[Federal Register: January 5, 2005 (Volume 70, Number 3)]
[Rules and Regulations]
[Page 1111-1144]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja05-24]
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Part V
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Parts 1910, 1915, and 1926
Standards Improvement Project-Phase II; Final Rule
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910, 1915, and 1926
[Docket No. S-778-A]
RIN 1218-AB 81
Standards Improvement Project-Phase II
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final rule.
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SUMMARY: The Occupational Safety and Health Administration (OSHA)
through this final rule is continuing to remove and revise provisions
of its standards that are outdated, duplicative, unnecessary, or
inconsistent, or can be clarified or simplified by being written in
plain language. The Agency completed Phase I of the Standards
Improvement Project in June 1998. In this Phase II of the Standards
Improvement Project, OSHA is again revising or removing a number of
health provisions in its standards for general industry, shipyard
employment, and construction. The Agency believes that the changes
streamline and make more consistent the regulatory requirements in OSHA
health and safety standards. In some cases, OSHA has made substantive
revisions to requirements because they are outdated, duplicative,
unnecessary, or inconsistent with more recently promulgated health
standards. The Agency believes these revisions will reduce regulatory
requirements for employers without reducing employee protection.
DATES: The final rule becomes effective March 7, 2005.
ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates
the Associate Solicitor of Labor for Occupational Safety and Health,
Office of the Solicitor of Labor, Room S-4004, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210, to receive
petitions for review of the final rule.
FOR FURTHER INFORMATION CONTACT: Michael Seymour, Director, Office of
Physical Hazards (202) 693-1950. For additional copies of this Federal
Register document: OSHA, Office of Publications, Room N-3101, U. S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210
(telephone: (202) 693-1888). Electronic copies of this Federal Register
document, as well as news releases and other relevant documents, are
available at OSHA's homepage at http://www.osha.gov.
SUPPLEMENTARY INFORMATION: References to comments and testimony in the
rulemaking record are found throughout the text of the preamble.
Comments are identified by an assigned exhibit number as follows: ``Ex.
5-1'' means Exhibit 5-1 in Docket S-778-A. For quoted material in the
preamble, the page number where the quote can be located is included if
other than page one. The transcript of the public hearing is cited by
the page number as follows: Tr. 59. A list of the exhibits, copies of
the exhibits and transcripts of the hearing are available in the OSHA
Docket Office under Docket S-778-A and at OSHA's homepage.
I. Background
OSHA has made a continuing effort to eliminate confusing, outdated,
and duplicative standards and regulations. In 1978, 1984, and again in
1996, the Agency conducted revocation and revision projects that
resulted in the elimination of hundreds of unnecessary provisions.
In 1996, OSHA proposed Phase I of the Standards Improvement Project
which set forth changes to a number of provisions in regulations and
standards that were outdated, duplicative, unnecessary, inconsistent,
or could be clarified or simplified by being rewritten in plain
language (61 FR 37849, July 22, 1996). In 1998, OSHA published the
final rule, Phase I of the Standards Improvement Project (63 FR 33450,
June 19, 1998). Substantive changes were made under section 6(b)
generally and under 6(b)(7) of the Occupational Safety and Health Act
of 1970 which provides that:
The Secretary, in consultation with the Secretary of Health,
Education, and Welfare, may by rule promulgated pursuant to section
553 of title 5, United States Code, make appropriate modifications
in the requirements relating to the use of labels or other forms of
warning, monitoring or measuring, and medical examinations, as may
be warranted by experience, information, or medical or technological
developments acquired subsequent to the promulgation of the relevant
standard.
The Agency believed that the revisions to its health and safety
standards in that final rule reduce the regulatory burden of employers
enhancing compliance while maintaining the safety and health protection
afforded to employees.
In a related effort in 1996, OSHA published a proposal to revise
Means of Egress, subpart E of part 1910 (61 FR 47712, September 10,
1996). OSHA proposed to rewrite the existing requirements in plain
language so that the requirements would be easier to understand by
employers, employees and others who use them. The proposal did not
intend to change the regulatory obligations of employers or the safety
and health protection provided to employees, only to simplify the
standard. The final rule was published on November 7, 2002 (67 FR
67949). OSHA believed it accomplished the goals of maintaining the
safety and health protections provided to employees without increasing
the regulatory burden on employers, creating a regulation that is
easily understood, and stating employers' obligations in performance-
oriented language to the extent possible. As a consequence of these
changes, the Agency believes it has made subpart E more user-friendly
to employees and employers. Compliance is generally improved when
employers and employees fully understand a regulation.
As a result of the Phase I Standards Improvement Project
rulemaking, the Agency identified itself or through public comment
other regulatory provisions that could be removed or revised to reduce
regulatory burdens without diminishing employee safety and health.
Those included amending provisions addressing notification of use,
frequency of exposure monitoring and medical surveillance, and others
that it believed were outdated, duplicative, unnecessary, inconsistent
or could be clarified or simplified by being rewritten into plain
language.
On October 31, 2002, OSHA published the proposed Phase II of the
Standards Improvement Project which would remove or revise a number of
health and safety standard provisions (67 FR 66494). Also, OSHA
requested comment from the public on any other similar provisions to
those in the proposal that interested parties believed to be outdated,
duplicative or unnecessary that could be included in a subsequent Phase
III Standards Improvement Project.
The Agency made a preliminary finding in the Phase II proposal that
the proposed revision to the health standards would reduce the
regulatory burden of employers without reducing the health protections
the standards currently provide to employees and that some revisions
would simplify and clarify requirements. These revisions would
facilitate employer compliance and improve employee protection. OSHA
also expressed its belief that the removal or revision of standards
would in some cases reduce unnecessary
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collection of information burdens (e.g., paperwork burdens) on
employers.
In addition to affecting part 1910 standards in general industry,
the Phase II proposed rule also affected a number of standards included
in parts 1915, shipyard employment, and 1926, construction. In
accordance with Agency procedures and requirements, the Advisory
Committee on Maritime Safety and Health and the Advisory Committee on
Construction Safety and Health were advised of the revised standards
that affected their industries prior to the publication of the proposed
standard. This information was presented to the Advisory Committee on
Construction on September 2, 2000, and the Advisory Committee on
Maritime on December 6, 2000.
The comment period for the Phase II Standards Improvement Project
proposal was to end on December 30, 2002. However, on January 6, 2003,
in response to several requests the comment period was extended until
January 30, 2003 (68 FR 1023). OSHA received 35 comments in response to
the notice of proposed rulemaking. Also, in response to several
requests to hold a public hearing to discuss the proposal, OSHA
announced a public hearing on April 21, 2003 (68 FR 19472). OSHA held
the public hearing on July 8 in Washington, D.C. OSHA staff testified
and responded to questions and several members of the public testified.
The administrative law judge scheduled the receipt of post hearing
evidence on August 8, 2003, and post hearing briefs for September 10,
2003. The judge received the post hearing documents and closed the
hearing record on February 26, 2004. The hearing resulted in 59 pages
of testimony. No post-hearing comments or briefs were received.
However, OSHA inserted some post-hearing material in response to
questions asked at the hearing (Ex. 9).
II. Summary and Explanation of the Final Rule
This section contains an analysis of the record evidence and policy
decisions pertaining to the various provisions of the final rule.
In the proposed rule, changes to provisions included: Methods of
communicating illness outbreaks in the temporary labor camps standard
(29 CFR 1910.142); first aid kits for general industry in the medical
services and first aid standard (29 CFR 1910.151) and the
telecommunications standard (29 CFR 1910.268); laboratory licensing in
the vinyl chloride standard (29 CFR 1910.1017); periodic exposure
monitoring in the vinyl chloride (29 CFR 1910.1017), 1,2-dibromo-3-
chloropropane (DBCP) (29 CFR 1910.1044), and acrylonitrile (29 CFR
1910.1045) standards; reporting the use of alternative control methods
in the asbestos standards for shipyards (29 CFR 1915.1001) and
construction (1926.1101); evaluating chest x-rays for inorganic arsenic
(29 CFR 1910.1018) and coke oven emissions (29 CFR 1910.1029)
standards; signing medical opinions in the asbestos standard for
general industry (29 CFR 1910.1001) and the cadmium standards for
general industry (29 CFR 1910.1027) and construction (1926.1127); and
semiannual medical examinations in the vinyl chloride, inorganic
arsenic, and coke oven emissions standards.
Also included were proposed changes to the requirements to notify
OSHA of certain events (e.g., a substance specific release or
emergency) in the standard for 13 carcinogens (29 CFR 1910.1003), the
vinyl chloride, inorganic arsenic, DBCP, and acrylonitrile standards;
semiannual updating of compliance plans in the standards for vinyl
chloride, inorganic arsenic, lead for general industry (29 CFR
1910.1025) and construction (29 CFR 1926.62), DBCP, and acrylonitrile;
and employee notification requirements in general industry standards
for asbestos, vinyl chloride, inorganic arsenic, lead, cadmium, benzene
(29 CFR 1910.1028), coke oven emissions, cotton dust (29 CFR
1910.1043), DBCP, acrylonitrile, ethylene oxide (29 CFR 1910.1047),
formaldehyde (29 CFR 1910.1048), methylenedianiline (29 CFR 1910.1050),
butadiene (29 CFR 1910.1051), and methylene chloride (29 CFR
1910.1052), and construction standards for methylenedianiline (29 CFR
1926.60), lead, asbestos, and cadmium.
Finally, although OSHA did not propose to delete the requirement to
use social security numbers in a number of its exposure-monitoring and
medical surveillance records, it requested comment on whether there was
a need to continue to include an employee's social security number in
these records.
In the proposal, OSHA emphasized that the scope of the rulemaking
was limited to removing or revising provisions that were outdated,
duplicative, unnecessary, or inconsistent with similar provisions in
other standards. In regard to ``inconsistent,'' the Agency specifically
proposed to revise a number of OSHA's older standards (vinyl chloride,
acrylonitrile, coke oven emissions, arsenic, and DBCP) to be consistent
with the frequencies of exposure monitoring, medical surveillance, and
compliance plan updates established in the majority of more recently
promulgated standards. Comment was solicited on whether it would be
appropriate to revise these older standards to be consistent with the
newer standards.
OSHA also noted that certain sections in part 1910 that were being
addressed in the proposal are incorporated by reference in parts 1915,
shipyard employment, and 1926, construction. Therefore, any changes to
referenced sections in part 1910 would also apply to parts 1915 and
1926.
