[Federal Register Volume 75, Number 201 (Tuesday, October 19, 2010)]
[Proposed Rules]
[Pages 64216-64221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26135]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2010-0032]

29 CFR Parts 1910 and 1926


Interpretation of OSHA's Provisions for Feasible Administrative 
or Engineering Controls of Occupational Noise

AGENCY: Occupational Safety and Health Administration (OSHA)

ACTION: Proposed interpretation.

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SUMMARY: This document constitutes OSHA's official interpretation of 
the term feasible administrative or engineering controls as used in the 
applicable sections of OSHA's General Industry and Construction 
Occupational Noise Exposure standards. Under the standard, employers 
must use administrative or engineering controls rather than personal 
protective equipment (PPE) to reduce noise exposures that are above 
acceptable levels when such controls are feasible. OSHA proposes to 
clarify that feasible as used in the standard has its ordinary meaning 
of capable of being done. The Agency intends to revise its current 
enforcement policy to reflect this interpretation. The Agency solicits 
comments from interested parties on this interpretation.

DATES: Submit comments on or before December 20, 2010.

ADDRESSES: You may submit comments by any of the following methods:
    Electronically: You may submit comments and attachments 
electronically at http://www.regulations.gov, the Federal eRulemaking 
Portal. Follow the instructions online for making electronic 
submissions;
    Fax: You may fax submissions not longer than 10 pages, including 
attachments, to the OSHA Docket Office at 202-693-1648.
    Mail, hand delivery, express mail, messenger and courier service: 
If you use this option, you must submit three copies of your comments 
and attachments to the OSHA Docket Office, Docket No. OSHA-2010-0032, 
U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., 
Washington, DC 20210. Deliveries (hand, express mail, messenger and 
courier service) are accepted from 8:15 a.m.-4:45 p.m., e.t.
    Instructions: All submissions must include the agency name and the 
OSHA docket number for this interpretation (OSHA-2010-0032). 
Submissions are placed in the public docket without change and may be 
accessed online http://www.regulations.gov. Be careful about submitting 
personal information such as social security numbers and birth dates.
    Docket: To read or download submissions or other material in the 
docket, go to http://www.regulations.gov or the OSHA Docket Office at 
the address above. All documents in the docket are listed in the http://www.regulations.gov index; some information (e.g., copyrighted 
material), however, can not be read or downloaded at the website. All 
submissions, including copyrighted material, can be examined or copied 
at the OSHA Docket Office.

FOR FURTHER INFORMATION CONTACT:  General information or press 
inquiries: MaryAnn Garrahan, Acting Director, Office of Communications, 
Room N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, 
NW., Washington, DC 20210; telephone 202-693-1999.
    For Technical Inquiries: Audrey Profitt, Senior Industrial 
Hygienist, Directorate of Enforcement Programs, Room N-3119, OSHA, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210; telephone: 202-693-2190, or fax: 202-693-1681.

SUPPLEMENTARY INFORMATION: This Federal Register document sets out 
OSHA's proposed interpretation of feasible administrative or 
engineering controls in 29 CFR 1910.95(b)(1) and 1926.52(b) for the 
purpose of enforcing compliance with these standards. This document 
does not address feasibility in any other context. Sections 
1910.95(b)(1) and 1926.52(b), which are substantively identical, 
require that when employees are exposed to sound exceeding the 
permissible level, feasible administrative or engineering controls must 
be utilized to reduce the sound to within that level, and if such 
controls are ineffective, personal protective equipment must be 
provided and used. Feasibility encompasses both economic and 
technological considerations, but this document addresses only economic 
feasibility. Under OSHA's current enforcement policy, the agency issues 
citations for failure to use engineering and administrative controls 
only when hearing protectors are ineffective or the costs of such 
controls are less than the cost of an effective hearing conservation 
program.
    As discussed below, this policy is contrary to the plain meaning of 
the standard and thwarts the safety and health purposes of the OSH Act 
by rarely requiring administrative and engineering controls even though 
these

[[Page 64217]]

controls are affordable and generally more effective than hearing 
protectors in reducing noise exposure. Accordingly, OSHA now proposes 
to consider administrative or engineering controls economically 
feasible when the cost of implementing such controls will not threaten 
the employer's ability to remain in business, or if such a threat to 
viability results from the employer's failure to meet industry safety 
and health standards.

