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*&£& NBS TECHNICAL NOTE 1114

U.S. DEPARTMENT OF COMMERCE/ National Bureau of Standards

Prospects for

An OSHA/ETIP Project

to Facilitate

Technological Innovation

QC

100

U5753

no .1114

1980
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Prospects for An OSHA/ETIP Project

to Facilitate Technological Innovation

NATIONAL BUREAU

OF STANDARDS

LIBRARY APR 2 5 1980

Michael A. Mulkey'

The Urban Institute 2100 M Street, NW

Washington, DC 20037

ClClbO

and

Roland G. Weiss2

National Engineering Laboratory

National Bureau of Standards

Washington. D.C. 20234

Sponsored b\

The Urban Institute 2100 M Street Washington, DC 20037

'Present address: Bell Telephone Laboratories, Bldg. HP, Crawford Corner Rd., Holmdel, NJ 07733

'Present address: Performance Development Institute, 2550 M Street, NW. Washington. DC. 20037

4? \

rg&k

A

°»£AU Of wechmfil note.

U.S. DEPARTMENT OF COMMERCE, Philip M. Klutznick, Secretary

Luther H. Hodges, Jr., Deputy Secretary

Jordan J. Baruch, Assistant Secretary for Productivity, Technology, and Innovation

(J. 6. NATIONAL BUREAU OF STANDARDS, Ernest Ambler, Director

Issued May 1980
National Bureau of Standards Technical Note 1 1 14

Nat. Bur. Stand. (U.S.), Tech. Note 1 1 14, 49 pages (May 1980) CODEN: NBTNAE

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON: 1980

For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402

Stock No. 003—003— Price $3.25

(Add 25 percent for other than U.S. mailing).
ABSTRACT

This document describes the results of research performed to

identify and screen candidate interventions for administrative ex- perimentation with the Occupational Safety and Health Administration

(OSHA) of the Department of Labor. It is one product of the Regulatory

Processes and Effects Project of the Center for Field Methods (ETIP)

.

The broader project, described elsewhere, is analyzing the effects of

change in regulatory processes on industrial innovation. The report

presents preliminary conclusions regarding the appropriateness of ex- perimental variances as a possible means of facilitating the introduction of new technology by industry.

The first two chapters provide an introduction .and a brief history

of ETIP/OSHA work. Chapter III describes the basic logic of expanding

the use of OSHA's experimental variance authority to facilitate innovation, types of variances, variance application and review processes,

and limitations on the use of experimental variances to facilitate

innovation. Chapter IV describes alternative OSHA policy change

processes. The fifth chapter discusses OSHA's role in the equipment

market, and Chapter VI describes possible future work. It is recommended that future work, if any, not focus exclusively on variances,

but rather explore the full range of OSHA policies for updating standards and enforcement policies relative to new technology.

Key words: Administrative experimentation, evaluability

assessment, evaluation, Experimental Technology Incentives Program,

experimental variance, Occupational Safety and Health Administration,

regulatory experimentation, regulatory policy, standards, and technological innovation.

111
PREFACE

Regulatory agencies and regulatory reform are subjects of great

interest today, and the effects of regulation on technological innovation and productivity in American industry are of special concern. Many reforms and changes in the regulatory process are being proposed,

and some are being made. Each change represents an "experiment" in

the operation of our society, even if no one carefully determines the

result of that "experiment."

Since 1972, the Experimental Technology Incentives Program (ETIP) —located in the Center for Field Methods of the National Bureau of

Standards —has pursued an understanding of the relationships between

government policies and technology-based economic growth. This goal

is based on three premises:

• Technological change is a significant contributor to

social and economic development in the United States.

• Federal, State, and local government policies can influence the rate and direction of technological

change.

• Current understanding of this influence and its impact

on social and economic factors is incomplete.

ETIP seeks to improve public policy and the policy research process

in order to facilitate technological change in the private sector.

The program does not pursue technological change per se . Rather,

its mission is to examine and experiment with government policies and

practices in order to identify and assist in the removal of governmentrelated barriers and to correct inherent market imperfections that

impede the innovation process.

ETIP assists other government agencies in the design and conduct of

joint projects. Key agency decision makers are intimately involved

in these experiments to ensure that the results are incorporated in

the policy-making process. ETIP provides its agency partners with

both analytical assistance and funding for the experiments while it oversees the evaluation function.

In 1977, The Urban Institute's Program Evaluation Group was awarded a significant contract ($856,000 over 15 months) as a result

of competitive bidding on a U.S. Department of Commerce Request For

Proposal. Under this contract the Program Evaluation Group provided

analytic support and data collection services to ETIP. This work

was the foundation for the Regulatory Processes and Effects Project

(RPE). The Regulatory Processes and Effects Project, through this

analytic support work, will analyze the process and attempt to

IV
document the results of ETIP's regulatory projects, which investigate

whether private sector innovation is generated by changes in regulatory agencies. In December 1978, the Regulatory Processes and Effects

Project moved from The Urban Institute to the Performance Development

Institute (PDI) as the result of a competitive award process.

Regulatory Processes and Effects Project teams are conducting

short, exploratory efforts, significant explorations of expectations

and reality, and assessments of fully developed regulatory process

changes under various regulatory situations. * The following regulatory agencies are (or have been) involved:

Environmental Protection Agency (Air, Pesticides, and Water),

Federal Communications Commision,

Food and Drug Administration,

Federal Energy Regulatory Commission,

Federal Trade Commision,

Interstate Commerce Commission,

Nuclear Regulatory Commission,

Occupational Safety and Health Administration, and

State Public Utility Commissions (Electric Power).

The Regulatory Processes and Effects Project not only helps to

develop actual regulatory administrative experiments, but also helps

formulate a generalizable body of methods for implementing and assessing the effects of regulatory changes on commerce, industry, and

technological innovation.

1. ETIP prefers to use the strategy of "administrative experimentation" when applicable. An administrative experimentation strategy

(1) helps to bring about a change in the performance or operation of an agency, and (2) improves the understanding of the relationship between

the change introduced and the results observed. Thus, an administrative experiment is conducted more in the sense of carefully evaluated

change, and not in the social sciences sense of change controlled by

the researcher, according to certain prescribed rules, solely for

research purposes. A "quasi-experimental" research design may be the

best that one can do. See , for example, Campbell, Donald T. , "Administrative Experimentation, Institutional Records and Non-reactive

Measures," Improving Experimental Design and Statistical Analysis , Stanley, J.C., ed. , Chicago: Rand McNalley, 1967. Thompson, Charles

W. N. , and Rath, Gustave J. "The Administrative Experiment: A Special

Case of Field Testing Or Evaluation," Human Factors , Vol. 16, No. 3,

June 1974, pp. 238-252. Thompson, Charles W. N. "Administrative

Experiments; The Experience of Fifty-Eight Engineers and Engineering

Managers," IEEE Transaction on Engineering Management , Vol. EM-21,

No. 2, May 1974, pp. 42-50.
In each situation, team members from ETIP, the ETIP contractor

(PDI), and the regulatory agency jointly analyze an initiative in

regulation, or its implementation as an experiment, and/or perform an assessment of its effects. Other interested parties are also involved,

and the work is conducted under the management and review structure of

the Regulatory Processes and Effects Project. Consequently, knowledge

gained from similar projects can be shared. This document concerns

the development of an effort with the Occupational Safety and Health

Administration (OSHA) . It was prepared and submitted under Department

of Commerce Contract #7-35822 by the Regulatory Processes and Effects

Project. Statements in the report do not necessarily reflect the views

of the participating regulatory agencies. The report represents work

in progress at this point in time. As part of the longer term development of both methodology and experimental results, these reports are

used for information exchange. They are revised and updated periodically, as further progress and validation occur.