Many commenters expressed their views on the approach taken by OSHA
in its Phase II Standards Improvement Project. Most commenters
supported OSHA's approach and its efforts to remove or revise standards
because they are outdated, duplicative, unnecessary, or inconsistent
(Exs. 3-5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 22, 24, 25, 26, 28, 29;
4-11, 12). For example, Phelps Dodge Corporation (Ex. 3-7) remarked
that ``We support OSHA's continuing effort to remove or revise
provisions of its standards that are outdated, duplicative,
unnecessary, or inconsistent, and we welcome the opportunity to share
our comments and suggestions.'' The National Institute for Occupational
Safety and Health (NIOSH) (Ex. 3-9) noted its support for OSHA's
efforts to ``reduce regulatory requirements for employers while
maintaining worker safety and health by removing or revising provisions
of standards that may be outdated, duplicative, or unnecessary.''
Another commenter, Organization Resources Counselors (Ex. 3-22), stated
in its discussion regarding OSHA's elimination of collection of
information (in this case, paperwork) requirements that:
If OSHA no longer has need to collect the type of information
required to be reported, or finds that the information provides no
useful benefits for either enforcement of the standard or protection
of employee health, the requirements should be deleted.
On the other hand, some commenters expressed their concern with the
manner in which OSHA was streamlining standards and in some cases on
the use of its resources for this type of project (Exs. 3-4, 16, 17,
18; 4-13; Tr. 38, 39, 46). The AFL-CIO (Tr. 29) observed that
``Throughout this proposal, the Agency has consistently sought to
streamline [standards] by reducing [them] to the lowest common
denominator.'' The United Steelworkers of America (Ex. 3-16) stated
that while ``this may reduce some administrative burdens on OSHA and
industry, it is hard to see how worker protection has been improved by
any of the changes.'' The Union of Needletrades, Industrial
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and Textile Employees (UNITE) (Ex. 3-18) remarked that it ``strongly
opposes expenditures of agency staff time and other resources on so-
called `improvements' to OSHA's standards when urgent action on clear
regulatory gaps remain unattended.''
However, based on the rulemaking record and experience from the
Phase I Standards Improvement Project, OSHA continues to believe that
the removal or revision of outdated, duplicative, unnecessary, or
inconsistent requirements and rewriting requirements into plain
language will simplify and clarify regulatory requirements, facilitate
compliance, and will lead to improved safety and health. In finalizing
the proposal, OSHA has been careful to ensure that the protections
afforded employees are not weakened. With respect to these goals, the
American Industrial Hygiene Association (AIHA) (Ex. 3-6) stated:
AIHA applauds OSHA's latest decision to move forward with Phase
II of the project through this proposed rulemaking. As was the case
with the first phase of this process, completed in 1998, we are
confident that the latest proposed health standard revisions will
meet with success in terms of reducing the regulatory burden of
employers without reducing the health protection that these
standards currently provide to employees.
AIHA wishes to publicly go on record as supportive of OSHA's
efforts to modernize these standards using a common sense approach.
Not only will the proposed revisions simplify and clarify the
requirements of the current health standards, but they will also
facilitate employer compliance, improved employee protection and
reduced regulatory burden--a ``win-win'' situation for health and
safety advocates, employers and employees.
Additionally, Dow Chemical Company (Ex. 3-13) observed:
Dow supports OSHA's efforts to streamline its existing standards
and to remove unnecessary or inconsistent provisions. Improvements
in consistency and practicality not only assist the regulated
community in its compliance efforts but also benefit OSHA and all
employees as the rules are easier to enforce and because employers
can better identify what they need to do to comply. Thus, Dow
applauds OSHA's continuing efforts to improve their standards. Dow
believes that this same philosophy of improvement for consistency
and practicality without compromising safety or health protections
can also be made in other areas of standards addressed in the
proposed rule.
OSHA appreciates the time and effort expended by commenters in this
rulemaking. The following is a provision by provision discussion of the
changes OSHA has made in Phase II of the Standards Improvement Project.
A. Temporary Labor Camps, 29 CFR 1910.142
Paragraph 1910.142(l)(2) of the temporary labor camp standard
requires camp superintendents to report immediately to local health
authorities ``by telegram or telephone'' the outbreak of specific
illnesses and medical conditions among employees. With respect to this
requirement, OSHA viewed the limitation to use a telegram or telephone
to notify health authorities as too restrictive in this age of
computers and the internet, and that other forms of communication
should be permitted. In the notice of proposed rulemaking, OSHA
proposed to delete the requirement to use a telegram or telephone for
notification, but retain the requirement that camp superintendents
immediately notify local health authorities of the outbreak any of the
illnesses or medical conditions specified by the provision.
OSHA received six comments regarding this proposal. All of the
commenters (Exs. 3-4, 16, 17, 22, 27; 4-11) agreed that telegrams and
telephones unnecessarily limit the method of reporting. A few
commenters (Exs. 3-17, 27) expressed concern, however, that if there
was no specification of the means of communication, slower means of
notification such as by mail might be used. For example, the United
Automobile, Aerospace and Agricultural Implement Workers of America
(UAW) (Ex. 3-17) opposed the removal for fear that employers would use
fourth class mail for reporting. The AFL-CIO (Ex. 3-27) expressed a
similar concern that the proposed change leaves the provision entirely
too vague and that employers could even use mail.
In response to this concern, OSHA has decided rather than deleting
the means of communication in the final rule, it would instead add
additional language that would eliminate the possibility of using a
slower means but permit equally fast means. OSHA concludes that any
``fast method'' is appropriate. The final rule now states ``by
telegram, telephone, electronic mail or any method that is equally
fast.''
B. Reference to First Aid Supplies in Appendix A to the Standard on
Medical Services and First Aid, 29 CFR 1910.151
In the 1998 Phase I of the Standards Improvement Project (63 FR
33450), OSHA revised paragraph 1910.151(b) of OSHA's standard for
medical services and first aid to require that adequate first aid
supplies be readily available at the workplace. To assist employers in
meeting this requirement for what would be adequate first aid supplies,
OSHA added a nonmandatory Appendix A to 29 CFR 1910.151, entitled First
Aid Kits, that references a national consensus standard, the American
National Standards Institute (ANSI) Z308.1-1978 standard, ``Minimum
Requirements for Industrial Unit-Type First-aid Kits.'' The Agency
believed that the information and reference to the ANSI standard in
Appendix A to 29 CFR 1910.151 would provide employers with helpful
information in selecting first aid supplies and containers appropriate
to the medical emergencies and environmental conditions encountered in
their workplaces.
OSHA pointed out in the Phase I Standards Improvement Project
preamble that ANSI was developing a revision of the Z308.1-1978
consensus standard (63 FR 33461) and that OSHA planned to propose to
revise Appendix A in Phase II to include the 1998 edition as long as
the revision was as effective in protecting employees. In Phase II of
the Standards Improvement Project, OSHA solicited comment and
information on whether the revised ANSI Z308.1-1998, Minimum
Requirements for Workplace First-aid Kits, consensus standard would
provide equivalent or better protection to employees than the 1978
edition. OSHA also inquired whether there were any other consensus
standards or guidelines available for first aid kits that might be
included in Appendix A.
At the time of the Phase II of the Standards Improvement Project
proposal, OSHA preliminarily found that the 1998 edition increased
compliance flexibility by emphasizing performance-based requirements.
OSHA also found that the 1998 edition provided employers with the
information they needed to select first aid containers and fill items
appropriate to the unique hazards in particular workplaces. OSHA
believed that the ANSI 308.1-1998 edition would protect employees at
least as well as the requirements of the 1978 edition.
OSHA received 13 comments regarding this proposed change (Exs. 3-3,
16, 17, 22, 24, 26, 27, 29; 4-6, 7, 8, 11, 13). Most commenters
supported the Agency's updating of the ANSI 308.1-1978 edition to the
1998 edition in the nonmandatory Appendix A. For example, Verizon
Communications, Inc. (Ex. 3-24) supported the revision to the 1998
edition because employers would have more flexibility and, therefore,
would improve protection to employees. The Pinnacle West Capital Corp.
(Ex. 4-7) observed that there have been changes in the medical
profession since
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1978, and agreed that the 1998 edition provides equivalent to better
protection to employees. One commenter, the AFL-CIO (Ex. 3-27), even
suggested that OSHA update the reference but make Appendix A mandatory
or enforce the ANSI standard under the general duty clause.
In the final rule, the Agency has changed nonmandatory Appendix A
to reference the ANSI 308.1-1998 standard. After reviewing the record
evidence and based on OSHA's review of both the 1978 and 1998 editions,
the Agency feels that the update to the 1998 edition will provide more
compliance flexibility to employers while being as effective, or more
effective, in the protection of employees. In its review of the 1998
edition, the Agency found that:
Regarding container requirements, the 1998 edition permits
more compliance flexibility than the 1978 edition. For example, the
1998 edition identifies three types of first-aid containers, types I,
II, and III, designed for stationary indoor use, mobile indoor use, and
mobile outdoor use, respectively, while the 1978 edition includes only
two types of containers, (standard and special purpose, with special-
purpose containers designed for use under extreme conditions such as
example, corrosive, nonsparking, nonmagnetic, or dielectric conditions.
Requirements for the three types of containers identified
in the 1998 edition are performance based, while the 1978 edition
provides extensive specifications for each type of container.
Unlike the 1978 edition, the conditioning and drop-test
procedures described in the 1998 edition for types II and III
containers, and the procedures for testing type III containers for
corrosion and moisture resistance, specify the minimum number of
containers required for testing.
The 1998 edition specifies that each type III container
subjected to drop testing must also undergo corrosion and moisture-
resistance testing to ensure the structural integrity of the container
under severe moisture conditions. The 1978 edition appears to allow
testing of different special-purpose containers under the drop- and
moisture-testing conditions.
Corrosion and moisture-resistance testing of type III
containers under the 1998 edition requires exposure of the containers
to simulated salt spray for 20 days in accordance with the provisions
of American Society for Testing and Materials (ASTM) consensus standard
B117 (``Operating salt spray (fog) operations''). The 1978 edition only
requires exposure of a special-purpose container to fresh water for 15
minutes.
Regarding the content (fill items) of the containers, the
1998 edition provides a short list of basic items needed to disinfect
and cover wounds, including special items for treating burns. However,
the 1998 edition lists optional fill items for use if an employer
identifies workplace hazards that may inflict injuries not covered by
the basic fill items. The 1978 edition has a single list of fill items,
some of which are unnecessary for many emergencies (for example,
forceps, metal splints, tourniquets). Additionally, the 1978 edition is
missing several important fill items (for example, medical-examination
gloves, cold packs).
The 1998 edition requires color coding of unit packages
that contain specific types of fill items (for example, yellow for
bandages, blue for antiseptics), while the 1978 edition has no such
requirement.
