On May 2, 2016, the National Association of Manufacturers joined with the American Foundry Society to challenge the Occupational Safety and Health Administration’s (OSHA) new crystalline silica rule, which cuts the current permissible exposure limit in half and requires employers to implement costly engineering controls. The rule attempts to limit exposure to silica-containing materials, such as concrete and stone, in industries like brick manufacturing, foundries and hydraulic fracturing. We are fighting this rule on all fronts by both petitioning for review of the final rule and intervening to address the union filings directly. Last week, on November 11, we filed our joint industry opening brief to oppose this rule, which will severely stunt the economy and burden manufacturers. Read More
The Manufacturers’ Center for Legal Action filed a lawsuit on Friday, July 8, 2016, to challenge the Labor Department’s Occupational Safety and Health Administration (OSHA) workplace injury and illness New Rule. The New Rule places unreasonable restrictions on employer programs to increase workplace safety. As noted in our press release, not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.
The NAM’s complaint challenges the New Rule’s prohibitions and limits on employer safety incentive programs and drug testing programs. Incident-based safety incentive programs and post-accident drug testing programs help employers promote workplace safety, which is supposed to be OSHA’s primary mission. Instead, out of a misguided zeal to improve accuracy of reporting on workplace injuries, OSHA has lost sight of the importance of reducing the number and severity of injuries themselves. Properly designed incident-based employer safety incentive programs are the most effective tool to get employees and supervisors immediately invested in workplace safety. Through these programs, employees are continuously motivated to improve their environment and to look out for their safety and the safety of others and to eliminate unsafe behaviors. The result is a dramatic decrease in accident frequency and severity.
By encouraging all employees, including supervisors, to improve workplace safety, incident-based safety incentive programs jump-start a change in culture that results in a prompt and sustained decrease in accident frequency and severity. Without these incident-based safety incentive programs, instituting a culture of safety in the workplace is much more slow and difficult and seldom leads to the same dramatic reductions in serious accidents. The New Rule is unlawful and must be vacated because it exceeds OSHA’s statutory authority; was adopted without observance of the procedures required by law; and because the challenged provisions, and their underlying findings and conclusions, are arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.
In addition, on July 12, 2016, the NAM filed a memorandum and emergency motion for a preliminary injunction seeking to prohibit OSHA from implementing the New Rule, which will otherwise take effect on August 10, 2016, causing irreparable harm to many thousands of employers across the country. The New Rule irreparably harms employers and employees by making their workplaces less safe and increasing the likelihood of workplace injuries and fatalities. If OSHA’s rule is not struck down, manufacturers will have to make a “Hobson’s choice” between eliminating or drastically restricting highly effective incident-based safety programs and/or drug testing programs, thereby increasing the number of employee injuries and even fatalities in the workplace; or else risking exposure to increased OSHA citations, inspections and penalties if the safety programs are not removed. OSHA’s main goal is to eliminate or minimize the frequency and severity of workplace injuries, illnesses and deaths—this misguided New Rule does not accomplish that goal.
35,000. That’s the cost of federal regulations endured by a small manufacturer with fewer than 50 employees—per year, per employee!
I think we can all agree: this isn’t the way our regulatory system should work. It is time for real reform.
That’s why the National Association of Manufacturers, in partnership with the Small Business & Entrepreneurship Council, is launching a project called Rethink Red Tape to bring the regulatory issue to life for lawmakers in Washington and provide real momentum for reform.
Regulations are important, but the constant churn of new and misguided rules leads to regulations that are counterproductive, contradictory and next to impossible to understand. That’s especially hard for small business owners who don’t have the resources to keep pace with new regulations and absorb their higher costs.
Layers of excessive regulations hurt manufacturers’ ability to invest in new innovations, and our entire economy suffers as a result.
To correct this and enable American manufacturers and small businesses to grow and create jobs, regulatory reform has to be a bipartisan priority. Transparency, accountability and honest evaluations of small business costs need to be part of our government’s regulatory calculus. Too often, this is the exception and not the rule.
Rethink Red Tape will bring personal viewpoints and real-life stories to the conversation to explain the impact regulations have on small firms and the hours and opportunities manufacturers lose because of them.
