[Federal Register: November 24, 2004 (Volume 69, Number 226)]
[Proposed Rules]
[Page 68283-68285]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24no04-22]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. S-023]
RIN 1218-AC08
Updating OSHA Standards Based on National Consensus Standards
AGENCY: Occupational Safety and Health Administration (OSHA); Labor.
ACTION: Proposed rule; notice of project to update OSHA standards that
are based on National Consensus Standards.
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SUMMARY: OSHA is engaging in an overall effort to update OSHA standards
that reference, or that include language taken directly from, outdated
consensus standards. The Agency adopted many of these standards over 30
years ago under Section 6(a) of the Occupational Safety and Health Act
of 1970. Most of the referenced documents have been either superseded
by later versions or withdrawn by the issuing Standards Development
Organization (SDO). Many are no longer in print or available to the
public through the issuing SDO. The outdated versions in the OSHA
standards do not reflect advances in technologies that have changed
workplace safety over the last 30 years. OSHA will use a variety of
regulatory approaches to update these standards, including notice and
comment rulemaking, direct final rulemaking, and technical amendments.
DATES: Comments to this notice must be submitted by the following
dates:
Hard copy: Your comments must be submitted (postmarked or
sent) by December 27, 2004.
Electronic transmission and facsimile: Your comments must
be sent by December 27, 2004.
ADDRESSES: You may submit written comments on this notice--identified
by docket number S-023 or RIN number 1218-AC08--by any of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
OSHA Web Site: http://ecomments.osha.gov. Follow the
instructions for submitting comments on OSHA's Web page.
Fax: If your written comments are 10 pages or fewer, you
may fax them to the OSHA Docket Office at (202) 693-1648.
Regular mail, express delivery, hand delivery, and courier
service: Submit three copies to the OSHA Docket Office, Docket No. S-
023, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-
2625, Washington, DC 20210; telephone (202) 693-2350. (OSHA's TTY
number is (877) 889-5627.) OSHA Docket Office hours of operation are
8:15 a.m. to 4:45 p.m., EST.
Instructions: All comments received will be posted without change
to http://dockets.osha.gov, including any personal information
provided.
Docket: For access to the docket to read background documents or
comments received go to http://dockets.osha.gov.
FOR FURTHER INFORMATION CONTACT: For general information and press
inquiries contact George Shaw, Acting Director, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone: (202) 693-1999. For
technical inquiries, contact Ted Twardowski, Directorate of Standards
and Guidance, Room N-3609, OSHA, U.S. Department of Labor, 200
Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-
2070 or fax (202) 693-1663. Copies of this Federal Register notice are
available from the OSHA Office of Publications, Room N-3101, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone: (202) 693-1888. Electronic copies of this Federal
Register notice, as well as news releases and other relevant documents,
are available at OSHA's Web page at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
I. Background
OSHA has used consensus standards extensively as a basis for its
mandatory safety and health standards since the earliest days of the
Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 651 et
seq. Under Section 6(a) of the OSH Act, OSHA was given the authority
for a period of 2 years to adopt both national consensus standards and
established Federal standards as OSHA standards without following
notice and comment rulemaking procedures. 29 U.S.C 655(a). Congress
provided this authority so that OSHA would have a mechanism to begin
immediately protecting the Nation's workers through mandatory
standards. Using Section 6(a), the Agency adopted many consensus
standards as OSHA standards.\1\ OSHA adopted some of the
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consensus standards through ``incorporation by reference.'' When it
incorporates a consensus standard by reference, OSHA requires employers
to follow a consensus standard--identified by name and date in the Code
of Federal Regulations--made available for inspection at the Office of
the Federal Register, the OSHA Docket Office, and OSHA's Regional
Offices. See 29 CFR 1910.6. OSHA adopted other consensus standards by
importing relevant language from them directly into the regulatory text
of OSHA standards.
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\1\ OSHA also adopted under Section 6(a) a number of industry
standards that were established Federal Standards or that were
referenced in national consensus standards. For convenience only,
this notice also refers to such standards promulgated under Section
6(a) as ``consensus standards.''
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Under Section 6(b) of the OSH Act, which authorizes OSHA to
promulgate safety and health standards through notice and comment
rulemaking, OSHA has since promulgated a number of rules that
reference, or are based in large measure on, consensus standards. Some
of these Section 6(b) rulemakings involved updating OSHA standards that
were originally adopted from consensus standards under Section 6(a), as
discussed above.
Today, there are about 200 consensus standards referenced
throughout the OSHA standards for general industry and maritime. The
references appear in hundreds of requirements and range from
informational references to mandatory requirements.