I. Regulatory Background

    Section 6(a) of the OSH Act required the Secretary, during the two-
year period following the Act's effective date, to promulgate as an 
OSHA standard any national consensus standard and established Federal 
standard unless she determined that the promulgation of such a standard 
would not result in improved safety or health. 29 U.S.C. 655(a). 
Pursuant to section 6(a), OSHA promulgated the general industry noise 
standard as an ``established federal standard'' in 1971. 36 FR 10466, 
10518, May 29, 1971 (codified as Sec.  1910.95). Section 1910.95(b)(1) 
is derived from 41 CFR 50-204.10, an occupational noise exposure 
standard promulgated under the Walsh-Healey Government Contracts Act, 
41 U.S.C. 35-45, which requires that federal government contracts for 
materials over $10,000 must provide that the work be done under 
sanitary and safe working conditions, 41 U.S.C. 35(d). The requirements 
of the Walsh-Healey Act noise standard are the same as those of the OSH 
Act noise standard. Compare 41 CFR 50-204.10(b) with 29 CFR 
1910.95(b)(1).
    Section 1910.95(b)(1) states as follows:

    When employees are subjected to sound exceeding those listed in 
Table G-16, feasible administrative or engineering controls shall be 
utilized. If such controls fail to reduce sound levels within the 
levels of Table G-16, personal protective equipment shall be 
provided and used to reduce sound levels within the levels of the 
table.

Sec.  1910.95(b)(1).

    OSHA also promulgated the construction noise standard, originally 
codified at 29 CFR 1518.52, as an ``established federal standard'' in 
1971. 36 FR 10466, 10469, May 29, 1971. Before being adopted unchanged 
as an OSH Act standard, section 1518.52(b) was issued under the 
Construction Safety Act, 40 U.S.C. 333 (1969), which requires that 
federal construction contracts for over $100,000 must provide that the 
work be done under sanitary and safe working conditions. 40 U.S.C. 
3704(a)(1) (formerly cited as 40 U.S.C. 333(a)(1)); 36 FR 7340, 7348, 
April 17, 1971. At the end of 1971, Sec.  1518.52(b) was redesignated 
as Sec.  1926.52(b), 36 FR 25232, Dec. 30, 1971, its current 
codification.
    Section 1926.52(b) is almost verbatim identical to Sec.  
1910.95(b)(1) and provides:

    When employees are subjected to sound exceeding those listed in 
Table D-2 of this section, feasible administrative or engineering 
controls shall be utilized. If such controls fail to reduce sound 
levels within the levels of the table, personal protective equipment 
as required in subpart E, shall be provided and used to reduce sound 
levels within the levels of the table.

Sec.  1926.52(b).\1\
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    \1\ Table D-2 of Sec.  1926.52(b) is identical to Table G-16 of 
Sec.  1910.95(b)(1).

    Engineering controls involve modifications to plant, equipment, 
processes or materials that reduce the sound intensity at the source, 
by substituting quieter machines and processes, or by isolating the 
machine or its operator. See Forging Indus. Ass'n v. Secretary of 
Labor, 773 F.2d 1436, 1440 n.3 (4th Cir. 1985) (en banc); Donovan v. 
Castle & Cooke Foods, 692 F.2d 641, 643 n.2 (9th Cir. 1982). 
Administrative controls involve modifications of work assignments to 
reduce employees' exposure to noise, such as rotating employees so that 
they work in noisy areas for a short time. Forging Indus., 773 F.2d at 
1440 n.3. Personal protective equipment (PPE) includes hearing 
protectors such as ear plugs and ear muffs fitted to individual 
employees. Castle & Cooke, 692 F.2d at 643 n.2.

