OSHA Withdraws Final Rule for National Consensus Standards

A letter from the U.S. Chamber of Commerce has scuttled OSHA's plan to bypass time-consuming rulemaking procedures in the agency's effort to update OSHA standards.

OSHA wants to delete references in its standards to national consensus standards that the agency believes are out of date. But the Chamber of Commerce believes employers may still be relying on these consensus standards, some of which are decades old.

Although the Chamber of Commerce stated in its letter that its concerns should not be seen as "significant adverse comments" that would derail the expedited rulemaking process, OSHA disagreed.

The agency stated it would announce in the Feb. 18 Federal Register its plans to withdraw the proposed direct final rule that revokes references to outdated national consensus standards and industry standards.

OSHA will address comments on the direct final rule in a new final rule, which the agency expects to issue shortly.

Many OSHA rules reference, or even include, language taken directly from national consensus standards that were written 30 to 50 years ago. On Nov. 24, OSHA announced it would update its standards and as a first step, the agency proposed a direct final rule to revoke the out-of-date references in the following standards:

  • Temporary Labor Camps
  • Guarding of Portable Power Tools
  • Sawmills
  • Flammable and Combustible Liquids
  • Arc Welding and Cutting

The direct final rule process allows OSHA to save time and money by publishing a final and proposed rule in the Federal Register at the same time. If no significant adverse comments had been received by the agency, the direct final rule would have taken effect Feb. 22.

The Chamber of Commerce letter to OSHA, written by attorney Arthur Sapper, objected to deleting the supposedly outdated consensus standards references because employers may still be using them to help comply with OSHA standards.

"Although the national consensus standards are old, they continue to provide guidance that some employers may find useful," Sapper wrote.

The letter called on OSHA to retain the references but make them optional rather than mandatory requirements. The USCC also wanted OSHA to include these changes in the direct final rule without additional notice and comment rulemaking.

OSHA has declined to follow this procedural advice, although it remains to be seen whether the Chamber of Commerce's substantive request will be included in the final rule.

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