OSHA Rulemaking: What's In Store for 2003?

If there is one thing that is clear in the semi-annual regulatory agenda OSHA released in December, it is that OSHA Administrator John Henshaw has delivered on his promise the agency should not promise more than it can deliver. Critics, on the other hand, argue that the agency has achieved this goal by promising nothing.

The Bush administration inherited a regulatory agenda with 10 items in the "final rule stage." The most recent agenda has one uncompleted final rule: "Procedures for Handling Discrimination Complaints Under the Aviation Investment and Reform Act."

The decision to relegate "Employer Payment for Personal Protective Equipment" (PPE) to a "Long-term Action" provoked the ire of Jackie Nowell, director of safety and health for the United Food and Commercial Workers.

"The thing that I am most concerned about is that some of the 'no-brainer' things, like employer-pay-for PPE, are on indefinite hold," she said. "I told John [Henshaw], 'You are telling the press that OSHA's job is to protect the most vulnerable workers, but you're clearly telling me you don't want to do this one.'" Nowell said surveys showed the lowest-paid workers are the ones who must pay for their own PPE.

The National Association of Manufacturers (NAM) supports the administrations minimalist approach to rulemaking. "What Henshaw wants to do is lower injury and illness rates," commented Chris Tampio, NAM's director of employment policy. "I don't think he believes putting out more regulations is the way to do that."

"There is no one sticking point," explained Jennifer Silk, the deputy director of OSHA's directorate of standards, when asked what was holding up the PPE rule. "It's a very controversial and difficult area and the administration wants to look at it again."

Updating OSHA's use of consensus standards in existing regulations is one of the biggest ticket items the directorate is working on, according to Silk. Many of the national consensus standards adopted by OSHA are now 30 years old.

"There are hundreds of these standards and we always felt we had to go through full rulemaking to change them," Silk said. "Now we're looking at other options."

The effort is incredibly complicated, she added, but Silk expects a decision on how to approach the problem by June. Since 2001 OSHA has been meeting with a number of national consensus standards organizations, including the American National Standards Institute (ANSI), to determine which standards have changed significantly, the potential risks to workers posed by the changes, and whether adopting the new standards would be controversial.

"Many of the ANSI-accredited developers we contacted expressed real gratitude with this initiative," said David Karmol, vice president of public policy for ANSI. "The use of outdated standards has become a real problem for both standards developers and the regulated community."

Preliminary information collected by ANSI and sent to the agency shows hundreds of OSHA references to outdated ANSI standards; very few were even mildly controversial, according to Stacy Leistner, ANSI director of communications.

"We have a good many staff members going through the recommendations," said Silk. But given the scope of the undertaking, it will likely be a long time before the agency is able to complete it.

"Updating OSHA Standards Based on National Consensus Standards" is listed in the current regulatory agenda as a "Long-Term Action."

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