II. Interpretive History of Economically Feasible Administrative or 
Engineering Controls

 A. Current Enforcement Policy

    OSHA's early interpretive guidance on 29 CFR 1910.95(b)(1) 
indicated that feasible engineering or administrative controls must be 
used to reduce noise to acceptable levels and that PPE must be used as 
a supplement when such controls are not completely effective in 
achieving this objective. Letter from Barry J. White, OSHA Assistant 
Secretary for Regional Programs, to Leslie Anderson (March 19, 1975). 
In the following decade, OSHA issued citations to employers for failure 
to use affordable engineering and administrative controls to reduce 
noise levels. The Occupational Safety and Health Review Commission 
issued a series of decisions swinging back and forth between a cost-
benefit interpretation of economically feasible controls and a broader, 
plain-meaning definition of the term as ``capable of being done.'' The 
Commission ultimately settled on the cost-benefit interpretation.\2\ 
Although OSHA has not changed its interpretation of the standard, its 
enforcement policy since 1983 has allowed employers to rely on a 
hearing conservation program based on PPE if such a program reduces 
noise exposures to acceptable levels and is less costly than 
administrative and engineering controls. The development of the case 
law in this area is described below.\3\
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    \2\ To an economist, cost-benefit analysis contemplates an 
actual quantitative comparison of costs and benefits, typically 
through the conversion of all benefits and costs to monetary values. 
In the Castle & Cooke Foods case, discussed below, the Commission 
found that the health benefits of engineering controls did not 
justify their costs without monetizing the benefits and without 
explaining its valuation method. Although this approach would not 
constitute cost-benefit analysis in the sense used by economists, 
this document will refer to it as a cost-benefit test because that 
is the terminology used by the Commission.
    \3\ OSHA has not interpreted, and the Commission has not 
construed, the virtually identical language of Sec.  1926.52(b).
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B. Commission and Court of Appeals Interpretations of Feasible

    The Commission first addressed section 1910.95(b)(1) in Continental 
Can Co., 4 BNA OSHC 1541, 1547 (Nos. 3973, 4397, 4501, 4853, 5327, 
7122, 7910 & 7920, 1976). There, the Commission rejected the 
Secretary's argument that the costs of noise-reducing engineering 
controls are not relevant unless they would seriously jeopardize the 
financial health of the company. The Commission held that, in 
determining whether controls are economically feasible, all the 
relevant costs and benefit factors must be weighed. Ibid. The 
Commission refined this cost-benefit interpretation in Castle & Cooke 
Foods, 5 BNA OSHC 1435, 1438 (No. 10925, 1977), aff'd, 692 F.2d 641 
(9th Cir. 1982), holding that engineering controls are economically 
feasible only if the health benefits to employees from noise reduction 
justify the cost to the employer. Applying this test, the Commission 
found that, although engineering controls would reduce ambient noise in 
Castle & Cooke's plants to within the limits of Table G-16, the hearing 
loss avoided by such a reduction would not be life-threatening or, in 
most cases, seriously debilitating. Id. at 1440. Rejecting the 
Secretary's position that engineering controls were affordable, that 
the health benefits of such controls would be significant, and that 
hearing protectors were less effective, the Commission concluded that 
the health benefits did not justify the cost of implementing 
engineering controls. Ibid. The Secretary

[[Page 64218]]

