Finally, OSHA Changes the Equation on Rulemaking

In a simple step that might well work -- but only if those who routinely challenge OSHA's standards accept or at least learn from the D.C. Circuit Court of Appeals' May 11 decision upholding recognition of the TLVs -- OSHA today proposed to make its PPE standards perpetually current. Changing from updating them by adopting each specific new consensus standard in place of an old one, which freezes the mandatory standard at that point in time, OSHA said it wants to add a requirement that PPE be constructed "in accordance with good design standards." Whether genius or madness, this approach recognizes the reality of rulemaking: "Despite its best efforts, OSHA cannot propose and finalize its standards as frequently as the consensus standards development organizations (SDOs)," OSHA said in today's rulemaking notice. "Some consensus standards are updated every 3-5 years; OSHA simply does not have the resources to engage in full rulemaking at this frequency for all of its PPE standards."

A section of the notice titled "The Provisions of the Proposal" spells out the agency's thinking: "The crux of the proposed revision is the requirement that the PPE be constructed in accordance with good design standards. Eye and face, head, and foot PPE are commonly worn in general industry, shipyard employment, longshoring, and marine terminals. The PPE must be strong enough to protect employees from the hazards they face in the workplace. It also must be constructed and tested in accordance with sound and accepted principles that will ensure the safety of employees. An inherent part of any good design standard is a testing protocol for ensuring that the manufactured equipment will provide a specified level of protection. Accordingly, the requirement that the PPE be constructed in accordance with good design standards includes the requirement that the PPE be tested in accordance with a testing protocol that is designed to ensure that the PPE provides the level of protection the good design standard is intended to achieve." SDOs everywhere will find this to their liking.

The notice then says OSHA has examined ANSI and ASTM International standards for these PPE types for the past 40 years. "OSHA has found that these standards reflect the state of the art in terms of design safety that existed at the time they were issued. Furthermore, each successive edition of these standards has improved the design features of the PPE. For example, a comparison between the 1989 and 2003 versions of the ANSI standard for protective eye and face equipment shows that ANSI has strengthened the impact resistance requirements of the standard. Similarly, the current ASTM International standard for footwear improves on prior ANSI standards for footwear by increasing protection against electrical hazards." The notice invites comments by July 16. File them, referencing OSHA Docket No. OSHA-2007-0044, at www.regulations.gov.

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