64216 Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 

(d) of this section to another interest 

crediting rate (the new rate) that 

satisfies the requirements of paragraph 

(d) of this section, the plan’s effective 

interest crediting rate is not in excess of 

a market rate of return for purposes of 

paragraph (d) of this section merely 

because the plan provides for the benefit 

of any participant who is benefiting 

under the plan (within the meaning of 

§ 1.410(b)–3(a)) on the applicable 

amendment date to never be less than 

what it would be if the old rate had 

continued but without taking into 

account any principal credits (as 

defined in paragraph (d)(1)(ii)(D) of this 

section) after the applicable amendment 

date. 

(B) Multiple amendments. A pattern 

of repeated plan amendments each of 

which provides for a prospective change 

in the plan’s interest crediting rate with 

respect to the benefit as of the 

applicable amendment date will be 

treated as resulting in the ongoing plan 

terms providing that the interest 

crediting rate equals the greater of each 

of the interest crediting rates, so that the 

rule in paragraph (e)(3)(iii)(A) of this 

section would not apply. See § 1.411(d)– 

4, A–1(c)(1). 

(4) Actuarial increases after normal 

retirement age. A statutory hybrid plan 

is not treated as providing an effective 

interest crediting rate that is in excess 

of a market rate of return for purposes 

of paragraph (d) of this section merely 

because the plan provides that the 

participant’s benefit, as of each annuity 

starting date after normal retirement age, 

is equal to the greater of— 

(i) The benefit determined using an 

interest crediting rate that is not in 

excess of a market rate of return under 

paragraph (d) of this section; and 

(ii) The benefit that satisfies the 

requirements of section 411(a)(2). 

* * * * * 

(f) * * * 

(2) * * * 

(i) * * * 

(B) Special effective date. Paragraphs 

(c)(3)(iii), (d)(1)(iii), (d)(1)(iv)(D), 

(d)(1)(vi), (d)(2)(ii), (d)(4)(iv), (d)(5)(iv), 

(d)(6), (e)(2), (e)(3)(iii), and (e)(4) of this 

section apply to plan years that begin on 

or after January 1, 2012. 

* * * * * 

Steven T. Miller, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. 2010–25942 Filed 10–18–10; 8:45 am] 

BILLING CODE 4830–01–P 

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. 

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 


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1Table D–2 of § 1926.52(b) is identical to Table 

G–16 of § 1910.95(b)(1). 

2To 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. 

3OSHA has not interpreted, and the Commission 

has not construed, the virtually identical language 

of § 1926.52(b). 

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 § 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 WalshHealey 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. 

§ 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, 

§ 1518.52(b) was redesignated as 

§ 1926.52(b), 36 FR 25232, Dec. 30, 

1971, its current codification. 

Section 1926.52(b) is almost verbatim 

identical to § 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. 

§ 1926.52(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

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 noisereducing 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 lifethreatening 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 


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4Section 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). 

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 § 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 

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 § 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. SherwinWilliams 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 costbenefit analysis under § 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 costeffective. 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 § 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, § 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 § 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 § XI.B.1 (Nov. 


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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 § 1910.95(b)(1) (and 

therefore of the substantively identical 

§ 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 §§ 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, § 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 §§ 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 § 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 costbenefit 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 

§ 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
64220 Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 

5 In the terminology economists normally employ, 

the current enforcement policy would be better 

characterized as a least-cost, rather than a benefitcost, approach. 

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 § 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 

§ 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 § 1910.95(b)(1), was 

promulgated under § 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 § 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 lawmaking 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 WalshHealey 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. SherwinWilliams, 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 § 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, § 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. 

Accordingly, OSHA now proposes to 

interpret §§ 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 64221 

accordance with this interpretation. 

