[Federal Register: October 19, 2010 (Volume 75, Number 201)][Proposed Rules]
[Page 64216-64221]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc10-17]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2010-0032]
29 CFR Parts 1910 and 1926
Interpretation of OSHA's Provisions for Feasible Administrative
or Engineering Controls of Occupational Noise
AGENCY: Occupational Safety and Health Administration (OSHA)
ACTION: Proposed interpretation.
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SUMMARY: This document constitutes OSHA's official interpretation of
the term feasible administrative or engineering controls as used in the
applicable sections of OSHA's General Industry and Construction
Occupational Noise Exposure standards. Under the standard, employers
must use administrative or engineering controls rather than personal
protective equipment (PPE) to reduce noise exposures that are above
acceptable levels when such controls are feasible. OSHA proposes to
clarify that feasible as used in the standard has its ordinary meaning
of capable of being done. The Agency intends to revise its current
enforcement policy to reflect this interpretation. The Agency solicits
comments from interested parties on this interpretation.
DATES: Submit comments on or before December 20, 2010.
ADDRESSES: You may submit comments by any of the following methods:
Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov, the Federal eRulemaking
Portal. Follow the instructions online for making electronic
submissions;
Fax: You may fax submissions not longer than 10 pages, including
attachments, to the OSHA Docket Office at 202-693-1648.
Mail, hand delivery, express mail, messenger and courier service:
If you use this option, you must submit three copies of your comments
and attachments to the OSHA Docket Office, Docket No. OSHA-2010-0032,
U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW.,
Washington, DC 20210. Deliveries (hand, express mail, messenger and
courier service) are accepted from 8:15 a.m.-4:45 p.m., e.t.
Instructions: All submissions must include the agency name and the
OSHA docket number for this interpretation (OSHA-2010-0032).
Submissions are placed in the public docket without change and may be
accessed online http://www.regulations.gov. Be careful about submitting
personal information such as social security numbers and birth dates.
Docket: To read or download submissions or other material in the
docket, go to http://www.regulations.gov or the OSHA Docket Office at
the address above. All documents in the docket are listed in the http://www.regulations.gov index;
some information (e.g., copyrighted material),however, can not be
read or downloaded at the website. All submissions, including
copyrighted material, can be examined or copied at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT: General information or press
inquiries: MaryAnn Garrahan, Acting Director, Office of Communications,
Room N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue,
NW., Washington, DC 20210; telephone 202-693-1999.
For Technical Inquiries: Audrey Profitt, Senior Industrial
Hygienist, Directorate of Enforcement Programs, Room N-3119, OSHA, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone: 202-693-2190, or fax: 202-693-1681.
SUPPLEMENTARY INFORMATION: This Federal Register document sets out
OSHA's proposed interpretation of feasible administrative or
engineering controls in 29 CFR 1910.95(b)(1) and 1926.52(b) for the
purpose of enforcing compliance with these standards. This document
does not address feasibility in any other context. Sections
1910.95(b)(1) and 1926.52(b), which are substantively identical,
require that when employees are exposed to sound exceeding the
permissible level, feasible administrative or engineering controls must
be utilized to reduce the sound to within that level, and if such
controls are ineffective, personal protective equipment must be
provided and used. Feasibility encompasses both economic and
technological considerations, but this document addresses only economic
feasibility. Under OSHA's current enforcement policy, the agency issues
citations for failure to use engineering and administrative controls
only when hearing protectors are ineffective or the costs of such
controls are less than the cost of an effective hearing conservation
program.
As discussed below, this policy is contrary to the plain meaning of
the standard and thwarts the safety and health purposes of the OSH Act
by rarely requiring administrative and engineering controls even though
these controls are affordable and generally more effective than hearing
protectors in reducing noise exposure. Accordingly, OSHA now proposes
to consider administrative or engineering controls economically
feasible when the cost of implementing such controls will not threaten
the employer's ability to remain in business, or if such a threat to
viability results from the employer's failure to meet industry safety
and health standards.