While OSHA has updated some of its Section 6(a) standards through
notice and comment rulemaking, the vast majority have not been updated
since they were originally adopted. Some of the consensus standards
``incorporated by reference'' were issued over 60 years ago. Most of
the referenced consensus documents have been either superseded by later
versions or withdrawn by the issuing Standards Development Organization
(SDO). Many are no longer in print or available to the public through
the issuing SDO. These outdated standards do not reflect advances in
technologies that have changed workplace safety over the last 30 years.
The OSHA versions also have not been updated to address new equipment
and machinery that have become available since they were originally
promulgated.
OSHA has a policy of issuing ``de minimis'' notices to employers
who comply with more current versions of consensus standards, to the
extent that the more current versions are at least as protective as the
older versions. See OSHA Instruction CPL 2.45B, p. IV-31. The ``de
minimis'' policy does not address all of the difficulties for
employers, employees, and OSHA enforcement personnel created by OSHA
referencing outdated consensus standards. For example, referencing
outdated consensus standards adds time-consuming administrative burdens
on employers seeking to comply with OSHA standards. Employers need to
research the referenced consensus standards, identify and analyze any
updates to the standards, and determine how they apply to their
workplaces. This task is made more difficult because many of the
referenced consensus standards are no longer available through the
issuing SDOs. Referencing outdated consensus standards also places
heavy administrative burdens on OSHA. In applying the ``de minimis''
policy, OSHA must currently analyze later versions of the referenced
consensus standards, and determine whether they are as protective as
the referenced versions. OSHA believes that it would be far more
productive for the Agency to use its time and resources to update its
standards to reflect advances in consensus standard development and to
address more effectively the new technologies and equipment that are
found in today's workplaces.
II. Consensus Standards Update Project
OSHA recognizes the value of consensus standards and the widespread
preference for OSHA rules to reflect the latest versions of these
standards. SDOs rely upon the expertise of individuals with diverse
backgrounds to produce consensus standards that consider the latest
developments in workplace safety. As mentioned above, Congress placed
such a high value on national consensus standards that it authorized
the Agency to adopt them as OSHA standards, without notice and comment
rulemaking, during the first two years of the OSH Act under Section
6(a). In addition, Section 6(b)(8) of the OSH Act states: ``Whenever a
rule promulgated by the Secretary differs substantially from an
existing national consensus standard, the Secretary shall, at the same
time, publish in the Federal Register a statement of the reasons why
the rule as adopted will better effectuate the purposes of this Act
than the national consensus standard.'' 29 U.S.C. 655(b)(8).
In the National Technology Transfer and Advancement Act (NTTAA), 15
U.S.C. 272, Congress directed Federal agencies to use voluntary
consensus standards ``to the extent practicable'' and to participate in
the development of voluntary consensus standards. The Office of
Management and Budget has issued Circular A-119, Federal Participation
in the Development and Use of Voluntary Consensus Standards and in
Conformity Assessment Activities, to guide agencies in implementing the
NTTAA. While the NTTAA does not expand the obligations OSHA already has
under Section 6(b)(8) of the OSH Act (to consider consensus standards
during rulemaking), it demonstrates the importance Congress continues
to place on the use of consensus standards by administrative agencies.
Consensus standards often attempt to reconcile diverse global
standards and eliminate barriers to trade by finding areas of agreement
on the safety aspects of machinery and equipment. In addition, Federal
agencies can make use of the expertise of the developers of these
standards and participate with them in the development process.
Recognizing the importance of consensus standards, and the
difficulties presented by OSHA's continued reliance on outdated
consensus standards, we are beginning an effort to (1) update or revoke
outdated consensus standards referenced in OSHA standards, and (2)
update standards that incorporate language directly from outdated
consensus standards. OSHA anticipates that this will be an extended and
ongoing process. The OSH Act does not provide a quick way to update
mandatory safety and health standards. OSHA is not able to adopt the
latest versions of national consensus standards without notice and
comment, as it was authorized to do for 2 years under Section 6(a).
Instead, OSHA must conduct rulemaking under Section 6(b) to accomplish
this task.
OSHA has previously solicited information and suggestions from the
American National Standards Institute (ANSI) and other SDOs on how to
proceed with this project. See Ex. 2-1, Letter from OSHA to ANSI and
SDOs dated April 23, 2002. OSHA explained in that solicitation that the
references to outdated consensus standards created difficulties for
employers in a number of respects. OSHA noted that many of the outdated
versions are no longer available from the issuing SDO and that there
are often questions about the degree of protection and the lack of
currency with technological developments in various areas. OSHA
specifically asked SDOs to identify which referenced standards had been
updated by the SDOs since their adoption by OSHA, and to provide input
on the following questions:
Whether material changes have been made to the referenced
consensus standards so that the current versions are substantially
different from the versions in the CFR;
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Whether the adoption of the current versions would be
controversial; and
Whether the latest versions reduce risk more than the
versions that are currently incorporated in OSHA standards.
