TESTIMONY OF
AMERICAN SOCIETY OF SAFETY ENGINEERS ("ASSE")
On the Matter of:
"Is the Department of Labor Regulating the Public
Through the Backdoor?"

Presented by
Adele L. Abrams, Esq., Patton Boggs LLP
February 15, 2000

Chairman McIntosh and Esteemed Members of this Committee: My name is Adele Abrams. I am an attorney with Patton Boggs LLP, Washington, DC, who represents the American Society of Safety Engineers ("ASSE") at the national level. I am also a professional member of ASSE's National Capital Chapter. In addition to practicing occupational safety and health law, I am an MSHA-certified instructor, conduct workplace safety audits, and am recognized in the National Registry of Safety Professionals and Other Registrants.

It is an honor for me to represent ASSE, which is the oldest and largest Society of safety professionals in the world. Founded in 1911, ASSE represents almost 33,000 dedicated safety professionals and serves as Secretariat of seven American National Standards Institute ("ANSI") Committees, developing voluntary consensus safety and health standards used by both government agencies and the private sector. ASSE is dedicated to excellence, expertise, and commitment to the protection of people, property, and environment on a worldwide basis.

Today, my testimony focuses on how ASSE views the administrative procedures used by the Occupational Safety and Health Administration ("OSHA") and the Mine Safety and Health Administration ("MSHA") when issuing letters of interpretation, memoranda, procedural documents, and other policy statements. We are also submitting a longer statement, which we ask to be included in the hearing record.

The membership of the Society probably requests and receives more letters of interpretation from OSHA and MSHA than those of any other organization involved with occupational safety and health. These interpretative documents and policy statements are a significant part of both agencies' compliance and consultation assistance activities.

ASSE supports and encourages the issuance of information that assists employers in complying with OSHA and MSHA standards and ensuring the safety of their workers. Our members make decisions on a daily basis that literally have life and death consequences, and the actions they choose to take may be guided by such cutting-edge information. It is in the best interests of safety and health in the workplace that such information be available rapidly, both through publication and broadcast on the agencies' websites.

We hope that this subcommittee will not overlook the positive benefit that such interpretative materials can have for small businesses. Small business compliance assistance is of growing interest for our members, and we have long encouraged federal agencies to dedicate more of their resources to this area. Many of ASSE's 2,300 members in the Consultants Division work with small businesses, advising them on safety and health issues. Both consultants and employers routinely write to OSHA, MSHA and the National Institute for Occupational Safety and Health ("NIOSH") to obtain interpretative statements concerning particular subject areas.

ASSE also notes that while overall results have been excellent in getting guidance from OSHA and MSHA, in some cases there have been significant delays in issuing a response. Generally, however, the information provided assists businesses in implementing their occupational safety and health program in an efficient and effective manner. Both employees and employers receive direct benefit from this "win-win" approach. Consequently, ASSE strongly recommends that OSHA and MSHA continue to provide and disseminate interpretative materials publicly, in order to provide much-needed guidance and clarification.

Although not legally binding, some of the agencies' more "formal" interpretative documents - for example, MSHA's program policy manual and OSHA's numerous Directives (such as the "CPLs") -- are instructive in determining how an agency has interpreted a standard or regulation in the past. We should not forget that they are also utilized by the courts to determine whether an enforcement action is "reasonable" and the degree of deference that should be accorded based on the consistency of the agency's interpretation of a particular standard. The agencies should, however, make it clear to the public that these "guidance" documents are of a non-binding nature, and guard against extending the scope of existing standards and regulations through such interpretative materials.

ASSE notes that guidance documents can be non-binding and still provide real value. Since the Society is secretariat of seven (7) ANSI committees, and regularly writes letters of interpretation for such standards, we can directly attest to the importance in maintaining such a process. However, although safety professionals (and attorneys) are aware that interpretative materials are not legally binding, the public may not be clear on this point. Therefore, OSHA, MSHA and other agencies should consider including a statement to this effect on all future materials that are intended to be interpretative policies, rather than substantive rules. Chairman McIntosh's new legislation, The Congressional Accountability for Regulatory Information Act of 2000 (H.R.3521, Section [4-b]), addresses this very issue. This appears to be a reasonable requirement and we look forward to hearing the debate on this legislation.