OSHA welcomes comments from 

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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 49 

[EPA–R09–OAR–2010–0683; FRL–9213–7] 

Source Specific Federal 

Implementation Plan for Implementing 

Best Available Retrofit Technology for 

Four Corners Power Plant: Navajo 

Nation 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to 

promulgate a source specific Federal 

Implementation Plan (FIP) requiring the 

Four Corners Power Plant (FCPP), 

located on the Navajo Nation, to achieve 

emissions reductions required by the 

Clean Air Act’s Best Available Retrofit 

Technology (BART) provision. In this 

action, EPA is proposing to require 

FCPP to reduce emissions of oxides of 

nitrogen (NOX) and particulate matter 

(PM). These pollutants are significant 

contributors to visibility impairment in 

the numerous mandatory Class I Federal 

areas surrounding FCPP. For NOX

emissions, EPA is proposing to require 

FCPP to meet an emission limit of 0.11 

lb/MMBtu, representing an 80% 

reduction from current NOX emissions. 

This NOX limit is achievable by 

installing and operating Selective 

Catalytic Reduction (SCR) technology 

on Units 1–5. For PM, EPA is proposing 

to require FCPP to meet an emission 

limit of 0.012 lb/MMBtu for Units 1–3 

and 0.015 lb/MMBtu for Units 4 and 5. 

These emissions limits are achievable 

by installing and operating any of 

several equivalent controls on Units 

1–3, and through proper operation of 

the existing baghouse on Units 4 and 5. 

EPA is proposing to require FCPP to 

meet a 10% opacity limit on Units 1– 

5 to ensure proper operation of the PM 

controls. EPA is requesting comment on 

whether APS can satisfy BART on Units 

1–3 by operating the existing venturi 

scrubbers to meet an emission limit of 

0.03 lb/MMBtu with a 20% opacity 

limit. EPA is also proposing to require 

FCPP to comply with a 20% opacity 

limit on its coal and material handling 

operations. 

DATES: Comments must be submitted no 

later than December 20, 2010. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2010–0683, by one of the 

following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions. 

E-mail: r9air_fcppbart@epa.gov. 

Mail or deliver: Anita Lee (Air-3), U.S. 

Environmental Protection Agency 

Region IX, 75 Hawthorne Street, San 

Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

http://www.regulations.gov or e-mail. 

http://www.regulations.gov is an 

‘‘anonymous access’’ system, and EPA 

will not know your identity or contact 

information unless you provide it in the 

body of your comment. If you send email directly to EPA, your e-mail 

address will be automatically captured 

and included as part of the public 

comment. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. 

Hearings: EPA intends to hold public 

hearings in two locations in New 

Mexico to accept oral and written 

comments on the proposed rulemaking. 

EPA anticipates these hearings will 

occur in Shiprock and Farmington. EPA 

will provide notice and additional 

details at least 30 days prior to the 

hearings in the Federal Register, on our 

Web site, and in the docket. 

Docket: The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region IX, 75 Hawthorne 

Street, San Francisco, California. While 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Anita Lee, EPA Region IX, (415) 972– 

3958, r9air_fcppbart@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we’’, ‘‘us’’, 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

A. Statutory and Regulatory Framework for 

Addressing Visibility 

B. Statutory and Regulatory Framework for 

Addressing Sources Located in Indian 

Country 

C. Statutory and Regulatory Framework for 

BART Determinations 

D. Factual Background 

1. Four Corners Power Plant 

2. Relationship of NOX and PM to 

Visibility Impairment 

II. EPA’s Proposed Action Based on Five 

Factors Test 

A. A BART Determination for FCPP Is 

Necessary or Appropriate 

B. Summary of Proposed BART Emission 

Limits 

C. Available and Feasible Control 

Technologies and Five Factor Analysis 

for NOX Emissions 

i. Factor 1: Cost of Compliance 

ii. Factor 2: Energy and Non-Air Quality 

Impacts 

iii. Factor 3: Existing Controls at the 

Facility 

iv. Factor 4: Remaining Useful Life of 

Facility 

v. Factor 5: Degree of Visibility 

Improvement 

D. Available and Feasible Control 

Technologies and Five Factor Analysis 

for PM Emissions 

i. Factor 1: Cost of Compliance 

ii. Factor 2: Energy and Non-Air Quality 

Impacts 

iii. Factor 3: Existing Controls at the 

Facility 

iv. Factor 4: Remaining Useful Life of 

Facility 

v. Factor 5: Degree of Visibility 

Improvement 

III. EPA’s Proposed Action on Material 

Handling Limits 

IV. Administrative Requirements 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 


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