appealed Castle & Cooke to the Ninth Circuit, and while that case was 
pending, the Supreme Court decided American Textile Mfgs. Institute, 
Inc. v. Donovan (ATM), 452 U.S. 490, 508-11 (1981). In ATMI, the Court 
held that feasible in section 6(b)(5) of the OSH Act, which requires 
that the Secretary promulgate standards for toxic substances at the 
most protective level, ``to the extent feasible,'' means ``capable of 
being done,'' and therefore rules out balancing costs and benefits. 
ATMI, 452 U.S. at 508-09. The Ninth Circuit rejected the Secretary's 
argument that the Supreme Court's interpretation of feasible in section 
6(b)(5) was controlling as to the meaning of the same term in Sec.  
1910.95(b)(1). Believing itself bound to defer to the Commission's 
expertise in interpreting the standard, the Ninth Circuit distinguished 
ATMI on the ground that the Court's holding was limited to section 
6(b)(5) standards and left open whether the general requirement in 
section 3(8) of the Act that OSHA standards be ``reasonably necessary'' 
might support cost-benefit analysis for standards issued under 
provisions other than section 6(b)(5).\4\ Donovan v. Castle & Cooke 
Foods, 692 F.2d 641, 648-49 (9th Cir. 1982). On this basis, the Ninth 
Circuit concluded that the Commission was ``free to exercise its 
authority to interpret the [standard]'' and the Commission's cost-
benefit interpretation was neither unreasonable nor arbitrary. Id. at 
649
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    \4\ Section 3(8) of the Act defines an occupational safety and 
health standard as one ``which requires conditions, or the adoption 
or use of one or more practices, means, methods, operations or 
processes reasonably necessary or appropriate to provide safe or 
healthful employment and places of employment.'' 29 U.S.C. 652(8).
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    In December 1982, a month after the Ninth Circuit affirmed Castle & 
Cooke, the Commission reinterpreted the word feasible in section 
1910.95(b)(1) in light of ATMI. Sun Ship, Inc., 11 BNA OSHC 1028 (No. 
16118, 1982). Rejecting the Ninth Circuit's analysis as ``divergent,'' 
two Commissioners agreed that the Supreme Court's interpretation of 
feasible in section 6(b)(5) controls the meaning of the same term in 
the noise standard, and precludes balancing the health benefits of 
engineering controls against their costs. Sun Ship, 11 BNA OSHC at 
1031-32. Administrative and engineering controls are economically 
feasible, the Commission held, if their cost does not threaten the 
cited employer's long-term profitability and competitiveness, or if the 
employer's inability to afford these controls results from having 
lagged behind the industry in providing safety or health protection for 
employees. Id. at 1033. Chairman Rowland dissented, arguing that the 
fact that the Commission had previously been unable to agree on the 
meaning of feasible, indicated that Sec.  1910.95(b)(1) lacked 
ascertainable criteria for its enforcement and was therefore 
unenforceable as written. Id. at 1037-43.
    In 1984, the Commission overruled Sun Ship in a split decision in 
which the two majority commissioners presented different rationales. 
Sherwin-Williams Co., 11 BNA OSHC 2105, 2110-11 (No. 14131, 1984). In 
the majority opinion, Commissioner Buckley resurrected the Ninth 
Circuit's Castle & Cooke analysis that the majority in Sun Ship had 
expressly rejected. Citing the Ninth Circuit's holding that the 
Commission was not required by ATMI to abandon cost-benefit analysis 
under Sec.  1910.95(b)(1), and the fact that the Secretary had revised 
her enforcement policy in 1983 to accept a cost-benefit approach, 
Commissioner Buckley concluded that Sun Ship should be reexamined. 
Sherwin-Williams Co., 11 BNA OSHC at 2108-09. He also found that it was 
reasonable to believe that the government contractors bidding on Walsh-