I. Regulatory Background
Section 6(a) of the OSH Act required the Secretary, during the two-
year period following the Act's effective date, to promulgate as an
OSHA standard any national consensus standard and established Federal
standard unless she determined that the promulgation of such a standard
would not result in improved safety or health. 29 U.S.C. 655(a).
Pursuant to section 6(a), OSHA promulgated the general industry noise
standard as an "established federal standard" in 1971. 36 FR 10466,
10518, May 29, 1971 (codified as Sec. 1910.95). Section 1910.95(b)(1)
is derived from 41 CFR 50-204.10, an occupational noise exposure
standard promulgated under the Walsh-Healey Government Contracts Act,
41 U.S.C. 35-45, which requires that federal government contracts for
materials over $10,000 must provide that the work be done under
sanitary and safe working conditions, 41 U.S.C. 35(d). The requirements
of the Walsh-Healey Act noise standard are the same as those of the OSH
Act noise standard. Compare 41 CFR 50-204.10(b) with 29 CFR
1910.95(b)(1).
Section 1910.95(b)(1) states as follows:
When employees are subjected to sound exceeding those listed in
Table G-16, feasible administrative or engineering controls shall be
utilized. If such controls fail to reduce sound levels within the
levels of Table G-16, personal protective equipment shall be
provided and used to reduce sound levels within the levels of the
table.
Sec. 1910.95(b)(1).
OSHA also promulgated the construction noise standard, originally
codified at 29 CFR 1518.52, as an "established federal standard" in
1971. 36 FR 10466, 10469, May 29, 1971. Before being adopted unchanged
as an OSH Act standard, section 1518.52(b) was issued under the
Construction Safety Act, 40 U.S.C. 333 (1969), which requires that
federal construction contracts for over $100,000 must provide that the
work be done under sanitary and safe working conditions. 40 U.S.C.
3704(a)(1) (formerly cited as 40 U.S.C. 333(a)(1)); 36 FR 7340, 7348,
April 17, 1971. At the end of 1971, Sec. 1518.52(b) was redesignated
as Sec. 1926.52(b), 36 FR 25232, Dec. 30, 1971, its current
codification.
Section 1926.52(b) is almost verbatim identical to Sec.
1910.95(b)(1) and provides:
When employees are subjected to sound exceeding those listed in
Table D-2 of this section, feasible administrative or engineering
controls shall be utilized. If such controls fail to reduce sound
levels within the levels of the table, personal protective equipment
as required in subpart E, shall be provided and used to reduce sound
levels within the levels of the table.
Sec. 1926.52(b).\1\
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\1\ Table D-2 of Sec. 1926.52(b) is identical to Table G-16 of
Sec. 1910.95(b)(1).
Engineering controls involve modifications to plant, equipment,
processes or materials that reduce the sound intensity at the source,
by substituting quieter machines and processes, or by isolating the
machine or its operator. See Forging Indus. Ass'n v. Secretary of
Labor, 773 F.2d 1436, 1440 n.3 (4th Cir. 1985) (en banc); Donovan v.
Castle & Cooke Foods, 692 F.2d 641, 643 n.2 (9th Cir. 1982).
Administrative controls involve modifications of work assignments to
reduce employees' exposure to noise, such as rotating employees so that
they work in noisy areas for a short time. Forging Indus., 773 F.2d at
1440 n.3. Personal protective equipment (PPE) includes hearing
protectors such as ear plugs and ear muffs fitted to individual
employees. Castle & Cooke, 692 F.2d at 643 n.2.
II. Interpretive History of Economically Feasible Administrative or
Engineering Controls
A. Current Enforcement Policy
OSHA's early interpretive guidance on 29 CFR 1910.95(b)(1)
indicated that feasible engineering or administrative controls must be
used to reduce noise to acceptable levels and that PPE must be used as
a supplement when such controls are not completely effective in
achieving this objective. Letter from Barry J. White, OSHA Assistant
Secretary for Regional Programs, to Leslie Anderson (March 19, 1975).
