February 9, 2011
In recent weeks OSHA has announced delays to two of its key regulatory initiatives: noise standards and ergonomics.
On January 19, OSHA announced that it would withdraw its reversal of a 28-year policy regarding the enforcement of the noise standard; in general the about-face would have required employers to reduce workplace noise exposure with potentially costly administrative and engineering controls, instead of simply providing effective personal protective equipment ("PPE"). Since 1983, OSHA’s enforcement policy regarding noise was to allow employers to rely on a hearing conservation program based upon PPE if the program reduced noise exposures to acceptable levels and was less costly than administrative engineering controls. In October 2010, OSHA announced its proposal to change the policy to require administrative and engineering controls instead of PPE so long as those controls were "feasible," or capable of being done. 75 Fed. Reg. 64,216 (Oct. 19, 2010). In making the withdrawal announcement, OSHA said it would review comments, hold at least one stakeholder meeting on noise issues, and engage in outreach to employers regarding methods to reduce noise exposure in the workplace.
Less than a week later, on January 25, OSHA temporarily withdrew its proposed rule to have employers report separately defined and categorized work-related musculoskeletal disorders ("MSDs") on OSHA 300 logs. In the proposed rule, OSHA explained that it thought the MSD column "would provide valuable information for maintaining complete and accurate national occupational injury and illness statistics; assist OSHA in targeting its inspection, outreach, guidance, and enforcement efforts to address MSDs; and provide easily identifiable information to the establishment level that will be useful for both employers and employees." 75 Fed. Reg. 4,728, 4,731 (Jan. 29, 2010). OSHA had proposed a similar MSD column in 2001 but withdrew its proposal in 2003 after concluding that the MSD column would not be a useful information gathering tool. Id. at 4,730. In announcing the temporary withdrawal, OSHA stated it would seek additional input, particularly from small businesses, on the impact of the proposed rule on their companies and would engage in outreach jointly with the U.S. Small Business Administration.
These actions come upon the heels of a January 18 Executive Order outlining several ways in which federal agencies should more closely scrutinize both existing regulations and new rules under consideration. See Gibson Dunn client alert "Presidential Executive Order on Regulation Suggests U.S. Rulemakings Will Be Examined More Closely." Agencies should, for example, base their conclusions on "the best available science," "take into account benefits and costs, both quantitative and qualitative," and "identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends." Section 1(a). Where appropriate, agencies should consider qualitative values such as "equity, human dignity, fairness, and distributive impacts." Section 1(c). The Order emphasizes the need for agencies to coordinate efforts with other agencies to avoid regulation that is redundant or inconsistent, and to promote innovation. Section 3.
Despite these welcome changes, they may reflect less of a change of direction and more of a change in strategy. Rather than signaling an approach that is more sensitive to burdens on business and job creation, these recent actions may only be, as declared by OSHA, "temporary." In light of the Executive Order and the emphasis on developing strong evidentiary support for agency action, OSHA may be making these moves in part to buttress the administrative record in preparation for rulemaking challenges. Indeed, OSHA’s MSD rule was pending at the Office of Management and Budget–which reviews rules for compliance with the executive order–at the time OSHA announced its temporary withdrawal.
OSHA is currently placing greater emphasis on enforcement than perhaps any other time in the agency’s forty-year history. See, e.g., Assistant Secretary for OSHA David Michaels, "OSHA at Forty: New Challenges and New Directions" (July 19, 2010) (emphasizing "regulation by shaming"). It seems probable that these issues will resurface in the near future.
Gibson, Dunn & Crutcher has one of the nation’s most sophisticated occupational safety and health practices. The practice is led by Baruch A. Fellner, who oversaw all OSHA litigation in the Occupational Safety and Health Review Commission and before the federal courts of appeals for eight years while serving in the Solicitor’s Office of the U.S. Department of Labor. Gibson Dunn successfully represented clients in a range of OSHA matters, including the litigation that resulted in withdrawal of the "MSD" reporting column in 2003, and leading the challenge to overturn OSHA’s proposed ergonomics standard ten years ago. The Group is available to assist in addressing any questions you may have regarding OSHA’s enforcement strategies and existing regulations. Please contact the Gibson Dunn attorney with whom you work, or any of the following:
Baruch A. Fellner – Washington, D.C. (202-955-8591, [email protected])
Eugene Scalia – Practice Co-Chair, Washington, D.C. (202-955-8206, [email protected])
Christopher Martin – Practice Co-Chair, Palo Alto (620-849-5305, [email protected])
Jessica Brown – Denver (303-298-5944, [email protected])
William J. Kilberg P.C. – Washington, D.C. (202-955-8573, [email protected])
Michele L. Maryott – Orange County (949-451-3945, [email protected])
Karl G. Nelson – Dallas (214-698-3203, [email protected])
Jason C. Schwartz – Washington, D.C. (202-955-8242, [email protected])
Elizabeth Watson – Los Angeles (213-229-7435, [email protected])
Daniel Davis – Washington, D.C. (202-955-8245, [email protected])
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