Healey Act contracts would have understood ``feasible administrative 
and engineering controls'' to mean those controls that were practical 
and cost-effective. Id. at 2110. For these reasons, Commissioner 
Buckley concluded that cost-benefit analysis was incorporated into the 
noise standard upon its adoption under section 6(a) of the OSH Act. 
Ibid. Under this approach, if the employer produces evidence of the 
cost of controls, the Secretary must prove that ``the benefit of the 
proposed engineering controls justifies their relative cost in 
comparison to other abatement methods.'' Ibid.
    Chairman Rowland concurred in overruling Sun Ship, but for a 
different reason. Chairman Rowland restated the position he had taken 
in his dissent in Sun Ship that Sec.  1910.95(b)(1) was unenforceable 
as written because it provided no ascertainable criteria for 
determining what administrative and engineering controls were 
``feasible'' and impermissibly delegated authority to the Commission to 
decide what the standard meant. Sherwin-Williams, 11 BNA OSHC at 2111 
(Rowland, Ch., concurring). Chairman Rowland noted, however, that 
absent agreement by two commissioners on the standard's interpretation, 
the parties and administrative law judges would have no clear guidance 
on what principles to apply. Ibid. He concluded that ``as between the 
test set forth in Sun Ship and the cost-benefit approach adopted by 
Commissioner Buckley, I believe the later test represents the more 
reasoned result.'' Ibid. Thus Chairman Rowland joined in adopting 
Commissioner Buckley's cost-benefit test for determining the 
feasibility of engineering controls. Id. at 2112.
    Commissioner Cleary dissented, finding no grounds to overrule Sun 
Ship. Sherwin-Williams, 11 BNA OSHC at 2112-14 (Cleary, C., 
dissenting). He argued that the Court in ATMI determined that the plain 
meaning of feasible is ``capable of being done,'' and that the term 
therefore cannot be understood to incorporate a cost-benefit analysis. 
Id. at 2112. The fact that ATMI dealt with section 6(b)(5), rather than 
section 6(a), of the OSH Act was unimportant, in Commissioner Cleary's 
view, because there is nothing in the Act to support giving the term 
feasible in the noise standard anything other than its plain, ordinary 
meaning. Id. at 2112-13. He also noted that acceptance of the 
majority's cost-benefit approach would virtually eliminate engineering 
controls from the noise standard since earplugs or earmuffs will almost 
always cost less than effective engineering controls. Id. at 2113-14. 
In Commissioner Cleary's view, the majority's adoption of a cost-
benefit test amounted to an unauthorized amendment of the standard. Id. 
at 2114.
    In response to the Ninth Circuit's Castle & Cooke decision, OSHA 
adopted enforcement guidelines allowing employers to use PPE and a 
hearing conservation program, rather than engineering or administrative 
controls, when hearing protectors are less costly than such controls, 
unless noise levels are especially elevated CPL 2-2.35A, Sec.  G (Dec. 
19, 1983). A hearing conservation program is one that meets the 
standard's requirements for protecting employees from the harmful 
effects of noise at or above 85 decibels. See Sec.  1910.95(c)-(o); 
Forging Indus., 773 F.2d at 1440. Such a program includes monitoring, 
periodic audiometric testing, provision of hearing protectors, training 
and other elements. Forging Indus., 773 F.2d at 1440-41.
    OSHA's enforcement policy as set forth in the Field Operations 
Manual (FOM) authorizes citing employers for failing to use engineering 
and/or administrative controls only when (1) noise levels are so high--
said to border on 100 dBA when the most effective hearing protectors 
are used--that hearing protectors alone will not reliably reduce noise 
to acceptable levels; or (2) the costs of such controls are less than 
the cost of an effective hearing conservation program. FOM, CPL 02-00-
148, Chapt. 4 Sec.  XI.B.1 (Nov.

