------------------------------
    \9\Letter from Assistant Secretary Edwin Foulke to Rep. George 
Miller, March 27, 2008.
---------------------------------------------------------------------------
    It was not until March 27, 2008--almost a year and a half 
after the CSB recommendations were released, almost two months 
after the Imperial explosion and three weeks after the 
introduction of H.R. 5522--that the CSB received its first 
substantive response from OSHA regarding its 2006 combustible 
dust recommendations.
    OSHA informed the CSB that the agency had not yet decided 
on whether to issue a standard:

          OSHA continues to consider this recommendation. In 
        general, OSHA has learned that a multi-pronged 
        approach, which encompasses ways to educate employers 
        and employees about existing standards and best 
        practices, combined with outreach, training and, of 
        course, effective enforcement efforts, is the best way 
        to address most Occupational safety and health hazards, 
        including those arising from combustible dust.\10\
---------------------------------------------------------------------------
    \10\Letter from Assistant Secretary Edwin Foulke to Chairman John 
Bresland, March 27, 2008.

    Unfortunately, OSHA's responses to the combustible dust 
hazard--educational materials and the National Emphasis 
Program--have not been adequate. OSHA's combustible dust SHIB 
and other informational publications are useful for employers 
who want information about combustible dust hazards, but as 
with other OSHA compliance assistance documents, these 
guidelines cannot be used for enforcement. Tammy Miser pointed 
---------------------------------------------------------------------------
out the confusion this may cause:

          At the very beginning, the first things that [the 
        SHIB] says, it says, this safety and health information 
        bulletin is not a standard or a regulation. It creates 
        no legal obligations.
          I do not see how this can be expected to be taken 
        seriously, when they are sitting there telling them, 
        right off the bat, that there is really no legal 
        obligation for this.\11\
---------------------------------------------------------------------------
    \11\H.R. 5522, The Combustible Dust Explosion and Fire Prevention 
Act of 2008, Hearing before the Committee on Education and Labor, 110th 
Congress, 2nd Session (2008) (Written testimony of Tammy Miser) 
[Hereinafter Miser Testimony].

---------------------------------------------------------------------------
    According to CSB Acting Chairman William Wright:

          I am encouraged that OSHA has sent out 30,000 
        letters, advising and apprising people in various 
        industries of the potential hazards, and to raise their 
        awareness.
          But this is basic knowledge. It does not set the bar 
        with respect to a standard.
          And that is why we still hold with our recommendation 
        that a formal standard should be adopted that everybody 
        will abide by. And that will also increase the 
        awareness of inspectors, as well as employers, with 
        respect to the dust hazard.\12\
---------------------------------------------------------------------------
    \12\H.R. 5522, The Combustible Dust Explosion and Fire Prevention 
Act of 2008, Hearing before the Committee on Education and Labor, 110th 
Congress, 2nd Session (2008) (Written testimony of William Wright) 
[Hereinafter Wright Testimony].

    Indeed, preliminary findings of the CSB show that OSHA's 
compliance assistance efforts had little apparent effect on 
---------------------------------------------------------------------------
Imperial Sugar's adoption of safe combustible dust procedures.

          This facility was decades old and had many horizontal 
        surfaces where dust could collect. These included 
        overhead floor joists, rafters, ductwork, piping, and 
        equipment. Witnesses have described substantial, snow-
        like accumulations of sugar dust on these surfaces.
          Most employees and contractors had received little 
        training on the explosion hazard from the accumulated 
        dust.
          No witnesses have indicated that the facility had a 
        program to fully implement NFPA standards for 
        combustible dust.\13\
---------------------------------------------------------------------------
    \13\H.R. 5522, The Combustible Dust Explosion and Fire Prevention 
Act of 2008, Hearing before the Committee on Education and Labor, 110th 
Congress, 2nd Session (2008) (Written testimony of William Wright) 
[Hereinafter Wright Testimony].

    Nor are the enforcement efforts being conducted under the 
NEP adequate. Under the NEP, OSHA plans to cite employers for 
combustible dust hazards using a variety of existing general 
standards, such as housekeeping (which requires employers to 
clean up the dust), electrical standards (which control some 
ignition sources) and the General Duty Clause, that requires 
employers to address ``recognized'' hazards even where there is 
no OSHA standard. The General Duty Clause is difficult to 
enforce and is mostly used after an incident.
    In the debate over whether an OSHA combustible dust 
standard is needed, Assistant Secretary Ed Foulke has argued 
that existing OSHA are adequate to address combustible dust 
issues:

          OSHA already has tough and effective standards and 
        policies on the books that address combustible dust 
        hazards, including the standards--and general 
        requirements for housekeeping, electrical safety, 
        ventilation, hazardous location, hazard communication 
        and emergency action plans.\14\
---------------------------------------------------------------------------
    \14\H.R. 5522, The Combustible Dust Explosion and Fire Prevention 
Act of 2008, Hearing before the Committee on Education and Labor, 110th 
Congress, 2nd Session (2008) (Written testimony of Edwin Foulke) 
[Hereinafter Foulke Testimony].

    Enforcement of these standards is, according to Foulke, 
being used successfully to address combustible dust safety 
under a Combustible Dust National Emphasis Program announced in 
October 2007 and revised in March 2008.
    Under the Combustible Dust NEP, OSHA will conduct around 90 
combustible dust inspections over the next year from a list of 
possible at-risk worksites supplied by the national office. 
OSHA issued a Compliance Directive\15\ to provide instructions 
to OSHA inspectors on which existing OSHA standards can be used 
to enforce combustible dust precautions.
---------------------------------------------------------------------------
    \15\Occupational Safety and Health Administration, CPL 03-00-006--
Combustible Dust National Emphasis Program, October 18, 2007.
---------------------------------------------------------------------------
    Under the NEP, each of OSHA's 90 Area Offices received a 
list of locations, which may have dust hazards and must 
randomly choose one to inspect in the coming year. The 26 State 
Plan States (such as California, Maryland, Michigan, Arizona, 
Iowa, Oregon, Hawaii and Virginia) are not required to 
participate. (The CSB had recommended that OSHA establish a 
Combustible Dust National Emphasis Program while it was working 
on a standard, not instead of a standard.)
    OSHA will attempt to cite employers under the NEP using a 
variety of related standards such as housekeeping (which 
requires employers to clean up the dust), electrical standards 
(which control some ignition sources) and the General Duty 
Clause (which requires employers to address ``recognized'' 
hazards even where there is no OSHA standard).
    These existing standards cannot be used as effectively as a 
dedicated combustible dust standard. As CSB Acting Chairman 
William Wright testified:

          OSHA's existing requirements, including the general 
        duty clause and the housekeeping standard, apply to 
        combustible dust hazards. However, a comprehensive dust 
        standard would be more effective, by focusing both 
        employers' and inspectors' attention on this hazard and 
        the steps that should be taken to prevent dust 
        explosions and fires.\16\
---------------------------------------------------------------------------
    \16\H.R. 5522, The Combustible Dust Explosion and Fire Prevention 
Act of 2008, Hearing before the Committee on Education and Labor, 110th 
Congress, 2nd Session (2008) (Written testimony of William Wright) 
[Hereinafter Wright Testimony].

    OSHA standards have two purposes: to educate the employer 
about what needs to be done to prevent the hazard and comply 
with the law. And second, to indicate to the OSHA inspector 
which standards can be used to cite an employer when hazardous 
conditions exist.
    Although there are a variety of existing OSHA standards 
that inspectors can interpret to apply to combustible dust 
hazards (which satisfies the need to provide a legal basis for 
inspectors to enforce safe working conditions), most of the 
existing standards (e.g. housekeeping and General Duty) do 
nothing to educate or inform employers about how to prevent 
combustible dust explosions.
    For example, the often-cited ``housekeeping standard,'' (29 
CFR 1910.22(a)), originally written to ensure that puddles and 
refuse don't cause slipping and tripping hazards, is now used 
for combustible dust violations. The relevant parts of this 
standard simply state that ``(1) All places of employment, 
passageways . . . and service rooms shall be kept clean . . . 
(2) The floor of every workroom shall be maintained in a clean 
. . . condition.'' It contains nothing about what levels of 
dust are safe, how to clean dust safely or how to prevent dust 
from accumulating to unsafe levels.
    An example of the importance of dedicated dust standards 
that contain specific information about how to prevent 
combustible dust explosions was demonstrated during the March 
12 hearing in which David Sarvadi, an attorney and industrial 
hygienist, noted the difficulty involved in preventing a 2003 
dust explosion at West Pharmaceuticals in which fugitive dust 
had gathered above the suspended ceiling. Sarvadi noted that:

          Without getting into any great detail--I can 
        certainly talk about this at length--but I can tell you 
        that, given the way that the plant was designed, given 
        the materials that were involved, I do not think it was 
        knowable in advance that this dust would accumulate 
        above the ceiling, because of the nature of the 
        chemicals that were involved, and the nature of the 
        processes.
          And that is one of the difficulties that we have. 
        People are fallible. They make mistakes.\17\
---------------------------------------------------------------------------
    \17\H.R. 5522, The Combustible Dust Explosion and Fire Prevention 
Act of 2008, Hearing before the Committee on Education and Labor, 110th 
Congress, 2nd Session (2008) (Oral testimony of David Sarvadi) 
[Hereinafter Sarvadi Testimony].