The 1998 edition, more often than the 1978 edition,
identifies fill items according to standardized testing and quality-
control methods. For example, the 1998 edition requires that absorbent
compresses meet the water-absorbency criteria of ASTM consensus
standard D117 (``Nonwoven fabrics''), and that antiseptics conform to
the requirements specified by the Food and Drug Administration in 21
CFR 333 (``Topical antimicrobial drug products for over-the-counter
human use''). The 1978 edition provides no absorbency criteria for
absorbent gauze compresses, while the antiseptic solution used for
antiseptic swabs is required only to be ``acceptable to the consulting
physician.''
The Agency's review of the two editions demonstrated that, compared
with the 1978 edition, the 1998 edition: Increases compliance
flexibility by emphasizing performance-based requirements, including a
choice of three containers and a list of basic and optional fill items;
improves the procedures for conditioning and testing first-aid
containers; and ensures the reliability and efficacy of the fill items
by basing the selection of these items on standardized testing and
quality-control methods. Based on this review, OSHA preliminarily found
that the provisions of the 1998 edition would provide employers with
the information they needed to select first-aid containers and fill
items appropriate to the hazards in their workplaces that could injure
employees. Consequently, the 1998 edition would protect employees at
least as well as the requirements of the 1978 edition.
The Agency believes that the 1998 edition of the ANSI standard is
as protective to employees but increases compliance flexibility and,
accordingly, has replaced the reference to the 1978 edition in Appendix
A of Sec. 1910.151 with a reference to the 1998 edition. OSHA believes
that appropriate guidance is contained in the 1998 edition for a
variety of workplaces with different needs.
Finally, although OSHA solicited information about other available
consensus standards, no suggestions were received.
C. First Aid Supplies in the Telecommunications Standard, 29 CFR
1910.268
Paragraph 1910.268(b)(3) of OSHA's telecommunication standard
requires an employer to: Provide first aid supplies (fill items)
recommended by a consulting physician; ensure that the fill items are
readily accessible and housed in weatherproof containers if used
outdoors; and inspect the fill items at least once a month and replace
expended items. In the proposal, OSHA proposed to revise paragraph
1910.268(b)(3) to read, ``Employers must provide employees with readily
accessible, and appropriate first aid supplies. An example of
appropriate supplies is listed in non-mandatory Appendix A to Sec.
1910.151.''
In Phase I of the Standards Improvement Project, OSHA removed from
paragraph 1910.151(b) of the medical services and first aid standard,
the requirement that a consulting physician approve first aid supplies
because it determined that commercial first aid kits are readily
available and would meet the needs of most employers (61 FR 37850).
OSHA noted that employers may have to enhance their first aid kits if
unique or changing first aid needs exist in their workplaces. OSHA
advised employers in Appendix A that if they had unique needs to
consult with the local fire/rescue departments, appropriate medical
professionals, or a local emergency room for help. Also, OSHA advised
employers that they should assess the specific needs of their worksite
periodically and augment the first aid kit accordingly.
In this proposal, the Agency preliminarily concluded that revising
the telecommunication standard to reflect the general industry first
aid requirements would be appropriate. The Agency received ten comments
(Exs. 3-4, 16, 17, 22, 24, 27, 29; 4-6, 8, 11) concerning this proposed
revision to the telecommunications standard. A few commenters (Exs. 3-
4, 16, 17, 27) indicated that they believed the revision would reduce
employee protection. For example, commenters believed that
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deleting the requirement to inspect kits monthly to replace used items
would increase the likelihood of deficient kits. Another commenter was
concerned that there would no longer be a requirement for weatherproof
kits.
However, other commenters supported the proposed changes (Exs. 3-
22, 24, 29; 4-6, 8, 11). For example, the American Chemistry Council
(Ex. 3-29) indicated that it supported the change to reflect present-
day realities in the first aid supplies market and also supported the
removal of the requirement for a physician's approval for supplies.
The Agency has concluded that substituting the guidance of
nonmandatory Appendix A to 29 CFR 1910.151 for the requirements
specified in paragraph 1910.268(b)(3) will reduce the regulatory burden
on employers in the telecommunication industry by increasing their
flexibility in meeting OSHA's requirements for first aid kits, allow
employers to purchase off-the-shelf first aid kits, and will facilitate
compliance by making the requirements to provide first aid kits
consistent across the general industry standards. The Agency believes
that the revision affords telecommunication employees at least the same
level of protection they currently receive because Appendix A to 29 CFR
1910.151 provides more extensive guidelines for selecting appropriate
medical first aid supplies than paragraph 1910.268(b)(3) and further,
provides the recommendation that these supplies include personal
protective equipment to prevent employee exposure to bloodborne
pathogens. Finally, OSHA believes that deleting the requirement for a
monthly inspection and weatherproof first aid kits does not reduce
employee protection. First aid kits must be complete and contain the
supplies necessary for the worksite. If upon inspection by an OSHA
compliance officer, a first aid kit was found to be deficient because
the supplies were depleted or water damaged, a citation could be issued
because the first aid supplies would not be considered adequate or
``appropriate.'' OSHA has concluded that the mandatory requirement to
have appropriate and accessible first aid kits maintains employee
protection.
D. 13 Carcinogens, 29 CFR 1910.1003
In the 13 Carcinogens standard, paragraph 1910.1003(f)(2) requires
employers to provide the nearest OSHA Area Director with two separate
reports on the occurrence of any incident that results in a release of
any of the 13 carcinogens into any area where employees may be
potentially exposed. The reports consist of (1) an abbreviated
preliminary report submitted within 24 hours of the carcinogen release
and (2) a detailed report submitted within 15 calendar days of the
incident. In the proposal, OSHA expressed its belief that these reports
were of little or no value to OSHA and were therefore creating an
unnecessary burden on employers. More recent substance-specific
standards including carcinogenic chemicals such as methylene chloride
developed by the Agency do not contain any such reporting requirements.
Because of these reasons, OSHA proposed to delete the requirement from
the standard to reduce reporting requirements because the reports were
unnecessary. OSHA requested comment on the extent to which the revision
would reduce the reporting burden on employers and the effect the
deletion would have on employee health.
OSHA received nine comments in response to the proposal to
eliminate the carcinogen standard reporting requirements (Exs. 3-4, 16,
17, 18, 22, 27, 29; 4-11, 13). Three commenters agreed with the removal
of the requirement (Exs. 3-22, 29; 4-11). The other commenters (Exs. 3-
4, 16, 17, 18, 27; 4-13) objected to the removal of the reporting
requirement. These commenters opposed the removal because: (1) The
deletion would reduce worker protection because reporting gives useful
information to OSHA by alerting it to workplace deficiencies; (2) the
information helps management avoid future spills, and; (3) the
information induces managers to take spills more seriously.
At the hearing OSHA was asked by a representative from the AFL-CIO
(Tr. 16) about how many reports on spills OSHA had received under the
current regulations. Responses from the OSHA regional offices indicated
that few reports are received and those that are received are not used
for inspection purposes (Ex. 9). Although a few OSHA staff believed
that incidence reports might be useful, that has not been the case.
Further, OSHA has a general requirement to report incidents that cause
death or serious injury (29 CFR 1904.39). That provision is used by
employers and OSHA and it does trigger compliance inspections.
The purpose for collecting these reports was to assist OSHA in
identifying workplaces for inspection. OSHA has not used these reports
over the years for this purpose and relies on other means to identify
establishments to inspect. Further, the commenters provided no evidence
that the reporting requirements serve to help management avoid future
spills or to entice managers to take spills more seriously. In
addition, the substances covered by this requirement are primarily
chronic toxins and a single spill does not necessarily indicate a
severe hazard requiring notification. Therefore, OSHA continues to
believe that the reports have not proven to be useful and are an
unnecessary employer burden since OSHA does not use them for
identifying workplaces for inspection. In addition, under the Paperwork
Reduction Act, agencies need to review their requirements to identify
those that serve no purpose and if they do not serve any purpose, then
consider removing them. Therefore, OSHA has eliminated the reporting
requirements. OSHA is not aware of any reason that the elimination of
the reports will reduce employee safety since OSHA does not use the
reports.
E. Vinyl Chloride, 29 CFR 1910.1017
Paragraph 1910.1017(k)(6) of the vinyl chloride standard specifies
that clinical laboratories licensed by the U.S. Public Health Service
under 42 CFR part 74, must analyze biological samples collected during
medical examinations. However, 42 CFR part 74 is outdated, and the
Public Health Service now addresses laboratory-licensing requirements
under 42 CFR part 493, laboratory requirements. Therefore, the Agency
proposed to delete the reference to 42 CFR part 74 from the vinyl
chloride standard. In the proposal, OSHA asked for comment on: (1) The
need to specify a licensing or quality-control requirement; (2) the
extent to which the requirements specified by 42 CFR part 493 would be
a substitute for the outdated requirements; and (3) whether any other
reference or criteria were available that could serve this purpose.
OSHA received eight comments on the proposed deletion of the
requirement for a Public Health Service licensed laboratory to analyze
biological samples collected during medical exams relative to vinyl
chloride exposure (Exs. 3-4, 8, 16, 17, 27, 29; 4-11, 13). The Vinyl
Institute (Ex. 3-8) supported the deletion of the provision entirely
because they saw no current need for specifying licensing or quality-
control of laboratories. The other seven commenters expressed their
belief that paragraph 1910.1017(k)(6) should not be changed without
either adding language offering equal or greater protection to workers
or updating the reference to the new Public Health Service laboratory
requirements (Exs. 3-4, 16, 17, 27, 29; 4-11, 13).
[[Page 1117]]
One commenter (Ex. 3-16) observed that this type of requirement,
laboratory licensing, was an example of the kind of requirement that
would be best dealt with by a generic medical monitoring standard which
could address laboratory certification for all standards.
Based on the comments OSHA does not believe in this case that it is
appropriate to reference outdated regulations, or that it would be
appropriate to reference the new PHS standards. However, it is
appropriate for OSHA to require employers use qualified laboratories
for required medical tests. Other OSHA health standards have assured
that qualified laboratories are used by requiring that employers use
accredited laboratories. For example, the Bloodborne Pathogens standard
[1910.1030(f)(iii)], the Benzene standard [1910.1028(i)(1)(ii)], the
Cadmium standard [1910.1027(l)(1)(iv)] and the Lead standard for
General Industry [1910.1025(j)(2)(iii)] require that medical tests be
performed by accredited laboratories. There are several organizations
that accredit laboratories. Each requires that laboratories implement
quality control procedures to maintain accreditation. Therefore, OSHA
has changed paragraph 1910.1017(k)(6)of the vinyl chloride standard to
require the use of accredited laboratories for the medical tests
required in paragraph (k)(1) of the standard.
F. Monthly and Quarterly Exposure Monitoring
Several of the Agency's older standards have provisions that
require employers to monitor employee exposures either monthly or
quarterly, depending on the level of a toxic substance found in the
workplace.
