[Federal Register Volume 69, Number 226 (Wednesday, November 24, 2004)]
[Proposed Rules]
[Pages 68283-68285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26047]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. S-023]
RIN 1218-AC08


Updating OSHA Standards Based on National Consensus Standards

AGENCY: Occupational Safety and Health Administration (OSHA); Labor.

ACTION: Proposed rule; notice of project to update OSHA standards that 
are based on National Consensus Standards.

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SUMMARY: OSHA is engaging in an overall effort to update OSHA standards 
that reference, or that include language taken directly from, outdated 
consensus standards. The Agency adopted many of these standards over 30 
years ago under Section 6(a) of the Occupational Safety and Health Act 
of 1970. Most of the referenced documents have been either superseded 
by later versions or withdrawn by the issuing Standards Development 
Organization (SDO). Many are no longer in print or available to the 
public through the issuing SDO. The outdated versions in the OSHA 
standards do not reflect advances in technologies that have changed 
workplace safety over the last 30 years. OSHA will use a variety of 
regulatory approaches to update these standards, including notice and 
comment rulemaking, direct final rulemaking, and technical amendments.

DATES: Comments to this notice must be submitted by the following 
dates:
    <bullet> Hard copy: Your comments must be submitted (postmarked or 
sent) by December 27, 2004.
    <bullet> Electronic transmission and facsimile: Your comments must 
be sent by December 27, 2004.

ADDRESSES: You may submit written comments on this notice--identified 
by docket number S-023 or RIN number 1218-AC08--by any of the following 
methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> OSHA Web Site: http://ecomments.osha.gov. Follow the 
instructions for submitting comments on OSHA's Web page.
    <bullet> Fax: If your written comments are 10 pages or fewer, you 
may fax them to the OSHA Docket Office at (202) 693-1648.
    <bullet> Regular mail, express delivery, hand delivery, and courier 
service: Submit three copies to the OSHA Docket Office, Docket No. S-
023, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-
2625, Washington, DC 20210; telephone (202) 693-2350. (OSHA's TTY 
number is (877) 889-5627.) OSHA Docket Office hours of operation are 
8:15 a.m. to 4:45 p.m., EST.
    Instructions: All comments received will be posted without change 
to http://dockets.osha.gov, including any personal information 
provided.
    Docket: For access to the docket to read background documents or 
comments received go to http://dockets.osha.gov.

FOR FURTHER INFORMATION CONTACT: For general information and press 
inquiries contact George Shaw, Acting Director, OSHA Office of 
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone: (202) 693-1999. For 
technical inquiries, contact Ted Twardowski, Directorate of Standards 
and Guidance, Room N-3609, OSHA, U.S. Department of Labor, 200 
Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-
2070 or fax (202) 693-1663. Copies of this Federal Register notice are 
available from the OSHA Office of Publications, Room N-3101, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210; telephone: (202) 693-1888. Electronic copies of this Federal 
Register notice, as well as news releases and other relevant documents, 
are available at OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    OSHA has used consensus standards extensively as a basis for its 
mandatory safety and health standards since the earliest days of the 
Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 651 et 
seq. Under Section 6(a) of the OSH Act, OSHA was given the authority 
for a period of 2 years to adopt both national consensus standards and 
established Federal standards as OSHA standards without following 
notice and comment rulemaking procedures. 29 U.S.C 655(a). Congress 
provided this authority so that OSHA would have a mechanism to begin 
immediately protecting the Nation's workers through mandatory 
standards. Using Section 6(a), the Agency adopted many consensus 
standards as OSHA standards.\1\ OSHA adopted some of the

[[Page 68284]]

