Final Rule Published for Phase Three Of OSHA Standards Improvement Project

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The Occupational Safety and Health Administration updated various safety and health standards as part of its Standards Improvement Project in a final rule published June 8 in the Federal Register.

The final rule (76 Fed. Reg. 33,590), which marks the third phase of the project, updates standards related to respiratory protection, medical surveillance records, lead, training, and other issues as part of OSHA's project to identify and revise confusing, outdated, or duplicative language from its regulations (41 OSHR 482, 6/2/11).

OSHA and the Obama administration have framed the rule as one of OSHA's principal regulatory reform efforts, coinciding with the May 26 release of the Preliminary Plan for Retrospective Analysis of Existing Rules under Executive Order 13,563, which instructs all federal agencies to conduct reviews with a goal of streamlining their regulations.

Cass Sunstein, administrator of OMB's Office of Information and Regulatory Affairs, told reporters in a May 26 briefing that OSHA's project would save employers more than 1.9 million hours in redundant reporting burdens; OSHA Administrator David Michaels said in a May 26 statement the rule will save employers more than $43 million annually.

Respiratory Protection Changes.

The agency made seven changes to its respiratory protection standards (29 C.F.R. 1910.134).

These include aligning air cylinder testing requirements for self-contained breathing apparatuses with Department of Transportation regulations, clarifying that aftermarket cylinders meet National Institute for Occupational Safety and Health quality assurance requirements, replacing the word “fits” with the less offensive word “seizures” in the medical questionnaire, and clarifying that the provisions of Appendix D, which contains information for employees using respirators when not required under the standard, are mandatory if the employee does choose to use a respirator.

In addition, OSHA is changing its asbestos standard for shipyards and construction (29 C.F.R. 1915.1001 and 1926.1101) to correct omissions and require the implementation of respiratory protection programs.

Other changes include applying to requirements to four carcinogen standards where the agency inadvertently left them out—those for methyl chloromethyl ether, bis-chloromethyl ether, ethyleneimine, and beta-propiolactone.

Lead, Cadmium Standards.

OSHA's proposal also would revise the monitoring requirements under its lead standards for general industry and construction (29 C.F.R. 1910.25 and 1926.62) to require employers to provide follow-up blood sampling tests when an employee's blood lead level is at or above the numerical criterion for medical removal.

In another change to the lead standard, OSHA would clarify that employers must institute medical surveillance programs for workers who are exposed at or above the action level, rather than only above.

The agency also proposed to remove a requirement in its cadmium standards for general industry and construction (29 C.F.R. 1910.1027 and 1910.1127) for employers to keep written training certification records.

The cost of maintaining these records is not justified by the safety and health benefits, the agency said in its proposal.

Other Updates.

Other revisions under phase three of the Standards Improvement Project include aligning OSHA's definition of “potable water” in its sanitation standard (29 C.F.R. 1910.141) with that of the Environmental Protection Agency; eliminating the term “hot” in “hot air drying machines” in OSHA's bloodborne pathogens standard (29 C.F.R. 1910.1030) and four sanitation standards to allow for the use of newer technologies that use non-heated air to dry hands; and changing OSHA's commercial diving operations standard (29 C.F.R. 1910.440) to eliminate a requirement to retain medical records for five years.

In addition, the agency will no longer require NIOSH to maintain medical and exposure records for 15 substance-specific standards that have proved of no research utility but which demand costly upkeep, the rule said.

The final rule also brings OSHA rules in line with the most current version of the National Fire Protection Association's Life Safety Code.

Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, said June 7 he did not see the rule as making a significant difference in relieving burdens on employers.

“This doesn't move the needle,” Freedman said. “It's very clear that this rule does not change any genuinely substantive requirements. These are things that OSHA's willing to give away right now because they're obsolete.”

According to Freedman, OSHA's forecasts of 1.9 million fewer burden hours and $43 million saved result in a negligible difference for any one employer when spread across the entire economy.

By Greg Hellman and Stephen Lee