Paragraphs 1910.1017(d)(2)(i) and (d)(2)(ii) of the vinyl chloride
standard require employers to conduct exposure monitoring at least
monthly if employee exposures are in excess of the permissible exposure
limit (PEL) and not less than quarterly if employee exposures are above
the action level (AL).
Paragraphs 1910.1044(f)(3)(i) and (f)(3)(ii) of the DBCP standard
specify that employers perform exposure monitoring at least quarterly
if employee exposures are below the PEL and no less than monthly if
employee exposures exceed the PEL.
Paragraphs 1910.1045(e)(3)(ii) and (e)(3)(iii) of the acrylonitrile
standard requires employers to conduct exposure monitoring at least
quarterly for employees exposed at or above the AL, but below the PEL,
and at least monthly for employees having exposures above the PEL.
The preambles to these older standards do not clearly explain the
basis for adopting these monitoring frequencies. This absence of clear
explanation suggests that OSHA likely relied on prevailing practice at
the time for these older standards in establishing the frequencies. In
substance-specific standards promulgated after these standards,
exposure monitoring is required: (1) No more often than semiannually if
employee exposures are at or above the AL and (2) no more than
quarterly if employee exposures are above the PEL.
OSHA proposed to amend the exposure monitoring requirements
specified in the vinyl chloride, acrylonitrile, and DBCP standards
because they are inconsistent with the exposure monitoring protocols
established by OSHA in its later substance-specific standards. OSHA
believes that consistency among standards would increase compliance and
because the Paperwork Reduction Act directs agencies to reduce
paperwork burdens, OSHA therefore proposed to revise these paragraphs
to make them consistent with the similar requirements pertaining to
exposure monitoring in more recently promulgated health standards. That
exposure monitoring is: (1) At least quarterly if the results of
initial exposure monitoring show that employee exposures are above the
PEL; and (2) no less than semiannually if the results indicate
exposures that are at or above the AL. OSHA asked for comment on the
extent, if any, to which the revision would reduce the protection
afforded by the existing standards to employees exposed to vinyl
chloride, acrylonitrile, and DBCP. OSHA also requested comment on the
extent to which the proposed revisions would reduce employer burdens,
including cost and collection of information (i.e., paperwork)
reductions.
OSHA received 14 comments on modifying the exposure monitoring
requirements (Exs. 3-4, 8, 10, 12, 13, 14, 16, 17, 18, 27, 29; 4-11,
12, 13). Seven commenters supported consistency in exposure monitoring
for one or all of the substances (Exs. 3-8, 10, 13, 14, 29; 4-11, 12).
Dow Chemical Company (Ex. 3-13) observed that ``Consistency in
monitoring requirements reduces employer burdens and enhances
compliance while maintaining employee health protections.'' The
American Chemical Council (Ex. 3-29) stated:
ACC concurs that exposure monitoring should be consistent among
the Agency's standards. The proposed revisions to Sec. 1910.1044
and Sec. 1910.1045 will help to unify the requirements for exposure
monitoring. Further unification of the exposure monitoring
requirements will enable employers to have one monitoring strategy
that can be applied for all substances, rather than keeping track of
the differences between the varying standards.
The American Society of Safety Engineers (Ex. 4-11) remarked that
the ``revision will assist companies in implementing more uniform
industry hygiene programs. Also, there is no demonstrated need for more
frequent exposure monitoring these substances.''
The American Foundry Society (Ex. 3-12) expressed its view that the
exposure monitoring change does not go far enough. The commenter
stated:
The proposed revision * * * to go from monthly to quarterly and
from quarterly to semiannual does not go far enough. While
monitoring of potential employee exposure is essential to maintain
employee health and exposure monitoring as part of an engineering
study may be necessary to determine the source and magnitude of
exposure, periodic monitoring for its own sake imposes an
unnecessary and possibly punitive burden on employers and employees
unless there is some benefit to employee safety and health.
Once it has been determined that employees are exposed above an
Action Level or Permissible Exposure Level, additional monitoring
provides no additional useful information, unless it is part of an
engineering study. Simply conducting exposure monitoring for its own
sake wastes valuable health and safety resources and builds
resentment among employees who must wear sampling equipment without
justification.
We strongly urge OSHA to modify the requirement in all health
standards, now and in the future, to base the frequency of exposure
monitoring on the need to establish employee exposure levels or to
achieve some other useful safety and health objective. Of course,
additional exposure monitoring should be conducted when work
processes or practices change or there are good industrial hygiene
or engineering reasons to conduct such monitoring.
Six commenters disagreed with the proposed changes (Exs. 3-4, 16,
17, 18, 27; 4-13). For example, the Paper Allied-Industrial, Chemical
and Energy Workers Union (PACE) (Ex. 3-4) stated:
* * * For these selected agents which have well-established
toxicity, it is wholly inappropriate to ask employees whose exposure
monitoring shows that they are exposed at levels above the
permissible exposure limit to wait an addition 3 months to find out
whether these exposures have been reduced. Likewise for employees
whose exposures are above the action level, they should not have to
wait six months to learn
[[Page 1118]]
whether their exposures have been reduced below that level.
The United Steel Workers of America (Ex. 3-16) remarked:
When the three standards in question were written, it was
assumed that most employers would come into compliance in a
reasonable amount of time. Indeed, most have--by better controls in
the case of vinyl chloride and acrylonitrile, by a phase-out of the
chemical in the case of DBCP. Now OSHA proposes to reward those
employers who have not achieved compliance. These changes will
impair worker protection, and are not supported by evidence in the
record.
Also, the International Chemical Workers Union (Ex. 4-13) observed:
We do not believe that a change to these standards is justified.
Each rule and requirement went through the rulemaking process at the
time, weighing all available evidence. Again, just because later
rules, for different chemicals with different hazards, controls and/
or toxicities have different requirements, do not provide adequate
justification for a change in monitoring frequencies. OSHA needs to
provide additional information which gives a valid justification for
change before proposing such changes.
The standards for vinyl chloride, acrylonitrile, and DBCB are among
the oldest of OSHA health standards. As the United Steel Workers of
America noted, most employers have come into compliance. Those
employers who have not been able to achieve compliance through feasible
engineering controls are required to protect their employees by using
personal protective equipment. Those employers who have not been able
to reduce worker exposures have collected hundreds of samples since the
effective dates of these standards. Very high monitoring frequencies
will not add appreciably to the statistical confidence an employer will
have in the conclusion that employees' exposures exceed a permissible
exposure limit or action level. Monitoring quarterly and semiannually
will protect employees by allowing time to improve the workplace, while
still producing suitably current information to employers and
employees. When employers are over the action level or exposure limit,
periodic monitoring is required to assure that proper respirators and
personal protective equipment are worn.
Moreover, OSHA concludes, after reviewing the comments, that
uniformity of monitoring frequency is beneficial for employers and
employees (unless there are specific reasons for different frequency)
because uniformity permits an employer to develop a more efficient and
thus, better, industrial hygiene program and to increase compliance by
improving understanding of health standards. In addition the Paperwork
Reduction Act requires OSHA to consider reduction in paperwork burden
when that will not interfere with worker protection.
OSHA notes that two of its standards, 29 CFR 1910.1028 and
1910.1051, benzene and 1,3-butadiene respectively, provide for exposure
monitoring frequencies different from the quarterly and semiannual
monitoring contained in other standards. The Agency is not revising
benzene or 1,3-butadiene with respect to monitoring frequencies because
the exposure monitoring provisions in those standards have specific
bases in their rulemaking records that preclude changing them for
consistency under this standards improvement action. (See e.g. 52 FR
34533-41, September 11, 1987.)
G. Alternative Control Methods for Class I Asbestos Removal
Provisions in OSHA's asbestos standards for shipyard employment and
construction, paragraphs 1915.1001(g)(6)(iii) and 1926.1101(g)(6)(iii),
respectively, address alternative control methods used to perform Class
I asbestos work. Specifically, the paragraphs require an employer to
send an evaluation and certification of alternative control methods to
OSHA's Directorate of Technical Support before removing more than 25
linear feet or 10 square feet of thermal-system insulation or surfacing
material respectively.
The purpose of this collection of information was for OSHA to
develop a database of alternative control methods for use in future
rulemaking. However, OSHA has not developed a database of alternative
control methods nor does OSHA plan a future rulemaking to do so.
Therefore, OSHA in the proposal said that these requirements are not
useful and are not in keeping with the Paperwork Reduction Act. Current
OSHA regulatory policy requires that paperwork provisions, such as
this, be a benefit to employee health or serve some other useful
regulatory purpose. Since certification of alternative control methods
does not meet this requirement, the Agency proposed to delete it from
the shipyard and construction asbestos standards. OSHA invited comment
on any regulatory benefit or purpose that removal of this requirement
would jeopardize.
Eight commenters addressed the removal of these paragraphs (Exs. 3-
4, 16, 17, 24, 25, 27; 4-7, 11). Some commenters (Exs. 3-24; 4-7, 11)
agreed with their deletion because OSHA has never used the information
to develop a database. Other commenters (Exs. 3-4, 16, 17, 27)
suggested rather than simply deleting the requirements, OSHA should
enforce the requirement and start a database of alternative control
methods which could be useful in rulemaking and to employers and
employees seeking methods of abatement. Finally, the Associated General
Contractors of America (Ex. 3-25) expressed concern that the change
would eliminate contractors' abatement options and lead to increased
delays to contractors and building owners because no simple
substitution process would be available to submit alternatives. In
response to this concern, OSHA would like to make it clear that the
removal of these requirements does not disallow the use of alternative
control methods since the submission of alternative control methods to
OSHA did not constitute approval of the methods.
As stated, the intent of this collection of information was for
OSHA to develop a database of alternative control methods, but no such
database was developed. Further, OSHA has no future plans to expend its
limited resources on developing a database. As to development or
availability of alternative control methodologies, there are many
competent asbestos abatement contractors and consultants available to
employers so it is not necessary for OSHA to research these issues or
collect information on them. Therefore, OSHA has deleted the
requirement in the shipyard employment and construction standards,
because it is an unnecessary and burdensome collection of information.
H. Evaluating Chest X-rays Using the ILO U/C Rating
OSHA proposed to amend paragraph 1910.1018(n)(2)(ii)(A) of the
inorganic arsenic standard and paragraph 1910.1029(j)(2)(ii) of the
coke oven emissions standard that require employees' chest x-rays
receive an International Labor Office UICC/Cincinnati (ILO U/C) rating.