VI
TABLE OF CONTENTS

Page

Abstract iii

Preface . . iv

I. INTRODUCTION AND SUMMARY 1

II. BRIEF HISTORICAL BACKGROUND 4

A. INTRODUCTION 4 B. BACKGROUND RESEARCH STARTED AT ETIP 5 C. ETIP CONTACT WITH OS HA 6 D. OSHA/ETIP DECISION TO FOCUS ON EXPERIMENTAL VARIANCE . 7

III. OSHA EXPERIMENTAL VARIANCE AUTHORITY AS A CANDIDATE AREA

FOR ADMINISTRATIVE EXPERIMENTATION 9

A. INTRODUCTION 9 B. TYPES OF OSHA VARIANCES 11

C. OSHA's VARIANCE APPLICATION AND REVIEW PROCESS 12

D. OSHA's USE OF ITS EXPERIMENTAL VARIANCE AUTHORITY 16

E. LIMITATIONS ON THE USE OF EXPERIMENTAL VARIANCES TO

FACILITATE TECHNOLOGICAL INNOVATION 20

F. IMPLICATIONS FOR AN OSHA/ETIP REGULATORY EXPERIMENT

FOCUSED ON EXPERIMENTAL VARIANCES 22

IV. SOME MECHANISMS OF POLICY CHANGE AT OSHA 25

A. INTRODUCTION 25

B. IMPETUS FOR OSHA POLICY CHANGE 26

C. MECHANISMS FOR OSHA POLICY CHANGE 27

V. OSHA'S ROLE IN THE EQUIPMENT MARKET 30

VI. POSSIBLE FUTURE OSHA/ETIP WORK 31

LIST OF FIGURES

Figure Page

III-l: Basic Logic of Candidate Experiment of Expanding OSHA's

Use of Experimental Variance Authority 10

III-2: Rhetorical Model of OSHA's Variance Application and

Review Process 14

III-3: Rough Schematic of OSHA Standards Promulgation Process 15

APPENDIX: SYNOPSIS OF OSHA/ETIP MEETINGS ON THE EXPERIMENTAL

VARIANCE IDEA

vii

I. INTRODUCTION AND SUMMARY

This paper describes ETIP/Urban Institute background work performed

to identify and screen candidate interventions for administrative experimentation at the Occupational Safety and Health Administration in the

Department of Labor. It briefly discusses the history of ETIP's work

with OSHA leading eventually to a focus on OSHA authority to grant experimental variances to its health and safety standards. The results of

background work to determine the appropriateness of experimental variances as a possible area for regulatory administrative experimentation

are presented.

While this document reports on the substantive implications of ETIP/

Urban Institute work, the conclusions stated are based upon very limited

interviewing within OSHA and limited document review. Conclusions stated

are tentative and preliminary . They would be strengthened through validation by direct observations of OSHA processes and careful review of

OSHA records. This is an obvious limitation of the work done to date

in OSHA. However, as this paper strives to illustrate, such background

work, involving a modest level of effort, can generate useful information

at the screening and selection stage for candidate regulatory administrative experiments.

The information gathered during this background work suggests

several points relevant to the feasibility and desirability of treating

an expansion of the experimental variance process as the basis for an

OSHA/ETIP regulatory experiment:
• In the past, OSHA has- granted only one experimental variance. However, OSHA hopes to use this variance as a test case possibly leading to a general policy (standards)

change applicable to an entire mode of production.

• Interviews with OSHA staff indicate serious conceptual

problems on the part of the agency regarding the systematic use of experimental variances as part of more general

policy making. These problems revolve around possible

increased worker exposure to risk, and a related preference for laboratory experimentation with new health and

safety equipment or techniques.

• Characteristics of the variance process as a whole appear

to limit the scope of variances as a mode of OSHA policy

making. First, variance orders apply solely to individual

employers on a case-by-case basis. Further, OSHA staff

state that permanent and experimental variances should be

considered only in the case of design standards, not

performance standards.

• Use of the variance process to introduce new equipment

or processes is limited by the ineligibility of equipment manufacturers to apply for variances in order to

field test innovative equipment or processes in actual

work settings

.

In short, variances per se are not a mode of general OSHA policy

making, although they may directly lead to policy of wider scope in the

form of standards modification or revocation (see Figure III-l) . In

particular, experimental variances currently have a very tenuous link

to more general OSHA policy making, and there appears to be significant

barriers to establishing that linkage more firmly.

In light of these observations, this paper recommends that future

OSHA/ETIP work, if any, to develop an administrative experiment should

not be focused solely on OSHA's experimental variance authority. If

further work is contemplated to develop an OSHA/ETIP experiment, the

next phase of effort which appears necessary is a broadly focused study
of (1) the extent to which OSHA standards are a factor in the development and introduction of new technologies ,' and (2) the full range of

OSHA processes and practices used to adapt standards to changing technologies .
II. BRIEF HISTORICAL BACKGROUND

A. INTRODUCTION

The Occupational Safety and Health Act of 1970 created the Occupational Safety and Health Administration within the Department of Labor.

OSHA's mandate is "to assure as far as possible every working man and

woman in the nation safe and healthful working conditions and to preserve

our human resources." These goals are pursued through the promulgation

2 and enforcement, at the federal or state levels, of safety and health

standards, and through research, training, and technical assistance in

the occupational safety and health fields. The fiscal year 1978 Budget

of the U.S. Government estimated a permanent personnel level of 2,717

OSHA employees. Federal workplace inspections were expected to total

90,000 in 1978, with an estimated 140,000 inspections occurring under

3 the jurisdiction of the state governments.

This section describes the process by which ETIP and OSHA decided

to investigate the experimental variance process as a possible candidate

for administrative experimentation. This process is divided into several

phases

1. P.L. 91-396, Sec. (2)b.

2. States may in whole or in part assume jurisdiction for safety

and health laws provided they have an OSHA approved state plan for doing

so. The major requirements for such state plans is that the standards

contained in them and their enforcement are "at least as effective in

providing safe and healthful employment and places of employment" as comparable federal standards and enforcement, and which do not "unduly

burden interstate commerce." P.L. 91-596, Sec. 18 (c)

.

3. The Budget of the U.S. Government, FY 1978 , Appendix A, p. 513.
• Background Research Started by ETIP

• ETIP Contact with OSHA

• OSHA/ETIP Decision to Focus on Experimental Variances

B. BACKGROUND RESEARCH STARTED BY ETIP

The variance project described in this report is the second subject

area in which ETIP and OSHA have attempted to formulate a joint project.

Previously, ETIP and OSHA discussed the possibility of a project involving

the use of computers to speed the standards development process, and ETIP

made $200,000 available to OSHA for that project. However, the interest

of both OSHA and ETIP in this idea declined, and in the Fall of 1976,

ETIP began to investigate ideas for reformulation of an OSHA/ETIP project.

Several potential contractors who had done work in the occupational

health and safety area had ideas for experimental projects with OSHA.