In the following decade, OSHA issued citations to employers for failure
to use affordable engineering and administrative controls to reduce
noise levels. The Occupational Safety and Health Review Commission
issued a series of decisions swinging back and forth between a cost-
benefit interpretation of economically feasible controls and a broader,
plain-meaning definition of the term as "capable of being done." The
Commission ultimately settled on the cost-benefit interpretation.\2\
Although OSHA has not changed its interpretation of the standard, its
enforcement policy since 1983 has allowed employers to rely on a
hearing conservation program based on PPE if such a program reduces
noise exposures to acceptable levels and is less costly than
administrative and engineering controls. The development of the case
law in this area is described below.\3\
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\2\ To an economist, cost-benefit analysis contemplates an
actual quantitative comparison of costs and benefits, typically
through the conversion of all benefits and costs to monetary values.
In the Castle & Cooke Foods case, discussed below, the Commission
found that the health benefits of engineering controls did not
justify their costs without monetizing the benefits and without
explaining its valuation method. Although this approach would not
constitute cost-benefit analysis in the sense used by economists,
this document will refer to it as a cost-benefit test because that
is the terminology used by the Commission.
\3\ OSHA has not interpreted, and the Commission has not
construed, the virtually identical language of Sec. 1926.52(b).
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B. Commission and Court of Appeals Interpretations of Feasible
The Commission first addressed section 1910.95(b)(1) in Continental
Can Co., 4 BNA OSHC 1541, 1547 (Nos. 3973, 4397, 4501, 4853, 5327,
7122, 7910 & 7920, 1976). There, the Commission rejected the
Secretary's argument that the costs of noise-reducing engineering
controls are not relevant unless they would seriously jeopardize the
financial health of the company. The Commission held that, in
determining whether controls are economically feasible, all the
relevant costs and benefit factors must be weighed. Ibid. The
Commission refined this cost-benefit interpretation in Castle & Cooke
Foods, 5 BNA OSHC 1435, 1438 (No. 10925, 1977), aff'd, 692 F.2d 641
(9th Cir. 1982), holding that engineering controls are economically
feasible only if the health benefits to employees from noise reduction
justify the cost to the employer. Applying this test, the Commission
found that, although engineering controls would reduce ambient noise in
Castle & Cooke's plants to within the limits of Table G-16, the hearing
loss avoided by such a reduction would not be life-threatening or, in
most cases, seriously debilitating. Id. at 1440. Rejecting the
Secretary's position that engineering controls were affordable, that
the health benefits of such controls would be significant, and that
hearing protectors were less effective, the Commission concluded that
the health benefits did not justify the cost of implementing
engineering controls. Ibid. The Secretary appealed Castle & Cooke
to the Ninth Circuit, and while that case was pending, the Supreme Court
decided American Textile Mfgs. Institute, Inc. v. Donovan (ATM),
452 U.S. 490, 508-11 (1981). In ATMI, the Court
held that feasible in section 6(b)(5) of the OSH Act, which requires
that the Secretary promulgate standards for toxic substances at the
most protective level, "to the extent feasible," means "capable of
being done," and therefore rules out balancing costs and benefits.
ATMI, 452 U.S. at 508-09. The Ninth Circuit rejected the Secretary's
argument that the Supreme Court's interpretation of feasible in section
6(b)(5) was controlling as to the meaning of the same term in Sec.
1910.95(b)(1). Believing itself bound to defer to the Commission's
expertise in interpreting the standard, the Ninth Circuit distinguished
ATMI on the ground that the Court's holding was limited to section
6(b)(5) standards and left open whether the general requirement in
section 3(8) of the Act that OSHA standards be "reasonably necessary"
might support cost-benefit analysis for standards issued under
provisions other than section 6(b)(5).\4\ Donovan v. Castle & Cooke
Foods, 692 F.2d 641, 648-49 (9th Cir. 1982). On this basis, the Ninth
Circuit concluded that the Commission was "free to exercise its
authority to interpret the [standard]" and the Commission's cost-
benefit interpretation was neither unreasonable nor arbitrary. Id. at
649
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\4\ Section 3(8) of the Act defines an occupational safety and
health standard as one "which requires conditions, or the adoption
or use of one or more practices, means, methods, operations or
processes reasonably necessary or appropriate to provide safe or
healthful employment and places of employment." 29 U.S.C. 652(8).