Subsequent to the promulgation of these provisions, the Agency received
information from two physicians that the ILO U/C rating is not suitable
to evaluate chest x-rays for lung cancer, the possible outcome of
exposure to these chemicals. Regarding the use of the ILO U/C ratings
specified by the inorganic arsenic standard, Stephen Wood, MD, MSPH,
Corporate Medical Director for the Kennecott Corporation, states in a
letter to OSHA (Ex. 1-1):
This method of x-ray interpretation was designed specifically
for use in pneumoconiosis or dust related disease. Arsenic does not
cause pneumoconiosis. This
[[Page 1119]]
classification system is unnecessary for cancer surveillance and
represents a substantial cost and logistical burden to industry.
Later, Steven R. Smith, MD, Director of Occupational Health and
Occupational Medicine, Community Hospitals Indianapolis, wrote to the
Agency (Ex. 1-2) addressing the ILO U/C rating required by the coke
oven emissions standard:
I am sure you know that the main pulmonary problem with coke
oven emission exposure is carcinoma of the lung and not
pneumoconiosis. The main merit of the ILO U/C rating system is that
it standardizes the reading of films where there are parenchymal
opacities either round nodules or linear densities. For the problem
of carcinoma of the lung this system really has little to add over
the proper interpretation of films by skilled radiologists. I think
it is of much more importance that the chest films done as part of
the coke oven emissions exposure surveillance be interpreted by
expert radiologists who are aware of the fact the films are being
done primarily for pulmonary carcinoma. To require that an ILO U/C
rating system be employed as well seems to me as though it is going
to necessitate an additional expense as well as to greatly limit the
number of radiologists who are able to interpret such films.
Based on these letters and on the opinion of OSHA's Office of
Occupational Medicine, the Agency believed that the ILO U/C rating is
not a suitable method to use in evaluating chest x-rays for lung
cancer. Therefore, the Agency proposed to remove the ILO U/C rating
requirements specified in the inorganic arsenic and coke oven emissions
standards, thereby permitting the examining physician to determine the
most effective procedure for evaluating the chest x-rays. This approach
is similar to that taken in recent Agency standards that require the
evaluation of chest x-rays for cancer (e.g., paragraph
1910.1027(l)(4)(ii)(C) of the cadmium standard). As part of the cadmium
rulemaking, OSHA solicited comment and other information regarding the
suitability of the ILO U/C ratings for evaluating chest x-rays for
cancer, the identity of any other available method or procedure that
could effectively substitute for ILO U/C ratings, and the safety and
efficacy of the proposed elimination of the requirement.
OSHA received nine comments in response to this proposed change
(Exs. 3-7, 9, 16, 17, 27, 28, 29; 4-7, 11). Some commenters agreed
(Exs. 3-7, 28, 29; 4-7, 11) that the rating requirement should be
deleted because the method was not appropriate to evaluating chest x-
rays for lung cancer. The American Coke and Coal Chemical Institute
(Ex. 3-28) stated:
ACCCI concurs with the Agency's research and rationale that the
ILO-U/C rating is not suitable for proper evaluation of standard
posterior-anterior chest x-rays, as this designation does not
promote proper lung cancer surveillance. In addition to the
additional cost burden it imposes on employers, the requirement also
delays the reading response time, due to the extremely limited
number of radiologists qualified to render such an interpretation.
Pinnacle West Capital Corp (Ex. 4-7) indicated that its medical
consultant saw no detriment to employee protection if the requirement
was deleted.
Some commenters (Exs. 3-9, 16, 17, 27) whether they agreed with or
opposed the removal of the rating, believed substitute language should
be added and suggested what that language might be. For example, the
United Steel Workers of America (Ex. 3-16) agreed that the rating is of
little use for carcinogens but suggested that OSHA substitute the
rating requirement with one that the radiologist be certified by the
American Board of Radiologists to ensure qualified radiologists are
used. The AFL-CIO (Ex. 3-27) observed that the use of the rating
provided some quality control. To remedy the problem, the AFL-CIO
suggested that x-rays be read by NIOSH certified B readers.
OSHA has decided to eliminate the part of the provisions in arsenic
and coke oven emissions requiring the ILO U/C rating because the rating
is appropriate only for pneumoconiosis and is not useful for lung
cancer. OSHA agrees with commenters who noted that the rating method is
not appropriate for diagnosing cancer, its intended purpose. First, it
is clear that the specified rating method is inappropriate because it
addresses dust inhalation and resulting pneumoconiosis, a problem
unrelated to arsenic and coke oven emissions. The rating is not
appropriate for identifying cancer, the primary concern with respect to
these substances. Second, OSHA has no reason to believe that the
elimination of an inappropriate rating method will result in the use of
unqualified radiologists under the medical surveillance programs of
employers and does not believe it is necessary to add any other
language to the provision. OSHA has decided based on the rulemaking
record, to delete the requirement and does not believe that the
deletion will decrease employee health since the method is not even
appropriate to diagnosing the substances' likely disease outcome,
cancer.
I. Signed Medical Opinions
OSHA proposed to remove several requirements for medical opinions
to be signed. (The requirement that a medical opinion be obtained by
the employer was not affected by the proposed revision concerning a
signature.) Paragraph 1910.1001(l)(7)(i) of the asbestos standard, and
paragraphs 1910.1027(l)(10)(i) of the general industry cadmium standard
and 1926.1127(l)(10)(i) of the construction industry cadmium standard,
require that the examining physician sign the written medical opinion
provided as part of the medical-surveillance requirements of these
standards. The preamble to the cadmium standards states that the
purpose of requiring the physician to sign the opinion is to ensure
that the information that is given to the employer has been seen and
read by the physician and that the physician has personally determined
whether the employee may continue to work in cadmium-exposed jobs (57
FR 42366). No other substance-specific standards promulgated by OSHA
requires that the physician sign the medical opinion.
The Agency expressed its belief in the proposal that the
requirement for a physician to sign a medical opinion is unnecessary,
precludes electronic transmission of the opinion from the physician to
the employer, and provides no additional benefit to employees.
Accordingly, OSHA proposed to remove the requirement from these
standards. The Agency requested comment on whether a signed medical
opinion is necessary to ensure that the examining physician has
reviewed it prior to submitting it to the employer.
OSHA received 11 comments concerning the elimination of the
requirement for a physician's signature on a medical opinion (Exs. 3-3,
4, 7, 16, 17, 22, 24, 26, 27; 4-7, 11). Seven commenters saw no need or
reason for the signature (Exs. 3-3, 7, 22, 24, 26; 4-7, 11). For
example, Phelps Dodge Corp. (Ex. 3-7) agreed that the requirements
provide no added benefit and given current communication techniques,
requiring signed medical opinions actually slows the process of
completing the medical evaluation. The American Society of Safety
Engineers (Ex. 4-11) stated that it ``supports this change because it
permits the use of new technology, which is generally accepted in the
business and medical field, and will minimize paperwork burdens and
reduce delays receiving such reports, thereby enhancing safety and
health.''
Four commenters objected to deleting the requirement for a
physician's signature on the medical opinion (Exs.
[[Page 1120]]
3-4, 16, 17, 27). The views expressed by these commenters include: (1)
Physicians should take responsibility for their opinions; (2) employees
place greater weight on opinions signed by physicians; and (3)
providing signed opinions requires minimal effort. These commenters
generally agreed that if OSHA wanted to allow for electronic
transmission, then the provision should be revised to allow electronic
signatures.
OSHA does not believe that requiring a physician's signature on the
required comprehensive medical opinion has any impact on the validity
of the medical opinion. With or without a signature, the opinion is
given by a physician through the physician's office leaving no doubt
about responsibility for the opinion. Employees receiving the
physician's opinions will see that the physician's name on his or her
stationery sets forth the legitimacy of the report and the identify of
the responsible physician. Further, OSHA believes that an actual
physician's signature or a physician's electronic signature does not
guarantee that the physician has read the opinion, making these
signature requirements ineffective. The important part of the
requirement is that a medical opinion is given. OSHA does not believe a
signature establishes any greater validity to the medical opinion
whether it is signed personally or electronically and has concluded
that deleting the signature will not decrease employees' health
protections.
J. Providing Semiannual Medical Examinations to Employees Experiencing
Long-Term Toxic Exposures
Three of the Agency's oldest health standards specify that
employers provide semiannual medical examinations to employees having
long-term exposures to the toxic substances regulated by these
standards. However, these standards, which regulate employee exposures
to vinyl chloride, inorganic arsenic, and coke oven emissions (29 CFR
1910.1017, 1910.1019, and 1910.1029, respectively), require employees,
exposed for lesser periods, be given annual medical examinations.
Under paragraph 1910.1017(k) of the vinyl chloride standard
employers must institute a medical surveillance program including a
physical examination for employees exposed in excess of the action
level. For employees exposed above the action level and who have been
employed in vinyl chloride or polyvinyl chloride manufacturing for 10
years or longer, employers must provide a semiannual medical
examination (paragraph 1910.1017(k)(2)(i)). The preamble to this
standard provides no rationale for this requirement.
Paragraph 1910.1018(n)(3)(i) of the inorganic arsenic standard
requires that employers offer semiannual medical examinations to
employees who are 45 years or older who have been exposed above the
action level for 30 days per year or who have been exposed above the
action level to inorganic arsenic for at least 10 years. In justifying
this requirement, the Agency indicated in the preamble to this standard
that:
Long-term employees who have exposures now or in the near future
below the action level, but have had exposure above the action level
now or in the recent past, are quite likely to have had
substantially greater exposures in the more distant past. The
epidemiological studies indicate that risk increases with both
degree and duration of exposure (43 FR 19620).
OSHA notes that this statement addressed high exposures that occurred
prior to the 1970's.
Paragraphs 1910.1029(j)(3)(ii) and (j)(3)(iii) of the coke oven
emissions standard require employers to provide semiannual medical
examinations for employees who are at least 45 years of age, or have
five or more years of employment in a regulated area, and for an
employee in this age/experience group who transfers or is transferred
from employment in a regulated area, for as long as that employee is
employed by the same employer or a successor employer. In the preamble
to this standard, the Agency explains this requirement by stating that
the high risk population requires more frequent and more comprehensive
testing than the remainder of the population (41 FR 46779, October 22,
1976).
OSHA believes that the available evidence does not support the
requirements for semiannual medical examinations offered to employees
with long-term exposures to vinyl chloride, inorganic arsenic, or coke
oven emissions. Based on a review of the existing medical research
literature in Phase I of the Standards Improvement Project, the Agency
amended the inorganic arsenic and coke oven emissions standards by
reducing the frequency of chest x-rays from semiannual to annual and by
removing the requirement for sputum cytology entirely from these
standards (63 FR 33450). This review indicated that semiannual chest x-
rays and sputum cytology did not provide additional protection to
employee health over and above that provided by an annual chest x-ray.
Semi-annual medical exams provide little if any benefits when x-rays
are only justified on an annual basis. Further, other health standards
promulgated by OSHA, e.g., the 13 Carcinogens, benzene, ethylene oxide,
etc., only require annual medical examinations.