These contractors included: the Public Interest Economics Center (PIE-C)

Nicholas Ashford, of the MIT Center For Policy Alternatives; and SRI International. By February, 1977, both MIT and PIE-C had submitted proposals to ETIP to do preliminary background work on possible OSHA/ETIP

experiments. The ideas, and the rationales, were as follows:

• Economic Incentives In Noise Regulation (PIE-C)

The idea proposed here involved the use of economic

incentives to gain compliance with OSHA's noise standard,

including the differentiation of penalties across industries. It was reasoned that such a regulatory approach

would create a continuous and more flexible incentive

structure for firms to reduce workplace noise levels in

ways more appropriate to their specific situations than

would engineering standards alone.
• Worker Committees (MIT)

This idea involved committees made up of both workers

and management which would jointly develop innovative

approaches to meeting OSHA standards. These innovative

approaches could be implemented using the experimental

variance provision of the OSHA act.

• Multipurpose Health Maintenance Organizations (MIT)

The approach proposed here was the use of HMOs to meet

federal occupational health and safety requirements,

including recordkeeping; health monitoring, maintenance

and prevention; and safety engineering. The rationale

was that these HMOs would reduce the regulatory burden

on regulated firms, especially small firms which find

it most difficult to meet regulatory requirements, and

would serve as an incentive to compliance with health

and safety standards.

These ideas were reviewed internally in ETIP in March, 1977 and small

purchase order contracts were awarded in June to investigate their

feasibility.

C. ETIP CONTACT WITH OSHA

The ETIP Director, the regulatory area chief, and Dr. Ashford of

MIT met with Basil Whiting, the deputy designate to Assistant Secretary

Bingham, and OSHA staff (including the head of the Office of Policy

Analysis, Integration, and Evaluation) in June 1977. At this meeting,

OSHA expressed interest in working with ETIP to develop an experimental

project. Several weeks later, ETIP staff gave a more formal presentation to OSHA on ETIP's mission and the administrative experiment process

Over the ensuing several months, ETIP worked with its contractors

to develop the economic incentives, worker committees and HMO ideas.
A brief status report was given to OSHA in September, and contacts reestablished. The contractors completed their work by January, 1978.

D. OSHA/ETIP DECISION TO FOCUS ON EXPERIMENTAL VARIANCE

An initial briefing on the results of the ETIP contractors' work

was given to OSHA in February, 1978, and detailed OSHA reactions were

discussed in March. The consensus of these meetings was:

• Experimental Variances

The "Worker Committee" idea originally proposed by MIT

was reformulated to one involving OSHA issuance of guidelines for the use of experimental variances (which might

include a requirement for the use of worker committees)

.

The rationale was that these guidelines would encourage

firms to come to OSHA with alternative, innovative

approaches to standards compliance requiring additional

testing. If the approach in question worked under an experimental variance in practice, that firm and others

would be allowed to use it. A particular concern was obtaining worker involvement in the process. OSHA suggested it might be willing to fund experimental or demonstration projects testing new safety technology. It was

agreed that the initial approach to further development

of this project might include ETIP's doing a case study

of OSHA's existing experimental variance.

• Economic Incentives

The PIE-C report concluded that it would not be worthwhile, or at best would be very difficult to carry out

an economic incentives experiment in the area of noise

regulation. However, OSHA staff had some alternative

ideas which warranted further discussion.

• Multipurpose HMO

It was agreed that a feasibility study would be required

before this idea could be pursued further, and that ETIP

would only keep abreast of any work which OSHA might initiate in this area.
It was thus agreed in May, 1978 that ETIP would investigate the feasibility of the experimental variance idea in more detail.

1. Additional OSHA/ETIP meetings held to discuss the prospects for

a joint project involving experimental variances are synopsized in the

appendix to this paper.
III. OSHA EXPERIMENTAL VARIANCE AUTHORITY AS A CANDIDATE

AREA FOR ADMINISTRATIVE EXPERIMENTATION

A. INTRODUCTION

OSHA's statutory authority to grant experimental variances to its

standards was chosen as a candidate area for administrative experimentation because of its explicit connection to both experimentation and

innovation in the health and safety fields. The ETIP/Urban Institute

background work in this candidate experimental area was guided by a

preliminary idea for a possible intervention. Although never specified

in detail, this intervention would involve the increased use by OSHA of

its experimental variance authority. Figure III-l describes the basic

logical sequence of both steps necessary to implement such an OSHA policy

change and some of the possible consequences.

In addition to authority to grant experimental variances, OSHA also

has statutory authority to grant orders of temporary and permanent variance. Background work on these types of variances was also performed by

the ETIP/Urban Institute team because (1) initial discussions with OSHA

staff indicated that some variance applications which could have been

treated as experimental in nature were instead treated as temporary or

permanent variances, and (2) all variance applications are processed in

the same office.

1. There has been one experimental variance granted during OSHA's

existence. It is discussed below.
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B. TYPES OF OSHA VARIANCES

The Occupational Health and Safety Act authorizes OSHA to grant

three types of variances from its standards: experimental, temporary,

and permanent

.

Section 6(b) 6(c) of the OSHA Act which authorizes experimental

variances, reads as follows:

The Secretary is authorized to grant a variance from

any standard or portion thereof whenever he determines,

or the Secretary of Health, Education, and Welfare

certifies, that such variance is necessary to permit

an employer to participate in an experiment approved

by him or the Secretary of Health, Education, and

Welfare designed to demonstrate or validate new and

improved techniques to safeguard the health or safety

of workers

.

Temporary variances orders are granted when (1) an applicant

employer cannot come into compliance with a standard by its effective

date due to "unavailability of professional or technical personnel or

of materials and equipment needed to come into compliance with the

standard or because necessary construction or alteration of facilities

cannot be completed by the effective date;" (2) the employer is taking

"all available steps" to guard employees against the hazard covered by

the standard; and (3) the employer has "effective" plans to come into

compliance with the standard "as quickly as practicable." Temporary

variance orders may place conditions upon employers' practices during

the period of the order.

1. P.L. 91-596, Sec. 6 (b) 6(a).

11
Permanent variance orders may be granted by OSHA upon application

by an employer showing that conditions of employment or processes used

or proposed will result in employment which is "as safe and healthful

as" that which would exist if the employer were in compliance with the

standard. These orders also may prescribe conditions which must be met

by the employer.

C. OSHA's VARIANCE APPLICATION AND REVIEW PROCESS

OSHA's variance application and review process is managed in its

Office of Variance Determination located within the Office of the Technical Directorate (formerly located in the standards development office,

then in the compliance office). Much of ETIP/Urban Institute's background work in the experimental variance area focused on the work of

this office. This work consisted of interviews with staff concerning

the nature of the variance process, and a review of the regulations

2 governing the variance process. In all instances, variance office personnel were in attendance at ETIP/OSHA meetings to discuss the prospects

3 for experimental variances as an administrative experiment intervention.

Interviews were also conducted at the supervisory level in OSHA's

4 Office of Compliance Programming, which is responsible for the

1. P.L. 91-596, Sec. 6(d).

2. Interviews were held with James Concannon, Director of the

Office of Variance Determination, and Dorothy Pulmer of that office on May 29, 1978 and June 7, 1978. The regulations for variance application

and review appear as 29 CFR 1905.

3. These meetings are briefly described in the Appendix to this

paper

.

4. An interview was held with Donald Shay, Director of the Office

of Compliance Programming, on June 30, 1978.