    In fact, however, NFPA 654 specifically states that 
``Spaces inaccessible to housekeeping shall be sealed to 
prevent dust accumulation.''\18\ Nowhere does OSHA's 
housekeeping standard warn about concealed dust in accessible 
areas. The CSB concluded that if NFPA standards had been 
followed, the West explosion would probably have been 
prevented.\19\
---------------------------------------------------------------------------
    \18\National Fire Protection Association, NFPA 654, Standard for 
the Prevention of Fire and Dust Explosion from the Manufacturing, 
Processing, and Handling of Combustible Particulate Solids, 2006.
    \19\U.S. Chemical Safety and Hazard Investigation Report, 
Combustible Dust Hazard Study, Report No. 2006-H-1, November 2006.
---------------------------------------------------------------------------
    A second reason that existing OSHA standards are inadequate 
to prevent combustible dust explosions is that it is overly 
burdensome for both employers OSHA inspectors to use numerous 
existing standards to cite employers for unsafe combustible 
dust conditions.
    The compliance directive that lays out OSHA's combustible 
dust National Emphasis Program lists more than 25 separate OSHA 
standards that inspectors may use to cite combustible dust 
hazards, depending on the circumstances.
    For example, in order to cite under OSHA's General Duty 
Clause (which simply requires employers to keep the workplace 
safe from ``recognized hazards'') inspectors are told to 
familiarize themselves with NFPA standards and the employer's 
safety manuals. They are instructed to ``search for articles 
dealing with the combustible dust hazard in publications 
dealing with the employer's industry.'' This is much more 
burdensome for inspectors and employers than simply citing 
clear, obvious violations of a standard. The CSB also noted 
that General Duty Clause citations occur primarily after an 
incident has occurred and are therefore not generally useful in 
preventing such incidents.\20\
---------------------------------------------------------------------------
    \20\U.S. Chemical Safety and Hazard Investigation Report, 
Combustible Dust Hazard Study, Report No. 2006-H-1, November 2006.
---------------------------------------------------------------------------
    In conclusion, the general nature and lack of specificity 
accompanying current OSHA standards make them a poor substitute 
for a dedicated OSHA combustible dust standard. As CSB Acting 
Chair Wright testified:

          Absent a comprehensive OSHA standard for combustible 
        dust, no one can be confident that dust hazards will be 
        cited and corrected prior to the occurrence of 
        additional accidents.\21\
---------------------------------------------------------------------------
    \21\H.R. 5522, The Combustible Dust Explosion and Fire Prevention 
Act of 2008, Hearing before the Committee on Education and Labor, 110th 
Congress, 2nd Session (2008) (Written testimony of William Wright) 
[Hereinafter Wright Testimony].
---------------------------------------------------------------------------

Workers are paying the price for OSHA inaction

    The CSB identified 281 combustible dust incidents between 
1980 and 2005 that killed 119 workers and injured 718, and 
extensively damaged industrial facilities. A total of 24% of 
the explosions occurred in the food industry, including several 
at sugar plants.
    The CSB report concluded that ``combustible dust explosions 
are a serious hazard in American industry, and that existing 
efforts inadequately address this hazard.''
    Tammy Miser, whose brother, Shawn Boone, was killed in a 
2003 combustible dust explosion at Hays Lemmerz, described the 
suffering that her brother and her family endured:

          Shawn did not die instantly. He laid on the building 
        floor while the aluminum dust burnt through his flesh 
        and muscle tissue. The breaths that he took burnt his 
        internal organs, and the blast took his eyesight.\22\
---------------------------------------------------------------------------
    \22\H.R. 5522, The Combustible Dust Explosion and Fire Prevention 
Act of 2008, Hearing before the Committee on Education and Labor, 110th 
Congress, 2nd Session (2008) (Written testimony of Tammy Miser) 
[Hereinafter Miser Testimony].

    Because of the horrific burns that Shawn Boone suffered, 
---------------------------------------------------------------------------
his family soon had to decide to withdraw life support.

          And even though we were not to blame, we were still 
        making that decision. And we did. We watched the 
        machines stopped, and we watched my brother die before 
        our eyes. We watched him take his last breath.
          And the two things that I can always remember, and it 
        never leaves, are his last words--``I am in a world of 
        hurt''--and his last breath.\23\
---------------------------------------------------------------------------
    \23\H.R. 5522, The Combustible Dust Explosion and Fire Prevention 
Act of 2008, Hearing before the Committee on Education and Labor, 110th 
Congress, 2nd Session (2008) (Written testimony of Tammy Miser) 
[Hereinafter Miser Testimony].

    Even the survivors endure terrible suffering. Paul 
Seckinger, a survivor of the Imperial Sugar explosion, was 
---------------------------------------------------------------------------
burned over 80 percent of his body.

          Three weeks after the explosion, Paul Seckinger 
        opened his eyes for the first time in his hospital bed, 
        looked up and smiled weakly at his mother.
          Two days later, his mother says, doctors had to halt 
        surgery as they worked to repair the second- and third-
        degree burns over 80 percent of Seckinger's body 
        because his lungs had filled with fluid and his blood 
        pressure plummeted. When his mother got back in to see 
        him, she saw terror in the eyes that held so much hope 
        the days before.
          ``His eyes were open real big and he was just looking 
        at me like, `Mom, help me.' It was very scary,'' says 
        Karen Seckinger, still shaken by her son's sudden 
        turn.\24\
---------------------------------------------------------------------------
    \24\Russ Bynum, ``Burn victims in Georgia face long recovery,'' 
Statesboro Herald, March 6, 2008.

    But severe burn victims often never completely recover. 
Although not the result of a combustible dust explosion, a 
recent New York Times story about burn victims five years after 
the Station Nightclub fire in Warwick, RI, illustrates the 
---------------------------------------------------------------------------
life-long suffering that burn victims must endure:

          Savagely burned in the fire that incinerated the 
        Station nightclub here five years ago next Wednesday, 
        Linda Fisher has endured a dozen surgeries to salvage 
        her arms, her hands, her face.
          Ms. Fisher inhaled so much smoke that anguishing 
        night that even now, she gets winded carrying a basket 
        of laundry. Her thick scars keep her from sweating 
        normally, and she has trouble distinguishing hot from 
        cold.
          Ms. Fisher feels lucky.
          ``There are survivors who have no ears, eyes, nose, 
        hair,'' she said.\25\

    \25\Abby Goodnough, ``5 Years After a Nightclub Fire, Survivors 
Struggle to Remake Their Lives,'' New York Times, February 17, 2008.
---------------------------------------------------------------------------

Workers can be protected against combustible dust fires and explosions

    The hazards of combustible dust explosions and how to 
prevent them have been known for many decades. The National 
Fire Protection Association currently has seven combustible 
dust standards covering a variety of specific workplace and 
methods of prevention. The first NFPA combustible dust standard 
was issued in 1923.
    NFPA Combustible Dust Standards:
    NFPA 654, Standard for the Prevention of Fire and Dust 
Explosions from the Manufacturing, Processing, and Handling of 
Combustible Particulate Solids
    NFPA 484 Standard for Combustible Metals
    NFPA 61, Standard for the Prevention of Fires and Dust 
Explosions in Agricultural and Food Processing Facilities
    NFPA 664, Standard for the Prevention of Fires and 
Explosions in Wood Processing and Woodworking Facilities 2007 
Edition
    NFPA 91, Standard for Exhaust Systems for Air Conveying of 
Vapors, Gases, Mists, and Noncombustible Particulate Solids 
2004 Edition
    NFPA 655, Standard for Prevention of Sulfur Fires and 
Explosions 2007 Edition
    NFPA 120, Standard for Fire Prevention and Control in Coal 
Mines 2004 Edition
    The NFPA standards all have certain features in common:
     Control and minimizing of fugitive dust emissions: 
Minimizing the amount of dust that is allowed to escape into 
the general environment is the best way to ensure that 
dangerous amounts of dust do not accumulate. NFPA standards 
include maintenance and operation of equipment in a manner that 
minimizes the escape of dust.
    They also include measures to minimize the accumulation of 
dust, such as requirements that window ledges, girders, beams, 
and other horizontal projections or surfaces have the tops that 
are sharply sloped, or other provisions to minimize the deposit 
of dust. NFPA 654 requires that ``Spaces inaccessible to 
housekeeping shall be sealed to prevent dust accumulation.'' 
NFPA 484 has similar requirements.\26\
---------------------------------------------------------------------------
    \26\According to the CSB investigation, dust accumulation above an 
unsealed suspended ceiling was a major factor in the 2003 West 
Pharmaceuticals explosion that killed 6 workers.
---------------------------------------------------------------------------
     Housekeeping and safe clean-up of fugitive dust: 
Ensuring that dust accumulations do not build up to dangerous 
levels and that dust accumulations are cleaned up safely are 
key to preventing explosions. Standards include, for example, 
limits of dust accumulations to \1/32\nd of inch, control of 
ignition sources, and prohibition of any measures that may 
create dust clouds, such as ``vigorous sweeping or blowing down 
with steam or compressed air'' unless all ignition sources are 
completely eliminated.
     Mitigation and minimization of the effect of 
explosions: The human and material effects of explosions can be 
minimized by ensuring that if small explosions do occur, they 
are vented to reduce their intensity and that they are confined 
so as not to cause more destructive secondary explosions. 
Requirements include, for example, location of dust collectors 
outside of occupied parts of the building, wide separation of 
occupied parts of the plant, and explosion venting to minimize 
the power of explosions.
     Specific process or machinery-related precautions: 
Although ignition sources are difficult to eliminate, measures 
can be taken. Depending on the type of operation, standards 
include specific instructions regarding foreign (sparking) 
materials, belts, bearings, electrical equipment, static 
electricity, hot work, hot surfaces, industrial trucks.
     Management of Change: These standards require 
measures to ensure that any change in process or materials do 
not introduce new or increased hazards into the working 
environment.
     Worker Training: These standards address the need 
for workers to be trained about operating and maintenance 
procedures and emergency plans.
    NFPA standards have proven to be highly effective in 
preventing combustible dust explosions according to the 
Chemical Safety Board.\27\ Compliance with the standards, 
according to the CSB would have prevented the fatal explosions 
that the CSB investigated in 2003:
---------------------------------------------------------------------------
    \27\U.S. Chemical Safety and Hazard Investigation Board, 
Investigation Report Report No. 2006-H-1, Combustible Dust Hazard 
Study, November 2006.