[[Page 64219]]

9, 2009). Since effective engineering and administrative controls 
almost always cost more than a hearing conservation program based on 
hearing protectors, citations are rarely issued for failure to use such 
controls under OSHA's current policy.

III. OSHA's Interpretation of Economic Feasibility in 29 CFR 
1910.95(b)(1) and 1926.52(b)

    The legal landscape concerning the interpretation of Sec.  
1910.95(b)(1) (and therefore of the substantively identical Sec.  
1926.52(b)) has dramatically changed since the Ninth Circuit's Castle & 
Cooke, and the Commission's Sherwin-Williams decisions. In Martin v. 
OSHRC (CF & I), 499 U.S. 144, 150-55 (1991), the Supreme Court 
established that the Secretary is the administrative actor responsible 
for issuing authoritative interpretations of OSHA standards, while the 
Commission's role, as neutral arbiter, is to determine whether the 
Secretary's interpretation is reasonable. The Commission is not, as the 
Ninth Circuit believed, free to exercise de novo authority to interpret 
a standard, and a court of appeals is to defer to the Secretary's 
interpretation if reasonable, not the Commission's. Although OSHA has 
for some time acquiesced as a matter of enforcement policy in the 
Commission's cost-benefit test for determining the economic feasibility 
of administrative and engineering controls under the noise standards, 
the agency has decided that this approach is inconsistent with the 
standards. For the reasons stated below, OSHA has concluded that 
engaging in cost-benefit analysis under Sec. Sec.  1910.95(b)(1) and 
1926.52(b) is contrary to the plain meaning of feasibility and thwarts 
the safety and health purposes of the OSH Act and the standard. 
Therefore, OSHA proposes to consider administrative or engineering 
controls economically feasible under the noise standards when the cost 
of these controls will not threaten the cited employer's ability to 
stay in business or when the threat to viability results from the 
employer's having lagged behind the industry in providing safety and 
health protection for employees.
    The language of the noise standards frames the analysis. The 
Supreme Court has held that the word feasible has the plain meaning of 
``capable of being done'' and does not permit cost-benefit analysis. 
The noise standards require that ``feasible administrative or 
engineering controls'' be utilized when noise is excessive. In ATMI, 
the Supreme Court considered the meaning of the word feasible in the 
context of section 6(b)(5) of the OSH Act, 29 U.S.C. 655(b)(5), which 
requires that the Secretary set standards for toxic substances at the 
level which most adequately assures, ``to the extent feasible,'' that 
no employee will suffer material impairment of health. The Court found 
that the plain meaning of feasible is ``capable of being done;'' 
``[t]hus, Sec.  6(b)(5) directs the Secretary to issue the standard 
that `most adequately assures * * * that no employee will suffer 
material impairment of health,' limited only by the extent to which 
this is `capable of being done.' '' ATMI, 452 U.S. at 508-09. The Court 
further concluded that Congress's use of the word feasible in section 
6(b)(5) ``defined the basic relationship between costs and benefits, by 
placing the `benefit' of worker health above all other considerations 
save those making attainment of this `benefit' unachievable.'' Id. at 
509. Thus, the feasibility analysis required by section 6(b)(5) 
necessarily rules out a balancing of costs and benefits. ``[C]ost-
benefit analysis by OSHA is not required by the statute because 
feasibility analysis is.'' Ibid.
    The Court's analysis in ATMI governs the interpretation of 
Sec. Sec.  1910.95(b)(1) and 1926.52(b). By requiring feasible 
administrative or engineering controls to be utilized when noise levels 
exceed those specified in Table G-16, the standard directs employers to 
use those controls capable of reducing exposures. The cost of such 
controls is relevant only to the extent that it is so high as to 
threaten the employer's ability to stay in business. This construction 
is supported not only by the plain meaning of feasible, but also by the 
canon of construction that regulatory language should be given the same 
meaning as the same language appearing in the statute. See Sun Ship, 11 
BNA OSHC at 1032.
    The 1984 Sherwin-Williams decision adopting a cost-benefit 
requirement for the general industry noise standard despite ATMI is 
plainly wrong and cannot stand. The Commission was unable to agree on a 
rationale for overruling Sun Ship, in which the majority had held that 
the Supreme Court's interpretation of feasible in section 6(b)(5) 
controlled the meaning of same term in Sec.  1910.95(b)(1). Moreover, 
neither Commissioner Buckley's majority opinion nor Chairman Rowland's 
separate concurrence is persuasive.
    Commissioner Buckley identified two factors which he believed 
supported rejecting the plain meaning of ``feasible'' in favor of a 
cost-benefit approach. The first factor, taken from the Ninth Circuit's 
Castle & Cooke decision, is that ATMI did not address whether section 
3(8) of the OSH Act, which defines an occupational safety or health 
standard, in part, as one requiring ``reasonably necessary'' measures, 
requires a cost-benefit analysis for standards issued under provisions 
other than section 6(b)(5). The Ninth Circuit inferred from the Court's 
failure to address this issue that ATMI did not require the Commission 
to abandon a cost-benefit approach to a noise standard issued under 
section 6(a). Donovan v. Castle & Cooke Foods, 692 F.2d at 649. The 
Ninth Circuit's reasoning, however, is seriously flawed.
    As a threshold matter, the Secretary has rejected the notion that 
section 3(8)'s ``reasonably necessary'' language imposes a requirement 
for cost-benefit analysis even for standards not subject to section 
6(b)(5)'s feasibility constraint. In response to litigation arising 
under the lockout/tagout standard, the Secretary concluded that section 
3(8) does not require a formal cost-benefit analysis--in which all the 
costs and benefits of a particular action are identified, quantified 
and compared--for safety standards, which are issued under section 6(b) 
but are not subject to section 6(b)(5). 58 FR 16612, 16622, Mar. 30, 
1993 (Supplemental Statement of Reasons); International Union, United 
Automobile, Aerospace & Agricultural Implement Workers of America, UAW 
v. OSHA, 37 F.3d 665, 669-70 (D.C. Cir. 1994). The Secretary's 
interpretation of section 3(8), as published in her Federal Register 
supplemental statement, is entitled to deference as long as it is 
reasonable. United States v. Mead Corp., 553 U.S. 218, 226-27 (2001).
    Moreover, cost-benefit analysis is inconsistent with the text of 
Sec.  1910.95(b)(1). Section 6(a) required the Secretary to promulgate 
the existing Walsh-Healey noise standard as an OSHA standard unless it 
would not result in improved safety or health. OSH Act, 29 U.S.C. 
655(a). The statutorily mandated standard requires feasible controls to 
be used to reduce exposure. To read section 3(8) as imposing a 
requirement that controls be used only if the benefits justify the cost 
would eviscerate the feasible controls requirement that section 6(a) 
required the Secretary to promulgate. The standard makes administrative 
and engineering controls the primary means of compliance; only if such 
controls are infeasible, i.e., so costly as to imperil the employer's 
long-term viability, may employers use hearing protectors. Section 
1910.95(b)(1); Forging Indus., 773 F.2d at 1440.
    Yet the Commission's cost-benefit approach completely reverses this

