VSRA News

DOD Interim Ruling on Award Fee Reduction

90 Day Extension - OSHA Noise Interpretation Comment Period

The following has been received from the Shipbuilders Council of America. This is an important issue for our industry and will have significant impact.  Your comments are encouraged.

November 19th - This morning at a Small Business Meeting Office of Advocacy meeting, the Department of Labor’s Office of the Solicitor of Labor announced that they intend to extend the comment period for re-interpretation of the OSHA noise abatement requirement comment by 90 days. The original comment deadline was scheduled for December 20th. We expect the new deadline to be sometime in late March, 2011. This extension is particularly important, allowing ample time to fully assess the impact of the interpretation, which we estimate to be massive. As we work to compile an economic analysis and comments, I will update the committee.

OSHA Updates Shipyard PPE DIrective

OSHA updates Shipyard PPE directive to include PPE Payment

This month OSHA updated its Enforcement Guidance for Personal Protective Equipment in Shipyard Employment.

Recall, OSHA previously issued a directive on personal protective equipment that includes employer requirements to pay - that is, provide at no cost to the worker - for certain PPE. Steel-toed rubber boots, goggles, hard hats, hearing protection and respirators are some of the protective items employers must provide free of charge. This revised Web-based directive also describes equipment that employers do not have to pay for, such as ordinary clothing used as protection from weather, non-specialty prescription safety eyewear, and PPE that a worker already owns and is allowed to use instead of the employer-provided PPE.

The Directive abstract states its purpose is “To provide guidance concerning the application of current enforcement policy and procedures for personal protective equipment (PPE) in shipyard employment. Also, to ensure consistent enforcement of 29 CFR Part 1915, Subpart I, PPE including PPE payment for shipyard employment activities.”

This revised shipyard PPE guidance also recognizes consensus standards updates in OSHA’s September 2009 final rule, Updating OSHA Standards Based on National Consensus Standards; Personal Protective Equipment. It sets forth enforcement policies that OSHA inspectors should use when citing employers for failing to provide the necessary PPE to their workers.

Maritime Cabotage News

Article on OSHA's Propossed Changes to Noise Standards

OSHA: An Astonishingly Representative Tale of the Regulatory Surreal
posted at 8:41 pm on October 28, 2010 by J.E. Dyer
A reader forwarded me the link to this post by the law firm Nixon Peabody on a recent OSHA decision to change its basis for enforcing the standards on hearing protection in the workplace.

The summary of the OSHA move is as follows: since 1983, OSHA has accepted the use of personal hearing protection as an adequate means of reducing noise exposure, in situations where personal protective equipment (PPE) is, in fact, adequate (that is, it meets the federal standard for protection against noise exposure). An alternative means of reducing noise exposure is to reduce the noise itself, through equipment retooling, sound dampening, etc. OSHA has generally declined to fine employers who did not take such noise-reduction measures, as long as the use of PPE in their workplaces provided adequate protection for workers.

But OSHA has filed notice in the Federal Register that it will no longer operate on that basis. It will instead begin assuming that what employers should be doing is reducing noise in the workplace in preference to relying on PPE for workers. It will consider cost to the employer as a mitigating factor only if, in its judgment, the cost would compromise an employer’s ability to remain in business.

Nixon Peabody points out that this is likely to cost a lot of businesses a lot of money – and furthermore, that it is unclear from the get-go what standard OSHA will use to determine the “feasibility” of taking material noise-reduction measures. Cost aside, how will the standard be defined? By industry associations? By the practices of the largest and wealthiest companies? Will OSHA just make something up?

But I’m still stuck back on that thing about PPE providing adequate hearing protection. I urge everyone (seriously) to read the statement in OSHA’s Federal Register filing, dense and painful though it may be, because it acknowledges in passing, half a dozen times, that the use of PPE has been providing adequate protection. Just to be clear, that means workers have not been exposed to noise exceeding federal standards, when PPE is their employers’ main method of protecting them. To be even clearer, it means there is nothing bad happening here. Workers are protected. Hearing loss is not epidemic. There is no problem.