consensus standards through ``incorporation by reference.'' When it 
incorporates a consensus standard by reference, OSHA requires employers 
to follow a consensus standard--identified by name and date in the Code 
of Federal Regulations--made available for inspection at the Office of 
the Federal Register, the OSHA Docket Office, and OSHA's Regional 
Offices. See 29 CFR 1910.6. OSHA adopted other consensus standards by 
importing relevant language from them directly into the regulatory text 
of OSHA standards.
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    \1\ OSHA also adopted under Section 6(a) a number of industry 
standards that were established Federal Standards or that were 
referenced in national consensus standards. For convenience only, 
this notice also refers to such standards promulgated under Section 
6(a) as ``consensus standards.''
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    Under Section 6(b) of the OSH Act, which authorizes OSHA to 
promulgate safety and health standards through notice and comment 
rulemaking, OSHA has since promulgated a number of rules that 
reference, or are based in large measure on, consensus standards. Some 
of these Section 6(b) rulemakings involved updating OSHA standards that 
were originally adopted from consensus standards under Section 6(a), as 
discussed above.
    Today, there are about 200 consensus standards referenced 
throughout the OSHA standards for general industry and maritime. The 
references appear in hundreds of requirements and range from 
informational references to mandatory requirements.
    While OSHA has updated some of its Section 6(a) standards through 
notice and comment rulemaking, the vast majority have not been updated 
since they were originally adopted. Some of the consensus standards 
``incorporated by reference'' were issued over 60 years ago. Most of 
the referenced consensus documents have been either superseded by later 
versions or withdrawn by the issuing Standards Development Organization 
(SDO). Many are no longer in print or available to the public through 
the issuing SDO. These outdated standards do not reflect advances in 
technologies that have changed workplace safety over the last 30 years. 
The OSHA versions also have not been updated to address new equipment 
and machinery that have become available since they were originally 
promulgated.
    OSHA has a policy of issuing ``de minimis'' notices to employers 
who comply with more current versions of consensus standards, to the 
extent that the more current versions are at least as protective as the 
older versions. See OSHA Instruction CPL 2.45B, p. IV-31. The ``de 
minimis'' policy does not address all of the difficulties for 
employers, employees, and OSHA enforcement personnel created by OSHA 
referencing outdated consensus standards. For example, referencing 
outdated consensus standards adds time-consuming administrative burdens 
on employers seeking to comply with OSHA standards. Employers need to 
research the referenced consensus standards, identify and analyze any 
updates to the standards, and determine how they apply to their 
workplaces. This task is made more difficult because many of the 
referenced consensus standards are no longer available through the 
issuing SDOs. Referencing outdated consensus standards also places 
heavy administrative burdens on OSHA. In applying the ``de minimis'' 
policy, OSHA must currently analyze later versions of the referenced 
consensus standards, and determine whether they are as protective as 
the referenced versions. OSHA believes that it would be far more 
productive for the Agency to use its time and resources to update its 
standards to reflect advances in consensus standard development and to 
address more effectively the new technologies and equipment that are 
found in today's workplaces.

II. Consensus Standards Update Project

    OSHA recognizes the value of consensus standards and the widespread 
preference for OSHA rules to reflect the latest versions of these 
standards. SDOs rely upon the expertise of individuals with diverse 
backgrounds to produce consensus standards that consider the latest 
developments in workplace safety. As mentioned above, Congress placed 
such a high value on national consensus standards that it authorized 
the Agency to adopt them as OSHA standards, without notice and comment 
rulemaking, during the first two years of the OSH Act under Section 
6(a). In addition, Section 6(b)(8) of the OSH Act states: ``Whenever a 
rule promulgated by the Secretary differs substantially from an 
existing national consensus standard, the Secretary shall, at the same 
time, publish in the Federal Register a statement of the reasons why 
the rule as adopted will better effectuate the purposes of this Act 
than the national consensus standard.'' 29 U.S.C. 655(b)(8).
    In the National Technology Transfer and Advancement Act (NTTAA), 15 
U.S.C. 272, Congress directed Federal agencies to use voluntary 
consensus standards ``to the extent practicable'' and to participate in 
the development of voluntary consensus standards. The Office of 
Management and Budget has issued Circular A-119, Federal Participation 
in the Development and Use of Voluntary Consensus Standards and in 
Conformity Assessment Activities, to guide agencies in implementing the 
NTTAA. While the NTTAA does not expand the obligations OSHA already has 
under Section 6(b)(8) of the OSH Act (to consider consensus standards 
during rulemaking), it demonstrates the importance Congress continues 
to place on the use of consensus standards by administrative agencies.
    Consensus standards often attempt to reconcile diverse global 
standards and eliminate barriers to trade by finding areas of agreement 
on the safety aspects of machinery and equipment. In addition, Federal 
agencies can make use of the expertise of the developers of these 
standards and participate with them in the development process.
    Recognizing the importance of consensus standards, and the 
difficulties presented by OSHA's continued reliance on outdated 
consensus standards, we are beginning an effort to (1) update or revoke 
outdated consensus standards referenced in OSHA standards, and (2) 
update standards that incorporate language directly from outdated 
consensus standards. OSHA anticipates that this will be an extended and 
ongoing process. The OSH Act does not provide a quick way to update 
mandatory safety and health standards. OSHA is not able to adopt the 
latest versions of national consensus standards without notice and 
comment, as it was authorized to do for 2 years under Section 6(a). 
Instead, OSHA must conduct rulemaking under Section 6(b) to accomplish 
this task.
    OSHA has previously solicited information and suggestions from the 
American National Standards Institute (ANSI) and other SDOs on how to 
proceed with this project. See Ex. 2-1, Letter from OSHA to ANSI and 
SDOs dated April 23, 2002. OSHA explained in that solicitation that the 
references to outdated consensus standards created difficulties for 
employers in a number of respects. OSHA noted that many of the outdated 
versions are no longer available from the issuing SDO and that there 
are often questions about the degree of protection and the lack of 
currency with technological developments in various areas. OSHA 
specifically asked SDOs to identify which referenced standards had been 
updated by the SDOs since their adoption by OSHA, and to provide input 
on the following questions:
    <bullet> Whether material changes have been made to the referenced 
consensus standards so that the current versions are substantially 
different from the versions in the CFR;