As our program grows, we’ll identify and advance bipartisan solutions that will change the way regulations are written and give small businesses a stronger voice in the process.
Today, the proposed silica rule (reducing the occupational permissible exposure limit) will head to its final stage of review at the Office of Management and Budget and will likely become final during the early party of 2016—a long anticipated rule that is twelve years in the making.
We agree permissible exposure limits implemented in the early 1970s should be reviewed and revised, however, relying on outdated data from over a decade ago should not be the standard we expect from our government when issuing new regulations. The standard should be higher. Manufacturers have been concerned with the length of time this rule has taken to move forward—from submission of public comments to the final rule stage will be more than two years. The NAM first submitted comments in February 2014 and then testified at a public hearing in March 2014 and submitted its final brief before the record closed in August 2014.
Today, the NAM filed supplemental comments to OSHA’s proposed rule publicizing injury and illness data of private employers. In January, the NAM’s Labor and Employment Policy team participated in a public hearing on this rule and from the outset, the NAM has opposed this rule for a few very simple reasons: 1) OSHA has the tools they need to improve workplace safety at their disposal already; 2) This data would be presented without context and could result in a serious misrepresentation of a particular company or industry; 3) This rule gets us no closer to the shared goal of a safer workplace. Nothing has changed to mitigate these concerns – improbably, the rule is getting worse
In August, OSHA reopened the rule posing several questions, without any actual regulatory text. What OSHA appears to be doing is adding new provisions to the rule as well as additional burdens and confusion to employers.
For example, if an employer has a stellar record for being injury and illness free for several months, the employer, to boost morale and to show the company’s safety record, may prominently post this for employees and customers to see. Defying logic, however, supplements to the rule would a classify this type of posting as discouraging employees from reporting injuries and illnesses in the workplace. OSHA could therefore cite an employer for this. Despite a reality devoid of data, scientific studies or research to back up OSHA’s assertion, they are moving forward in this misguided thinking.
OSHA should take time now to apply the fundamental question to its rule making process – does it make the workplace safer? Unfortunately, in this case it misses the mark.
Amanda Wood is Director of Employment Policy for the National Association of Manufacturers
Today, the NAM testified before an Administrative Law Judge and a panel of OSHA officials on the agency’s proposal to lower the permissible exposure limit to respirable crystalline silica. Joe Trauger, Vice President of Human Resources Policy and Amanda Wood, Director of Employment and Labor, spoke on behalf of manufacturers in all sectors. Their testimony, which you can find here, highlighted some of the difficulties manufacturers will face with the new standard.
In particular, concerns were raised about whether employers will have certainty they are complying with the new lower exposure limit given challenges with testing technologies and inherent error rates with any in-field testing regime. Also of note, is the feasibility of employing engineering controls to limit the risk of exposure. OSHA has estimated the new regulation would cost roughly $640 million for industry to adopt, but business estimates range up to ten times higher.
OSHA’s hearing on the new silica standard is set to conclude on April 4. The NAM has filed formal written comments, submitted its testimony today and will file post-hearing comments with the agency on this proposal. A final rule is expected next year.
Yesterday, OSHA convened the first day of a three-week public hearing on the proposed silica rule, which would reduce the permissible exposure limit (PEL) when working with crystalline silica (or sand). The proposed rule has been over a decade in the making, consists of over a thousand pages of rule text and economic impact. And, although the comment period came to a close last month, OSHA announced it would have a public hearing for stakeholders to present information and question one another. Equally important, the hearing was supposed to provide stakeholders an opportunity to question OSHA and the data it presented as its justification for the rule.
One would think this is what an open and transparent government is all about, right? Well, not exactly. It became abundantly clear from the first couple hours of this hearing that the openness and transparency of this government comes only when it is convenient for them and is often a one way street—only open for travel by the stakeholder.
Notwithstanding the volumes of material OSHA has put in the public record, the agency allotted itself only two-and-a-half hours to take questions from stakeholders and experts. In fact, each inquirer was given a mere five minutes to question the validity of the data used to justify the rule change. At one point, the OSHA panel even declined the judge’s direct request to work through lunch so as to not answer questions. You would think with three weeks for the hearing and if the rule change is indeed on solid ground, OSHA could have withstood more than a few dozen questions. Maybe the rule really isn’t as strongly supported after all? The farce of this hearing process is one that is likened to a one-way mirror in an interrogation room—only one side is really subject to questioning and they are not permitted to have knowledge of what the full story looks like.