In summary, although ASSE's overall experience with agency interpretative materials has been very positive, and surveys indicate that ASSE members generally view the agency's policy process as an asset, that does not mean that there cannot be significant improvement. We encourage OSHA and MSHA to work with organizations such as ASSE more proactively when addressing such issues. There is a greater need for synergy in both the public and private sectors when writing interpretative materials. From its standards work, ASSE has the expertise to do so and is more than willing to work with these agencies.

Finally, in order to remain exempt from formal rulemaking under the Administrative Procedure Act ("APA"), interpretative documents cannot go beyond the plain language of the standard or create a "secret" rule. If an agency desires to impose new obligations or burdens on the regulated community, it must engage in formal "notice-and-comment" rulemaking. The APA's rulemaking procedures provide employers, employees and safety professionals with the opportunity to offer OSHA and MSHA valuable input and share real-world experience. The end result is an improved regulatory structure and enhancement of safety and health.

With that final statement, I thank you for your time today and would be pleased to answer any questions that you may have.

[End of verbal testimony; formal statement follows]

     

February 15, 2000

The Honorable David McIntosh
Chairman, House Subcommittee on National Economic
Growth, Natural Resources, and Regulatory Affairs
1610 Longworth House Office Building
Washington, DC 20515-1402

ASSE STATEMENT
"Is the Department of Labor Regulating the Public Through the Backdoor"?
The Congressional Accountability for Regulatory Information Act of 2000 (H.R.3521)

Dear Chairman McIntosh:

The purpose of this statement to inform you of ASSE's position concerning the Subcommittee's February 15, 2000, hearing: Is the Department of Labor Regulating the Public Through the Backdoor? Our statement also addresses H.R. 3521, The Congressional Accountability for Regulatory Information Act of 2000.

Introduction

The American Society of Safety Engineers (ASSE), is the oldest and largest Society of Safety Professionals in the world. Founded in 1911, ASSE represents nearly 33,000 dedicated safety professionals. Included in this membership are Certified Safety Professionals, Professional Engineers, ergonomists, academicians, fire protection engineers, system safety experts, industrial hygienists, physicians, occupational nurses, and an impressive collection of other disciplines, skills, and backgrounds. ASSE is dedicated to excellence, expertise, and commitment to the protection of people, property, and environment on a world?wide basis.

ASSE serves as Secretariat of seven (7) American National Standards Institute Committees (ANSI) developing safety and health standards which are used by private sector organizations as well as state/Federal governmental agencies such as MSHA, OSHA, etc. ASSE members also sit on over forty (40) additional standards development committees and the Society sponsors educational sessions on standards development. The Society also has eleven (12) technical divisions consisting of: Construction, Consultants, Engineering, Environmental, Health Care, Industrial Hygiene, International, Management, Public Sector, Risk Management and Insurance, Mining, and Transportation. The ASSE members included in these divisions are leaders in their field, with the knowledge and expertise needed to move safety and health forward on a global level.

ASSE Insights on the Hearing

ASSE has great interest in the hearing issue: Is the Department of Labor Regulating the Public Through the Backdoor? We will focus on how our members view the administrative procedures used by OSHA and MSHA when issuing letters of interpretation, memoranda, and other policy statements.

Our members may well request and receive more letters of interpretation from OSHA and MSHA than any other organization involved with occupational safety and health. Letters of interpretation, memoranda, and other policy statements are a significant part of the agencies' compliance and consultation assistance activities. This is something ASSE has, and always will, strongly support. It is important to employers, employees, and safety professionals that measures be taken to encourage publication of such information. Our members make decisions on daily basis, that could literally have life and death consequences, that are drawn from such cutting edge information. It is in the best interests of enhancing safety and health in the workplace that such information be readily available.

What should be of significant interest to you and the members of your esteemed subcommittee is the positive benefit such interpretative materials can have for small businesses. We believe small business is of importance to the long term security of the U.S. economy. ASSE has a Consultants Division with approximately 2,300 members. These consultants work with a significant number of small business (having under 75 employees) on safety and health issues. Safety and health consultants, as a practice, will routinely write to OSHA and other safety and health agencies for interpretative statements on behalf of their small business clients. The results have generally been excellent in that cutting edge information is received, small businesses are able to enhance their occupational safety and health program in an efficient and effective manner, and both employees and employers receive direct benefit. We see such a program as win-win for all of those involved.