12
development and implementation of guidelines for OSHA field inspection

operations, and in the Office of Safety Standards 'Development , responsible for the development of new or modified safety standards and the

revocation of existing ones. These interviews were conducted due to the

substantial involvement of these offices in the variance application

review and decision making process

.

The purpose of this work was to gain an understanding of the context

of agency process within which the intervention might be introduced; the

role of experimental variances in carrying out the agency's mandate, as

perceived by OSHA staff, the perceived utility or potential of experimental variances in addressing agency problems; and potential problems

with expanded use of OSHA's authority to grant these variances.

Part of the results of this work are presented schematically in

Figures III-2 and III-3. These figures outline the activities involved

2 in OSHA's temporary and permanent variance application and review process

and the agency's standards development process, respectively. These figures are based solely on information from the OSHA staff interviews

referenced above, and have been validated through follow-up interviews

with these same staff. These figures have not been validated through

direct observation of the processes or through study of a sample of

1. Interviews were held with John Proctor, Deputy Director of the

Office of Safety Standards Development on June 23, 1978 and August 15,

1978. Additional information on standards development was gathered

during a July 6, 1978 interview with Alice Suter of OSHA's Office of

Health Standards Development concerning revision of OSHA's noise

standard . 2. OSHA has not published regulations for the exercise of its experimental variance authority, although a draft of these . regulations is in

existence

.

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15
OSHA's records on variance applications or developed standards. Further

ETIP work, if any, on variances or standards in OSHA should include such

a validation step. The result would undoubtedly lead to changes and/or

elaboration of Figures III-2 and III-3. Further, OSHA is now in the

process of reviewing and revising its variance application and review

process, which will probably lead to changes in Figure III-2.

D. OSHA's USE OF ITS EXPERIMENTAL VARIANCE AUTHORITY

OSHA has granted one experimental variance during its existence.

The variance order was issued on August 31, 1976, and allows the Interlake Stamping Corporation of Willoughby, Ohio to equip and operate five

mechanical power presses with electronic light curtain sensing devices.

These devices function both to safeguard the press operator at the point

of operation and as a tripping mechanism for the power presses. OSHA

standards permit the use of presence sensing devices to guard the point

of operation, but explicitly prohibit the use of such devices as a means

2 of tripping a stroke of the press. Initially, Interlake applied for a

permanent variance. This application was published in the Federal Reg3 ister on May 20, 1974. After some debate within OSHA and in light of

the express prohibition against presence sensing devices as tripping

1. See 41 Federal Register 36702. The following discussion of the

variance is based upon Federal Register documentation and interviews with

variance office staff. The ETIP/Urban Institute team did not receive

access to OSHA's file on this variance.

2. See CFR, Sec. 1910.217(c) (3) (iii) . 3. 39 Federal Register 17804.

16
mechanisms, the application was modified to request an experimental

variance and republished in the Federal Register on February 3, 1976.

The variance order notes that the light curtain device has been

used as a tripping mechanism in several European countries with satisfactory results. It also notes that OSHA, during the initial review of

Interlake's application, considered the possibility of deleting from its

mechanical power press standard the prohibition on such usage. This possibility was rejected, however, because European countries allowing this

use of light curtains have procedures and facilities for the certification and approval of these devices, which the' United States does not.

The order states that one purpose of granting the experimental variance

is to evaluate the safety of the light curtain as a tripping mechanism

to determine whether the OSHA standard should be changed to authorize

this use. It also notes that light curtain use as a tripping mechanism

may increase productivity, which would serve as an incentive for employers to voluntarily comply with OSHA's power press standard if it were

2 modified to allow this use.

The Interlake variance was granted for a one year period ending

August 31, 19 77. OSHA staff have indicated that a two-year extension of

the variance will soon be granted. During this forthcoming period, OSHA

hopes to gather sufficient data for a decision on revising the mechanical

1. 41 Federal Register 4994.

2. The OSHA notice granting the variance to Interlake states that

the increased productivity possible under this system may

also help provide safer working conditions for power press

operators, if the experiment should justify general use of

the system, in that it would provide an incentive for em- ployers to voluntarily comply with the standard.

See 41 Federal Register 36703.

17
power press standard. Preceived problem areas include necessary limitations, if any, on the press sizes for which light curtains can be used

to trip operation, the types of presses on which it can be used, and

OSHA enforcement of any such limitations.

OSHA staff have stated that there have been a few additional instances in which experimental variances might have been appropriate, but

were handled by OSHA as other types of variances (one involved saw guarding and the other OSHA's cotton dust standard). As noted, OSHA has not

published regulations for experimental variances, although draft regula1 tions have been in existence for some time.

The limited use of experimental variances and the absence of published regulations seem to be related to OSHA's concerns about variances

generally and experimental variances particularly. On the basis of our

limited interviewing of OSHA staff, apparent concerns include the following :

• Large scale granting of variances, prima facie , undercut OSHA's mandate. Therefore, variances are generally "frowned upon" by OSHA, and the number of

variances granted has been limited by design.

2

Permanent variances, in particular, are perceived as potentially "gutting" standards and/or as surrogate

revisions of standards outside the formal process for

standards change.

1. Plans call for the publication of experimental variance regulations as part of an overall review and revision of OSHA's variance

processes by the Spring of 1979.

2. See Figure III-2; in the period from April 1, 1971 to March 3,

1978, 1,100 plus applications were received and 83 variances granted.

However, the variances granted figure is misleading because temporary

variances are largely granted in the form of interim orders. That is,

the applicant employer typically comes into compliance with the standard (s) in question during the term of an interim order but before

completion of OSHA's variance application review and decision process.

In such cases, the temporary variance application becomes moot.

18
• Experimental variances carry the additional potential

of OSHA's appearing to deliberately allow involved

workers to be exposed to higher levels of risk or hazard than that allowed under the 'applicable standard. The term "experimental" itself, to some,

apparently suggests the use of workers as "guinea

pigs," and exposes the agency to criticism from

parts of its constituency.

These concerns are consistent with frequently stated preferences

among most interviewees for a strict laboratory approach to experimentation with new safety or health devices or processes as a way of determining the appropriateness of OSHA's approval of new techniques. Such

an approach would not involve the exposure of volunteer workers to hazard

or risk levels higher than those proscribed under OSHA standards. The

OSHA staff interviewed exhibited concern with the distinction between

laboratory and field testing, and the possible need for human factors

engineering. In light of this, variance office staff stated that experimental variances might, if necessary, play an ancillary role in future

OSHA-initiated health and safety research and development, which in the

past has been very limited. That is, OSHA may wish to have some particular process or product field tested, and seek a firm to do so under the

experimental variance provision.

1. Note that in the light curtain experimental variance, substantial prior evidence existed in the form of European experiences

to form a firm justification for the variance and substantially reduce

the potential that the experiment would expose workers to higher risk

of injury.

19
E. LIMITATIONS ON THE USE OF EXPERIMENTAL VARIANCES TO

FACILITATE TECHNOLOGICAL INNOVATION

Three additional considerations suggest limits on the extent to

which experimental variances can be used to facilitate technological

advances

.

First, OSHA standards are of two generic types, performance standards and design standards. The two types are difficult to define and,

at times, to distinguish in practice. Performance standards place quantitative limits on the level of hazard to which a worker may be exposed;

an example is the maximum dba exposures contained in OSHA's noise standard. A design standard, on the other hand, specifies minimum equipment

characteristics or design specifications that must be met by employers

to safeguard workers; an example is specifications in OSHA's standard

for ladders. Performance standards are more prevalent in the health area

In the safety area, one interviewee estimated that 90 percent of the

standards are design standards and 10 percent are performance standards.