Yesterday, the NAM filed its comments in response to the Occupational Health and Safety Administration’s (OSHA) proposed rule, which would cut the permissible exposure limit (PEL) to respirable crystalline silica (or sand) in half from its current level. To breakdown what this means is if you took a basic sugar packet and then dispersed it into a building that is the length of a football field and 13 feet high—this would be the amount of sand we are talking about.
Particularly noteworthy in this rulemaking is that OSHA has been working on the rule for well over a decade, starting back in 2003 with the Small Business Review Panel, and then using data points from the 2002-2007 timeframe to justify OSHA’s cost analysis. It is, therefore no wonder OSHA’s cost estimate of $656 million and industry’s of $5 billion are so far apart. Yet, OSHA gave the public only 157 days to read and analyze well over 1,500 pages and gain an understanding of whether a lower PEL and implementing engineering controls were even feasible for companies who work with silica every day.
One thing is for sure, the NAM has serious concerns with lowering the current PEL and what that will mean for manufacturers and questions whether the rule is necessary, the methodologies relied upon are valid and process has been fair.
NAM’s Labor Employment Policy Team took part in OSHA’s public meeting on their proposed rule to publicize injury and illness data. From the outset, the NAM has opposed this rule for a few very simple reasons: 1) OSHA has the tools they need to improve workplace safety at their disposal already; 2) This data would be presented without context and could result in a serious misrepresentation of a particular company or industry; 3) This rule gets us no closer to the shared goal of a safer workplace.
A safe workplace is the top priority of manufacturers. Joe Trauger, NAM’s VP of Human Resources Policy, and Amanda Wood, NAM’s Director of Employment Policy, spoke on behalf of manufacturers at today’s public meeting. The comments they offered centered around the following themes – the current regulations are already working, public disclosure is detrimental to employers, the forced disclosure of proprietary information, and a violation of individual privacy rights. These themes were repeated throughout the day by other participants concerned with the impact of OSHA’s proposed rule.
Mr. Trauger closed the NAM’s comments by stating, “I would like to take a moment to remind the agency that manufacturers do not and cannot view regulations singularly as we so often do here in Washington. Manufacturers don’t have the luxury of focusing on or complying with one regulation at a time – they must comply with them all. This proposed regulation, on the heels of the recent Letter of Interpretation with respect to unions and or community organizations accompanying an OSHA inspector in non-unionized facilities, is alarming and viewed with great skepticism within the employer community.”
He’s absolutely right – the fallout from such a rule could be devastating to a company or industry judged on incomplete or misleading data. Instead let’s get OSHA focused on working more collaboratively with employers so they can reach the goal they both share – a safer workplace.
The business community is not the only stakeholder concerned about the short 90-day deadline to comment on OSHA’s proposed silica rule. Just yesterday, the Small Business Administration’s Office of Advocacy sent a letter recommending OSHA extend the public comment period on the silica rule by 90 days. The recommendations mirror the NAM’s, as well as others in the business community, request several weeks ago. The NAM request was reported on shortly after it was filed and was viewed as a stalling tactic by some in the labor community – a bold accusation considering the agency dumped 1400 pages of economic analysis on the public that’s incomplete, muddled and downright delusional. The one office within the Administration that’s charged with protecting and advocating for small business agrees with the NAM position that there ought to be more time to consider the ramifications of the proposed rule.
The Administration has considered this proposal for ten years, beginning in 2003 with a small business panel review. It therefore, borders on the ridiculous to give all stakeholders, and especially small business entities, a mere 90 days to meaningfully comment on the hundreds upon hundreds of pages of information that was finally unleashed a month ago. The rule was held up by the Administration itself at the Office of Information and Regulatory Affairs before any business groups or the public were allowed to see it. Does OSHA want to receive meaningful and robust comments, or is it simply trying to achieve something – anything? The silica rule is complex and has far-reaching effects up and down the supply chain. It will increase costs of raw materials, production and consumption. At least one office within the federal government thinks that’s worth having a serious look at before marching headlong into yet another debacle.