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House Sub-committee on Workforce Protection Questions OSHA Rulemaking and Enforcement Process

Posted: February 10, 2014

On February 4, 2014, NFDA representatives attended a House sub-committee on Workforce Protection Hearing, chaired by Representative Tim Walberg (R-MI), entitled "OSHA's Regulatory Agenda: Changing Long Standing Policies Outside of the Public Rule Making Process." The purpose of attending this hearing was to first determine any impact, either directly or indirectly, on funeral service and on the standards that affect funeral service, and also to gain insight into the apparent changes to OSHA's rulemaking process that may affect NFDA members.

The issue, before the sub-committee, was whether or not OSHA's currently promulgated "Guidance Documents" and "Letters of Interpretation" were being impermissibly used as a rule making tool to accelerate and bypass the rule making process. The allegation is that OSHA's current use of guidance documents and letters of interpretation amounted to actual rulemaking and policy change, without the legally required publication and period of public comment mandated by the Administrative Procedures Act.

While the factual issues did not deal with funeral service, it was agreed that, generally, the use of guidance documents and letters of interpretation that are generated by inquiries from affected employers and employer groups is legitimate.

The dispute is whether or not the current use of guidance documents and letters of interpretation amounted to the imposition of substantive standards outside of the required procedures of the Administrative Procedures Act. To summarize the view of the majority of the witnesses, this use or misuse of guidance documents and letters of interpretation is a misuse of regulatory power and an unjustified expansion of OSHA's enforcement authority.

Other testimony indicated that OSHA is understaffed and permissible exposure limits for a number of hazardous and toxic chemicals are out-of-date, given current science. Because of a prior Court ruling, OSHA must revise each permissible exposure limit individually rather than as a group. Given OSHA's resources, and the estimated seven year time to fully revise a standard through the normal regulatory procedures that include public comment, OSHA is woefully lacking in its ability to protect employees dealing with a number of hazardous and toxic substances. The inference was that the current use of guidance documents and letters of interpretation legitimately address this situation. No specific chemicals were named or alluded to during the hearing but formaldehyde and gluteraldehyde have been on OSHA's radar for some time.

Whether or not OSHA is unjustifiably expanding its executive power through policy documents is debatable. From the comments, it is fairly clear that this hearing was, at least in part, generated by President Barack Obama's comment, during the State Of The Address that if Congress wouldn't act, he would, which clearly was a reference to executive powers through administrative agencies such as OSHA.

NFDA will continue to closely monitor OSHA's enforcement policies for any impermissible and unjustified use of guidance documents and letters of interpretation to expand its enforcement authority and scope over those OSHA standards that directly affect funeral service, such as formaldehyde, hazard communication and blood borne pathogens, and for any attempt by OSHA to arbitrarily reduce allowable exposure limits without public comment.

NFDA members are cautioned to strictly comply with all current, applicable OSHA standards in light of the agency's apparent, increasing adversarial enforcement policies.