ASSE strongly recommends interpretative materials should continue to be written and posted as public information since they do provide needed guidance and clarification. Some of the best safety and health materials we have seen can be of a non-binding nature. Since the Society is secretariat of seven (7) ANSI committees, and regularly writes letters of interpretation for our standards, we can directly attest to the importance in maintaining such a process. In addition, safety professionals are aware that interpretative materials are generally not binding.

ASSE Insights on H.R.3521 - Section [4-b]

The problem appears to be how to inform the general public on the difference between a binding substantive rule and public guidance information. Chairman McIntosh has introduced legislation, The Congressional Accountability for Regulatory Information Act of 2000 (H.R.3521), which addresses this very issue.

We look forward to hearing the debate on this legislation, but point out that our overall experience with the interpretative materials published by OSHA and MSHA has been very positive. We know from past surveys and questionnaires that ASSE members generally view the process as an asset. However, that does not mean that there cannot be significant improvement. The Society has spoken out before in the past on the need for the agencies to work with organizations like ASSE on a more proactive basis when addressing such issues. We believe there is a greater need for synergy in both the public and private sectors when writing interpretative materials.

ASSE takes the position that OSHA and MSHA should continue to issue and make public interpretative documents and memoranda, and compliance assistance materials, so long as such documents: (1) are treated as "non-binding" from a legal perspective and are so marked in the future; (2) do not impose new substantive requirements that go beyond the plain language of the standard or regulation; and (3) are not used by the agency for enforcement purposes. The courts uniformly conclude that if an agency labels a document as "interpretative," it cannot be enforced in the same manner as a substantive rule. If an agency wants to enforce an "interpretation" that imposes a new, binding requirement, it must go to formal "notice-and-comment" rulemaking.

The impression of some ASSE members is that OSHA and MSHA have, on occasion, attempted to craft new regulatory requirements through interpretative documents. The courts have rejected such requirements as an invalid exercise of rulemaking authority, in violation of the Administrative Procedure Act. Although the courts will defer to the agency's regulatory interpretation "as long as it is reasonable," this deference is greater when the "interpretation" was previously set forth in writing and lesser when the interpretation is announced for the first time through an enforcement action or differs significantly from a prior published interpretation. We believe the key issue for consideration is: Does the "interpretative" requirement naturally flow from the standard's preexisting language, or does it impose a new compliance obligation that our members will be responsible for implementing in the workplace?

Although OSHA and MSHA do submit their interpretative materials to the Solicitor of Labor for review, this is not necessarily indicative of a desire to have it "stand as a legal basis" for OSHA action. Rather, it suggests that the agency does not want to depart from previously established interpretations or from precedential case law. Finally, it should be noted that the courts eschew finding that an agency is estopped from reversing a previously announced, non-binding interpretation. Thus, an employer or other member of the public relies upon agency "interpretation" at its own peril (although the existence of such a document supporting an employer's position can be helpful evidence with respect to negligence in an enforcement action). Similarly, OSHA can use a previously published interpretation as evidence that a current consistent enforcement posture is legitimate and in accordance with its longstanding interpretation of a standard or regulation.

Conclusion

In order to remain exempt from formal rulemaking under the Administrative Procedure Act, agency interpretative documents cannot go beyond the plain language of the standard or create a "secret" rule. If an agency desires to impose new obligations or burdens on the regulated community, it must engage in formal "notice-and-comment" rulemaking. These formal rulemaking procedures provide employers, employees and safety professionals with the opportunity to offer OSHA and MSHA valuable input and share real-world experience. However, non-binding interpretative documents also provide valuable compliance assistance to employers, workers, and safety and health professionals. By utilizing both formal substantive rulemaking and informal guidance, in a way that passes legal muster and affords adequate notice to the public as to the nature of a particular document, the end result will an improved regulatory structure and enhancement of safety and health.

Representatives of the Society, ASSE's Governmental Affairs Committee, will be visiting Washington, DC on April 4, 2000. We hope to be able to meet with you and your staff in order to again discuss these issues.

We thank you for your attention to this matter, and if we can be of assistance, please feel free to contact the Society.

Sincerely Yours,

Frank H. Perry, PE, CSP
Society President, 1999-2000

Copy To:  ASSE Board of Directors
                   ASSE Council on Professional Affairs
                   ASSE Governmental Affairs Committee
                   ASSE Contact List

     

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