A "Feasible" Shortcut: OSHA Avoids Rulemaking in Effort to Require Employers to Install Noise-Reducing Engineering Controls
December 8, 2010
When a federal agency like the Occupational Safety and Health Administration (OSHA) wants to make new rules, it is supposed to engage in formal, “notice-and-comment” rulemaking: it first publishes a proposed rule, allows the public to submit comments, and then issues a final rule, which may or may not contain revisions based on the comments. Formal notice and comment rulemaking is time consuming and places significant administrative burdens on the agency.
In the last year, OSHA has avoided the formal rulemaking process by taking informal actions under the guise of enforcement policies. For example, in November 2009 it issued a “Fact Sheet” of specific measures that all retail stores should implement to protect their employees from unruly customers. Earlier this year, OSHA issued an open letter to employers stating that the Agency will issue a citation to any company whose work requirements encourage employees to text while they drive.
Most recently, OSHA announced an abrupt proposed change in enforcement policy that could have significant financial consequences for many companies. OSHA’s Hearing Conservation standard requires employers to protect employees from exposure to high noise levels. Employers must utilize “feasible administrative or engineering controls” when employees are subjected to particular sound levels set forth in the OSHA standard. At issue is OSHA’s interpretation of the term “feasible.” For almost 30 years, OSHA has allowed employers to rely on the use of inexpensive personal protective equipment such as earplugs instead of costly engineering and administrative controls, such as installing sound dampeners, reconstructing the facility to reduce noise levels, or reducing individual employee exposure time by hiring additional employees to share the load. If the personal protective equipment reduced noise exposures to acceptable levels and was less expensive than administrative and engineering controls -- which is almost always the case – it satisfied the legal standard.
Now, OSHA intends to interpret the definition of “feasible” in an entirely new way. In brief, OSHA intends to take the position that as long as administrative or engineering controls are “capable of being done” without threatening the company’s ability to stay in business, the employer has to implement them. It can no longer simply issue less costly personal protective equipment to employees. If the new interpretation stands, a workplace where just one employee is exposed to an eight-hour average sound level slightly over 90 decibels may have to spend tens of thousands of dollars on equipment, guards, sound dampening equipment (or even a second employee) to reduce the eight-hour average decibel level per employee to below 90, instead of simply issuing effective hearing protection. While engineering and administrative controls are always preferred because they reduce noise exposure without relying on employees to wear their personal protective equipment, OSHA has not offered any data or evidence to support its apparent view that employers nationwide should be spending millions of dollars in noise reduction measures during a recession, when earplugs may be just as safe and effective.
No doubt anticipating the likely reaction from employers, OSHA announced the reinterpretation as a “proposed interpretation,” and requested comments, but was careful not to announce it as a proposed rule (which would require the agency to fulfill various requirements, such as considering the cost to employers). While the initial comment period was set to expire December 20, 2010, various industry groups such as the National Association of Manufacturers and the U.S. Chamber of Commerce—who contend that such a change requires formal notice-and-comment rulemaking—succeeded in obtaining a 90-day extension to March 20, 2011. Any company that wishes to comment on this proposed “interpretation” may do so electronically at www.regulations.gov, by fax to 202-693-1648, or by mail to OSHA Docket Office, Docket No. OSHA-2010-0032, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. Any submissions should contain the docket number, OSHA-2010-0032.
