NGFA submits comments on OSHA heat rule admin October 6, 2023

NGFA submits comments on OSHA heat rule

By Jess McCluer, Vice President, Safety and Regulatory Affairs 

The Occupational Safety and Health Administration (OSHA) is in the process of finalizing a proposed rule on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. NGFA submitted comments to OSHA on Oct. 3 reiterating opposition to any broad federal regulation on heat. 

On May 31, the full National Advisory Committee on Occupational Safety and Health (NACOSH) unanimously voted to accept the Heat Working Group’s recommendations (considerations, best practices, and additional resources) on potential elements of a heat injury and illness prevention standard.  The full NACOSH committee also approved an amendment to include a model or sample Heat Injury and Illness Prevention Plan, either as an appendix or elsewhere, in the proposed standard. Importantly, to the extent that this plan is incorporated into the standard, or becomes a mandatory appendix, it could mean a very prescriptive standard, one that would significantly restrict the flexibility employers need for purposes of addressing heat issues in their workplaces.  Indeed, compliance could prove very difficult under such a command-and-control approach.   
On June 22, OSHA officially announced the start of the Small Business Regulatory Enforcement Fairness Act (SBREFA) process by inviting small business owners and local governments to share input on a potential heat standard to protect indoor and outdoor workers. When an OSHA proposal is expected to have a significant impact on a number of small entities, the agency must notify the U.S. Small Business Administration’s (SBA) Office of Advocacy, which then recommends that small entity representatives (SERs) be consulted on the rule and its effects. Next, OSHA convenes a Small Business Advocacy Review (SBAR) panel, consisting of officials from the agency, the SBA’s chief counsel for advocacy and the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs. The panel hears SERs’ comments and reviews OSHA’s draft proposed rule and related analyses. A written report of this interagency panel is submitted to OSHA within 60 days, upon which, OSHA reviews the report, makes any appropriate revisions to the rule, and publishes the proposed rule along with the panel’s report in the Federal Register. During the panel meetings, the small business representatives provide feedback to the agency’s economists on the potential cost of complying with the rule which needs to be taken into consideration before publishing a proposal.  

Brain Corderman, Farmers Coop in Alva, Okla., who is a member of NGFA’s Safety, Health and Environmental Quality Committee participated on the Sept. 12 SBAR panel.  

On October 3, NGFA submitted comments to OSHA memorializing many of the issues that Mr. Corderman raised during the discussion. 

Specifically, NGFA is opposed to the creation of one-size-fits-all federal regulation. The Association’s primary concern with the proposed rulemaking on heat injury and illness prevention is that it will place an undue regulatory burden on grain handling facilities in both indirect (employee time) and direct costs (equipment) and additional paperwork requirements. Some examples include: 1) additional paperwork burdens related to monitoring and recording the proposed initial heat (80°) or high heat index (87°) in numerous locations throughout a facility both indoor and outdoor; 2) retrofitting facilities and purchasing new equipment related to ventilation and thermometer measurement (wet bulb) in outdoor environments; and 3) acclimation and employee training, preparedness and equipment, to name a few. In addition, OSHA does not specifically identify what is defined as “indoor” and/or “outdoor;” therefore, it is very difficult to determine what should be done in each circumstance to address the issue.

As a result, NGFA firmly believes that employers should be responsible for or address heat hazards at individual facilities as climate varies from region to region and the health and underlying factors that contribute to heat stress vary by employee.
The NGFA encouraged OSHA to consider the recommendations of the SERs and not burden facilities with a one-size-fits-all standard that is overly complicated and lacks the necessary flexibility for employers to determine and implement appropriate controls to protect their employees.