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Regulatory Affairs
By John Schweitzer
ACMA and the Great OSHA Standards War
ACMA is working to support H.R. 3255, a bill in the U.S. House of Rep¬resentatives
that would require OSHA to use a National Fire Protection Association standard
as the basis for updating the agency’s fire protection rule for composites
manufacturing. We are also supporting H.R. 5554, a bill that would prevent OSHA
from using standards such as the Threshold Limit Values promulgated by the American
Conference of Governmental Industrial Hygienists.
So, we are promoting use by OSHA of NFPA standards, but actively trying
to discourage the agency’s use of ACGIH standards. How can this
be?
Aren’t all standards the same?
Standards can be developed in a number of ways for a number of purposes. For
example, the government can establish and set a standard as part of an open
rulemaking process or a trade association can develop a standard for its industry.
There are essentially two types of non-governmental standards:
1. “Voluntary consensus standards” are standards
developed or adopted by voluntary consensus standards bodies, both domestic
and international. These bodies plan, develop, establish, or coordinate voluntary
consensus standards using agreed-upon procedures. These procedures include:
openness, a balance of interests, due process, an appeals process, and consensus
(general agreement and a process to fairly consider and attempt to resolve objections).
The American National Standards Institute (ANSI) approves voluntary consensus
standards processes.
2. Non-consensus standards are industry standards, company
standards and de facto standards that are developed in the private sector but
not in the full consensus process.
How does the Federal Government recognize consensus standards?
The National Technology Transfer and Advancement Act of 1995 directs “…all
Federal agencies and departments [to] use technical standards that are developed
or adopted by voluntary consensus bodies….”
A 1998 Office of Management and Budget circular established policies consistent
with the Act to require agencies to use voluntary consensus standards and defines
consensus standards as those developed by standards bodies with the attributes
of openness, balance of interest, due process, and an appeals process.
What is the basic difference between NFPA and ACGIH standards?
NFPA standards are adopted through an open, transparent, and participatory process
that allows all interested parties to have their concerns aired and discussed,
and in the end addressed. In many ways, the NFPA process resembles the typical
notice and comment rulemaking in terms of open participation, and goes further
in seeking consensus on topics on which reasonable experts might differ.
The ACGIH TLV Committee, in contrast, is a closed committee of invited members
limited to designated “experts” who may or may not have practical
experience and training in the particular subject in review. The general public
is excluded from ACGIH Committee deliberations, and has no opportunity to have
their concerns or insights heard, much less have a voice in the outcome. ACGIH’s
process is inherently exclusionary, undemocratic, and unsuitable for developing
standards that will impact a broad cross-section of employers and employees.
NFPA is an ANSI Accredited Standards Developer. The NFPA fire safety standards
such as NFPA 33 are, by this definition, true consensus standards adopted through
the give and take of competing views and after interests have a chance to resolve
their differences. This process follows a notice-and-comment standards development
procedure similar to the rulemaking process required of Federal agencies, which
preserves the right of all interested parties to have a reasonable voice in
the promulgation of regulations and standards. The NFPA standards are also consensus
standards according the OMB’s definition.
The ACGIH Threshold Limit Values, by contrast, are not ANSI recognized National
Standards and are explicitly disclaimed as consensus standards by the TLV Committee
and the ACGIH Board of Directors. The ACGIH TLVs are clearly not consensus standards
according the OMB’s definition.
When NFPA updated its Standard for Spray Application Using Flammable or Combustible
Materials (NFPA 33) in 1998 to adopt effective and feasible requirements for
spray application of polyester resins, the requirements reflected the balance
of interests represented on the committee, including insurance companies and
local fire marshals. By contrast, when ACGIH changed the TLV for styrene in
1993 from 50 ppm to 20 ppm, the TLV committee ignored industry input, would
not meet with industry representatives, and the studies offered by NFPA in support
of the new level in fact support the old 50 ppm limit.
What are OSHA’s duties regarding consensus standards?
Industry supports H.R. 3255 because it requires OSHA to reference or incorporate
a specific edition of a NFPA standard so that the specific obligations of the
regulated community to which they will be held are known during the adoption
process. Under H.R. 3255, OSHA will be required to follow a notice and comment
process to incorporate the updated standards, which allows interested parties
the opportunity to inform OSHA of the limits and utility as well as feasibility
of adopting the consensus standards as legally enforceable standards under the
Occupational Safety and Health Act of 1970 (OSH Act). Indeed, under section
6 of the OSH Act, when a national consensus standard exists and OSHA adopts
a standard on the same subject, the Secretary of Labor is obligated to state
her reasons for not following the consensus standard. This shows that Congress
considered consensus standards to be presumed to be suitable as occupational
safety and health standards.
What would H.R. 3255 require OSHA to do?
H.R. 3255 would:
- Require OSHA to conduct a rulemaking to update the regulations at 1910.107
to reflect the requirements in the 2003 Edition of the NFPA 33 Standard. OSHA
must issue a proposed rule inviting comments on either the specific language
of the revised regulations or the specific edition of the NFPA standard to
be referenced. This process will preserve the full “notice and comment”
right of stakeholders; and
- Enact an enforcement moratorium for composite operations complying with
NFPA 33 while the rulemaking process is ongoing.
What would H.R. 5554 require OSHA to do?
5554 would:
- Prohibit OSHA from promulgating or incorporating by reference any finding,
guideline, standard, limit, rule or regulation based on a determination that
comes from a non-governmental organization that does not conform to the OSH
Act definition of a “consensus standard.”
- Direct the agency to investigate all current use of non-consensus standards
in current rulemaking proceedings and prohibits OSHA from incorporating these
non-consensus standards into regulation; and
- Prohibit OSHA from approving a “State plan” (safety and health
plan produced by state government-based regimes) unless the health and safety
standards adopted by reference in the plan are reached by consensus.
Additional information on H.R. 3255 and H.R. 5554 is available from www.acmanet.org/ga/hr3255-hr5554.cfm.
John Schweitzer is ACMA’s senior director
of government affairs: 734.622.0162; jschweitzer@acmanet.org.
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