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> **AMERICAN SOCIETY**
>
> **OF SAFETY ENGINEERS**
>
> 1800 East Oakton Street
>
> Des Plaines, Illinois 60018-2187
>
> 847.699.2929
>
> FAX 847.296.3769
>
> [www.asse.org](http://www.asse.org/)
>
> January 14, 2008
>
> The Honorable Edwin G. Foulke, Jr.
>
> Assistant Secretary of Labor
>
> Occupational Safety and Health Administration
>
> U.S. Department of Labor
>
> 200 Constitution Avenue, NW
>
> Washington, DC 20210
>
> RE: ASSE Comment on Updating OSHA Standards Based on National
> Consensus Standards: OSHA Docket No. 2007-0040
>
> Dear Assistant Secretary Foulke:
>
> The American Society of Safety Engineers (ASSE), on behalf of its
> 32,000 member safety, health and environmental (SH&E) professionals,
> urges you to withdraw the Direct Final Rule *Updating OSHA Standards
> Based on National Consensus Standards* published December 14, 2007 (72
> FR 71061). As our comments below demonstrate, the proposed amendments
> to Occupational Safety and Health Administration (OSHA) standards in
> this rulemaking go beyond the stated purpose of simply removing
> "references to outdated consensus standards that have requirements
> that duplicate, or are comparable to, the requirements specified by
> other OSHA rules." As such, the proposed amendments are inappropriate
> and, if adopted, would significantly impact the relevant standards'
> effectiveness in protecting workers from occupational risks.

ASSE has long advocated the use of occupational safety and health
consensus standards by federal agencies like OSHA, as ASSE states in its
*Position Statement on the Role of Consensus Standards in Occupational
Safety and Health*, which can be found at
<http://www.asse.org/professionalaffairs/govtaffairs/roleofconsensusstandards0406.php>
:

> Governmental agencies such as OSHA, MSHA, CPSC, and NHTSA should be
> encouraged to utilize these consensus standards -- in accordance with
> Public Law 104-113, \"The National Technology Transfer and Advancement
> Act of 1995,\" and the Office of Management and Budget in its Circular
> A-119, "Federal Participation in the Development and Use of Voluntary
> Consensus Standards and in Conformity Assessment Activities\" -- as
> they provide an efficient/effective alternative to traditional public
> sector rule making.

In Public Law 104-113, Congress ordered that

> (A)ll Federal agencies and departments shall use technical standards
> that are developed or adopted by voluntary consensus standards bodies,
> using such technical standards as a means to carry out policy
> objectives or activities determined by the agencies and departments,

In general, OSHA has made a good faith effort to comply with this law,
given the limits in its capabilities in keeping up with advances in the
voluntary consensus standards through the rulemaking process due in part
to ever-increasing Administration oversight and the aggressive legal
challenges that any occupational safety and health rulemaking encounters
in our current environment.

In this Direct Final Rule, a proposal to get rid of obsolete or
difficult to obtain consensus standards where other standards adequately
protect workers would, at first glance, appear to make sense and be
consistent with the mandate to use technical standards as a means to
carry out OSHA's policy objectives. Outdated, duplicative and
unavailable standards do not advance the goal of protecting against
workplace risks. As ASSE's specific comments below indicate, however,
this Direct Final Rule fails to meet the Public Law 104-113 mandate to
"use technical standards that are developed or adopted by voluntary
consensus standards bodies" because OSHA has failed to go one necessary
step further by referencing the most current voluntary national
consensus standards that are available from those bodies. The work
needed to comply fully with Public Law 104-113 is only partly done and,
as we urge, can be completed by withdrawing this Direct Final Rule.

