OSHA formally announced in the Federal Register this morning that that the agency will be extending the comment period for their proposal to change noise abatement requirements. However, many on Capitol Hill are asking OSHA if the agency understands the impact that this proposal will have on manufacturers of all sizes.
From OSHA’s notice in the Federal Register:
Two commenters, the National Association of Manufacturers and the Coalition for Workplace Safety (CWS), representing employers who would be affected by the proposed interpretation, have requested an extension of 90 days to assess the operating changes that their members would be required to make to comply with the interpretation.
While this announcement makes the extension official we appreciate that OSHA has recognized that it would take much longer than then initially proposed 60 day window to accurately assess the impact of the agency’s proposal.
We say “proposal” and not “proposed rule” because the agency is attempting to make these changes outside of the formal rulemaking process. While OSHA officials are accepting comments to the regulatory docket the agency is not compelled to take stakeholder feedback into account. Manufacturers, particularly smaller sized manufacturers, will be impacted by these changes, which come at staggeringly high costs without any evidence that the current process of protecting employees is deficient.
David Michaels, the Assistant Secretary of Labor for OSHA, told The Hill newspaper that the agency is “sensitive to possible costs associated with improving worker protection”. Further he said:
Our common objective is to ensure that workers don’t lose their hearing without overly burdening employers. OSHA will take all stakeholder comments seriously and will fully consider impacts on business and workers before determining what final action, if any, we will take.
We hope OSHA does take these comments seriously and realize that the costs of making these changes far outweigh potential benefits (if any) that may result.
Yesterday Senators Olympia Snowe (R-ME) and Joe Lieberman (I-CT), who co-chair the Senate’s Task Force on Manufacturing, sent a bipartisan letter to Labor Secretary Hilda Solis asking for more information on why the proposal has been put forth. The Senators point to important data that shows that the number of hearing loss incidents in the workplace is quite low and is improving significantly.
OSHA does not appear to support this change with data or any suggestion that employees require this new level of protection. Indeed the most recent Bureau of Labor Statistics (BLS) data on hearing loss injuries shows that from 2004-2009, incidences of hearing loss injuries have decreased from just under 29,000 per year to 19,500 per year and the rate of injuries has gone from 3.2 per 10,000 employees down to 2.2
More importantly the Senators posed several important questions to the Secretary of Labor that we very much look forward getting answers to as well:
-Did OSHA consider alternative interpretations prior to deciding to publish the proposed interpretation in the Federal Register? If so, what were these alternatives?
-Did OSHA consider any unintended consequences the proposed interpretations could have on small businesses? How did the agency address these concerns during formulation of the proposed interpretation?
-Does OSHA have any quantitative data affirming the necessity to change this policy, given that numerous organizations have noted that the current policy is effective?