[[Page 64220]]

priority; hearing protectors may be used unless they cost more than the 
engineering controls necessary to achieve an equivalent noise 
reduction. Castle & Cooke, 5 BNA OSHC at 1441. Under the Commission's 
interpretation, hearing protectors are presumptively appropriate, even 
if administrative and engineering controls are affordable and 
effective. Just as Congress could not have intended the general 
language of section 3(8) to countermand the specific feasibility 
requirement of section 6(b)(5), ATMI, 452 U.S. at 513, Congress could 
not have understood that section 3(8) would eviscerate the specific 
requirements of the existing federal standards that the Secretary was 
required by section 6(a) to adopt during the two-year period following 
the OSH Act's effective date. For Sec.  1910.95(b)(1), no less than 
standards promulgated under section 6(b)(5), the term ``feasible'' 
defines ``the basic relationship between costs and benefits by placing 
the `benefit' of worker health above all other considerations save 
those making attainment of this `benefit' unachievable * * *. Thus, 
cost-benefit analysis * * * is not required by the statute because 
feasibility analysis is.'' ATMI, 452 U.S. at 509.
    The second factor identified by Commissioner Buckley for departing 
from the plain meaning of ``feasible'' in Sec.  1910.95(b)(1) is even 
less persuasive. Although the Commissioner found no regulatory or 
adjudicative history indicating how the standard was interpreted under 
the Walsh-Healey Act, he assumed that government contractors bidding on 
Walsh-Healey Act contracts would not have construed the term 
``feasible'' in accordance with the dictionary definition, but rather 
would have understood the term to allow for cost-benefit analysis. 
Sherwin-Williams, 11 BNA OSHC at 2109-10.
    Commissioner Buckley's assumptions about the competitive bidding 
process under the Walsh-Healey Act are both irrelevant and unfounded. 
They are irrelevant because Sec.  1910.95(b)(1), was promulgated under 
Sec.  6(a) of the OSH Act as an ``occupational safety and health 
standard.'' 29 U.S.C. 655(a). The Secretary is responsible for issuing 
authoritative interpretations of OSHA standards, and she is not bound 
by the perspective of a hypothetical government contractor bidding on a 
Walsh-Healey contract. CF & I, 499 U.S. at 150-55. The Secretary's 
interpretation of Sec.  1910.95(b)(1) must be given effect if it is 
reasonable, ``that is, so long as the interpretation sensibly conforms 
to the purpose and wording of the regulations.'' Id. at 150-51. 
Construing the standard to require that administrative or engineering 
controls be used as long as they do not threaten the employer's ability 
to stay in business is consistent with the standard's plain meaning and 
its purpose of protecting employee health by achieving reductions in 
noise exposure. It is the Secretary's reasonable construction of the 
standard, which constitutes an exercise of delegated law-making 
authority when embodied in an OSHA citation, that is entitled to 
deference, not the Commission's interpretation. Id. at 150-55. 
Speculation about how government contractors might have interpreted the 
standard in bidding on a Walsh-Healey contract is wholly irrelevant.
    In any event, Commissioner Buckley's assumption as to how the 
``feasible'' controls requirement would have been interpreted in the 
federal procurement context is entirely unfounded. First, as the 
commissioner himself admitted, there is nothing in the regulatory or 
adjudicatory history of the Walsh-Healey noise standard to support an 
assumption that feasible was not understood by government contractors 
to have its plain, ordinary meaning. Commissioner Buckley's 
interpretation thus violated the fundamental canon of construction that 
words are to be interpreted in accordance with their normal meaning 
unless there is specific evidence to the contrary. Furthermore, the 
notion that prospective contractors would have understood that they 
should include the costs of engineering controls only if they 