          The CSB found that if the requirements of NFPA 654 
        had been applied at West and CTA, the incidents would 
        have been prevented or significantly mitigated. 
        Specifically, CTA and West had not implemented NFPA 
        recommended practices, including analyzing their 
        processes for hazards, controlling fugitive dust 
        emissions and ignition sources, constructing buildings 
        to address dust hazards, and training employees. NFPA 
        654 requires, for example, that ``spaces inaccessible 
        to housekeeping shall be sealed to prevent dust 
        accumulation'' and that ``interior surfaces where dust 
        accumulations can occur shall be sealed and constructed 
        so as to facilitate cleaning and to minimize 
        combustible dust accumulations.'' However, at West dust 
        that accumulated above a suspended ceiling was 
        difficult to detect and remove.
          Similarly, the CSB investigation revealed that the 
        CTA facility did not conform to NFPA 654, which 
        requires that facilities minimize horizontal surfaces 
        where dust can accumulate, equip buildings with 
        explosion venting, and clean surfaces ``in a manner 
        that minimizes the generation of dust clouds.''\28\
---------------------------------------------------------------------------
    \28\H.R. 5522, The Combustible Dust Explosion and Fire Prevention 
Act of 2008, Hearing before the Committee on Education and Labor, 110th 
Congress, 2nd Session (2008) (Written testimony of William Wright) 
[Hereinafter Wright Testimony].

    In addition to the NFPA standards, in 1987, OSHA issued a 
Grain Handling Facilities standard, part of which addressed 
combustible dust hazards. That standard, which only applies to 
Grain handling facilities also contains many of the elements 
found in the NFPA standards, including:
     Housekeeping specifications
     Location of dust collectors outside the building
     Inspections and maintenance of operating equipment 
to reduce sparks and heat
     Minimization of accumulated grain dust
     Worker training
    In 2003, OSHA published an evaluation of that standard. 
OSHA found that not only had the standard saved lives, but had 
also earned industry support. According to the Chemical Safety 
Board's review of the evaluation:

          [S]ince the standard had been instituted, grain 
        explosions were down 42 percent, injuries 60 percent, 
        and fatalities from grain explosions 60 percent. On 
        average, OSHA estimates that the Grain Handling 
        Facilities Standard has prevented five deaths per year. 
        The National Grain and Feed Association (NGFA) stated 
        that its industry had experienced ``an unprecedented 
        decline in explosions, injuries and fatalities at grain 
        handling facilities'' since 1980. Further, the NGFA 
        credited the standard with stimulating technological 
        advances in the design, layout, and construction of 
        grain handling facilities.

The OSHA standard-making process is not protecting workers

    The Bureau of Labor Statistics reported that in the year 
2005 there were over 5,700 workers, or 16 workers a day, killed 
in the workplace. NIOSH estimates that almost 60,000 workers 
die each year of occupational disease, many of which are caused 
by exposure to toxic chemicals.\29\
---------------------------------------------------------------------------
    \29\``Workers' Memorial Day--April 28, 2007,'' Morbidity and 
Mortality Weekly Report, 56(16) (Apr. 27, 2007) at 389-393.
---------------------------------------------------------------------------
    OSHA's standard-making process has broken down in recent 
years. Dr. Frank Mirer of Hunter College, testifying at the 
Workforce Protections Subcommittee hearing on April 24, 2007, 
discussed the breakdown of OSHA's standard making process:

          OSHA, since 2001, has checked out of the standards 
        business. Slow progress in earlier years has ground to 
        a halt and may even be moving stealthily backward. OSHA 
        has staff and other resources to set standards, but 
        that staff has not been permitted to operate. Since 
        2001, this Administration set one new chemical 
        standard, for carcinogenic chromium, under court order. 
        That standard actually permits employers to increase 
        exposure levels under some circumstances. Unions were 
        forced to sue to get improvements, and that litigation 
        still pends. Regarding employers' responsibility to pay 
        for required protective equipment like respirators and 
        wire mesh gloves, Labor Secretary Elaine Chao finally 
        committed to issuing a final rule in response to a 
        union lawsuit and a court ordered deadline. That rule 
        was promised by November 2007. The rulemaking record 
        was completed in 1999.\30\
---------------------------------------------------------------------------
    \30\Have OSHA Standards Kept up With Workplace Hazards? Hearing 
before the Subcommittee on Workforce Protections, 110th Congress, 1st 
Session (2007) (written testimony of Frank Mirer, at 3) [Hereinafter 
Mirer testimony].

    Part of the problem is the administrative burden put on 
OSHA. In order to issue standards, the agency must comply with 
the Administrative Procedures Act which requires significant 
public input. In addition, since the OSH Act was passed, laws 
have been passed and Executive Orders have been issued adding 
additional requirements to OSHA rulemaking. Executive Orders, 
most particularly EO 12866 requires review by the White House 
Office of Management and Budget. The Regulatory Flexibility Act 
requires OSHA to address the potential impact of regulations on 
small businesses. The Small Business Regulatory Enforcement 
Fairness Act of 1996 which requires OSHA to convene a Small 
Business Advocacy Review Panel which hears comments from small 
entity representatives and reviews the draft proposed prepares 
a written report. OSHA must review the report and make any 
appropriate revisions to the rule.
    All of these requirements add considerable time to the 
development of OSHA standards. But experts in this area, 
including Scott Schneider and Frank Mirer who testified in the 
Subcommittee's April 24 OSHA standards hearing, have also 
pointed out that one of the most important factors in the 
slowdown of OSHA rulemaking is lack of political will. Frank 
Mirer expanded on the political obstacles:

          The first barrier to setting a new standard is 
        getting the Labor Department to recognize that 
        something needs to be done about a hazard. That's a 
        political leadership decision. Once there's a decision 
        to move forward, the task that causes the most delay is 
        gathering business data to estimate costs. But, OSHA 
        staff have figured out how to get that cost 
        information. After that, the barriers, and sources of 
        delay, are getting approval from the Office of 
        Management and Budget to put a standard on the agenda, 
        complete the small business (SBREFA) review, to release 
        a proposed standard, and to finally promulgate the 
        final standard. But, OMB is not a free agent. The same 
        President who appointed the Secretary of Labor and 
        Assistant Secretary of Labor for OSHA also appointed 
        the heads of OMB and the Small Business 
        Administration.\31\
---------------------------------------------------------------------------
    \31\Have OSHA Standards Kept up With Workplace Hazards? Hearing 
before the Subcommittee on Workforce Protections, 110th Congress, 1st 
Session (2007) (written testimony of Frank Mirer) [Hereinafter Mirer 
testimony].

    Scott Schneider, testifying at the Workforce Protections 
subcommittee hearing on April 24, 2007, also cited lack of 
political will as a major cause of the failure of OSHA to issue 
standards for the past six years.\32\
---------------------------------------------------------------------------
    \32\Have OSHA Standards Kept up With Workplace Hazards? Hearing 
before the Subcommittee on Workforce Protections, 110th Congress, 1st 
Session (2007) (written testimony of Scott Schneider) [Hereinafter 
Schneider Testimony].
---------------------------------------------------------------------------

OSHA standards protect workers from occupational disease and injury

    One of the most important responsibilities that Congress 
gave OSHA under the Occupational Safety and Health Act is the 
issuance of safety and health standards. Congress declared in 
passage of the Act that its ``purpose and policy'' was ``to 
assure so far as possible every working man and woman in the 
Nation safe and healthful working conditions . . . by providing 
for the development and promulgation of occupational safety and 
health standards.''