Based on the available evidence, at the time of the proposal, the
Agency believed that semiannual medical examinations for these three
substances were unnecessary, and that annual medical examinations would
be sufficient to detect cancer and other medical impairments caused by
exposure to vinyl chloride, inorganic arsenic, or coke oven emissions.
Also, aside from these three standards, no other substance-specific
OSHA standard requires semiannual medical examinations. OSHA also
believed that current medical practice with regard to employees
occupationally exposed to toxic substances is to screen them annually.
Therefore, the Agency proposed to revise these three standards to be
consistent with its other substance-specific standards that require
employers to provide annual medical examinations for covered employees
regardless of the duration of their exposures. OSHA requested comment
and other information on the effectiveness of annual versus semiannual
medical examinations in detecting cancer and other medical impairments
caused by exposure to vinyl chloride, inorganic arsenic, or coke oven
emissions.
OSHA received 13 comments concerning semiannual versus annual
medical examinations (Exs. 3-4, 7, 8, 10, 13, 14, 16, 17, 27, 28, 29;
4-7, 11). Most of these commenters supported the change from semiannual
to annual medical examinations (Ex. 3-4, 7, 8, 10, 13, 14, 28, 29; 4-7,
11). OxyChem (Ex. 3-10) supported OSHA's rationale that semiannual
medical examinations do not offer any more or better disease
identification than annual examinations. Further, OxyChem noted that
annual examination is the medical profession's standard, and is
consistent with all recent OSHA medical examination requirements. The
Vinyl Chloride Health Committee of the American Chemistry Council (Ex.
3-14) stated:
OSHA recognizes in the preamble that semiannual examinations are
not necessary, because annual medical examinations are sufficient to
detect any material adverse health effect caused by vinyl chloride
exposure. The Health Committee supports the proposal and notes that,
more than any other proposed change, this will reduce significantly
employer cost burdens without affecting worker health adversely.
Further, Pinnacle West Capital Corporation (Ex. 4-7) remarked:
[[Page 1121]]
These standards promulgated in the 70s took a very conservative
view in regard to medical monitoring requirements. In view of
today's knowledge and OSHA's mediating this ultra conservative
stance, we agree that annual exams are adequate to protect employee
health. We believe it will enhance compliance with OSHA standards by
making these rules consistent in requiring annual exams for all
substance specific standards.
Two commenters did not support eliminating the semiannual medical
examinations (Ex. 3-17, 27). The UAW (Ex. 3-17) noted that increasing
the frequency of examinations with increasing latency from first
exposure to carcinogens is logical and based on science. The AFL-CIO
(Ex. 3-27) expressed a similar opinion:
In the view of the AFL-CIO, the current language requiring
semiannual exams should be retained. Workers with long term
exposures to any of these three substances are likely to be at
increased risk of developing lung and liver cancer. The time since
first exposure is also increased among this subset of exposed
workers. More frequent screenings will assist these workers in
identifying or diagnosing their cancers earlier than with an annual
examination frequency.
OSHA continues to believe based on available evidence resulting
from its Phase I Standards Improvement Project, discussed above (that
semiannual x-rays and sputum cytology do not improve survival rates),
that annual medical examinations are sufficient to detect cancer and
other medical impairments caused by exposure to vinyl chloride,
inorganic arsenic, or coke oven emissions. The majority of commenters
also believed that requiring annual medical examinations would be as
effective as semiannual. OSHA finds that current medical practice to
screen annually, makes it administratively advantageous especially when
the medical examination may cover potential adverse health effects from
other chemicals. Finally, OSHA's experience with other substance
specific standards requiring annual medical examinations, persuades
OSHA that the three standards can be changed without a decrease in
employee health.
A second issue was raised in the proposal addressing the medical
examination in the coke oven emissions standard. OSHA sought comment on
whether the urinary cytology examination was a useful test. OSHA
indicated it might include its removal in the final rule if warranted,
based on comments. The coke oven emissions standard requires, in
paragraph 1910.1029(j)(2)(vii), that employers provide urinary cytology
examinations as part of the medical examination to exposed employees.
OSHA had adopted this requirement based on its belief that the urinary
cytology examination would serve as a useful tool in screening for
bladder cancer for those exposed to coke oven emissions.
However, at the time of this proposal, the Agency believed that the
use of urinary cytology in the coke oven emissions standard as a
screening tool for cancer should be reexamined based on more recent
scientific literature. OSHA's Office of Occupational Medicine (OOM)
reviewed data pertaining to the benefits of urinary cytology in the
detection of bladder cancer (Ex. 1-3). The literature indicates that
the sensitivity of urine cytology, that is, its ability to detect
bladder cancer, is not very powerful and, thus, not a particularly
effective screening test for this disease. OOM recommends that urinary
cytology testing be eliminated from the coke oven emissions standard.
However, OOM does recommend retaining dipstick urinalysis as an
inexpensive means of maintaining the urologic screening program until
more effective technology is developed, despite its low sensitivity for
detecting cancer. Comment was requested on the issue and on the OOM
recommendation of retaining dipstick urinalysis.
OSHA received five comments on the urinary cytology examination in
the coke oven emissions standard (Exs. 3-4, 16, 17, 27). None of the
commenters believe that OSHA should eliminate the urinary cytology
examination at this time. For example, the United Steel Workers of
America (Ex. 3-16) remarked:
We agree with OSHA that urinary cytology should be thoroughly
examined. While we have respect for OSHA's Office of Occupational
Medicine, the evaluation should be based on more than their opinion.
In addition, the Agency should consider newer methods for detecting
overexposures, such as 2-hydroxypyrenol. Until that analysis is
complete, the requirement for urinary cytology should be retained.
The AFL-CIO (Ex. 3-27) stated:
While we have no objection to OSHA reexamining the utility of
using urinary cytology as a screen for cancer, we are opposed to
removing it merely because the sensitivity of the screening tool
``is not very powerful''. If another screening method can be shown,
with scientific substantiation, to be more powerful then it may be
appropriate for the agency to require a different method to be used.
Until such time as this analysis has been completed and a more
powerful method identified, the AFL-CIO believes the requirement for
urinary cytology should be retained. To eliminate the screening test
altogether would weaken worker protection.
Based on comments, OSHA has been persuaded to retain the
requirement to conduct urinary cytology testing as part of the medical
examination required by the coke oven emissions standard until such
time that the Agency more fully examines alternatives to the test.
However, also based on the information in the record and comments, OSHA
is requiring the test be conducted on an annual basis as part of the
annual medical examination, the same time the other tests are required
(urinalysis), rather than every 6 months. OSHA has found no compelling
reason that the cytology test should be conducted more frequently than
the other tests required as part of the medical examination and it is
important to be consistent with the annual frequency of other required
medical examinations and tests so that it can be reviewed by the
physician.
K. Notifying OSHA Regarding the Use of DBCP or the Establishment of
Regulated Areas for Certain Substances
The Agency proposed to delete paragraph 1910.1044(d) of the 1,2-
dibromo-3-chloropropane (DBCP) standard. This standard is the only OSHA
substance standard that requires employers to submit a report to the
nearest OSHA Area Office that describes the employer's use of the
chemical within 10 days of introducing the substance into the
workplace. The preamble to the DBCP standard does not provide a
rationale for the requirement. Further, OSHA has not found this
requirement useful either for research or to assist in compliance
activities.
OSHA believed that the provision had little use in practice and
thus, it might be appropriate to remove this provision consistent with
the Paperwork Reduction Act mandates. OSHA requested comment on the
proposed deletion of paragraph 1910.1044(d) of the DBCP standard.
One commenter specifically disagreed with the deletion of paragraph
(d) of the DBCP standard. The commenter, the United Steel Workers of
America (Ex. 3-16) stated:
The DBCP standard requires employers to notify OSHA if they
introduce the substance into the workplace. No known employers
currently use or produce DBCP. If any do so in the future, it would
be useful for the Agency to know it. Therefore, there is no reason
to delete this provision. The deletion would not even reduce any
current paperwork burdens.
At the request of the public, OSHA queried its regions on the
notification of use and establishment of regulated area provisions. The
regions said that very few notifications have been received with regard
to any chemicals (e.g., arsenic) and that the reports are not used for
targeting inspections (Ex. 9-1-1). (For example, one region stated it
has
[[Page 1122]]
received 2 to 3 reports over 28 years regarding reporting for vinyl
chloride.) In any case, OSHA has other provisions for targeting
inspections.
OSHA has decided to delete this requirement. It has not been used
by OSHA and no other OSHA health standards have such provisions. At the
time of this proposal, OSHA was aware that DBCP is no longer produced
or used, and therefore no reduction in burden hours was projected for
the deletion. Nonetheless, if DBCP was used again, OSHA still considers
the provision an unnecessary burden under the Paper Work Reduction Act
and unnecessary for purposes of targeting inspections. Moreover, if
DBCP were to be used again, the standard would protect employees.
A number of other OSHA standards dating from the 1970s require
employers to notify the nearest OSHA Area Director/Office if they are
required to establish regulated areas in their workplaces. The
following standards have such a requirement: Paragraph 1910.1003(f)(1)
of the 13 carcinogens standard; paragraph 1910.1017(n)(1) of the vinyl
chloride standard; paragraph 1910.1018(d)(1) of the inorganic arsenic
standard; and, paragraph 1910.1045(d)(1) of the acrylonitrile standard.
The preamble to the vinyl chloride standard explains that the
purpose of this notification requirement is to enable OSHA to obtain
information on control technology (39 FR 35896, October 4, 1974). The
preamble to the acrylonitrile standard notes that the requirement is
designed to enable OSHA to be aware of facilities where substantial
exposure exists (43 FR 45762).
In the years since these standards were promulgated, OSHA has not
found the notification provision useful for the purposes described in
the two preambles nor have these requirements been useful for
compliance inspection targeting purposes. No other substance-specific
standards promulgated by OSHA require such notification. The Agency
proposed to delete the notification requirement from the standards to
reduce unnecessary collections of information (paperwork burdens)
required by OSHA but not used by OSHA. OSHA invited comment on the
effect this deletion would have in general, and specifically on
employee protection, employer burden, and paperwork reduction.