But in an obviously tortured – one might almost say angst-filled – bureaucratic decision process, OSHA has in effect decided that it’s high time to shift the basis for enforcement from protecting workers’ hearing to reducing noise absolutely. The way OSHA puts the case is that it was wrong for the hearing-protection basis for enforcement to have been implemented in 1983, because that basis takes into account cost-benefit analyses from the employer’s standpoint. The upshot has been that the employer is allowed, in effect, to choose the lower-cost of the alternatives that will protect his workers’ hearing (that is, in most cases, PPE).

OSHA’s highly abstract point – the tenet on which it bases its whole decision – is that nothing in the original law can be construed to give employers that option. Cost-benefit, in OSHA’s view, was not intended by the law’s language to be a factor, and therefore it shouldn’t be a consideration in regulatory execution.

OSHA doesn’t go on to explicitly argue that what the law intended was for the standard for enforcement to be absolute noise reduction. That’s the result its new enforcement plan will produce – but OSHA’s argument is, narrowly, that the original law’s language is not a basis for considering an employer’s cost-benefit calculus in enforcement.

This is the sum-total of OSHA’s justification for shifting its basis of enforcement. Again, no problem related to hearing protection is cited as the motivation here. Are we all getting this? There is no problem. A regulatory agency has merely decided that the way it looks at enforcement has been wrong, in terms of an abstract principle, for the last 27 years, and has decided to make a change. After the change, there will be no improvement in hearing protection for American workers. There will be a significant increase in compliance costs for many businesses. It’s more than conceivable – it is likely – that if Congress doesn’t intervene to provide employers some relief, the new enforcement regime will discourage investment and expansion and hurt employee retention.

This is a beautiful illustration of the hazards of government by regulatory fiat. The many court cases and regulatory decisions cited in the OSHA filing ought to be eye-opening for Americans who haven’t been paying attention, or have never had responsible positions in business. This is how the rules that govern us are made today: through endless narrow citations toted up by bureaucrats who argue that Law A “didn’t say exactly ‘B’, and therefore I’m going to do ‘C’.”

Doing “C” in this case amounts to changing the purpose of the law, from protecting workers’ hearing to reducing the absolute amount of noise. It does this not by stating the new purpose but by enforcing the law as if that’s the purpose, on a premise any six-year-old could drive a truck through: that the law doesn’t specify taking a tangential factor into consideration. No justification related to worker health or safety is offered for proceeding in this manner. We the people might think the purpose of the Occupational Safety and Health Act was to protect workers, and that the measure of effectiveness for it would be whether workers’ safety and health were being protected. But we’re not federal bureaucrats.

J.E. Dyer blogs at The Green Room, Commentary’s “contentions” and as The Optimistic Conservative. She writes a weekly column for Patheos.

OSHA Outreach Training Program Changes

WASHINGTON – OSHA recently revised its policy for all Outreach Training Programs to address the number of hours each day a student may spend in OSHA 10- and 30-hour classes. OSHA revised the length of daily classroom instruction to prevent workers from being saturated with so much information that they may miss content that could prevent injuries, illnesses and death.

Revised program policy now requires OSHA trainers to limit worker training classes to a maximum of 7½ hours per day. Before OSHA made this change, there were no limitations on how long these classes could last each day. With 10 hours of training, along with necessary breaks and lunch, students could sit in classes for up to 13 hours a day. OSHA became concerned that long, mentally-fatiguing class days might cause students to miss essential safety and health training.

Another concern was that, in some cases, one- and three-day training classes were not meeting 10- and 30-hour program time requirements. This concern became evident after OSHA conducted random records audits and unannounced monitoring visits.

To address these issues, the agency now requires OSHA outreach trainers to conduct 10-hour courses over a minimum of two days and 30-hour courses over at least four days. The agency also set up an outreach fraud hotline at 847-725-7810 to which the public can call to file complaints about program fraud and abuse.
“Limiting daily class hours will help ensure that workers receive and retain quality safety training,” said Assistant Secretary of Labor for OSHA David Michaels.