However, in some cases, performance standards contain examples of acceptable approaches, techniques, or designs known to meet the performance

criteria. These examples are provided as a guide to both OSHA enforcement activities and industry compliance. They also are thought by some

to make it easier for small firms to comply. Interviewees suggested that

there may be a tendency for industry to adopt the example(s) contained in

such standard as known, unrisky means of compliance, rather than develop

20
or adopt different approachs. OSHA interviewees also stated that while

variances might be appropriate for design standards, permanent and experimental variances should not be granted for performance standards because

these would represent a deliberate lowering of the standard by OSHA.

Constraints on OSHA's regulatory authority also appear to limit the

extent to which variances can be used to facilitate technological innovation. OSHA has authority over employers, not over equipment designers

and developers (except in their capacity as employers). As a result,

variances of any type may be granted only to employers. Therefore, an

equipment manufacture desiring to introduce, through a various application, new equipment of uncertain compliance with OSHA's design specifications would first have to persuade an employer to apply for a variance.

This employer would necessarily become involved with OSHA's administrative processes for variance application review, including the possibility of a variance inspection by OSHA. Such an application also can lead

to the involvement of the employer's workers and their union representatives. Further, the eventual result may be OSHA rejection of the application. In short, the cost and risk for the employer seem significant.

In addition, from the equipment manufacturer's perspective, the variance,

if granted, would only apply to one of his customers and would not necessarily expand his potential market, absent a more general OSHA policy

1. Performance standards were perceived by interviewees as allowing

more flexability and room for compliance innovation than design standards

However, any approved design example contained in a performance standard

may be a disincentive to innovation. One OSHA staff person stated that

performance standards in effect state a problem which industry can solve

in numerous ways, while design standards state a solution to a perceived

problem and tend to put a lock on innovative ways of dealing with that

problem

.

21
or enforcement change approving the new design. This appears to be an

inherent limitation on the exercise of variance authority to approve the

introduction of innovative equipment of unknown compliance with OSHA

design standards. Nevertheless, one OSHA source stated that some equipment manufacturers have in the past attempted to introduce innovations

through the use of variance applications, but abandoned the effort due

to the amount of "red tape" involved (no examples were given) . A cautionary note about this scenario is necessary, however. The nature of

interaction between OSHA and equipment manufacturers seeking to innovate

was not examined by the ETIP/Urban Institute team, and further work is

needed to understand the extent and nature of this relationship. These

manufacturers may not regard OSHA standards as inhibiting innovation,

or they may have found acceptable ways of innovating within the framework of OSHA standards and processes (see Chapter V below).

Last, as noted above, the variance process may only allow change

or innovation on a case-by-case basis limited to individual employers.

Unless variances lead to a more general OSHA policy or enforcement

change, which they may, innovation through variances appears only one

step removed from a prohibition of the innovation in question.

F. IMPLICATIONS FOR AN OSHA/ETIP REGULATORY EXPERIMENT

FOCUSED ON EXPERIMENTAL VARIANCES

The work performed to date suggests several points relevant to the

feasibililty and desirability of treating an expansion of the experimental variance process as the basis for an OSHA/ETIP regulatory experiment

22
• In the past, OSHA has granted only one experimental

variance. However, OSHA hopes to use this variance

as a test case possibly leading to a general policy

(standards) change applicable to an entire mode of

production

.

• Interviews with OSHA staff indicate serious conceptual

problems on the part of the agency regarding the systematic use of experimental variances as part of more

general policy making. These problems revolve around

possible increased worker exposure to risk and, relatedly,

a preference for laboratory experimentation with new

health and safety equipment or techniques.

• Characteristics of the variance process as a whole

appear to limit the scope of variances as a mode of

OSHA policy making. First, variance orders apply solely

to individual employers on a case-by-case basis. Further,

OSHA staff state that permanent and experimental variances

should be considered only in the case of design standards,

not performance standards.

• Use of the variance process to introduce new equipment or processes is limited by the ineligibility of equipment

manufacturers to apply for variances in order to field

test innovative equipment or processes in actual work

settings

.

In short, variances per se are not a mode of general policy making,

although they may directly lead to policy of wider scope in the form of

standards modification or revocation (see Figure III-l) . In particular,

experimental variances currently have a very tenuous link to more general

OSHA policy making, and there appears to be significant barriers to

establishing that linkage more firmly.

A regulatory experiment involving an intervention which is not well

connected to more general OSHA policy suggests that any agency impacts

and commercial/ technological consequences which might result would be of

limited scope. The area of experimental variances appears to fall into

this category. For this reason, experimental variances do not appear to

23
be an appropriate focus for an ETIP/OSHA regulatory experiment. Further,

focusing on the general variance process per se without consideration of

its connection to more general OSHA policy likewise seems inappropriate.

Any further ETIP/OSHA work to develop a regulatory experiment involving

the variance process should consider the potential connection to more

general forms of OSHA policy.

24
IV. SOME MECHANISMS OF POLICY CHANGE AT OSHA

A. INTRODUCTION

During the interviewing of OSHA staff, it was suggested that variance orders are one among several OSHA processes for adapting OSHA policy

to special circumstances and/or attempting to insure that OSHA standards

are not outmoded vis-a-vis developing industrial processes and equipment.

Chapter III of this paper suggests that variances per se are a limited

mode of OSHA policy making, due to their case-by-case applicability to

individual employers, and therefore probably have limited commercial

and technological impacts.

These interviews allowed the ETIP/Urban Institute team to identify

alternative decision making processes, in some cases involving more general policy, which exist at OSHA to achieve flexibility and currency in

the standards, and which may affect the rate and direction of technological change in OSHA-regulated industries. This chapter presents that

information as an initial identification of alternative modes of policy

making at OSHA. Selection of an optimal intervention promising measurable and significant commercial and technological consequences requires

understanding of the full range of regulatory policy modes or options.

This chapter is a beginning step toward gaining such understanding about

OSHA regulation.

25
B. IMPETUS FOR OSHA POLICY CHANGE

Several sources of impetus for OSHA policy change were identified

in the course of interviewing OSHA personnel. The introduction of new

technology in the workplace or changes in manufacturing processes may

require the interpretation or modification of existing standards or OSHA

enforcement practices. Discovery of new hazards may likewise necessitate

the promulgation of a new standard. Either of these sources of change

may lead national consensus standard setting groups to modify their

standards. Such modification may create discrepancy between consensus

group standards and OSHA standards. OSHA may, in turn, be encouraged

to review and, if appropriate, change its standards to reduce such discrepancy to avoid confusion among employers, manufacturers, and builders.

Another source of change in OSHA policy is the discovery that original standards as adopted by OSHA were too narrowly drawn. As indicated

in Figure III-2, this realization may occur in the course of the variance

application review process. The Occupational Safety and Health Act of

1970 provided an initial period of two years following the effective date

of the Act during which OSHA could adopt existing national consensus

standards and federal standards as OSHA standards without following the

requirements of the Administrative Procedures Act. OSHA's original body

of standards was largely created through this grandfathering procedure.

However, in some instances, the consensus groups drafting standards

adopted the option perceived as best among several acceptable alternatives. When OSHA, in turn, promulgated the standard in toto , the one

1. See Sec. 6(a) of the Act, P.L. 91-596.

26
the one option became the federal standard, despite the existence of

acceptable alternatives. The identification of such alternatives

acceptable to the original consensus group drafters but falling outside

the OSHA standard creates pressure for OSHA to interpret or modify its

standards to allow the alternative(s) .