Various SDOs and other organizations responded and indicated their
desire to assist OSHA in its effort to update its standards. Among the
SDOs providing input were ANSI, the National Fire Protection
Association (NFPA), the American Society of Mechanical Engineers
(ASME), and the American Society for Testing and Materials. Other
organizations such as Underwriters Laboratories, the American Petroleum
Institute, the Compressed Gas Association, and the Abrasive Wheel
Institute also responded. Many of the SDOs and other organizations
provided OSHA with copies of the most recent versions of their
referenced standard(s) and offered to provide technical assistance to
the Agency in its analysis of the older and new standards. OSHA
appreciates the willingness of these organizations to help us implement
this project.
Nearly all of the SDOs said that OSHA's standards needed updating
to reflect current versions of the consensus standards and that the
current versions provided a higher level of safety to workers. In
addition, many of the SDOs believe that OSHA's efforts to update its
standards to reflect current versions of the consensus standards will
not elicit controversy. For example, the ASME said:
[We] believe that adoption of the current version of each of
these standards by the Federal Government with the changes
identified would be non-controversial. Similarly, it is our opinion
that the current versions of ASME standards will provide a reduction
in the risk of accidents and injuries as compared to earlier
versions presently referenced in the CFR and will alleviate some of
the confusion in the regulated industry. Moreover, in addition to
the technological advances incorporated into updated standards, many
of the products described in the older versions of standards are no
longer available, or are very difficult to obtain. Ex. 2-2, p. 2.
The NFPA noted that each of their documents has been updated ``to
reflect up-to-date terminology and current industry practices.'' Ex. 2-
3, App. B. The updated documents often cover technology that has been
developed since the OSHA standard was promulgated. ``Providing a state-
of-the-art document reflecting business practices of today promotes
more of an understanding, appreciation and the much-necessary buy-in by
the users of the regulations, thereby reducing risk.'' Ex. 2-3, App. B.
The NFPA also thought the updated references ``would be largely
non-controversial since the documents are ANSI consensus standards.''
Ex. 2-3, App. B. In addition, the NFPA said that ``[w]ith the
interested parties participating in the process to write documents, and
with the respective affected industries and their insurance companies
currently using NFPA documents, there is little controversy with OSHA
referencing the most updated NFPA codes and standards.'' Ex. 2-3, App.
B. The NFPA also said that for those OSHA standards that contain word-
for-word text from NFPA codes and standards, OSHA should consider
replacing the text ``with a simple reference to the applicable primary
NFPA document.'' Ex. 2-3, App. B.
OSHA is undertaking a series of regulatory projects to update its
standards to reflect the current versions of consensus standards. These
regulatory projects will include updating or revoking outdated
consensus standards incorporated by reference, and updating regulatory
text of current OSHA rules that were adopted directly from the language
of outdated consensus standards. OSHA will use a variety of regulatory
approaches in this effort, including:
1. Notice and comment rulemaking. OSHA intends to initiate formal
(notice and comment) rulemaking to update or revoke references to
outdated consensus standards in instances where OSHA anticipates that
the action would either impose compliance costs or raise significant
issues. OSHA will also use traditional notice and comment rulemaking to
update OSHA provisions that were derived directly from the text of
outdated consensus standards. OSHA is already using this technique to
update its electrical installation standards in Subpart S of Part 1910
(proposed rule published April 5, 2004, 69 FR 17774) and expects to
publish a proposed rule in the near future for Subpart V (power
transmission and distribution lines and equipment) of Part 1926.
2. Direct final rulemaking. OSHA will use direct final rulemaking
to update or revoke, as appropriate, references to outdated consensus
standards where the regulatory change is non-controversial, equally
protective, and does not impose significant new compliance costs.
3. Technical amendments. Where appropriate, OSHA intends to issue
technical amendments to update references that are currently
incorporated into OSHA standards and that only provide information to
the regulated community. Such references impose no compliance
obligations and can be updated without notice and comment procedures.
OSHA welcomes comments on this update effort generally, as well as
specific suggestions on which projects OSHA should pursue first.
Authority and Signature
This document was prepared under the direction of John L. Henshaw,
Assistant Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210. It is issued pursuant to sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657),
Secretary of Labor's Order 5-2002 (67 FR 65008), and 29 CFR part 1911.
Signed at Washington, DC, this 17 day of November 2004.
John L. Henshaw,
Assistant Secretary of Labor.
[FR Doc. 04-26047 Filed 11-23-04; 8:45 am]
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