OSHA received 14 comments on the OSHA notification provision
concerning regulated areas (Exs. 3-8, 10, 13, 14, 16, 17, 18, 22, 27,
29; 4-7, 11, 12, 13). Nine commenters supported deleting notifying OSHA
of regulated areas (Exs. 3-8, 10, 13, 14, 22, 29; 4-7, 11, 12). Dow
Chemical (Ex. 3-13) observed:
Dow agrees with OSHA that it is appropriate to revise the
requirement that an employer notify the Agency when it has
established a ``regulated area.'' OSHA does not find the information
useful and we believe that the information serves no purpose and
should be eliminated. The requirement to notify places a burden on
the employer that does not appear to be necessary. Conditions in an
area that might require reporting can change quickly. While these
changes are being monitored, it does not appear to be a useful
exercise to determine how many days the employer has to postmark a
letter detailing the information to OSHA, particularly when OSHA
does not utilize the information anyway. Further, there are many
tasks that potentially might trigger establishing a regulated area,
where other tasks involving the same chemical do not. Thus, it does
not seem particularly helpful or necessary to notify OSHA when
establishing a regulated area which only exists when certain tasks,
done at a variety of different frequencies (rather than a permanent
arrangement), exists. Dow supports OSHA's efforts to eliminate this
unnecessary regulatory burden.
Organization Resources Counselors (Ex. 3-22) indicated it agreed with
the elimination of the provisions on the principle that if OSHA no
longer has a need to collect information or finds that the information
provides no useful benefits for enforcement or protection, then the
requirements should be deleted.
Five commenters did not agree that the regulated area notification
provisions were unnecessary or should be deleted (Exs. 3-16, 17, 18,
27; 4-13). The UAW (Ex. 3-17) observed that the stronger argument would
be to extend the requirement to other standards. This would enable OSHA
to target health inspections more efficiently. The AFL-CIO (Ex. 3-27)
stated:
We are also opposed to removing the requirement to notify OSHA
whenever regulated areas are established for the 16 carcinogens.
This information can be extremely helpful in protecting worker
health by identifying effective methods to control exposure and
targeting OSHA inspections. Instead of eliminating this requirement,
the agency should improve all its health standards by incorporating
this provision into all of its health standards.
Also, the ICWU (Ex. 4-13) believes the rule at least encourages
employers to investigate and institute corrective actions.
OSHA concludes that the notification requirements are not adding to
worker protection and eliminating them will reduce the collection of
information (paperwork) burden and overall improve compliance with OSHA
health standards by making them more consistent. OSHA has not been
using these reports for enforcement purposes. (See Ex. 9.) These are
older standards with a high degree of compliance and where technology
was long ago developed to achieve compliance. OSHA has other methods
for targeting inspections. OSHA therefore has decided to eliminate
these reporting requirements.
L. Reporting Emergencies to OSHA
Paragraph 1910.1017(n)(2) of the vinyl chloride standard and
paragraph 1910.1045(d)(2) of the acrylonitrile standard require
employers to report the occurrence of emergencies involving these
substances to the nearest OSHA Area Director/Office. The preambles to
these standards are silent on the reason for this reporting requirement
and OSHA has not found such reporting, which has occurred only rarely,
useful. In addition, other Agency substance-specific standards do not
have such a requirement. Accordingly, OSHA proposed to delete these
reporting provisions as unnecessary and a way to reduce unnecessary
collections of information (paperwork burdens). OSHA asked for comment
on the proposed deletions and for information on any impact such an
action might have.
Thirteen commenters addressed the deletion of the provisions
requiring notifying the OSHA Area Director/Office of an emergency (Exs.
3-4, 8, 10, 13, 14, 16, 17, 18, 22, 27, 29; 4-11, 13). Of those, seven
commenters supported the modification (Exs. 3-8, 10, 13, 14, 22, 29; 4-
11) and six commenters did not (Exs. 3-4, 16, 17, 18, 27; 4-13).
Generally, commenters that supported the modification believed that if
OSHA does not use the information, then it should not be collected.
The commenters who did not agree with the modification indicated
that the information could be very useful to OSHA and employers if it
was collected and evaluated properly. The AFL-CIO (Ex. 3-27) argued:
The AFL-CIO is opposed to the deletion of this requirement
because it will weaken worker protection. Information from
emergencies can be used to identify hazards and inform other
employers using these substances about control procedures that can
eliminate similar emergencies from occurring in the future. The fact
that such reporting has been rare is irrelevant and not sufficient
justification to delete it from these two standards. Furthermore, it
is our position that this emergency reporting requirement should be
extended to all of OSHA's health standards. To do so, in our
opinion, would genuinely result in the improvement of the
[[Page 1123]]
agency's standards and increase worker protection.
OSHA remains unconvinced by these arguments that it should retain
the requirement to report emergencies for these two substances. OSHA
regions have not been utilizing the few reports which have been filed,
though several regional staff felt they conceivably could be useful.
However, that the plans could be useful is not very persuasive when
they have not been used. OSHA has other regulations for reporting
deaths and serious injuries (see 29 CFR 1904.39).
Speculation that employees may be protected by these emergency
reporting requirements does not outweigh the fact that emergency
reports required by these standards are rare and OSHA has found them
not to be useful. Finally, no evidence in the rulemaking records for
OSHA's more recent health standards compelled the Agency to include
emergency reporting requirements. Thus, OSHA had concluded that the
requirements are unnecessary and create a needless paperwork burden.
Therefore, the requirement to report emergencies to OSHA contained in
these two standards is being deleted in this final rule.
M. Semiannual Updating of Compliance Plans
The Agency's substance-specific standards typically require
employers to develop compliance plans to meet the exposure-control
objectives of the standard. Most of these standards specify that
employers must update these plans at least annually because OSHA
believed that annual updating was sufficient to ensure the continued
effectiveness of the plans. However, a few of the substance-specific
standards promulgated by the Agency require semiannual updating. These
standards include: the standard for vinyl chloride, paragraph
1910.1017(f)(3); the inorganic arsenic standard, paragraph
1910.1018(g)(2)(iv); the lead standard, paragraph 1910.1025(e)(3)(iv);
the coke oven emissions standard, paragraph 1910.1029(f)(6)(iv); the
DBCP standard, paragraph 1910.1044(g)(2)(ii); the acrylonitrile
standard, paragraph 1910.1045(g)(2)(v); and, the lead in construction
standard, paragraph 1926.62(e)(2)(v).
The preambles to these standards, vinyl chloride, inorganic
arsenic, lead, coke oven emissions, DBCP, acrylonitrile and lead in
construction, contained no evidence pointing to the need for a
semiannual update of compliance plans in facilities handling these
substances. Further, OSHA believed that current industry practice with
respect to health issues is annual updating, which is consistent with
other OSHA health standards. Based on these reasons, the Agency
proposed to revise those substance-specific standards that contain
semiannual updating to annual updating. The revision would make the
compliance plan update requirements consistent across health standards
without diminishing employee protection and would also reduce
unnecessary paperwork. The Agency solicited comment on any impact,
particularly on employee health, that the proposed revision might have.
Many commenters addressed the proposed change to an annual update
of compliance plans (Exs. 3-4, 7, 8, 10, 13, 14, 15, 16, 17 18, 22, 27,
28, 29; 4-7, 11, 12, 13). Most of these commenters supported the
revision as well as OSHA's reasons (Exs. 3-7, 8, 10, 13, 14, 15, 22,
28, 29; 4-7, 11, 12). However, some commenters disagreed with the
proposed change (Exs. 3-4, 16, 17, 18, 27; 4-13).
Of those commenters that endorsed the change, OxyChem (Ex. 3-10)
stated:
The VCM standard requires a written compliance plan whenever
employees' exposures exceed the Permissible Exposure Limit
(``PEL''). The compliance plan is intended to help reduce employee
exposures to or below the PEL through use of engineering and work
practice controls. The written plan is required to be updated semi-
annually. Like several other proposed revisions affecting the VCM
standard, OSHA proposes to revise this regulation to require an
annual update of the written plan. This will make these rules
consistent with recent occupational health standards. While semi-
annual plan updating may have been important when the VCM standard
was published, it is no longer needed due to the reduced potential
for exposure to VCM in the manufacturing and user industries.
OxyChem supports this proposal.
Additionally, the American Coke and Coal Chemicals Institute (Ex. 3-28)
noted:
ACCCI supports this revision, as it would have no diminishing
effect on employee safety and health. Engineering controls are well
established and maintained throughout the industry, and work
practice controls remain regimented within individual coke making
facilities. Furthermore, employee protection is ensured through
related compliance with other applicable standards such as
Respiratory Protection (1910.134) and Personal Protective Equipment
(1910.132).
Finally, the American Society of Safety Engineers (Ex. 4-11)
recommended ``this change to encourage uniformity in industrial health
recordkeeping.''
In contrast, the AFL-CIO (Ex. 3-27) remarked:
The AFL-CIO is opposed to OSHA's proposed change. The semiannual
requirement applies to a significant number of chemicals and is an
important provision, particularly in circumstances where changes in
the workplace occur that may increase the potential for worker
exposures. Furthermore, in the interest of increasing worker
protection, we believe this requirement needs to be added to all of
the agency's health standards.
After reviewing the comments, OSHA concludes that annual updates are
sufficient. Uniformity among standards is advantageous for improving
compliance. Semi-annual updating of compliance plans was most useful in
the years immediately following the promulgation of these standards. In
those years, employers were installing engineering controls, evaluating
their effectiveness and making modifications to increase their
effectiveness. Now that many years have passed and engineering control
strategies have been well established, the need to evaluate twice each
year is diminished and does not outweigh the benefits of consistency
among OSHA's health standards. Employees continue to be fully protected
by the substantive provisions of these standards. Consequently the
revisions will make compliance plan updates more consistent without
diminishing employee protection. The revisions will also reduce
employers' collection of information burdens (paperwork) which the
Paperwork Reduction Act requires OSHA to consider. Therefore, OSHA is
revising these standards to allow for an annual compliance program
review.
N. Notifying Employees of Their Exposure Monitoring Results
Many of OSHA's substance-specific standards require employers to
notify employees of their exposure monitoring results. The manner of
notification varies. (See Table 1) Some standards require the employer
to provide written notification to each employee in a monitoring
program and also post the monitoring results. Other standards require
the employer to only notify the individual of exposure monitoring
results. Still other standards require that monitoring results be
posted.
Obviously, the reason for employee notification of monitoring
results is for employees to be aware of their exposures to regulated
substances. However, the preambles to these standards do not identify
the reasons for the differences in the manner in which employees are
informed of their exposure results. Also, there was no evidence to
suggest that the timing differences were based on effects on
[[Page 1124]]
employee health. Therefore, OSHA believed that making the notification
and timing requirements consistent across standards would reduce
regulatory confusion and facilitate compliance without diminishing
employee protection.
The Agency proposed to allow employers to provide employees with
their exposure monitoring results either individually in writing, or by
posting the results in a readily accessible location, or by both. There
were a number of considerations identified by OSHA with regard to the
manner in which employees are notified. For example, individual
notification gives employees a permanent record and they may take
individual notification more seriously. Individual notification also
avoids possible privacy concerns that may be associated with posting
results. However, individual notification increases the paperwork
burden on employers. On the other hand, posting monitoring has
advantages. When monitoring results are posted, all employees, not just
those monitored, will have knowledge of overall exposure related trends
in their workplace. Posting monitoring results, however, might pose
privacy issues that will be discussed under section O, Additional
Issues for Comment. OSHA requested information on the impact the
proposed revision might have on employee protection.