determined that the benefits outweighed the costs is completely 
contrary to basic principles of government procurement. Sherwin-
Williams, 11 BNA OSHC at 2109-10. The competitive process requires that 
all prospective contractors bid on the same requirements; the process 
cannot possibly permit some bidders to decide for themselves whether 
engineering controls are required, or not required. Thus, feasible 
controls must have been understood--by both the government and its 
contractors--in accordance with its plain meaning.
    OSHA's current enforcement policy on Sec.  1910.95(b)(1) closely 
tracks the Commission's cost-benefit approach. Where PPE and a hearing 
conservation program are cheaper, the current enforcement policy allows 
employers to rely on them, rather than administrative or engineering 
controls, unless noise levels are so high that PPE will not reduce 
noise exposure to acceptable levels.\5\ FOM, CPL 02-00-148, Sec.  XI.B. 
The policy provides, moreover, that PPE may be used up to 100 dBA. 
Ibid. As discussed above, this policy is inconsistent with the noise 
standards' explicit requirement that feasible administrative and 
engineering controls be used to reduce noise exposures to the level set 
by the standard and that PPE be used if administrative and engineering 
controls are unable to reduce noise to permitted levels. The standards' 
reliance on feasible engineering and administrative controls as the 
primary means of reducing noise exposures is consistent with OSHA's 
traditional adherence to a hierarchy of preferred controls, and is 
supported by good industrial hygiene practice and OSHA's experience in 
assuring that workers have a healthy workplace. See, e.g., OSHA, 29 CFR 
parts 1915, 1917-18 & 1926, ``Occupational Exposure to Hexavalent 
Chromium,'' Final Rule, 71 FR 10100, 10345, Feb. 28, 2006 (discussing 
methods of compliance for reducing exposures to hexavalent chromium). 
Hearing protectors are less reliable than administrative and 
engineering controls in reducing noise levels and maintaining such 
reductions over time. OSHA's current enforcement policy virtually 
eliminates the requirement to use administrative or engineering 
controls since such controls almost always cost more than hearing 
protectors. Furthermore, the current policy thwarts the safety and 
health purposes of the OSH Act by rarely requiring administrative and 
engineering controls even though these controls are generally more 
effective than hearing protectors in reducing noise exposure.
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    \5\ In the terminology economists normally employ, the current 
enforcement policy would be better characterized as a least-cost, 
rather than a benefit-cost, approach.
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    Accordingly, OSHA now proposes to interpret Sec. Sec.  
1910.95(b)(1) and 1926.52(b) in conformity with the plain meaning of 
these provisions and with the safety and health purposes of the OSH 
Act. OSHA proposes to interpret the term feasible in these provisions 
as having the same meaning that the term has in section 6(b)(5) of the 
Act, i.e., ``capable of being done,'' or ``achievable.'' OSHA also 
proposes to consider administrative or engineering controls 
economically feasible if they will not threaten the employer's ability 
to remain in business or if the threat to viability results from the 
employer's having failed to keep up with industry safety and health 
standards. OSHA further intends to change its enforcement policy to 
authorize the issuance of citations requiring the use of administrative 
or engineering controls when these controls are feasible in

[[Page 64221]]

accordance with this interpretation. OSHA welcomes comments from 
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interested parties on this proposed interpretation.

    Authority: 29 U.S.C. 655; 29 CFR 1910.95(b)(1) & 1926.52(b); 
Secretary's Order 5-200, 72 FR 31160, June 5, 2007.

    Signed at Washington, DC, October 12, 2010.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2010-26135 Filed 10-18-10; 8:45 am]
BILLING CODE 4510-29-P