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In December 1982, a month after the Ninth Circuit affirmed Castle &
Cooke, the Commission reinterpreted the word feasible in section
1910.95(b)(1) in light of ATMI. Sun Ship, Inc., 11 BNA OSHC 1028 (No.
16118, 1982). Rejecting the Ninth Circuit's analysis as "divergent,"
two Commissioners agreed that the Supreme Court's interpretation of
feasible in section 6(b)(5) controls the meaning of the same term in
the noise standard, and precludes balancing the health benefits of
engineering controls against their costs. Sun Ship, 11 BNA OSHC at
1031-32. Administrative and engineering controls are economically
feasible, the Commission held, if their cost does not threaten the
cited employer's long-term profitability and competitiveness, or if the
employer's inability to afford these controls results from having
lagged behind the industry in providing safety or health protection for
employees. Id. at 1033. Chairman Rowland dissented, arguing that the
fact that the Commission had previously been unable to agree on the
meaning of feasible, indicated that Sec. 1910.95(b)(1) lacked
ascertainable criteria for its enforcement and was therefore
unenforceable as written. Id. at 1037-43.
In 1984, the Commission overruled Sun Ship in a split decision in
which the two majority commissioners presented different rationales.
Sherwin-Williams Co., 11 BNA OSHC 2105, 2110-11 (No. 14131, 1984). In
the majority opinion, Commissioner Buckley resurrected the Ninth
Circuit's Castle & Cooke analysis that the majority in Sun Ship had
expressly rejected. Citing the Ninth Circuit's holding that the
Commission was not required by ATMI to abandon cost-benefit analysis
under Sec. 1910.95(b)(1), and the fact that the Secretary had revised
her enforcement policy in 1983 to accept a cost-benefit approach,
Commissioner Buckley concluded that Sun Ship should be reexamined.
Sherwin-Williams Co., 11 BNA OSHC at 2108-09. He also found that it was
reasonable to believe that the government contractors bidding on Walsh-
Healey Act contracts would have understood "feasible administrative
and engineering controls" to mean those controls that were practical
and cost-effective. Id. at 2110. For these reasons, Commissioner
Buckley concluded that cost-benefit analysis was incorporated into the
noise standard upon its adoption under section 6(a) of the OSH Act.
Ibid. Under this approach, if the employer produces evidence of the
cost of controls, the Secretary must prove that "the benefit of the
proposed engineering controls justifies their relative cost in
comparison to other abatement methods." Ibid.
Chairman Rowland concurred in overruling Sun Ship, but for a
different reason. Chairman Rowland restated the position he had taken
in his dissent in Sun Ship that Sec. 1910.95(b)(1) was unenforceable
as written because it provided no ascertainable criteria for
determining what administrative and engineering controls were
"feasible" and impermissibly delegated authority to the Commission to
decide what the standard meant. Sherwin-Williams, 11 BNA OSHC at 2111
(Rowland, Ch., concurring). Chairman Rowland noted, however, that
absent agreement by two commissioners on the standard's interpretation,
the parties and administrative law judges would have no clear guidance
on what principles to apply. Ibid. He concluded that "as between the
test set forth in Sun Ship and the cost-benefit approach adopted by
Commissioner Buckley, I believe the later test represents the more
reasoned result." Ibid. Thus Chairman Rowland joined in adopting
Commissioner Buckley's cost-benefit test for determining the
feasibility of engineering controls. Id. at 2112.