This policy change is effective immediately and will be reflected in the next revision of the Outreach Training Program Guidelines. OSHA will not recognize training classes that exceed 7½ hours per day or do not meet all program content requirements. In such cases trainers will not receive completion cards to distribute to students. Trainers may, however, submit written requests for exceptions to limiting training days to 7½ hours based on extenuating circumstances.

The Outreach Training Program, a voluntary participation information resource, is part of OSHA’s Directorate of Training and Education, comprises a national network of more than 17,000 independent, trainers who teach workers and employers about OSHA, workers’ rights and how to identify, avoid and prevent workplace hazards. There are 10- and 30-hour outreach classes for construction, general industry and maritime and 16-hour classes for disaster site workers. Students who successfully complete classes receive completion cards.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.  

OSHA Proposes Noise Standard Change

Late last week, OSHA issued a notice in the Federal Register  requesting feedback on changes to the Agency's noise exposure standards. In their recent OSHA Trade Release , the Agency announced that it is seeking to change its official interpretation of “feasible administrative or engineering controls” for construction and general industry standards. This is an odd publication as it is not a proposed regulation, merely a proposed interpretation.  As such it is not governed by any of the requirements for analyses or response that would attach to a proposed regulation under the APA or OSHA’s rulemaking provisions. Nevertheless, OSHA is receiving comments until December 20, 2010.

Currently, employers must use feasible administrative or engineering controls to reduce noise to acceptable levels. Personal protective equipment (PPE), such as ear plugs and ear muffs, must be used only as supplements when administrative or engineering controls are not completely effective. However, the Agency has been issuing citations to employers that fail to use engineering and administrative controls only when they cost less than a hearing conservation program or if such equipment is ineffective.

Under this new proposal, employers MUST make any “feasible” changes to administrative or engineering controls that are “capable of being done,” regardless of the costs. The Agency cites a 1981 Supreme Court ruling upholding the term “feasible” to mean “capable of being done”, regardless of costs or benefits. The Agency has stipulated that employers will not be required to make such changes if they can prove the changes would “threaten the employers’ ability to remain in business.” Additionally, employers will need to make these wide-sweeping changes unless they can prove the capability does not exist to make administrative changes (intermittent use of machinery, time of exposure, etc.) or engineering controls (such environmental changes and noise dampening equipment) to reduce noise exposure. This burden

This new proposal clearly states that PPE should only be a supplement to administrative or engineering controls to reduce employees’ exposure to noise. I have attached both the Agency’s press release and announcement in the federal register. SCA will comment, and is exploring a potential legal challenge through the Coalition for Workplace Safety, of which SCA is a member.

Again, if implemented, this change will have a substantial economic impact on shipbuilding and repair facilities. Please provide any feedback to me ASAP and I will keep the Committee updated as comments are developed.

Crane Safety Training for Contractors

As all of us work to ensure that our environment is safe and productive, the latest Crane Safety Memorandum from the Department of the Navy (4330/Ser400SR/199) is a reminder that our industry is one where safety diligence is paramount. We encourage all of our members to be familiar with the directives of the memorandum, specifically training to the requirements of COMNAVREGMIDANTINST 11262.1 and NAVSEA Standard Item 009-40, with conflicts in requirements resolved by control of requirement COMNAVREGMIDANTINSTF 11262.1

We are here for the benfit of our member companies and welcome any input on how we can better ensure our industry holds the highest standard of safety for our workforce and for our companies.

Northrop Grumman to Build Offshore Wind Turbines

OSHA's New Directions Announced

On July 19th, David Michaels, Assistant Secretary of the Department of Labor and OSHA Director, issued an enlightening and important document as the agency entered its 40th year in existence.  This is important reading for all members of the ship repair industry.

OSHA at Forth: New Challenges and New Directions