C. MECHANISMS FOR OSHA POLICY CHANGE

OSHA has several mechanisms which allow it to adopt standards in

response to a perceived need for change. OSHA variance orders are one

such mechanism. We have noted that the capability of OSHA to use variances, per se , as a tool of policy change is limited by the case-by-case

applicability of variances. Variance applications, as indicated in

Figure III-2, also involve policy making on a case-by-case basis in the

form of letters clarifying standards or stating that the standard deviation in question is "de minimus" in nature, that is, of no serious consequence to worker safety or health. Additionally, variance applications

may result in the formulation of a long term voluntary compliance agreement between OSHA and an employer not in compliance with OSHA standards.

Variance orders require a plan for the employer to come into compliance

within, at most, a two year period. Long term voluntary compliance

agreements are used in situations where an employer requires more than

two years to come into compliance and/or has no definite plan for doing

so (see Figure III-2).

27
Another case-by-case source of OSHA decision making is the exercise

of discretion by field inspectors on site. These inspectors may also

decide that deviations from standards are _de minimus in nature.

The variance office appears to play an important role within OSHA

as a sensor of the need for broader policy change. Variance applications may result in the initiation of formal standards modification,

standards revocation, or in the development of OSHA program directives

(see Figure III-2). Program directives are administrative guidelines

for standards enforcement at the field level and are written in the

Office of Compliance Programming. In effect, they are administrative

interpretations of the standard. Each new OSHA standard is accompanied

by the issuing of a program directive for its enforcement. A variance

application may lead to a program directive instructing OSHA acceptance

of the device or practice in question. Program directives are not published in the Federal Register, but appear in a Commerce Clearinghouse

publication, with copies made available to employers (usually large ones)

who might be interested. These directives are a mechanism for broader

OSHA policy making, but their use has recently been brought into question by legal and internal OSHA review.

OSHA's standards development process is another mechanism for broad

policy change, but may be complex and time consuming (see Figure III-3).

Some OSHA staff stated that the agency's capability to use its case-bycase mechanisms and program directives in lieu of formal standards change

to adapt standards to technological innovations and changing industrial

processes is declining. Interviewees reported a backlog of needed

28
changes in OSHA standards, and increasing pressure on the agency to

take a more direct approach to standards revision through comprehensive

reviews of groups of standards and through its formal standards development process. OSHA is reportedly hindered in its attempts to reexamine

and update standards by limited resources (especially legal resources)

and the growing complexity of the formal standards change process. OSHA

interviewees indicated that the process has become more time and resource

consuming with additional requirements for environmental and economic

impact statements and the increased frequency of court challenges of new

standards. One OSHA source stated that the result has been a significant

decline in OSHA's capability to promulgate new or modified standards,

particularly in the health area, which generally involves more complex

issues. It was suggested that OSHA is losing its flexibility to adapt

to new technological developments within the framework of existing

standards, particularly if the use of program directives becomes more

limited, and that the agency may have to develop new means of rapidly

deciding and announcing what it will accept as a means of compliance.

That may prove difficult due to a perceived lack of technical expertise

available at the agency, compounded by the lack of an OSHA certification

program or capability, or a workable accreditation standard for testing

laboratories .

1. See the light curtain experimental variance discussion above

29
V. OSHA'S ROLE IN THE EQUIPMENT MARKET

The extent and nature of the impact of OSHA policy, including variances, on technology partially depends upon the agency's role in the

marketplace for industrial equipment and manufacturing processes. As

noted in Chapter IV, OSHA does not have direct jurisdiction over developers, designers, and manufacturers of industrial equipment. However,

the interviewees felt that the agency is inextricably, though indirectly,

involved in the market place for this equipment.

OSHA's acceptance or rejection of a new process, machine, or device

is reportedly crucial for developing equipment of uncertain compliance

with OSHA standards. Interviewers indicated that companies often want

some form of OSHA approval for their innovations. Without such approval,

marketing of the innovation can become considerably more difficult or

impossible. Also, established equipment manufacturers reportedly desire

tight OSHA standards and strict enforcement because this helps protect

their markets and limits their legal liability in the event of worker

2 injury. Particulary in the past, OSHA has received requests from developers (referred to as "widget builders" by one interviewee) for approval

1. In this context, one OSHA interviewee stated that it was amazing how many problems seem to "blow away" with a piece of paper

from OSHA's national office approving the use of some device or process

2. This suggests the possibility that narrow, strictly enforced

OSHA standards are a means of restricting competition through design

innovation by increasing the risk involved to manufacturers attempting

to enter a market through the development of new equipment.

30
of new safety devices, but current OSHA policy is not to approve or disapprove the equipment in question. OSHA has the authority to grant such

approvals if a piece of equipment has successfully gone through tests by

an OSHA accredited laboratory, but OSHA has no testing capability of its

own upon which to base approval. Further, while OSHA has a testing laboratory accreditation standard, it reportedly has never been implemented

due to lack of resources.

1. At one time, OSHA did approve equipment designs through letters

to requesting manufacturers, but discontinued this practice on the basis

of lack of expertise and the burdensomeness of that approach.

31
VI. POSSIBLE FUTURE OSHA/ETIP WORK

As noted above, it appears that OSHA's variance authority, including

its capability to grant experimental variances, is only one among several

available case-by-case or more general mechanisms through which standards

can be interpreted or modified so as to be current with the technological

state-of-the-art and not serve as barriers or disincentives to innovation.

In general, variances, by virtue of their case-by-case applicability,

appear to be inherently limited as a mechanism to facilitate advances

in technology. In addition, the granting of experimental variances by

OSHA is a source of substantial concern to the agency.

In light of this limitation and these concerns, it is recommended

that if there is to be any future ETIP work in OSHA, that work should

not focus solely on experimental variances or the general variance process as areas for regulatory experimentation. Any future work, including the identification and selection of an intervention(s) , would more

fruitfully examine the full range of OSHA administrative processes for

updating their standards and enforcement policies relative to new

technology or industrial processes.

To date, ETIP/Urban Institute work has not been sufficient to gain

an understanding of the nature in which the full range of OSHA's standards adaptation mechanisms operate and any associated problems; of

whether or not the full range of available change processes has been

identified; or to determine the circumstances under which one mechanism .

is preferable to others, given procedural restraints (that is, how these

32
mechanisms are managed by OSHA) . Any further ETIP work with OSHA should

strive to gain an understanding of the extent to which there is lag between OSHA standards and state-of-the-art technology or industrial processes, how OSHA reacts to changing technologies, and how the agency's

adaptive mechanisms operate. The objective of such further background

work would be the identification and screening of possible candidates

for an OSHA/ETTP regulatory administrative experiment.

This work would involve a substantive effort, since it would cut

across almost all of the agency's functions from the national office

to the field level. Of particular concern and difficulty is the nature,

exercise and management of discretion available to OSHA inspectors in

the field. The field compliance staff is reportedly an important source

of information on the need for OSHA acceptance of new technology and the

extensiveness of innovation in the private sector. Also, OSHA inspectors reportedly play a primary role in the agency's equipment approval

function

Although some OSHA staff feel that the agency's policy plays a significant role in shaping the market for industrial equipment, this role

has not been examined by the ETIP/Urban Institute team. In addition to

the work suggested above, future ETIP work with OSHA, if any, should

include some effort to determine the importance and nature of OSHA's

role in this marketplace as baseline information to assist in the identification of experimental interventions with links to technology. This

work could begin with interviewing of equipment manufacturers and purchasers, and study of the work of consensus standards setting organizations .