Commissioner Cleary dissented, finding no grounds to overrule Sun
Ship. Sherwin-Williams, 11 BNA OSHC at 2112-14 (Cleary, C.,
dissenting). He argued that the Court in ATMI determined that the plain
meaning of feasible is "capable of being done," and that the term
therefore cannot be understood to incorporate a cost-benefit analysis.
Id. at 2112. The fact that ATMI dealt with section 6(b)(5), rather than
section 6(a), of the OSH Act was unimportant, in Commissioner Cleary's
view, because there is nothing in the Act to support giving the term
feasible in the noise standard anything other than its plain, ordinary
meaning. Id. at 2112-13. He also noted that acceptance of the
majority's cost-benefit approach would virtually eliminate engineering
controls from the noise standard since earplugs or earmuffs will almost
always cost less than effective engineering controls. Id. at 2113-14.
In Commissioner Cleary's view, the majority's adoption of a cost-
benefit test amounted to an unauthorized amendment of the standard. Id.
at 2114.
In response to the Ninth Circuit's Castle & Cooke decision, OSHA
adopted enforcement guidelines allowing employers to use PPE and a
hearing conservation program, rather than engineering or administrative
controls, when hearing protectors are less costly than such controls,
unless noise levels are especially elevated CPL 2-2.35A, Sec. G (Dec.
19, 1983). A hearing conservation program is one that meets the
standard's requirements for protecting employees from the harmful
effects of noise at or above 85 decibels. See Sec. 1910.95(c)-(o);
Forging Indus., 773 F.2d at 1440. Such a program includes monitoring,
periodic audiometric testing, provision of hearing protectors, training
and other elements. Forging Indus., 773 F.2d at 1440-41.
OSHA's enforcement policy as set forth in the Field Operations
Manual (FOM) authorizes citing employers for failing to use engineering
and/or administrative controls only when (1) noise levels are so high--
said to border on 100 dBA when the most effective hearing protectors
are used--that hearing protectors alone will not reliably reduce noise
to acceptable levels; or (2) the costs of such controls are less than
the cost of an effective hearing conservation program. FOM, CPL 02-00-
148, Chapt. 4 Sec. XI.B.1 (Nov.9, 2009). Since effective engineering
and administrative controls almost always cost more than a hearing
conservation program based on hearing protectors, citations are rarely
issued for failure to use such controls under OSHA's current policy.
III. OSHA's Interpretation of Economic Feasibility in 29 CFR
1910.95(b)(1) and 1926.52(b)
The legal landscape concerning the interpretation of Sec.
1910.95(b)(1) (and therefore of the substantively identical Sec.
1926.52(b)) has dramatically changed since the Ninth Circuit's Castle &
Cooke, and the Commission's Sherwin-Williams decisions. In Martin v.
OSHRC (CF & I), 499 U.S. 144, 150-55 (1991), the Supreme Court
established that the Secretary is the administrative actor responsible
for issuing authoritative interpretations of OSHA standards, while the
Commission's role, as neutral arbiter, is to determine whether the
Secretary's interpretation is reasonable. The Commission is not, as the
Ninth Circuit believed, free to exercise de novo authority to interpret
a standard, and a court of appeals is to defer to the Secretary's
interpretation if reasonable, not the Commission's. Although OSHA has
for some time acquiesced as a matter of enforcement policy in the
Commission's cost-benefit test for determining the economic feasibility
of administrative and engineering controls under the noise standards,
the agency has decided that this approach is inconsistent with the
standards. For the reasons stated below, OSHA has concluded that
engaging in cost-benefit analysis under Sec. Sec. 1910.95(b)(1) and
1926.52(b) is contrary to the plain meaning of feasibility and thwarts
the safety and health purposes of the OSH Act and the standard.
Therefore, OSHA proposes to consider administrative or engineering
controls economically feasible under the noise standards when the cost
of these controls will not threaten the cited employer's ability to
stay in business or when the threat to viability results from the
employer's having lagged behind the industry in providing safety and
health protection for employees.