The need for an interim standard

    The Committee has determined that exposure to the hazards 
of combustible dust explosions and fires presents the sort of 
grave danger to workers that warrants immediate action. The 
Chemical Safety Board combustible dust study found that 
``combustible dust explosions are a serious hazard in American 
industry, and that existing efforts inadequately address this 
hazard.'' The CSB identified 281 combustible dust 
incidentsbetween 1980 and 2005 that killed 119 workers and injured 718, 
and an addition 67 combustible dust explosions since 2005, including 
the Imperial Sugar explosion that killed 13 workers. Combustible dust 
hazards have long been recognized. The first NFPA combustible dust 
standard was issued in 1923, 85 years ago. Despite this grave and well 
recognized hazard, OSHA has failed to develop a comprehensive standard 
that would protect workers.
    The Wilson Amendment in the nature of a substitute that was 
defeated by a voice vote would have allowed OSHA to wait for 
the outcome of the Imperial Sugar investigation and findings 
from the combustible dust NEP before deciding on whether to 
move forward with a standard. Given all that is known about the 
causation and prevention of combustible dust explosions, 
however, the Committee believes that it is highly unlikely that 
anything profoundly new about the nature, causation or 
prevention of combustible dust explosion would be gained by 
further delay.
    The Committee also believes that evidence from recent 
incidents and the CSB reports show that compliance assistance 
efforts such as OSHA's Safety and Health Information Bulletin, 
website and other materials developed by OSHA are useful tools, 
but are not sufficient to protect workers from the threat of 
combustible dust explosions.
    Furthermore, the Committee also does not feel that the 17 
existing OSHA standards being used by OSHA to enforce 
combustible dust safety violations are adequate to effectively 
address the prevention of combustible dust explosions and fires 
in American industry. H.R. 5522 therefore requires OSHA to 
issue an Interim Final Standard within 90 days of enactment to 
be followed by a final standard that would be promulgated 
within 18 months.
    The interim standard would be required to include hazard 
assessment, a written program, engineering and administrative 
controls, specifications for housekeeping and control of 
ignition sources, worker participation and worker training. 
These requirements would codify many of the measures that OSHA 
is now undertaking under its combustible dust NEP. It would 
apply to all workplaces where there is a potential for 
combustible dust explosions except those workplaces already 
covered under OSHA's Grain Handing Facilities Standard (29 CFR 
1910.272.)
    The interim regulation is not an occupational safety and 
health standard as that term is defined in section 3(8) of the 
Occupational Safety and Health Act of 1970 and must be adopted 
notwithstanding any other provision of law. The Secretary of 
Labor has previously recognized in promulgating a standard 
regulating hazardous waste operations the distinction between 
an interim regulation and an occupational safety and health 
standard is legally significant because it means that the 
procedural requirements of section 6 of the OSH Act do not 
apply to the promulgation of the interim final regulation. Nor, 
as the Secretary has previously recognized in publishing an 
interim final regulation governing hazardous waste operations, 
do the notice and comment provisions of the Administrative 
Procedures Act apply.
    The Committee relied upon these precedents when it directed 
the Secretary of Labor to publish an interim final regulation 
governing lead exposure in the construction industry.
    The Committee intends that the Secretary rely on similar 
procedures to publish an interim final regulation governing 
combustible dust explosions within three months. These 
procedures have recently been upheld by OSHRC the Occupational 
Safety and Health Review Commission (OSHRC) in the Manganas 
Painting Co, Inc decision. OSHRC agreed with the Secretary of 
Labor's assessment of Congressional intent which cited:

          The preamble to the lead in construction standard 
        that ``Congress . . . did not impose any procedural 
        requirements that must be followed'' and that Congress 
        intended that ``the Secretary need not follow the 
        procedural requirements of the OSH Act or the APA 
        [Administrative Procedure Act, 5 U.S.C. Sec. 553].'' 58 
        Fed. Reg. at 26,591.\33\
---------------------------------------------------------------------------
    \33\Secretary of Labor v. Manganas Painting Company Inc, OSHRC 
Docket No. 94-0588 (March 23, 2007).

    While the Secretary is authorized to publish the interim 
regulation without the notice and comment procedures required 
by section 6 of the OSH Act, it is the Committee's expectation 
that OSHA will work closely with the National Fire Protection 
Association, the International Code Council, affected industry 
and labor representatives and other experts in developing the 
interim final combustible dust standard.

The final standard

    H.R. 5522 requires OSHA, within 18 months of enactment, to 
issue a permanent standard regulating worker exposure to 
combustible dust explosion and fire hazards in compliance with 
section 6(b) of the Occupational Safety and Health Act (OSH 
Act). The Committee is confident that this standard can be 
issued within the timeframe allotted.
    H.R. 5522 does not exempt OSHA from the requirements of 
section 6 of the OSH Act that Congress and the courts have 
established to ensure that OSHA standards reflect the best 
science available, or that the standards are technologically 
and economically feasible. In addition, regulatory oversight 
laws, including the Administrative Procedures Act, the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), the 
Regulatory Flexibility Act, the Paperwork Reduction Act, or 
Executive Order 12866 are flexible enough to provide for 
expedited action in emergency situations like these.
    Eighteen months provides adequate time for OSHA to develop 
the evidence and findings necessary to issue a final standard. 
Extensive studies, consensus standards and investigations exist 
to provide OSHA core information needed to develop a standard.
    In order to issue a standard under Section 6(b) of the Act, 
OSHA also has a number of procedural requirements that must be 
satisfied. Again, because of the emergency nature of this 
problem, OSHA will be able to meet those requirements within 
the 18 month timeframe. SBREFA,\34\ the Regulatory Flexibility 
Act,\35\ Executive Order 12866 and the Paperwork Reduction Act 
contain flexible provisions for waivers, delay or acceleration 
of their requirements under emergency conditions or other 
special circumstances. The Committee expects OSHA, the Small 
Business Administration, the Office of Management and Budget, 
and other agencies involved in the regulatory process to fully 
utilize whatever actions are necessary and permitted within 
relevant laws and executive orders affecting the regulatory 
process to ensure that this mandated Congressional deadline is 
met.
---------------------------------------------------------------------------
    \34\P.L. 104-121. Small Business Regulatory Enforcement Fairness 
Act of 1996.
    \35\P.L. 96-354. Regulatory Flexibility Act of 1980, as amended.
---------------------------------------------------------------------------
    Experts confirm that OSHA can issue standards much faster 
than the agency has acted over the past several years. Frank 
Mirer expressed confidence that OSHA should be capable of 
issuing standards much faster than it currently does, even 
starting from scratch.\36\
---------------------------------------------------------------------------
    \36\Mirer Testimony at 5.
---------------------------------------------------------------------------
    Adam Finkel, Sc.D., CIH, Professor of Environmental and 
Occupational Health at the UMDNJ School of Public Health, and a 
visiting professor of public affairs at the Woodrow Wilson 
School at Princeton University, submitted testimony for the 
record following the April 24 hearing on OSHA standards, 
stating that despite the many requirements for OSHA to invite 
participation by stakeholders and respond substantively to 
their comments, standards can be completed ``cleanly and rather 
quickly.'' Finkel is the former Director of Health Standards 
for OSHA.

          In one 18-month period of activity (late 1996 to 
        early 1998)--OSHA promulgated three major final health 
        standards--those for 1,3-butadiene, methylene chloride, 
        and generic respiratory protection--and defended them 
        in Congressional oversight hearings and court 
        challenges, without a single provision being 
        substantively weakened following any of this 
        scrutiny.\37\
---------------------------------------------------------------------------
    \37\Have OSHA Standards Kept up With Workplace Hazards? Hearing 
before the Subcommittee on Workforce Protections, 110th Congress, 1st 
Session (2007), Letter from Dr. Adam Finkel to Rep. Lynn Woolsey (May 
8, 2007).
---------------------------------------------------------------------------

History of Congressional intervention in OSHA rulemaking

    Congress has a long history of mandating OSHA regulation to 
protect workers when the Agency fails to act on its own. HR 
5522 continues the Congress's tradition of ensuring that OSHA 
acts promptly when faced with evidence that American workers 
face grave dangers and delay will result in needless illness 
and death. In 1986, as part of the Superfund Amendments and 
Reauthorization Act (SARA), Congress mandated the issuance an 
``interim'' standard for Hazardous Waste Operations and 
Emergency Response within 60 days and a final standard within 
one year of SARA's enactment.\38\ In 1990, as part of the Clean 
Air Act Amendments, Congress required OSHA to issue the Process 
Safety Management standard within one year. Congress also 
included directions on the content of the standard.\39\ In 
1991, Congress ordered OSHA to issue the final Bloodborne 
Pathogens Standard by a certain date, and stated that if that 
deadline was not met, the previously published proposed 
standard would take effect.\40\ In 1992, Congress mandated OSHA 
to issue the Lead in Construction standard and required the new 
standard to be ``as protective'' as the U.S. Department of 
Housing and Urban Development's worker protection guidelines 
for identification and abatement of lead based paint in certain 
housing. The standard was issued in 1993.\41\ Finally, in 2000, 
Congress required OSHA issue an update to the Bloodborne 
Pathogens standard, requiring safer syringes and sharps.\42\ 
That standard was issued in 2001.
---------------------------------------------------------------------------
    \38\P.L. 99-499. Superfund Amendments and Reauthorization Act of 
1986, Title I Sec. 126 a-f (Oct. 26, 1986).
    \39\P.L. 101-549. Title III, Sec. 304 (Nov. 15, 1990).
    \40\P.L. 102-170. Departments of Labor, Health and Human Services, 
and Education, and Related Agencies Appropriations Act, Sec. 100 
(1992).
    \41\P.L. 102-550. This interim final rule was mandated by, and 
issued under the exclusive authority of, title X, subtitle C, sections 
1031 and 1032, Worker Protection, of the Housing and Community 
Development Act of 1992.
    \42\P.L. 106-430. Needlestick Safety and Prevention Act.
---------------------------------------------------------------------------
    Some OSHA experts feel that Congress must take a much more 
active role in encouraging OSHA to issue standards that protect 
workers' health and safety; Scott Schneider, who testified at 
the April 2007 standards hearing argued in favor of Congress 
setting strict time limits for OSHA to issue standards:

          Congress can set time limits for OSHA to consider and 
        then issue proposals and final rules. In the past 
        Congress has mandated that OSHA issue rules within a 
        six-month period and the agency has done so (e.g. lead, 
        hazardous waste). Congress should give OSHA a limited 
        time, say four months, to consider any petition for new 
        standards and require the agency to publish a response 
        in the Federal Register as to its reasons for accepting 
        or denying the petition. The burden should be on the 
        agency to show why a standard should not be issued. 
        Once committed to a rule making, the agency would be 
        given additional deadlines to meet to ensure that rules 
        are issued in a timely manner, say no more than three 
        years. Congress would have to provide additional 
        funding for OSHA dedicated to standard setting in order 
        for it to meet these deadlines.\43\
---------------------------------------------------------------------------
    \43\Schneider Testimony at 5.