33

APPENDIX

SYNOPSIS OF OSHA/ETIP MEETINGS ON THE

EXPERIMENTAL VARIANCE IDEA

A-l
A brief synopsis of OSHA/ETIP meetings to discuss experimental

variances as an area for possible administrative experimentation is

presented below in chronological order:

May 29, 1978 : Roland Weiss, John Waller, Mike Mulkey from ETIP/Urban

Institute; Peggy Richardson (Office of Policy Analysis,

Integration, and Evaluation), James Concannon (Director,

Office of Variance Determination) , and Dorothy Pulmer

(Office of Variance Determination) from OSHA.

This was the initial meeting with OSHA staff to gather preliminary

information on OSHA's use of experimental variance authority and prospects for expanded use of that authority.

Variance office staff indicated significant OSHA reluctance to

grant experimental variances involving deliberate exposure of workers

to increased hazard; OSHA wants to avoid accusations of treating workers

as "guinea pigs." A preference was expressed by OSHA staff for laboratory experimentation with new workplace health and safety devices or

approaches. There is a possibility that OSHA will use its grant authority to encourage safety and health technology advances. This might

involve experimental variances as needed. It was noted that an experimental variance is appropriate only if (1) a standards violation would

be involved in an experiment, and (2) there is a reasonable expectation

that the experiment could lead to health or safety advances.

OSHA staff stated that the purpose of experimental variances is to

determine the appropriateness of changes in the standards.

A-2
Although the light curtain experimental variance is the only one in

OSHA's history, OSHA staff felt that there would be others.

June 7, 1978 : Roland Weiss and Mike Mulkey; James Concannon and Dorothy

Pulmer .

This meeting with variance office staff was to obtain more detailed

information on OSHA's process for variance application review and decision making

OSHA staff expressed a preference for firmly trying expanded use

of experimental variances, if needed, to a program of OSHA grants for

health and safety research and development. It was also noted that in

many cases, such research and development could occur wholly within a

laboratory setting without the need for an experimental variance in an

actual workplace setting.

OSHA staff stated that the need for granting an experimental variance depends upon the nature of the standard in question. Experimental

variances (and permanent variances) imply the involvement of design

standards. There should be no variances (except temporary variances)

involving performance standards. OSHA currently emphasizes the development of performance standards.

July 6 , 1978 : Roland Weiss and Mike Mulkey; Alice Suter (Office of

Health Standards Development) , Ray Donelly (Office of Policy

Analysis, Integration, and Evaluation), and Peggy Richardson.

A-3
This meeting focused on the involvement of experimental variance in

the development of a new OSHA noise standard (now on-going) , and on the

standards development process generally.

Alice Suter stated that experimental variances could possibly play

a role in the development and implementation of a modified noise standard, but did not offer specific suggestions. She also suggested that

ETIP could become involved in studying the new noise standard in its

entirety as an experiment; an experiment involving variable noise standards across industries; or experimentation involving variance in noise

abatement strategies. However, she did not conceive of experiments to

involve monitoring the impact of experimental policy and using the

results to modify OSHA policy.

Peggy Richardson suggested that a problem assessment in the noise

area is needed prior to any decision on experimentation involving the

noise standard.

August 21, 1978 ; Roland Weiss and Mike Mulkey; Haze Bell (head of the

Directorate of Technical Support) , Don Lyons (Directorate of

Technical Support), Peggy Richardson, and James Concannon.

This meeting was held to review ETIP's work on experimental variances; to brief Haze Bell, the new director of the division which contains the variance office, on ETIP's mission and approach; and to get

OSHA comments on ETIP's recommendations for the future direction of the

proj ect

.

In general, the ETIP/Urban Institute team recommended that future work should be more broadly focused on the full range of OSHA's

A-4
processes, including experimental variances, to adapt standards to

changing technology and processes in the workplace. It was recommended

that a broadened focus include other variances, program directives, the

exercise of discretion by field inspectors, and OSHA's standards development process .

The OSHA staff present expressed disinterest in such a broadened

approach. Peggy Richardson was surprised that ETIP/Urban Institute's

background work on experimental variances has led to an interest in the

standards development process. She also suggested that it might not be

an appropriate time for any ETIP project with OSHA.

OSHA staff again expressed misgivings about the appropriateness

of focusing on experimental variances as an OSHA process. Several new

possible foci for ETIP's work were suggested, including OSHA's fines

process and the effects of legislative changes in the maximum amounts

for willful standards violation, if such legislative changes occur.

Haze Bell and James Concannon expressed interest in an engineering

study of the light curtain variance, with a particular emphasis on

whether the use of light curtains on power presses increased productivity. The ETIP/Urban Institute team were unsure of the appropriateness

of such an engineering study from ETIP's perspective.

The meeting concluded with an agreement to meet again to discuss

some type of case study of the light curtain experimental variance.

August 31, 1978 : Dan Fulmer (ETIP), Roland Weiss and Mike Mulkey;

Don Lyons, Ray Donelly, James Concannon, and Dorothy Pulmer.

A-5
This meeting was held to further discuss the prospects for a case

study of the light curtain variance.

Dan Fulmer briefed OSHA staff on ETIP's role and mission, emphasizing interest in projects relating to generic regulatory issues which

will produce results useful to decision makers in ETIP's partner agency.

Skepticism was expressed by Don Lyons about the utility to OSHA from its

involvement with ETIP and expressed apprehension that ETIP's role was

similar to that of the General Accounting Office. Dan Fulmer attempted

to assure him that ETIP's method was to work closely with agency partners

to the mutual benefit of both.

Variance office staff again stated that experimental variances

should be used only where needed as an ancillary tool in OSHA research,

development or demonstration efforts to test new technology on its own

initiative. They saw little utility in a study of the experimental variance process, because all variance processes were now under review and

subject to change, and because the prospect is for experimental variances

to play a very limited role in OSHA efforts to update its standards and

policies to the technological state-of-the-art. Interest was again

expressed by OSHA in an engineering case study of the light curtain to

assist OSHA in deciding upon the need for a change in the applicable

standard. ETIP stated that such a study is too particularistic and is

not appropriate given ETIP's interest in generic regulatory issues.

The ETIP/Urban Institute team suggested an administrative case study

of the light curtain variance involving access to OSHA's files on that

variance. We suggested that such a study might inform changes in OSHA's

A6
variance process now under consideration and would provide a firm basis

for deciding upon future ETIP/OSHA work in this area, if any. OSHA staff

were assured that any ETIP/Urban Institute report on such a case study

would be submitted to OSHA for review and comment prior to any release

outside of ETIP. There was reluctant agreement by OSHA to such a study

and to ETIP/Urban Institute access to the light curtain variance file.

The ETIP/Urban Institute team agreed to contact the variance office

within the next few weeks to review, the file, upon the availability of

OSHA staff time to assist.

October 17, 1978 ; Roland Weiss and Mike Mulkey; Ray Donelly.