The language of the noise standards frames the analysis. The
Supreme Court has held that the word feasible has the plain meaning of
"capable of being done" and does not permit cost-benefit analysis.
The noise standards require that "feasible administrative or
engineering controls" be utilized when noise is excessive. In ATMI,
the Supreme Court considered the meaning of the word feasible in the
context of section 6(b)(5) of the OSH Act, 29 U.S.C. 655(b)(5), which
requires that the Secretary set standards for toxic substances at the
level which most adequately assures, "to the extent feasible," that
no employee will suffer material impairment of health. The Court found
that the plain meaning of feasible is "capable of being done;"
"[t]hus, Sec. 6(b)(5) directs the Secretary to issue the standard
that `most adequately assures * * * that no employee will suffer
material impairment of health,' limited only by the extent to which
this is `capable of being done.' " ATMI, 452 U.S. at 508-09. The Court
further concluded that Congress's use of the word feasible in section
6(b)(5) "defined the basic relationship between costs and benefits, by
placing the `benefit' of worker health above all other considerations
save those making attainment of this `benefit' unachievable." Id. at
509. Thus, the feasibility analysis required by section 6(b)(5)
necessarily rules out a balancing of costs and benefits. "[C]ost-
benefit analysis by OSHA is not required by the statute because
feasibility analysis is." Ibid.
The Court's analysis in ATMI governs the interpretation of
Sec. Sec. 1910.95(b)(1) and 1926.52(b). By requiring feasible
administrative or engineering controls to be utilized when noise levels
exceed those specified in Table G-16, the standard directs employers to
use those controls capable of reducing exposures. The cost of such
controls is relevant only to the extent that it is so high as to
threaten the employer's ability to stay in business. This construction
is supported not only by the plain meaning of feasible, but also by the
canon of construction that regulatory language should be given the same
meaning as the same language appearing in the statute. See Sun Ship, 11
BNA OSHC at 1032.
The 1984 Sherwin-Williams decision adopting a cost-benefit
requirement for the general industry noise standard despite ATMI is
plainly wrong and cannot stand. The Commission was unable to agree on a
rationale for overruling Sun Ship, in which the majority had held that
the Supreme Court's interpretation of feasible in section 6(b)(5)
controlled the meaning of same term in Sec. 1910.95(b)(1). Moreover,
neither Commissioner Buckley's majority opinion nor Chairman Rowland's
separate concurrence is persuasive.
Commissioner Buckley identified two factors which he believed
supported rejecting the plain meaning of "feasible" in favor of a
cost-benefit approach. The first factor, taken from the Ninth Circuit's
Castle & Cooke decision, is that ATMI did not address whether section
3(8) of the OSH Act, which defines an occupational safety or health
standard, in part, as one requiring "reasonably necessary" measures,
requires a cost-benefit analysis for standards issued under provisions
other than section 6(b)(5). The Ninth Circuit inferred from the Court's
failure to address this issue that ATMI did not require the Commission
to abandon a cost-benefit approach to a noise standard issued under
section 6(a). Donovan v. Castle & Cooke Foods, 692 F.2d at 649. The
Ninth Circuit's reasoning, however, is seriously flawed.
As a threshold matter, the Secretary has rejected the notion that
section 3(8)'s "reasonably necessary" language imposes a requirement
for cost-benefit analysis even for standards not subject to section
6(b)(5)'s feasibility constraint. In response to litigation arising
under the lockout/tagout standard, the Secretary concluded that section
3(8) does not require a formal cost-benefit analysis--in which all the
costs and benefits of a particular action are identified, quantified
and compared--for safety standards, which are issued under section 6(b)
but are not subject to section 6(b)(5). 58 FR 16612, 16622, Mar. 30,
1993 (Supplemental Statement of Reasons); International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America, UAW
v. OSHA, 37 F.3d 665, 669-70 (D.C. Cir. 1994). The Secretary's
interpretation of section 3(8), as published in her Federal Register
supplemental statement, is entitled to deference as long as it is
reasonable. United States v. Mead Corp., 553 U.S. 218, 226-27 (2001).