The following are ASSE's specific comments on the actions OSHA proposes
as detailed in Table 1 of the Direct Final Rule:

> **OSHA Standard** -- 1910.68(b)(4) and (b)(8)(ii)
>
> **Reference Standard** -- ANSI A12.1-1967-Safety Requirements for
> Floor and Wall Openings, Railings, and Toeboards
>
> **Comparable OSHA Standard** -- 1910.23
>
> **Action Taken** -- Remove the reference to the ANSI standard in both
> OSHA standards.
>
> **OSHA Comment** -- The provisions in the OSHA standard and the
> consensus standard are identical.
>
> **ASSE Comment --** Instead of removing the ANSI standard reference,
> the reference needs to be updated to the ANSI/ASSE A1264.1-2007,
> \"Safety Requirements for Workplace Walking/Working Surfaces and Their
> Access; Workplace Floor, Wall and Roof Openings; Stairs and Guardrails
> Systems\". Numerous versions of A12, A64, and a combined A1264.1 have
> been published over the years. A1264.1 alone has had versions in 1989,
> 1995, (R-2002), and a brand new standard in 2007. The most current
> 2007 A1264.1 standard must be referenced by OSHA. Though ASSE has
> shared copies of this standard with Agency leadership and the Training
> Institute, we would be happy to provide another copy for use in
> further rulemaking on this issue.
>
> **OSHA Standard** -- 1910.144(a)(1)(ii)
>
> **Reference Standard** -- ANSI A10.2-1944-Safety Code, for Building
> Construction (paragraph 1.6.2 addresses the use of red lights with
> barricades).
>
> **Comparable OSHA Standard** -- 1910.144(a)(1)(ii)
>
> **Action Taken** -- Remove the reference to the ANSI standard.
>
> **OSHA Comment** -- The OSHA standard and the referenced consensus
> standard have similar requirements. The OSHA standard requires that
> red lights be provided \'\'at barricades and at temporary
> obstructions,\'\' while paragraph 1.6.2 of the referenced ANSI
> standard requires employers to place red lights or flares on or about
> barricades after dark. OSHA has determined that removing the reference
> to the 60-year old ANSI standard is appropriate given the requirements
> of 1910.144(a)(1)(ii) and the usual and customary practice of the
> industry.
>
> **ASSE Comment** -- This proposed change fails to recognize the
> numerous A10 standards that deal with barricades in different worksite
> situations that are widely recognized and followed in industry.
> Removing a reference to A10 here will only confuse those already using
> the A10 standard and make the work of OSHA inspectors that much more
> difficult.
>
> **OSHA Standard** -- 1910.243(d)(1)(i)
>
> **Reference Standard** -- ANSI A10.3-1970-Safety Requirements for
> Explosive-Actuated Fastening Tools (Section 3 specifies design
> requirements)
>
> **Comparable OSHA Standard** -- 1910.243(d)(2)
>
> **Action Taken** -- Remove the reference to the ANSI standard and
> replace it with a cite to the design requirements specified by
> 1910.243(d)(2).
>
> **OSHA Comment** --The provisions in the OSHA standard and the
> consensus standard are identical, except that paragraph (d)(2) of
> 1910.243 does not contain provisions for the construction of
> high-velocity tools, low-velocity piston tools, and hammer-operated
> piston tools specified in ANSI paragraphs 3.1.5, 3.2.5, and 3.3.5,
> respectively -- i.e., that these tools must have adequate strength to
> withstand the stresses imposed by any commercially available load that
> will chamber in the tool. These provisions do not relate directly to
> guarding explosive-actuated tools, which is the purpose of the OSHA
> standard. Furthermore, OSHA notes it is the usual and customary
> practice in the industry to design tools with adequate strength to
> withstand the stresses imposed by commercially available loads.
>
> **ASSE Comment** -- The 2006 version the A10.3 standard contains much
> clearer and more precise requirements than those found in 1910.243
> and, so, are not identical to 1910.243 as the Direct Final Rule
> states. We fear that the comparison made here was based on a review of
> the 1970 version of a standard, which, if true, is inappropriate.
> Updated versions of this standard were published in 1977, 1985, 1995,
> and 2006. It is the 2006 version that OSHA should be reviewing to make
> this determination. ASSE's own review of the 2006 version finds these
> significant issues addressed in A.10.3 but not 1910.243:

-   how to test the velocity of the tool for classification;

-   specified tool and container markings/warnings;

-   operator manual requirements;

-   the advances in technology resulting in the breach mechanism of
    modern PAT tools not being visible without disassembly;

