June 5, 2001



Mr. Robert Thomson
Frost Control, Inc.
7 Industrial Drive South
Smithfield, RI 02917-1526

Dear Mr. Thomson:

Thank you for your September 13th letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Compliance Programs (DCP). You had specific questions regarding machine guarding and the potential enforcement of international standards adopted under the General Agreement on Tariffs and Trade (GATT). Our replies to your paraphrased scenarios and questions are provided below.

Scenario 1:  29 CFR 1910.212(3)(ii) states, "The guarding device shall be in conformity with any appropriate standards...." Underwriters Laboratory (UL) has recently adopted the International Standard IEC-61496-1&2 as UL-61496-1&2 and is bringing it to ANSI as an American National Standard for Electro Sensitive Protection Equipment (ESPE) (i.e., ANSI/UL 61496-1&2).

NOTE:  Please be aware that the correct standard is as follows: 29 CFR 1910.212(a)(3)(ii), General Requirements of All Machines, states, "The point of operation of machines, whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle."

Question 1:  When ESPEs are used as point of operation guarding devices, are they required to conform to UL-61496-1&2?

Reply:  Your letter did not address the specific machinery (i.e., mills and calenders, punch presses, shears, etc.) for which your ESPE's are being used as point of operation guarding devices. In addition to considering the specific machinery for which the ESPE's are being considered, one must also specify the desired optional devices or functions required of the ESPE. Of the six options available, one option includes the use of ESPE as a machine reinitiation device. This could conflict with existing OSHA standards, such as, presence sensing device initiation (PSDI) of mechanical power presses (29 CFR 1910.217) and minor servicing activities as specified in the control of hazardous energy (lockout/tagout) 29 CFR 1910.147.

Another consideration is the use of references in UL61496-1&2 that are not used in the OSHA, Subpart S, standard. These references include UL-840 (Insulation coordination including clearances and creepage for electrical equipment); and NFPA 79 (Electrical standard for industrial machinery).

Finally, in the UL standards for ESPE, four types are specified (two under consideration) and it is the responsibility of the machine manufacturer and/or user to prescribe which type is required for a particular application. Depending on the choice, possible conflicts with OSHA standards may occur. As a result, conformance to UL61496-1&2 would have to be considered for each case of ESPE usage.

Question 2:  Per "Equipment and materials used in the workplace" (see attached), "Certain equipment because of its nature or the types of hazards that may develop while in use is required to be listed, labeled or approved by third party laboratories accredited by OSHA." Does conformity need to be 3rd party approved?

Reply:  The attachment that you submitted references a Federal Register Notice dated April 12, 1988, pages 12102-12125 and supplemental requirements in a Notice dated March 9, 1995, pages 12980-12985, as they apply to 29 CFR 1910.7, Definition and requirements for a nationally recognized testing laboratory. Please be aware that 29 CFR 1910.7(a) states, "This section shall apply only when the term nationally recognized testing laboratory is used in other sections of the part." [emphasis added]

The requirement for third party approval does apply. 29 CFR 1910.212(a)(1) gives an example of guarding as including two-hand tripping and electronic safety devices. By their nature, these devices involve electrical equipment. 29 CFR 1910.303(a) requires such equipment to be acceptable only if approved. 29 CFR 1910.399(a)(1) requires third party listing and labeling to be acceptable to the Assistant Secretary of Labor and approved within the meaning of this Subpart S if listed and labeled by a nationally recognized testing laboratory (NRTL).

Scenario 2:  OSHA enforces the minimum requirements as specified in 29 CFR 1910. For the most part, these standards/regulation were adopted in the 1970s and were written as American National Standards in the 1940s and 1950s; as such they are quite dated and do not reflect the "state of the art." In addition, there are standards that are emerging from the international arena, such as the International Standards Organization and International Electrotechnical Commission (ISO and IEC), for machine safety that do reflect the "state of the art" in machine guarding.

The ISO and IEC standards are governed by trade legislation and are supported by the U.S. Department of Commerce, National Institute of Standards and Technology (NIST). These standards are being adopted by the American National Standards Institute (ANSI) as American National Standards (ANS). Under the GATT, signatory countries are enforcing the provisions of the agreement.

Question 1:  Will OSHA enforce the standards once they are ANS?

Reply:  OSHA enforces compliance with 29 CFR. If ANS are incorporated into OSHA standards, compliance with the ANS is enforced. However, if the ANS are not part of specific OSHA standards, but compliance with the ANS provides equal or greater employee protection, then complying with the ANS while failing to comply with the specific OSHA regulations would be considered a de minimis violation. In some cases, special situations arise when a specification type OSHA standard is compared with a revised ANSI standard which, having undergone numerous update cycles, has evolved into a performance oriented type standard.

Question 2:  Does OSHA's consultation branch provide expert advice on machine safeguarding to the "state of the art" or is the consultation based on compliance with the minimum requirements as specified by 29 CFR?

Reply:  Consultation services are based on compliance with the minimum requirements of 29 CFR. If you need further assistance and guidance, please contact Federal/State Operations, Office of Cooperative Programs, Division of Consultation Programs, 200 Constitution Ave. N.W., Rm N3700, Washington, DC 20010.

Question 3:  If consultation is for the minimum requirements to be compliant with 29 CFR, isn't OSHA opening itself up to lawsuits because there are international/American National Standards that demonstrate the "state of the art" in safeguarding machinery?

Reply:  The Occupational Safety and Health Act (the Act) mandates that OSHA, "assure safe and healthful working conditions" for America's workforce. As you have noted, our regulations set minimum standards for achieving a "safe and healthful" workplace. However, please be aware that our policies and procedures do not prevent an employer from developing new and innovative methods, such as "state of the art" machine guarding, to maximize employee safety.

Procedures for enforcing the Act are set forth in the Field Inspection Reference Manual (the FIRM), which is provided to both our consultation and enforcement branches. If you need further assistance with the procedures for consultation programs, please contact Federal/State Operations at the address listed in the reply to Question 2 under your second scenario.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep appraised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Compliance Assistance at (202) 693-1850.

Sincerely,



Richard E. Fairfax, Director
Directorate of Compliance Programs