Moreover, cost-benefit analysis is inconsistent with the text of
Sec. 1910.95(b)(1). Section 6(a) required the Secretary to promulgate
the existing Walsh-Healey noise standard as an OSHA standard unless it
would not result in improved safety or health. OSH Act, 29 U.S.C.
655(a). The statutorily mandated standard requires feasible controls to
be used to reduce exposure. To read section 3(8) as imposing a
requirement that controls be used only if the benefits justify the cost
would eviscerate the feasible controls requirement that section 6(a)
required the Secretary to promulgate. The standard makes administrative
and engineering controls the primary means of compliance; only if such
controls are infeasible, i.e., so costly as to imperil the employer's
long-term viability, may employers use hearing protectors. Section
1910.95(b)(1); Forging Indus., 773 F.2d at 1440.
Yet the Commission's cost-benefit approach completely reverses this
priority; hearing protectors may be used unless they cost more than the
engineering controls necessary to achieve an equivalent noise
reduction. Castle & Cooke, 5 BNA OSHC at 1441. Under the Commission's
interpretation, hearing protectors are presumptively appropriate, even
if administrative and engineering controls are affordable and
effective. Just as Congress could not have intended the general
language of section 3(8) to countermand the specific feasibility
requirement of section 6(b)(5), ATMI, 452 U.S. at 513, Congress could
not have understood that section 3(8) would eviscerate the specific
requirements of the existing federal standards that the Secretary was
required by section 6(a) to adopt during the two-year period following
the OSH Act's effective date. For Sec. 1910.95(b)(1), no less than
standards promulgated under section 6(b)(5), the term "feasible"
defines "the basic relationship between costs and benefits by placing
the `benefit' of worker health above all other considerations save
those making attainment of this `benefit' unachievable * * *. Thus,
cost-benefit analysis * * * is not required by the statute because
feasibility analysis is." ATMI, 452 U.S. at 509.
The second factor identified by Commissioner Buckley for departing
from the plain meaning of "feasible" in Sec. 1910.95(b)(1) is even
less persuasive. Although the Commissioner found no regulatory or
adjudicative history indicating how the standard was interpreted under
the Walsh-Healey Act, he assumed that government contractors bidding on
Walsh-Healey Act contracts would not have construed the term
"feasible" in accordance with the dictionary definition, but rather
would have understood the term to allow for cost-benefit analysis.
Sherwin-Williams, 11 BNA OSHC at 2109-10.
Commissioner Buckley's assumptions about the competitive bidding
process under the Walsh-Healey Act are both irrelevant and unfounded.
They are irrelevant because Sec. 1910.95(b)(1), was promulgated under
Sec. 6(a) of the OSH Act as an "occupational safety and health
standard." 29 U.S.C. 655(a). The Secretary is responsible for issuing
authoritative interpretations of OSHA standards, and she is not bound
by the perspective of a hypothetical government contractor bidding on a
Walsh-Healey contract. CF & I, 499 U.S. at 150-55. The Secretary's
interpretation of Sec. 1910.95(b)(1) must be given effect if it is
reasonable, "that is, so long as the interpretation sensibly conforms
to the purpose and wording of the regulations." Id. at 150-51.
Construing the standard to require that administrative or engineering
controls be used as long as they do not threaten the employer's ability
to stay in business is consistent with the standard's plain meaning and
its purpose of protecting employee health by achieving reductions in
noise exposure. It is the Secretary's reasonable construction of the
standard, which constitutes an exercise of delegated law-making
authority when embodied in an OSHA citation, that is entitled to
deference, not the Commission's interpretation. Id. at 150-55.
Speculation about how government contractors might have interpreted the
standard in bidding on a Walsh-Healey contract is wholly irrelevant.