Approximately two weeks following the August 31st meeting, ETIP/

Urban Institute team members contacted OSHA staff to arrange access to

the light curtain file, and were informed that a meeting among the involved OSHA staff led to a decision that OSHA would not participate in

an administrative study of that variance. Reasons given were the perceived lack of utility for OSHA; that the experimental variance focus

was too narrow; and, ETIP should take a broader perspective on how OSHA

can stimulate advances in health and safety technology; and that experimental variances are passive incentives to technology, not positive

incentives

.

The meeting with Ray Donelly was held to discuss OSHA's ideas for

an alternative ETIP/OSHA project. He suggested that ETIP undertake a

general background study of OSHA mechanisms to adapt standards to changing technology. This study would be geared to the identification of

A-7
regulatory changes by which OSHA might improve the currency of its policies with the technological state-of-the-art in the regulated industries

The mechanisms identified would in turn become candidates for implementation on an experimental basis by OSHA. Mr. Donelly indicated that

the possibility of this study had only been discussed informally with

other OSHA staff, and suggested that we jointly draft a brief concept

paper outlining the work. The concept paper would be reviewed by OSHA.

The ETIP/Urban Institute team expressed misgivings about this idea,

noting that it would mean beginning a new and lengthy search for an

intervention with no guarantee of success. It was noted that such a

study would bring ETIP full circle to the beginning of its work with

OSHA, and that ETIP was not optimistic about the prospects for generating an experimental intervention in light of past work with the agency.

The ETIP/Urban Institute team agreed to consider the study idea

and respond in the the near future.

No further meetings have been held between ETIP and OSHA as of

February, 1979.

A-8
NBS-114A IREV. 9-78)

U.S. DEPT. OF COMM. BIBLIOGRAPHIC DATA

SHEET

1. PUBLICATION OR REPORT NO. NBSTN 111*

2. Gov't Accession Noi 3. fteoijuenf $ Accession No. I

4. TITLE AND SUBTITLE

Prospects for An OSHA/ETIP Project to Facilitate

Technological Innovation

5. Publication Date May 1980

sing Organization Code

7. AUTHOR(S)

Michael A. Mulkey (UI), Roland G. Weiss (NBS)

8. Performing Organ. Report No.

9. PERFORMING ORGANIZATION NAME AND ADDRESS

NATIONAL BUREAU OF STANDARDS

DEPARTMENT OF COMMERCE

WASHINGTON, DC 20234

19. i^8*t/T3Sk/Woik Wait NO.

' :'vV ;' 11. Contract/Grant No. 7-35822

12. SPONSORING ORGANIZATION NAME AND COMPLETE ADDRESS (Street, City, state, zip)

National Bureau of Standards and The Urban Institute

2100 M Street, N.W.

Washington, DC 20037

13. Type of Report &. Period Covered

Interim

14. Sponsoring Agency Code '..

•

15. SUPPLEMENTARY NOTES

2\ Document describes a computer program; SF-185, FIPS Software Summary, is attached.

16. ABSTRACT (A 200-word or leas tactual summary of most significant information. If document includes a significant bibliography or

literature survey, mention it here.) This document describes the results ot research performed to identify and screen candidate

interventions for administrative experimentation with the Occupational Safety and Health

Administration (OSHA) of the Department of Labor. It is one product of the Regulatory Processes

and Effects Project of the Center for Field Methods (ETIP). The broader project, described

elsewhere, is analyzing the effects of changes in regulatory processes on industrial innovation.

The report presents preliminary conclusions regarding the appropriateness of experimental

variances as a possible means of facilitating the introduction of new technology by industry.

The first two chapters provide an introduction and a brief history of ETIP/OSHA work. Chapter

III describes: the basic logic of expanding the use of OSHA's experimental variance authority to

facilitate innovation; types of variances; the variance application and review processes; and

limitations on the use of experimental variances to facilitate innovation. Chapter IV describes

alternative OSHA policy change processes. The fifth chapter discusses OSHA's role in the

equipment market, and Chapter VI describes possible future work. It is recommended that future

work, if any, not focus exclusively on variances but rather explore the full range of OSHA policies

for updating standards and enforcement policies relative to new technology.

17. KEY WORDS (six to twelve entries; alphabetical order; capitalize only the first letter of the first key word unless a proper name;

ted by semicolons) Administrative experimentation; evaluability assessment; evaluation;

Experimental Technology Incentives Program; experimental variance; Occupational Safety and

Health Admininstration; regulatory experimentation; regulatory policy; standards; technological

innovation '

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Office for Library of Congress catalog number, and entry of non-NBS media citation upon receipt of Form NBS-266 from author.

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•',- U S GOVERNMENT PRINTING OFFICE 1980-311-046/53

FORM NBS-1MA (REV. 9-78)
NATIONAL BUREAU OF STANDARDS

The National Bureau of Standards' was established by an act ot Congress on March 3, 1901. The Bureau's overall goal is to strengthen and advance the Nation's science and technology

and facilitate their effective application for public benefit. To this end, the Bureau conducts

research and provides: (1) a basis for the Nation's physical measurement system, (2) scientific and technological services for industry and government, (3) a technical basis for equity in trade, and (4) technical services to promote public safety. The Bureau's technical work is per- formed by the National Measurement Laboratory, the National Engineering Laboratory, and

the Institute for Computer Sciences and Technology.

THE NATIONAL MEASUREMENT LABORATORY provides the national system of

physical and chemical and materials measurement; coordinates the system with measurement

systems of other nations and furnishes essential services leading to accurate and uniform

physical and chemical measurement throughout the Nation's scientific community, industry,

and commerce; conducts materials research leading to improved methods of measurement,

standards, and data on the properties of materials needed by industry, commerce, educational

institutions, and Government; provides advisory and research services to other Government

agencies; develops, produces, and distributes Standard Reference Materials; and provides

calibration services. The Laboratory consists of the following centers:

Absolute Physical Quantities2 — Radiation Research — Thermodynamics and

Molecular Science — Analytical Chemistry — Materials Science. THE NATIONAL ENGINEERING LABORATORY provides technology and technical ser- vices to the public and private sectors to address national needs and to solve national problems; conducts research in engineering and applied science in support of these efforts; builds and maintains competence in the necessary disciplines required to carry out this research and technical service; develops engineering data and measurement capabilities;

provides engineering measurement traceability services; develops test methods and proposes

engineering standards and code changes; develops and proposes new engineering practices;

and develops and improves mechanisms to transfer results of its research to the ultimate user. The Laboratory consists of the following centers:

Applied Mathematics — Electronics and Electrical Engineering2 — Mechanical

Engineering and Process Technology 2 — Building Technology — Fire Research —

Consumer Product Technology — Field Methods.

THE INSTITUTE FOR COMPUTER SCIENCES AND TECHNOLOGY conducts

research and provides scientific and technical services to aid Federal agencies in the selection, acquisition, application, and use of computer technology to improve effectiveness and

economy in Government operations in accordance with Public Law 89-306 (40 U.S.C. 759), relevant Executive Orders, and other directives; carries out this mission by managing the Federal Information Processing Standards Program, developing Federal ADP standards

guidelines, and managing Federal participation in ADP voluntary standardization activities; provides scientific and technological advisory services and assistance to Federal agencies; and

provides the technical foundation for computer-related policies of the Federal Government.

The Institute consists of the following centers:

Programming Science and Technology — Computer Systems Engineering.

'Headquarters and Laboratories at Gaithersburg, MD, unless otherwise noted; mailing address Washington, DC 20234.

; Some divisions within the center are located at Boulder, CO 80303.
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