Workforce Protections Panel Addresses Concerns about Labor Department Use of Non-Consensus Workplace Health and Safety Standards

WASHINGTON, D.C. – The House Workforce Protections Subcommittee, chaired by Rep. Charlie Norwood (R-GA), today heard testimony from Edwin Foulke, Administrator of the Occupational Safety and Health Administration (OSHA), as well as industry experts on the logic behind the federal use of non-consensus standards in crafting workplace health and safety regulations.  Concerns have been raised that regulations written without wide participation from the public may not be as effective as ones which seek broader input.

“I called today’s hearing to further this subcommittee’s investigation into the use of non-consensus standards in workplace health and safety regulation,” said Norwood.  “I am particularly concerned that the Department of Labor’s Hazard Communications rule automatically incorporates such standards behind closed doors without public input and without transparency.  This is unacceptable, and it is high time that Congress step in to force a change.”

The development of safety standards typically involves rigorous examination to take into account the Data Quality Act, the Regulatory Flexibility Act, a small business impact analysis, stakeholder input, and judicial review before being finalized.  Concerns have been raised that the incorporation of outside, non-consensus standards in federal regulations written without wide participation from the public may not be as scientifically and technically feasible as ones which seek broader input.  In response to these concerns, Norwood last week introduced the Workplace Safety and Health Transparency Act (H.R. 5554), which would: 

• Prohibit OSHA or the Mine Safety and Health Administration (MSHA) from incorporating by reference any finding, guideline, standard, limit, rule, or regulation based on a determination from a non-consensus organization that does not conform to the Occupational Safety and Health Act definition of a consensus standard; and

• Prohibit OSHA from approving a “State plan” (safety and health plan produced by state government-based regimes) unless those standards adopted by reference in the plan are reached by consensus.

“I share your views on the importance of transparency in the regulatory process,” noted Foulke.  “I strongly believe that the notice and comment rulemaking process OSHA utilizes is a model of openness that includes full public participation.  OSHA shares your interest in encouraging wide public participation from all interested parties in its rulemaking process.  OSHA seeks meaningful input through a variety of means, including written and electronic comments, public hearings – when requested – that allow participants the opportunity to present information and question other participants on the record, and an open public rulemaking record.”

Joseph Casper, Vice President for Environment, Health, and Safety for the Brick Industry Association, expressed to the Subcommittee his concerns about the specific impact non-consensus standards have on the nation’s brick industry.  Casper also noted his organization’s strong support for Norwood’s legislation.

“The Brick Industry Association strongly supports your favorable consideration of H.R. 5554, the Workplace Safety and Health Transparency Act,” said Casper.  “We believe the non-consensus standards regarding crystalline silica, developed by the American Conference of Governmental Industrial Hygienists’ Threshold Limits Committee, utterly fail to take into account the particular conditions of our industry.”

Today’s hearing followed another held on the same topic by the Workforce Protections Subcommittee in April, as well as one conducted by the panel several years ago.

“Our goal is to ensure transparency in the rulemaking process,” concluded Norwood.  “The employees, their representatives, and regulated industries have a right to provide input in the regulatory process.”

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