    Due to the high number of deaths and serious injuries 
caused by combustible dust explosions and the ready 
availability of means to prevent worker exposure, HR 5522 
requires OSHA to take swift action to protect workers.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Provides that the Short Title is the ``Combustible Dust 
Explosion and Fire Prevention Act of 2008.''

Section 2. Findings

    This section declares that an emergency exists concerning 
worker exposure to combustible dust explosions and fires and 
that a standard is urgently needed to protect workers. This 
section establishes that there is strong evidence documenting 
the hazards of combustible dust explosions as well as the 
feasibility and effectiveness of measures to prevent 
combustible dust explosions. Additionally, OSHA has taken no 
action to begin the development of a standard and has not taken 
other significant action to protect workers.

Section 3. Issuance of standard on combustible dust

    Section 3(a)(1). Requires the Secretary of Labor to issue 
an interim final standard regulating combustible dusts within 
not later than 90 days after enactment. Defines the scope of 
the interim standard and states that it shall not apply to 
processes already covered by OSHA's standard on grain handling 
facilities.
    Section 3(a)(2)(A). States that the interim final standard 
must require hazard assessments to identify, evaluate and 
control combustible dust hazards.
    Section 3(a)(2)(B). States that the interim final standard 
must require employers to develop a written program which 
includes plans for hazardous dust inspection, testing, 
housekeeping, and control, with established frequency and 
methods.
    Section 3(a)(2)(C). States that the interim final standard 
must require engineering, administrative controls and operating 
procedures.
    Section 3(a)(2)(D). States that the interim final standard 
must require housekeeping to control accumulation of 
combustible dust.
    Section 3(a)(2)(E). States that the interim final standard 
must require employee participation in hazard assessment, 
development of and compliance with the written program, and 
other elements of hazard management.
    Section 3(a)(2)(F). States that the interim final standard 
must require the provision of written safety and health 
information and training to employees, including hazard 
communication information, labeling, and training.
    Section 3(a)(3). Exempts the interim final standard from 
procedural requirements normally mandated for a permanent 
standard.
    Section 3(a)(4). Requires the interim final standard to 
take effect 30 days after issuance, have the legal effect of an 
OSHA standard, and remain in effect until a final standard 
becomes effective.
    Section 3(b)(1). Mandates OSHA to issue a final standard 
regulating combustible dust hazards not later than eighteen 
months from the date of enactment.
    Section 3(b)(2)(A). Requires the final standard to include 
the scope described in Section 3(a)(1).
    Section 3(b)(2)(B). States that the final standard must 
contain the worker protection provisions in Section 3(a)(2) of 
the interim final standard.
    Section 3(b)(2)(C). States that the final standard must 
require procedures for managing change of dust producing 
materials, technology, equipment, staffing, and procedures.
    Section 3(b)(2)(D). States that the final standard must 
require safe building design.
    Section 3(b)(2)(E). States that the final standard must 
require provisions for explosion protection.
    Section 3(b)(2)(F). Requires OSHA to review and adopt 
appropriate and relevant provisions of National Fire Protection 
Association combustible dust standards.

Section 4. Revision of the Hazard Communication Standard

    Section 4(a). Requires OSHA to revise the definition of 
``physical hazard'' in the Hazard Communication Standard to 
include ``a combustible dust'' within six months
    Section 4(b). States that changes in the Hazard 
Communication Standard shall remain in effect until OSHA 
further revises the standard.
    Section 4(c). States that the modification of the Hazard 
Communication Standard will take effect within 30 days after 
publication.

                     VI. EXPLANATION OF AMENDMENTS

    None.

           VII. APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act, requires a description of the application 
of this bill to the legislative branch. H.R. 5522 has no direct 
application to the legislative branch.

                    VIII. UNFUNDED MANDATE STATEMENT

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. (The attached CBO letter addresses this issue.)

                         IX. EARMARK STATEMENT

    H.R. 5522 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.

                              X. ROLLCALL

    None.

    XI. STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE 
                               COMMITTEE

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

            XII. NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following estimate for H.R. 5522 from the Director of the 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 17, 2008.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 5522, the 
Combustible Dust Explosion and Fire Prevention Act of 2008.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mindy Cohen.
            Sincerely,
                                         Robert A. Sunshine
                                   (For Peter R. Orszag, Director).
    Enclosure.

H.R. 5522--Combustible Dust Explosion and Fire Prevention Act of 2008

    H.R. 5522 would require the Secretary of the Department of 
Labor (DOL) to issue regulations intended to protect workers 
from combustible dust explosions and fires. The bill would 
require the Secretary to issue interim standards and a final 
standard no later than 90 days and 18 months after enactment, 
respectively.
    Estimated costs to the Federal Government: Based on 
information provided by the Occupational Safety and Health 
Administration (OSHA) and other safety analysts, CBO estimates 
that implementing H.R. 5522 would cost $1 million in fiscal 
year 2009 and $41 million over the 2009-2013 period. These 
costs consist of $1 million in 2009 for economic and 
feasibility studies to support the development of the final 
standard, and $10 million a year--about a five percent increase 
in OSHA's enforcement workload--beginning in 2010 for 
enforcement of the final standard. Enacting the bill would not 
affect revenues or direct spending.
    Impact on state, local, and tribal governments: Under 
current law, state laws governing occupational and health 
issues are preempted if they deal with the same subject matter 
regulated by OSHA. At least two states have implemented or are 
in the process of implementing standards to prevent combustible 
dust explosions. The standards in those states would be 
preempted by regulations promulgated under H.R. 5522. In order 
to maintain their own standards, the states would be required 
to demonstrate to OSHA that the state standards will be at 
least as effective as the standards promulgated by OSHA. If the 
state standards are determined to be less effective, the 
federal standards would apply. Preempting such state standards 
would be an intergovernmental mandate as defined in the 
Unfunded Mandates Reform Act (UMRA). Because the preemption 
would simply prohibit the application of state law, CBO 
estimates that the costs of the mandate would not be 
significant and would not exceed the threshold established by 
UMRA ($68 million in 2008, adjusted annually for inflation).
    States may enforce federal job safety and health standards 
if they do so under an agreement with OSHA; currently, 26 
states operate such programs. Those states might incur costs to 
administer and enforce the new standards that OSHA would be 
required to promulgate under the bill. However, those costs 
would be incurred as a result oftheir voluntary participation 
in a federal program, and half of those costs would be 
reimbursed through matching grants from the federal government 
under an existing program.
    Impact on the private sector: By requiring OSHA to issue 
rules regulating combustible dust hazards, the bill would 
impose private-sector mandates on employers at industrial 
establishments that manufacture, process, or otherwise handle 
materials that produce combustible dusts. The cost of those 
mandates is uncertain because it would depend on the rules to 
be established under the bill. Additionally, some employers 
already comply with safety requirements or voluntary industry 
standards that may overlap to some extent with the rules that 
would be developed by OSHA to address combustible dust hazards. 
Therefore, CBO cannot determine whether the aggregate costs of 
mandates in the bill would exceed the annual threshold 
established in UMRA for private-sector mandates ($136 million 
in 2008, adjusted annually for inflation).
    Estimate prepared by: Federal costs: Mindy Cohen; Impact on 
state, local and tribal governments: Lisa Ramirez-Branum; 
Impact on the private sector: MarDestinee Perez.
    Estimate approved by: Keith J. Fontenot, Deputy Assistant 
Director for Health and Human Resources, Budget Analysis 
Division.

      XIII. STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    In accordance with clause 3(c) of House rule XIII, the goal 
of H.R. 5522 is to provide basic health and safety protections 
for workers exposed to combustible dust fires and explosions.

                XIV. CONSTITUTIONAL AUTHORITY STATEMENT

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 5522. The 
Committee believes that the amendments made by this bill, which 
direct OSHA to issue an OSHA standard regulating worker 
exposure to combustible dust are within Congress' authority 
under Article I, Section 8, Clause 3 of the Constitution of the 
United States.

                         XV. COMMITTEE ESTIMATE

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 5522. 
However, clause 3(d)(3)(B) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

                     XVI. COMMITTEE CORRESPONDENCE

    None.

                          XVII. MINORITY VIEWS

                      MINORITY VIEWS ON H.R. 5522


                              INTRODUCTION

    Earlier this year, the community of Port Wentworth, Georgia 
suffered something no community should have to endure. As the 
result of an explosion at the Imperial Sugar Company refinery, 
a number of workers lost their lives, while many others 
sustained serious injuries. In the wake of that accident, 
Chairman George Miller and Representative Barrow moved quickly 
to propose legislation. While it is understandable, and even 
commendable, for Congress to respond swiftly in the aftermath 
of such a tragic accident, history has shown that legislating 
in this manner rarely produces sound policy. Committee 
Democrats have expedited the consideration of legislation 
introduced in response to the accident, without having the 
benefit of important information obtained as a result of the 
federal government's investigation of the accident. We are 
concerned that such haste will result in the creation of an 
ineffective and unenforceable safety standard that will 
negatively impact many of our nation's workplaces.
    Committee Republicans have a strong and long held 
commitment to workplace safety. Key toward accomplishing that 
goal is ensuring that the agency with regulatory jurisdiction 
is able to undertake a robust rulemaking process in order to 
create enforceable and effective rules. The danger of 
combustible dust in the workplace is a serious concern, and 
Committee Republicans are committed to helping the Occupational 
Safety and Health Administration (``OSHA'') achieve 
comprehensive safety standards that will ultimately improve 
worker safety and health. H.R. 5522, the Combustible Dust 
Explosion and Fire Prevention Act of 2008, falls far short of 
accomplishing that goal; and therefore, Committee Republicans 
must oppose the legislation in its current form.