In any event, Commissioner Buckley's assumption as to how the
"feasible" controls requirement would have been interpreted in the
federal procurement context is entirely unfounded. First, as the
commissioner himself admitted, there is nothing in the regulatory or
adjudicatory history of the Walsh-Healey noise standard to support an
assumption that feasible was not understood by government contractors
to have its plain, ordinary meaning. Commissioner Buckley's
interpretation thus violated the fundamental canon of construction that
words are to be interpreted in accordance with their normal meaning
unless there is specific evidence to the contrary. Furthermore, the
notion that prospective contractors would have understood that they
should include the costs of engineering controls only if they
determined that the benefits outweighed the costs is completely
contrary to basic principles of government procurement. Sherwin-
Williams, 11 BNA OSHC at 2109-10. The competitive process requires that
all prospective contractors bid on the same requirements; the process
cannot possibly permit some bidders to decide for themselves whether
engineering controls are required, or not required. Thus, feasible
controls must have been understood--by both the government and its
contractors--in accordance with its plain meaning.
OSHA's current enforcement policy on Sec. 1910.95(b)(1) closely
tracks the Commission's cost-benefit approach. Where PPE and a hearing
conservation program are cheaper, the current enforcement policy allows
employers to rely on them, rather than administrative or engineering
controls, unless noise levels are so high that PPE will not reduce
noise exposure to acceptable levels.\5\ FOM, CPL 02-00-148, Sec. XI.B.
The policy provides, moreover, that PPE may be used up to 100 dBA.
Ibid. As discussed above, this policy is inconsistent with the noise
standards' explicit requirement that feasible administrative and
engineering controls be used to reduce noise exposures to the level set
by the standard and that PPE be used if administrative and engineering
controls are unable to reduce noise to permitted levels. The standards'
reliance on feasible engineering and administrative controls as the
primary means of reducing noise exposures is consistent with OSHA's
traditional adherence to a hierarchy of preferred controls, and is
supported by good industrial hygiene practice and OSHA's experience in
assuring that workers have a healthy workplace. See, e.g., OSHA, 29 CFR
parts 1915, 1917-18 & 1926, "Occupational Exposure to Hexavalent
Chromium," Final Rule, 71 FR 10100, 10345, Feb. 28, 2006 (discussing
methods of compliance for reducing exposures to hexavalent chromium).
Hearing protectors are less reliable than administrative and
engineering controls in reducing noise levels and maintaining such
reductions over time. OSHA's current enforcement policy virtually
eliminates the requirement to use administrative or engineering
controls since such controls almost always cost more than hearing
protectors. Furthermore, the current policy thwarts the safety and
health purposes of the OSH Act by rarely requiring administrative and
engineering controls even though these controls are generally more
effective than hearing protectors in reducing noise exposure.
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\5\ In the terminology economists normally employ, the current
enforcement policy would be better characterized as a least-cost,
rather than a benefit-cost, approach.
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Accordingly, OSHA now proposes to interpret Sec. Sec.
1910.95(b)(1) and 1926.52(b) in conformity with the plain meaning of
these provisions and with the safety and health purposes of the OSH
Act. OSHA proposes to interpret the term feasible in these provisions
as having the same meaning that the term has in section 6(b)(5) of the
Act, i.e., "capable of being done," or "achievable." OSHA also
proposes to consider administrative or engineering controls
economically feasible if they will not threaten the employer's ability
to remain in business or if the threat to viability results from the
employer's having failed to keep up with industry safety and health
standards. OSHA further intends to change its enforcement policy to
authorize the issuance of citations requiring the use of administrative
or engineering controls when these controls are feasible in
accordance with this interpretation. OSHA welcomes comments from
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interested parties on this proposed interpretation.
Authority: 29 U.S.C. 655; 29 CFR 1910.95(b)(1) & 1926.52(b);
Secretary's Order 5-200, 72 FR 31160, June 5, 2007.
Signed at Washington, DC, October 12, 2010.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2010-26135 Filed 10-18-10; 8:45 am]
BILLING CODE 4510-29-P