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    <bullet> Whether the adoption of the current versions would be 
controversial; and
    <bullet> Whether the latest versions reduce risk more than the 
versions that are currently incorporated in OSHA standards.
    Various SDOs and other organizations responded and indicated their 
desire to assist OSHA in its effort to update its standards. Among the 
SDOs providing input were ANSI, the National Fire Protection 
Association (NFPA), the American Society of Mechanical Engineers 
(ASME), and the American Society for Testing and Materials. Other 
organizations such as Underwriters Laboratories, the American Petroleum 
Institute, the Compressed Gas Association, and the Abrasive Wheel 
Institute also responded. Many of the SDOs and other organizations 
provided OSHA with copies of the most recent versions of their 
referenced standard(s) and offered to provide technical assistance to 
the Agency in its analysis of the older and new standards. OSHA 
appreciates the willingness of these organizations to help us implement 
this project.
    Nearly all of the SDOs said that OSHA's standards needed updating 
to reflect current versions of the consensus standards and that the 
current versions provided a higher level of safety to workers. In 
addition, many of the SDOs believe that OSHA's efforts to update its 
standards to reflect current versions of the consensus standards will 
not elicit controversy. For example, the ASME said:

    [We] believe that adoption of the current version of each of 
these standards by the Federal Government with the changes 
identified would be non-controversial. Similarly, it is our opinion 
that the current versions of ASME standards will provide a reduction 
in the risk of accidents and injuries as compared to earlier 
versions presently referenced in the CFR and will alleviate some of 
the confusion in the regulated industry. Moreover, in addition to 
the technological advances incorporated into updated standards, many 
of the products described in the older versions of standards are no 
longer available, or are very difficult to obtain. Ex. 2-2, p. 2.

    The NFPA noted that each of their documents has been updated ``to 
reflect up-to-date terminology and current industry practices.'' Ex. 2-
3, App. B. The updated documents often cover technology that has been 
developed since the OSHA standard was promulgated. ``Providing a state-
of-the-art document reflecting business practices of today promotes 
more of an understanding, appreciation and the much-necessary buy-in by 
the users of the regulations, thereby reducing risk.'' Ex. 2-3, App. B.
    The NFPA also thought the updated references ``would be largely 
non-controversial since the documents are ANSI consensus standards.'' 
Ex. 2-3, App. B. In addition, the NFPA said that ``[w]ith the 
interested parties participating in the process to write documents, and 
with the respective affected industries and their insurance companies 
currently using NFPA documents, there is little controversy with OSHA 
referencing the most updated NFPA codes and standards.'' Ex. 2-3, App. 
B. The NFPA also said that for those OSHA standards that contain word-
for-word text from NFPA codes and standards, OSHA should consider 
replacing the text ``with a simple reference to the applicable primary 
NFPA document.'' Ex. 2-3, App. B.
    OSHA is undertaking a series of regulatory projects to update its 
standards to reflect the current versions of consensus standards. These 
regulatory projects will include updating or revoking outdated 
consensus standards incorporated by reference, and updating regulatory 
text of current OSHA rules that were adopted directly from the language 
of outdated consensus standards. OSHA will use a variety of regulatory 
approaches in this effort, including:
    1. Notice and comment rulemaking. OSHA intends to initiate formal 
(notice and comment) rulemaking to update or revoke references to 
outdated consensus standards in instances where OSHA anticipates that 
the action would either impose compliance costs or raise significant 
issues. OSHA will also use traditional notice and comment rulemaking to 
update OSHA provisions that were derived directly from the text of 
outdated consensus standards. OSHA is already using this technique to 
update its electrical installation standards in Subpart S of Part 1910 
(proposed rule published April 5, 2004, 69 FR 17774) and expects to 
publish a proposed rule in the near future for Subpart V (power 
transmission and distribution lines and equipment) of Part 1926.
    2. Direct final rulemaking. OSHA will use direct final rulemaking 
to update or revoke, as appropriate, references to outdated consensus 
standards where the regulatory change is non-controversial, equally 
protective, and does not impose significant new compliance costs.
    3. Technical amendments. Where appropriate, OSHA intends to issue 
technical amendments to update references that are currently 
incorporated into OSHA standards and that only provide information to 
the regulated community. Such references impose no compliance 
obligations and can be updated without notice and comment procedures.
    OSHA welcomes comments on this update effort generally, as well as 
specific suggestions on which projects OSHA should pursue first.

Authority and Signature

    This document was prepared under the direction of John L. Henshaw, 
Assistant Secretary of Labor for Occupational Safety and Health, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210. It is issued pursuant to sections 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), 
Secretary of Labor's Order 5-2002 (67 FR 65008), and 29 CFR part 1911.

    Signed at Washington, DC, this 17 day of November 2004.
John L. Henshaw,
Assistant Secretary of Labor.
[FR Doc. 04-26047 Filed 11-23-04; 8:45 am]
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