                               BACKGROUND

Imperial Sugar Company refinery explosion

    On February 7, 2008, an explosion occurred at an Imperial 
Sugar Company refinery in Port Wentworth, Georgia. As a result 
of the explosion, thirteen workers have died and many other 
workers suffered extensive burns. In the immediate aftermath of 
the incident, the local fire chief took command of the scene. 
The following day, once the fire was under control, the federal 
Bureau of Alcohol Tobacco and Firearms (ATF) took command of 
the site. Upon making an initial determination that the blast 
was not caused by criminal activity, the ATF turned the site 
over to OSHA on February 15, 2008. This sequence of authority 
is not unusual for an accident of this nature.
    Upon taking control of the site, OSHA immediately commenced 
its investigation into the cause of the explosion. By law, OSHA 
has six months to investigate the accident and, if appropriate, 
assess penalties to any party determined to have violated the 
Occupational Safety and Health Act (``OSH Act'' or the 
``Act'').\1\ OSHA began subpoenaing documents from the company 
immediately after the agency took over the site, and has been 
actively engaged in the investigation from the outset. OSHA is 
the only agency with the statutory authority to penalize the 
company for violations of workplace safety law; if criminal 
behavior is found, OSHA may refer the matter to the Department 
of Justice for criminal prosecution.
---------------------------------------------------------------------------
    \1\29 U.S.C. Sec. 651 et seq.
---------------------------------------------------------------------------

The OSH Act and workplace safety regulation

    Since its enactment in 1970, the OSH Act has fostered safe 
and healthy working environments through standards-setting, 
employer and worker education and training, and hazard 
elimination. The Act contains specific provisions intended to 
address workplace hazards through the process of rulemaking.
    Throughout its history, the OSHA Act's standard-setting 
processes have been governed foremost by the Administrative 
Procedures Act (APA). The APA generally requires a federal 
agency to develop and draft proposed regulations; issue 
proposed rules and regulations via a transparent process that 
allows for comment and input from affected stakeholders; and 
incorporate appropriate stakeholder input in the publication of 
a final rule.\2\ In addition to the requirements of the APA, 
OSHA must ensure that its proposed regulations adhere to, inter 
alia, guidelines specified in Executive Orders, the Paperwork 
Reduction Act,\3\ the Regulatory Flexibility Act,\4\ the Small 
Business Regulatory Enforcement Fairness Act,\5\ and, 
ultimately, the Congressional intent of the underlying 
authorizing statute.\6\
---------------------------------------------------------------------------
    \2\See 5 U.S.C. 5 et seq.
    \3\See 44 U.S.C. 3501 et seq.
    \4\See 5 U.S.C. 601 et seq.
    \5\See 5 U.S.C. 801 et seq.
    \6\Moreover, as a matter of practice, in recent years it has become 
a near-certainty that one or more stakeholders affected by a rule will 
pursue a legal challenge to OSHA's final regulation. These challenges 
may result in a rule being upheld in its entirety; modified in some 
form or fashion by the courts; or struck down in its entirety. Once the 
final disposition of any legal challenges have been reached, a final 
rule is either implemented or revised according to court direction and 
subsequently administered by the Secretary of Labor through OSHA.
---------------------------------------------------------------------------

Combustible dust and the OSH Act

    In sufficient concentrations, almost any type of dust found 
in the workplace can explode. In order for a combustible dust 
explosion to occur, five conditions must be present: 
combustible dust, an ignition source, oxygen, a dispersion of 
dust particles, and confinement of the dust cloud. Industries 
ranging from agriculture to metal finishing have the potential 
to experience dust explosions. According to a U.S. Chemical 
Safety and Hazard Investigation Board (``CSB'') report, dust 
was determined to have caused 281 fires and explosions over the 
last 25 years.\7\
---------------------------------------------------------------------------
    \7\See U.S. Chemical Safety and Hazard Investigation Board, 
Investigation Report: Combustible Dust Hazard Study, Report No. 2006-H-
I (November 2006).
---------------------------------------------------------------------------
    To regulate the combustible dust hazard across industries, 
OSHA has used seventeen general standards currently in place 
under the OSH Act. During his testimony before the Committee, 
Assistant Secretary for Occupational Safety and Health Edwin G. 
Foulke stated that the standards in place provide appropriate 
and adequate regulatory protection against combustible dust 
accidents, including the fire protection, ventilation and 
electrical standards.\8\
---------------------------------------------------------------------------
    \8\See Appendix A, Testimony of The Honorable Edwin G. Foulke, Jr., 
Committee on Education and Labor, ``H.R. 5522, The Combustible Dust 
Explosion and Fire Prevention Act of 2008,'' Wednesday, March 12, 2008.
---------------------------------------------------------------------------
    These standards also include the OSH Act's ``General Duty'' 
Clause; its housekeeping standard, and its hazard communication 
regulation. The following three standards are of particular 
note:
     General Duty Clause. The General Duty Clause 
(section 5(a)(1) of the OSH Act) requires that an employer must 
abate any hazard in the workplace which a reasonable employer 
in that industry knows or should know about, including those 
related to dust.
     Housekeeping Standard. The OSHA Housekeeping 
Standard requires that employers maintain facilities in a 
clean, orderly, and sanitary condition.\9\ While the standard 
does not refer to dust specifically, it can form the basis for 
citation when dust accumulation leads to an explosion.
---------------------------------------------------------------------------
    \9\29 CFR 1910.22.
---------------------------------------------------------------------------
     The Hazard Communication (``HazCom'') Standard. 
OSHA's HazCom Standard requires that businesses monitor and 
inform employees of the hazards associated with certain 
materials in the workplace. The HazCom standard requires that 
every affected employer establish a program to inform employees 
of these hazards. The program must have five main components: 
(1) Written Hazard Communication Program documentation; (2) 
identification and inventory of hazardous chemicals; (3) 
maintenance of material safety data sheets (MSDS) on the 
identified hazards; (4) labeling of hazardous materials with 
their name and hazard; and (5) training of employees on the 
standard, safety information, labeling and protective measures.
    OSHA points specifically to the HazCom standard to 
demonstrate how employers should be aware of dust issues. 
Within the HazCom standard, employers are required to maintain 
MSDSs that list the hazards, including the combustibility, of 
materials brought onto a worksite. Moreover, OSHA has the 
authority to cite employers for failing to comply with these 
standards. In many cases, the agency does so after a 
combustible dust accident investigation concludes that the 
HazCom standard was, in fact, violated.

The Chemical Safety and Hazard Investigation Board (CSB)

    The CSB is an independent federal agency charged with 
investigating industrial chemical accidents and their causes. 
While the CSB does not the authority to issue fines or 
citations, it does make recommendations to businesses, 
regulatory agencies such as OSHA and the Environmental 
Protection Agency (EPA), industry organizations, and labor 
representatives. According to its mission statement, the CSB 
was designed by Congress to be non-regulatory and independent 
of other agencies so that its investigations may, where 
appropriate, review the effectiveness of regulations and 
regulatory enforcement.
    In November 2006, the CSB completed an investigative report 
of combustible dust.\10\ The report outlined the history of 
industrial dust explosions, citing 119 fatalities over a 25-
year period. One key finding of the report noted OSHA's success 
in dramatically reducing the risk of grain dust explosions by 
promulgating a grain standard in 1986.
---------------------------------------------------------------------------
    \10\See U.S. Chemical Safety and Hazard Investigation Board, 
Investigation Report: Combustible Dust Hazard Study, Report No. 2006-H-
1 (November 2006).
---------------------------------------------------------------------------

               OSHA ACTIVITY RELATING TO COMBUSTIBLE DUST

    Contrary to assertions made by the Majority, OSHA has not 
ignored the potential hazards related to combustible dust. 
Indeed, OSHA recognized the need to address combustible dust in 
a July 2005 Safety and Health Information Bulletin (SHIB) that 
emphasized the hazards of combustible dust, controlling dust in 
the workplace, and the need for appropriate training. 
Additionally, in October 2007 OSHA responded to the November 
2006 CSB report by implementing a National Emphasis Program 
(NEP) regarding combustible dust. The NEP includes the 
identification of facilities for awareness of dust hazards 
along with comprehensive compliance inspections.\11\ More 
recently, in the wake of the Port Wentworth, Georgia incident, 
OSHA sent a ``high hazard'' alert to 30,000 employers focusing 
on the issue of combustible dust and outlining measures that 
should be taken to maintain clean workplaces.
---------------------------------------------------------------------------
    \11\The Imperial Sugar Company would have eventually received an 
inspection under the site-specific-targeting of the NEP, but had not 
received an OSHA inspection in the prior seven years. Prior to the 
accident, the company's low injury and illness rate made it a facility 
that did not qualify as a high hazard.
---------------------------------------------------------------------------
    OSHA continued to highlight the dangers related to 
combustible dust when it reissued the NEP on March 12, 2008, 
and consolidated the regulatory and educational information 
regarding dust into a user-friendly webpage.\12\ During 
testimony provided at the Full Committee hearing on H.R. 5522, 
Assistant Secretary Foulke further outlined the activities OSHA 
has taken to address combustible dust hazards:
---------------------------------------------------------------------------
    \12\See http://www.osha.gov/dsg/combustibledust/index.html.