-   the reality that use of hammer-actuated PAT tools has become very
    limited, primarily for low-production attachment of 2x lumber to
    concrete, where a muzzle-mounted fixture is unnecessary;

-   specific guidelines on identification of load power levels;

-   requirements for fastener performance criteria;

-   a more extensive list of guidelines for safe operation, including
    industry-wide updating of instructions on how to handle misfires;
    how to select the proper power level; how to determine whether a
    specific base material is suitable for PAT; industry-wide updating
    of application limits (edge distances); requirements for concrete
    thickness; the need to hold the tool perpendicular to the work
    surface; special requirements for when, and how, to use a
    high-velocity PAT; and

-   requirements on proper training for PAT operators.

> The ANSI standard also covers additional topics, such as on-line
> training, sample operator cards, storage, and posting of signs.
> Further, ASSE is concerned with the thoroughness of the review that
> has been undertaken in this instance. OSHA's statement in its comments
> that *guarding* "is the purpose of the OSHA standard" is not accurate.
> In fact, the majority of 1910.243 addresses topics other than
> guarding. Also, A10.3 is also referenced in 1926.302. If this is
> intentional, then the argument that this reference is somehow not
> needed does not hold.
>
> **OSHA Standard** -- 1910.261(c)(15)(ii), (e)(4),(g)(13)(i), (h)(1),
> (j)(4)(iii), (j)(5)(i), (k)(6), (k)(13)(i), and (k)(15)
>
> **Reference Standard** -- ANSI A12.1-1967-Safety Requirements for
> Floor and Wall Openings, Railings, and Toeboards
>
> **Comparable OSHA Standard --** 1910.23
>
> **Action Taken** -- Remove the reference to the ANSI standards in the
> OSHA standards and replace them with a cite to 1910.23.
>
> **OSHA Comment** -- The provisions in the OSHA standard and consensus
> standard are identical.
>
> **ASSE Comment** -- Instead of eliminating the reference, it needs to
> be changed to ANSI/ASSE A1264.1-2007, \"Safety Requirements for
> Workplace Walking/Working Surfaces and Their Access; Workplace Floor,
> Wall and Roof Openings; Stairs and Guardrails Systems\". As we have
> said above, numerous versions of A12, A64, and a combined A1264.1 have
> been published over the years. A1264.1 alone has had versions in 1989,
> 1995, (R-2002), and a brand new standard in 2007. The most current
> 2007 A1264.1 standard must be referenced by OSHA. Though ASSE has
> shared copies of this standard with Agency leadership and the Training
> Institute, we would be happy to provide another copy for use in
> further rulemaking on this issue.

ASSE has consistently supported OSHA's efforts to update standards and
remove pointless references when appropriate. Most recently, the Society
praised the Agency for its efforts to find a meaningful and practical
way to reference standards without having to maneuver through the
costly, time-consuming rulemaking process in our response to its
rulemaking concerning *Updating OSHA Standards Based on National
Consensus Standards; Personal Protective Equipment* (95 Fed. Reg.
27771). Nevertheless, when OSHA's efforts fall short of what we firmly
believe are its obligations under the law to "use technical standards
that are developed or adopted by voluntary consensus standards bodies,"
we must speak up on behalf of our members. This Direct Final Rule must
be withdrawn and further rulemaking undertaken.

ASSE is pleased to know that we are not alone in raising these concerns.
The Powder Actuated Tool Manufacturers\' Institute, Inc., (PATMI) has
taken a similar stand against the deletion of the A10.3 voluntary
consensus standard from 1910.243(d). We look forward to working with
PATMI to ensure that further rulemaking on this issue reflects
appropriately the protections provided by this reference.

As always, ASSE stands ready to assist OSHA in moving this rulemaking
forward appropriately. If the expertise of our members or the standards
development committees for which ASSE serves as Secretariat, especially
the A10 Committee in this matter, can be of help to OSHA, we would hope
that you or your staff would let us know.

Thank you for your consideration of our comments.

Sincerely,

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Michael W. Thompson, CSP

President