When is a Regulation Not a Regulation?

Jul 15, 2013

Much ink (or the digital equivalent) has been spilled criticizing the Obama administration’s aggressive and expansive regulatory agenda.  And as burdensome and ill-conceived as many of these regulations are, at least they are being developed through the normal regulatory process of notice and comment with supporting analyses and data. 

Far more pernicious is when the administration pushes out substantive changes in regulations or policy without the benefit of rulemakings.  Over the last few years the Obama Department of Labor has not just been pushing the envelope of what can be done through non-regulatory actions, they have blown the envelope up.  


OSHA and other agencies avoid justifying their actions.

We call these actions “subregulatory” because they exist at a lower level in the hierarchy of activities, are often below the radar, but still have significant impacts.  Subregulatory actions are substantive changes without transparency, input from affected parties, or accountability.  They include guidance documents like OSHA interpretations, new compliance directives, and wage determinations under Davis-Bacon for job classifications not statutorily authorized.

By using this approach, OSHA and other agencies avoid justifying their actions or do any sort of impact analysis. They also avoid having to take comments or any input from those parties that would object. These are executive diktats which, unlike regulations, are very hard to challenge.

Here are three examples from OSHA that demonstrate how far the Department of Labor has taken this approach.

Letter of Interpretation Permits Union Representatives to Accompany an OSHA Inspector at Non-Union Workplaces

On February 21, 2013, OSHA issued a letter of interpretation (LOI) saying that a union representative is permitted to accompany an OSHA inspector during a walk-around inspection at a non-union workplace.  The LOI was in response to a request from the United Steel Workers.  The regulations explicitly state that any employee representative “shall be” an employee of the employer, unless the OSHA inspectors believe “good cause has been shown” to include someone with special expertise who can aid in the inspection.  OSHA blew right past this narrow exception and context to say that employees can now designate any union representative, community activist, or any other third party as their representative during OSHA inspections. This dramatic reversal opens the door for OSHA inspections to be less about workplace safety and more about a union or other party’s campaign against non-union employers.

Employer Safety Incentive and Disincentive Policies and Practices

On March 12, 2012, OSHA issued a memo to regional administrators outlining four scenarios that would constitute violations of protections for whistleblowers. Among the scenarios is one where employers implement a safety incentive program that rewards employees based on the rate of injuries or fatalities.  Despite no other mention of incentive programs anywhere in the regulations, statute or other OSHA materials, OSHA created a consequence for employers who maintain these programs.

Proposed Interpretation of “Feasible” Under Noise Exposure Standard

On October 19, 2010, OSHA published in the Federal Register a proposed new interpretation of the term “feasible” as it applies to administrative and engineering controls under the noise exposure standards. Currently, OSHA’s enforcement policy gives employers considerable latitude to rely on personal protective equipment (such as ear plugs or ear muffs) when noise protection is required rather than forcing employers to use administrative (such as schedule rotations), or engineering (such as sound dampening or other technology) controls.  Under the new interpretation, administrative and engineering controls would have been considered economically feasible if “implementing such controls will not threaten the employer’s ability to remain in business.”  An independent economic analysis concluded that the potential impact of this proposal on employers would be more than $1 billion.  The Chamber objected that such a major change warranted a full rulemaking rather than a mere reinterpretation without any of the protections associated with the regulatory process.  Once the impact of this non-regulatory change became known, OSHA was forced to withdraw it. 

This administration’s regulatory agenda is problematic enough. When the administration decides to change regulations and policy by avoiding proper regulatory procedure any claims to being transparent or accountable are eviscerated.

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