          First, all Compliance Safety and Health Officers 
        (CSHOs) receive training on OSHA safety standards, 
        including those related to combustible dust. 
        Additionally, for the past three years, the OSHA 
        Training Institute has included a half day of training 
        on the hazards of combustible dust in its course on 
        Process Safety management. To date, 323 compliance 
        officers have received this additional half-day of 
        training on combustible dust hazards.
          A three and a half day course, Combustible Dust 
        Hazards and Controls, which is based upon the NEP, has 
        also been developed. Forty compliance officers were 
        trained during the first session of this course held 
        the week of December 3, 2007. This training is ongoing, 
        with the next session scheduled in spring 2008, and at 
        least one session is planned annually thereafter.
          National Office staff has provided training and 
        education on the subject of combustible dust in other 
        venues. In June 2006, we delivered a presentation to an 
        international audience of fire production professionals 
        at the National Fire Protection Association's World 
        Safety conference and Expo. In April 2007, OSHA staff 
        provided training sessions to its consultation staff 
        from throughout the country at the annual consultation 
        conference. In January 2008, OSHA provided assistance 
        to Maryland Occupational Safety and Health (MOSH) in 
        training 70 MOSH compliance personnel in combustible 
        dust hazards. Our Regional Offices have either 
        retrained, or are planning to train,CSHOs in the 
Regions on combustible dust hazards. For example, OSHA's Region I 
conducted training on the NEP in its Area Offices early this year.\13\
---------------------------------------------------------------------------
    \13\Letter from Edwin G. Foulke, Jr. responding to questions for 
the record from Workforce Protections Subcommittee Chair Woolsey, March 
27, 2008.
---------------------------------------------------------------------------

 H.R. 5522, THE COMBUSTIBLE DUST EXPLOSION AND FIRE PREVENTION ACT OF 
                                  2008

    In the wake of the Imperial Sugar Company refinery 
accident, Chairman George Miller and Representative John Barrow 
introduced H.R. 5522. The bill would direct OSHA to immediately 
undertake a rulemaking regulating all forms of combustible 
dust, and to expedite the formulation of final regulations in 
what amounts to an unusually compressed timeframe. More 
specifically, H.R. 5522 would require OSHA to:
           Issue an interim final combustible dust 
        standard within 90 days that would include measures to 
        minimize hazards associated with dust through improved 
        housekeeping, engineering controls, building design, 
        explosion protection and worker training;
           Issue a final standard relating to 
        combustible dust within eighteen months. The interim 
        standard would remain in effect until the final 
        standard is issued; and
           Revise the Hazard Communication Standard to 
        include combustible dust.

                  COMMITTEE CONSIDERATION OF H.R. 5522

    The Committee on Education and Labor held a legislative 
hearing on H.R. 5522 on March 12, 2008. At the hearing, several 
technical and policy concerns with the legislation were noted 
in testimony provided by the Republican witness and Assistant 
Secretary Foulke.
    The Committee held a markup of H.R. 5522 on Wednesday April 
9, 2008 during which an amendment in the Nature of a 
Substitute, offered by Representative Woolsey, was adopted by 
voice vote. Representative Joe Wilson offered an amendment in 
the Nature of a Substitute that was rejected by voice vote. The 
Committee then favorably reported H.R. 5522, as amended, by 
voice vote.

                            REPUBLICAN VIEWS

    H.R. 5522 was introduced in direct response to the accident 
at the Imperial Sugar Company refinery in Port Wentworth, 
Georgia; the bill's sponsors have made that abundantly clear. 
It seems ludicrous, therefore, that Congress would not wait for 
the findings of OSHA's investigation prior to taking 
legislative action. Committee Republicans believe that 
Congress, at a minimum, should allow for OSHA to complete its 
investigation of the accident before enacting legislation, 
taking into consideration all of the variables related to the 
accident. This view is embodied in the substitute amendment 
offered during the Committee's consideration of the bill by 
Representative Joe Wilson. Unfortunately, the Majority defeated 
Representative Wilson's common-sense amendment and instead, 
insisted on proceeding with hastily-written legislation that 
would likely result in an ineffective and unenforceable 
regulation.

OSHA's response to the CSB report

    To support its calls for a combustible dust regulation, the 
Majority cites OSHA's, so-called ``failure'' to implement the 
recommendations of the CSB's report on combustible dust. In the 
report, the CSB recommended that OSHA:
           Issue a standard designed to prevent 
        combustible dust fires and explosions in general 
        industry;
           Revise the Hazard Communication Standard;
           Communicate to the United Nations Economic 
        Commission for Europe (UNECE) the need to amend the 
        Globally Harmonized System (GHS);
           Provide training to inspectors through the 
        OSHA Training Institute (OTI) on recognizing and 
        preventing combustible dust explosions;
           Conduct a National Special Emphasis Program 
        (SEP) on combustible dust hazards in general industry;
           Include in the SEP an outreach program 
        focused on the information in the Safety and Health 
        Information Bulletin (SHIB), ``Combustible Dust in 
        Industry: Preventing and Mitigating the Effects of Fire 
        and Explosions.''
    As evidenced through testimony and letters submitted for 
the record for the Full Committee hearing on March 12, 2008, 
OSHA already has implemented the majority of the CSB 
recommendations in a variety of ways.
    In addition, OSHA continues to examine the CSB's 
recommendation of the need for a combustible dust standard. To 
be clear, OSHA has not dismissed the idea of a regulation. 
Indeed, in his response to questions posed during the hearing, 
Assistant Secretary Foulke stated:

          Mr. Sarbanes, I would say, as I mentioned earlier in 
        my testimony, we are--we have instituted this national 
        emphasis program, and we are gathering information from 
        that to determine whether or not, are the standards 
        that we have in place now and sufficient to meet the 
        hazards that we are dealing with.
          And we have not ruled out the possibility of doing 
        rulemaking. So we are looking. And that is an option 
        for us still.
          But we are just trying to collect the data through 
        the national emphasis program, where we are look at all 
        the--as many sites as we can, and inspecting those 
        sites to determine, do we have a--do our standards 
        actually cover what we need to cover? Or is there some 
        holes in the coverage that we need to address, and 
        would a comprehensive standard address that.\14\
---------------------------------------------------------------------------
    \14\Testimony of the Honorable Edwin G. Foulke, Jr., Committee on 
Education and Labor, ``H.R. 5522, the Combustible Dust Explosion and 
Fire Prevention Act of 2008,'' Wednesday, March 12, 2008.

    It appears, therefore, that OSHA has not ruled out the 
possibility of promulgating a combustible dust regulation. As 
such, it is our view that if a regulation is warranted, the 
agency should be given a reasonable amount of time to craft a 
credible, effective, and enforceable rule.
    Another reason OSHA should not rush to write a combustible 
dust standard was, in fact, highlighted in the CSB report--that 
being the extent to which any rulemaking would affect a large 
number of highly diverse of industries.\15\ Given the 
inevitable impact on such a wide range of America's industry, 
OSHA must have the opportunity to decide if creating a one-
size-fits-all rule is the most effective approach to address 
this complex and important subject.
---------------------------------------------------------------------------
    \15\See Appendix D, Investigation Report: Combustible Dust Hazard 
Study, Report No. 2006-H-1 (November 2006).
---------------------------------------------------------------------------

H.R. 5522 creates a one-size-fits-all regulation

    As currently written, H.R. 5522 would require OSHA to 
create one set of regulations for a substance which has many 
different physical characteristics (See Table 1), explodes at 
different flashpoints, and is part of countless industrial 
processes. Committee Republicans strongly believe that H.R. 
5522 fails to responsibly consider the wide variety of issues 
relating to the combustible dust hazard, before mandating a 
rulemaking.

             TABLE 1.--PARTICLE SIZE OF COMMON MATERIAL\16\
------------------------------------------------------------------------
             Common materials                      Size (microns)
------------------------------------------------------------------------
Talcum powder, fine silt, red blood cells,  5 to 10.
 cocoa.
Pollen, milled flour, course silt.........  44 to 74.
Table salt................................  105 to 149.
Coarse sand...............................  297 to 1000.
------------------------------------------------------------------------

Abbreviated rulemaking does not equal protective rulemaking
---------------------------------------------------------------------------

    \16\Ibid.
---------------------------------------------------------------------------
    Should it be determined that a combustible dust regulation 
is needed, Committee Republicans generally share the Majority's 
view that the regulation be completed in a reasonable amount of 
time. However, previous rulemakings have shown that the 
expedience with which an agency promulgates a rule must be 
weighed with an eye to the rule's ultimate effectiveness. For 
instance, OSHA worked on a regulation for hexavalent chromium 
for several years before a court finally ordered the regulation 
to be completed in three years. While the effectiveness of the 
hexavalent chromium regulation is generally recognized, the 
fact that it required several years to be completed underscores 
the care that must be given to the rulemaking process. The same 
point can be made with respect to the grain standard.\17\ 
Supporters of H.R. 5522 suggest that the grain standard 
implemented by OSHA had such a positive effect on safety that 
it demonstrates the need for a broader combustible dust 
regulation. History might guide these supporters to acknowledge 
that it took seven years to promulgate this narrowly targeted 
standard.
---------------------------------------------------------------------------
    \17\29 CFR 1910.272.
---------------------------------------------------------------------------
    Moreover, the success of the grain standard should be 
credited, in large part, to a robust rulemaking process; one 
which included significant stakeholder input. Unfortunately, 
H.R. 5522 does not follow the rulemaking process for the grain 
standard; but, instead, eliminates valuable input from the 
interim final rule (IFR). This oversight becomes even more 
glaring considering the fact that a combustible dust regulation 
would likely reach more than sixty industries. Should not these 
industries have the opportunity to comment or otherwise 
participate in the rulemaking process? Unfortunately, the 
Majority's answer to this important question would appear to be 
no. This fact is all the more troubling considering that 
industry must comply with an interim final rule within 120 
days. Assistant Secretary Foulke highlighted this concern in a 
letter opposing the bill:

          Accordingly, we do not believe the deadlines in 
        either version of your bill will allow for a clear, 
        effective, and enforceable standard that is 
        economically and technologically feasible for as many 
        as 200,000 facilities that will likely be affected in 
        widely different industries throughout the entire 
        country. Moreover, the IFR deadline is particularly 
        problematic given that it will go into force without 
        the opportunity for input from employees, employee 
        representatives, scientific experts, small businesses 
        and the rest of the regulated community.\18\
---------------------------------------------------------------------------
    \18\See Letter from Assistant Secretary Foulke, April 8, 2008.
---------------------------------------------------------------------------

H.R. 5522 could result in two conflicting standards

    The bill also creates the very real possibility that OSHA's 
final combustible dust regulation will look dramatically 
different than the interim final rule. Such an outcome becomes 
all too likely when one considers the fact that the final rule 
must reflect stakeholder input, while the interim final rule 
will not. As noted above, such input is crucial to the 
rulemaking process, and its absence from the early part of the 
process all but guarantees that the final rule on combustible 
dust will be different than the interim rule. While this fact 
is troubling on its face, its practical implications are even 
more disturbing. Employers may very well be required to make 
costly changes to their facilities and manufacturing processes 
in order to comply with the interim final regulation, only to 
be forced to make more modifications when OSHA issues its final 
rule eighteen months after enactment of the bill. Forcing such 
inconsistent regulation upon businesses and their employees 
simply defies credulity, even for the Democrat Members of this 
Committee.

Use of National Fire Protection Association Standards is problematic

    Finally, but no less important, we are concerned by the 
bill's retention of provisions relating to the National Fire 
Protection Association's (NFPA) Standards. Our concerns were 
illuminated by the testimony David Sarvadi presented at the 
Committee's hearing on the bill, during which he stated:

          Some will suggest that OSHA should simply adopt the 
        voluntary standards that exist. To the extent that the 
        standards reflect actual consensus about a particular 
        topic, those sections that are mandatory can be useful 
        in preparing regulatory provisions.
          Nevertheless, they need to be reviewed in an open 
        process by OSHA because they are not always free of 
        bias and may not represent true consensus among 
        affected parties. I previously testified in 2006 at a 
        subcommittee hearing on this issue. Congress assumed 
        that consensus standards were the process of an open 
        and transparent process. When they are, the standards 
        do represent the best practices of the affected 
        parties. But when the standards are contentious, it is 
        more often the case that one or another group has 
        managed to impose its will, with the result that the 
        process in which the standard was adopted is not the 
        equivalent of the mandatory notice and comment 
        preceding that is typically required for government 
        standards.
          Following normal rulemaking procedures is important 
        from another perspective. To the extent that people 
        feel they have been fairly heard, and the decision is 
        made on the basis of objective technical criteria, they 
        are more likely to accept it. We need such acceptance 
        because we need voluntary compliance with these 
        requirements to ensure true safety in the workplace. It 
        will do no good to impose standards that in the end 
        lead to more disputes and contention because, again, it 
        will distract from the principal objective. Thus, we 
        believe that it is imperative to recognize that a 
        process longer than 90 days will be needed for OSHA to 
        even adopt an interim standard. The process is 
        inherently longer the more complicated the issue. Our 
        experience of late is replete with unintended 
        consequences of well-meaning but misguided action, 
        particularly on the part of government. Short-
        circuiting the process by mandating changes within such 
        short time frames will lead to more unintended 
        consequences.
          An example will help. Suppose such a standard is 
        adopted, and that it is determined that one of the NFPA 
        standards should become mandatory. Normally, standards 
        are forward-looking, and one critical aspect that is 
        fleshed out in the rulemaking process is what to do 
        about existing installations. Should they be upgraded? 
        How long will employers be allowed to bring facilities 
        into compliance? Should existing designs be 
        grandfathered? How far back should such a grandfather 
        period go? I would suggest that these questions need to 
        be answered before a comprehensive standard is imposed 
        on a broad and ambiguous group of employers and 
        employees.
          It is simply wrong to suggest that OSHA can 
        reasonably adopt the NFPA standards within 90 days. The 
        NFPA standard 654, for example, is complex, on the one 
        hand containing detailed technical specifications for 
        the performance of critical process equipment and 
        components, and on the other hand, including 
        programmatic requirements such as those contemplated in 
        the proposed legislation. Adopting this kind of 
        standard without the normal array of feasibility and 
        other analyses through an accelerated process is a 
        recipe for difficulty if not disaster.
          The complexity of the NFPA standards also suggests 
        that having standards adopted through the legislative 
        process is not a good idea. NFPA standards, including 
        NFPA 654, are staffed with experts with many years of 
        experience, most of whom are engineers. Engineers are 
        trained in assessing the competing demands that are 
        inherent in any design process, making decisions and 
        trade-offs that are informed by engineering judgment to 
        achieve what are hopefully optimum results. The 
        expedited standard adoption process contemplated by the 
        bill would deprive interested and affected parties the 
        opportunity to be heard, and would result in the 
        imposition of a standard likely to be less 
        effective.\19\
---------------------------------------------------------------------------
    \19\See Testimony of David Sarvadi, Committee on Education and 
Labor, ``H.R. 5522, the Combustible Dust Explosion and Fire Prevention 
Act of 2008,'' Wednesday, March 12, 2008.

    The complexity of these standards further demonstrates why 
the bill's one-size-fits-all regulatory approach may be 
inappropriate with regard to combustible dust.

                    AMENDMENTS OFFERED IN COMMITTEE

Woolsey amendment in the nature of a substitute

    Representative Woolsey's amendment in the nature of a 
substitute would direct OSHA to issue an interim final 
Combustible Dust standard within 90 days, but jettisons all 
regulatory procedures related to the interim rule. Further, the 
amendment directs the Secretary of Labor to issue a final 
standard relating to combustible dust within eighteen months of 
enactment, but in this case, complying with all required 
rulemaking procedures. Finally, the bill requires the Secretary 
to revise the Hazard Communication Standard to include 
combustible dusts. The Woolsey amendment was adopted without 
objection.

Wilson amendment in the nature of a substitute

    During the Full Committee's markup of the bill, 
Representative Joe Wilson offered an amendment in the nature of 
a substitute. Representative Wilson's common-sense amendment 
required the Secretary of Labor to determine if a combustible 
dust regulation was necessary, based on the conclusions of the 
Imperial Sugar Company investigation and data gathered from the 
combustible dust NEP. If the Secretary determined that a 
regulation is necessary, then the agency is to proceed with a 
rulemaking as outlined in the OSH Act. This rulemaking process 
must be completed within 36 months. If a regulation is deemed 
unnecessary, the Secretary must report to Congress as to why it 
is not. The Wilson amendment failed on a voice vote.
    H.R. 5522, as amended, was favorably reported by the Full 
Committee to the House by voice vote.

                               CONCLUSION

    As noted previously in these views, the Republican Members 
of the Committee are deeply committed to protecting the health 
and safety of American workers. This commitment guides our 
views with respect to issues surrounding combustible dust, and 
the question of whether the Occupational Safety and Health 
Administration should be compelled to issue regulations in this 
area, as required by H.R. 5522. We, like our Majority 
colleagues, were deeply moved and saddened by the tragic 
accident that occurred in Port Wentworth, Georgia in February 
of this year. And we share our colleagues desire to take all 
possible actions to ensure that similar accidents do not occur 
in the future. We must disagree, however, with the legislative 
manner in which the Majority would take those actions. Quite 
simply, we cannot be sure that H.R. 5522, as currently written, 
will have the results hoped for by its sponsors, however well-
intended their actions may be. Moreover, we are concerned with 
the bill's unreasonably compressed timeframes and disregard for 
statutorily-required rulemaking procedures. OSHA must have the 
opportunity to complete its investigation of the Port Wentworth 
accident; and, to conclusively determine what, if any, 
regulatory changes are needed. To do otherwise, we fear, will 
result in a regulation that, at the end of the day, is both 
ineffective and unenforceable. That would be the least 
desirable result possible; as such a regulation would do little 
toward achieving our shared goal of protecting American 
workers. It is this likely result, therefore, that compels us, 
respectfully, to reject H.R. 5522 in its current form.

                                   Howard P. McKeon.
                                   Pete Hoekstra.
                                   Judy Biggert.
                                   Todd R. Platts.
                                   Joe Wilson.
                                   John Kline.
                                   Cathy McMorris Rodgers.
                                   Kenny Marchant.
                                   Thomas Price.
                                   Virginia Foxx.
                                   Rob Bishop.
                                   David Davis.
                                   Tim Walberg.