OSHA Rulemaking Filled With Delays -- And One New Promise

Without fanfare, OSHA announced for the first time in its most recent regulatory agenda that it is considering changes to its hazard communication standard (HCS) to make it consistent with a globally harmonized system (GHS) for labeling chemicals.

While progress has stalled for most major rulemaking items on the May 16 agenda, the agency is promising to release an advance notice of proposed rulemaking on HCS by August.

"It's always significant whenever they put something new on the agenda, because they so rarely do that," commented Scott Schneider, executive director of the Laborers' Health and Safety Fund of North America. "This is a big issue."

According to Schneider, OSHA's HCS delivers information that is too technical and therefore unintelligible to most workers, but it is not clear whether that issue will be addressed by the rulemaking.

"For the most part, industry would be in favor of adopting a globally harmonized system," observed Frank White, vice president of ORC Worldwide. "Right now, the EU has one system, Canada another, the U.S. yet another, so global chemical producers have to come up with different sets of labels and they'd rather not have to do that."

In November, ORC released a white paper critical of OSHA, arguing that U.S. companies are suffering because of the agency's failure to participate in global safety policy debates. White said OSHA's move toward GHS, already adopted by the United Nations, is "exactly the kind of thing I think OSHA should be doing."

Critics of John Henshaw, the previous OSHA administrator, attacked his decision to cut many items from the agency's regulatory agenda soon after he assumed the top job at OSHA in 2001. Henshaw defended himself by pointing out that the agenda was filled with rules OSHA lacked the resources to complete on schedule, and he vowed the items that remained would be finished on time.

Despite Henshaw's promise, the current regulatory agenda reveals that OSHA is pushing back deadlines for the following major rules:

  • Employer Payment for Personal Protective Equipment -- final action delayed from March to October;
  • Confined Space in Construction -- a proposed rule that was due in March is now promised for December;
  • Assigned Protection Factors -- final action on this amendment to the respiratory protection rule has been pushed back from January to September;
  • Silica -- completion of peer review delayed from February to December;
  • Cranes and Derricks -- small business regulatory enforcement fairness act review delayed from May to September.

OSHA has succeeded in meeting deadlines for one new standard: hexavalent chromium. One possible explanation for the agency's punctuality in this case is that the deadlines have been imposed by a federal court order.

"Everything is kind of stalled and they blame it on hex-chrome," said Schneider. "Just as with ergonomics, they say, 'there's only so much rulemaking we can do with our limited budget.'"

The final rule on occupational exposure to hexavalent chromium is due in January of 2006.

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