Table 1.--Method of Notification and Time Period for Notification of Exposure Results
----------------------------------------------------------------------------------------------------------------
Standard Method of notification Maximum period for notification
----------------------------------------------------------------------------------------------------------------
Part 1910--General Industry
----------------------------------------------------------------------------------------------------------------
Asbestos: Paragraph 1910.1001(d)(7)(i)... Individually in writing or 15 working days.
posting.
Vinyl Chloride: Paragraph 1910.1017(n)(3) Individually in writing only 10 working days.
Inorganic Arsenic: Paragraph Individually in writing only 5 working days.
1910.1018(e)(5)(i).
Lead: Paragraph 1910.1025(d)(8)(i)....... Individually in writing only 5 working days.
Cadmium: Paragraph 1910.1027(d)(5)(i).... Individually in writing and 15 working days.
posting.
Benzene: Paragraph 1910.1028(e)(7)(i).... Individually in writing only 15 working days.
Coke Oven Emissions: Paragraph Individually in writing only 5 working days.
1910.1029(e)(3)(i).
Cotton Dust: Paragraph 1910.1043(d)(4)(i) Individually in writing only 20 working days.
1,2-Dibromo-3-Chloropropane: Paragraph Individually in writing only 5 working days.
1910.1044(f)(5)(i).
Acrylonitrile: Paragraph Individually in writing only 5 working days.
1910.1045(e)(5)(i).
Ethylene Oxide: Paragraph Individually in writing or 15 working days.
1910.1047(d)(7)(i). posting.
Formaldehyde: Paragraph 1910.1048(d)(6).. Individually in writing or 15 working days.
posting.
Methylenedianiline: Paragraph Individually in writing or 15 working days.
1910.1050(e)(7)(i). posting.
Butadiene: Paragraph 1910.1051(d)(7)(i).. Individually in writing or 5 working days.
posting.
Methylene Chloride: Paragraph Individually in writing or 15 working days.
1910.1052(d)(5)(i). posting.
------------------------------------------
Part 1915--Shipyard Employment
------------------------------------------
Asbestos: Paragraphs 1915.1001(f)(5)(i) Individually in writing or As soon as possible.
and (f)(5)(ii). posting.
------------------------------------------
Part 1926--Construction
----------------------------------------------------------------------------------------------------------------
Methylenedianiline: Paragraph Individually in writing or 15 working days.
1926.60(f)(7)(i). posting.
Lead: Paragraph 1926.62(d)(8)(i)......... Individually in writing only 5 working days.
Asbestos: Paragraphs 1926.1101(f)(5)(i) Individually in writing or As soon as possible.
and (f)(5)(ii). posting.
Cadmium: Paragraph 1926.1127(d)(5)(i).... Individually in writing and 5 working days.
posting.
----------------------------------------------------------------------------------------------------------------
In addition to the notification requirements, these standards
contain a variety of different time limits between receipt of
employees' exposure monitoring results and notification of employees.
Employee notification time for exposure results range from ``as soon as
possible,'' to 5, 10, 15 or 20 working days after the employer receives
the monitoring results. See Table 1 for the amount of time permitted by
15 substance-specific standards for general industry, one for shipyard
employment, and four for construction.
OSHA proposed to require employers regulated by the 15 substance-
specific standards for general industry to notify employees of their
exposure monitoring results within 15 working days of receiving the
results. OSHA believed a consistent time-period would simplify employer
compliance and found no reason to believe that 15 days is an
unreasonable time frame or would in any way compromise employee
protection.
For construction employers covered by the methylenedianiline, lead,
asbestos, or cadmium standards, and shipyard employers covered by the
asbestos standard, OSHA proposed to require notification as soon as
possible but no later than five working days after the employer
receives the results of exposure monitoring.
The asbestos and cadmium standards established different time
periods for notification based on the industries affected. Although the
general industry asbestos standard requires employee notification
within 15 working days, both the construction and shipyard employment
asbestos standards require notification ``as soon as possible.''
Construction and shipyard employers were believed to have employees
that were involved in more short-term and intermittent activities.
Also, the general industry cadmium standard requires employee
notification within 15 working days while the construction cadmium
standard requires notification within five working days. Again, the
preamble to the construction cadmium standard states that the five
working-day notification period is appropriate because of the short
term nature of many construction jobs (57 FR 42383).
OSHA requested comment on the appropriateness of the different
notification time periods. The Agency believed that factors such as
short-term or intermittent projects might justify retaining the shorter
notification periods for construction and shipyard employment
activities, although some health standards allow 15 working day time
periods standards for these industries.
[[Page 1125]]
OSHA invited comment and information on the proposed revisions to
the notification requirements in OSHA health standards, particularly on
the differences proposed for employers in different industries and any
reduction in employee protection that may result from the proposed
revisions.
OSHA received 24 comments on the means of employee notification and
the time period to inform employees the results of exposure monitoring
(Exs. 3-1, 3, 4, 5, 7, 8, 10, 13, 14, 15, 16, 17, 18, 22, 23, 24, 26,
27, 28, 29; 4-7, 11, 12, 13). Of these comments, the majority addressed
OSHA's proposal to allow informing employees of their exposure
individually in writing, by posting the results, or by both (Exs. 3-1,
4, 7, 8, 10, 15, 16, 17, 22, 23, 26, 27, 28, 29; 4-12, 13) and most
supported the proposal (Exs. 3-1, 7, 8, 10, 15, 16, 22, 23, 28, 29; 4-
12, 13).
For example, Phelps Dodge Corporation (Ex. 3-7) remarked:
We support OSHA's proposal to allow employers to provide
employees with their exposure monitoring results either individually
in writing or by posting the employees' results in a readily
accessible location. We agree with OSHA's preliminary finding that
the goal of ensuring that employees are aware of their exposures can
effectively be met either by individual written notification or by
posting results in a location that is readily accessible to all
employees whose results are being posted. Posting results for
general observation is efficient and provides a large number of
people access to the exposure monitoring results. However, in some
cases, individual written notification may be the preferred method
of communication if the notification involves sensitive information.
We ask OSHA to provide employers with the flexibility to choose the
best method to notify employees and make this notification an
effective communication tool.
The United Steelworkers of America (Ex. 3-16) stated that ``We agree
that these standards should be harmonized, and we agree that exposure
results could be provided individually or by posting.''
One commenter that supported employer choice of individual
notification or posting, expressed concern about employee privacy with
respect to posting monitoring results. OxyChem (Ex. 3-10) observed that
``employers should not be forced to utilize employee identifiers that
invoke privacy concerns when performing the notification of
monitoring'' such as social security numbers. OSHA absolutely agrees
that employers should not use employee identifiers when posting
monitoring results and does not require such identification and
emphatically recommends that employers not use such identifiers.
Several commenters did not support allowing employers the latitude
in choosing the method of informing employees about their exposures
(Exs. 3-4, 17, 26, 27). The Paper, Allied-Industrial, Chemical & Energy
Workers International Union (PACE) (Ex. 3-4) remarked:
PACE sees no need or rationale for OSHA to change the
requirement that employees receive their own test results on an
individual basis. The proposed change is highly objectionable. In
fact, OSHA should required that employers provide written
notification of such results to individuals and, in addition, should
require employers to post such results on an anonymous basis in a
conspicuous place in the workplace. Many workers do not pay much
attention to bulletin boards in the workplace and, therefore, use of
such a communication method would likely not be effective. Also by
being provided a written copy of exposure monitoring results, the
employee has a record of exposures to toxic substances in a form
that they can take with them, should they change employers.
OSHA concludes that its proposal to permit employers to either post
or individually provide monitoring data to employees is justified.
There is a substantial health benefit to employees to posting. They
will be able to know exposures in all parts of the workplace, to know
whether the employer is keeping exposures below the PEL, where in the
workplace they need to wear a respirator and overall exposure trends.
Individual notification may have some privacy benefits and employees
may take the notification more seriously. Balancing these factors, and
the reduced collection of information (paperwork) burden and increased
flexibility at giving the employer the option, OSHA concludes that the
proposal is justified. If an employee wants a copy of the record, then
the employee can request the record under the 29 CFR 1910.1020, Access
to Employee Exposure and Medical Records standard.
Of the 24 comments that addressed employee notification and the
time limits for informing employees of exposure results, 21 commented
on the number of days employers should have before notifying employees
of exposure (Ex. 3-1, 3, 4, 5, 7, 8, 10, 13, 14, 15, 16, 23, 24, 26,
27, 28, 29; 4-1, 7, 11, 13). Although commenters generally agreed that
it would be beneficial to have a consistent timeframe across standards,
some commenters believed that 5 days should be the reporting time for
general industry rather than the proposed 15 days (Exs. 3-4, 16, 26,
27; 4-13). For example, PACE (Ex. 3-4) remarked:
OSHA's proposal to standardize the reporting period for employee
monitoring results is fine, but the period should be a maximum of
five days. There is really no need for a longer period of time.
Providing for a longer period of time for notification communicates
the lack of importance of such monitoring. In addition, use of a one
week period will allow workers to remember what kinds of activities
they were engaged in on the day of monitoring, which, in turn, may
have lead to excessive exposure. Hence, the utility of exposure
monitoring would be enhanced with a short notification period.
The United Steelworkers of America (Ex. 3-16) observed:
We agree that these standards should be harmonized, and we agree
that exposure results could be provided individually or by posting.
But there is no reason for an employer to hold monitoring results
for up to three weeks before passing them on to the employee,
especially when the employer can do so by posting. These standards
should be harmonized upwards, to a maximum notification period of
five working days.
Finally, the AFL-CIO (Ex. 3-27) stated that:
The AFL-CIO fully agrees that it is reasonable to establish
consistency in the notification period. However, it is our position
that, in order to be genuinely consistent in protecting workers from
exposures to all of these substances, a 5 day notification period
should be applicable across all industries and not just construction
and shipyard industries. Again, OSHA's proposed 15 day period for
general industry is the lowest common denominator. Reducing,
uniformly, the notification period to 5 days increases worker
protection by reducing the period of time between notification of
the results and the subsequent implementation of responses to reduce
worker exposure where overexposures have been identified.
On the other hand, the majority of commenters agreed with the 15
day uniform reporting proposal for general industry (Exs. 3-1, 3, 7, 8,
10, 13, 14, 15, 22, 28, 29; 4-1, 7, 11). A commenter from Phelps Dodge
Corporation (Ex. 3-7) observed:
We support OSHA's proposal to make the requirements for
notifying employees of exposure monitoring results in the 15 general
industry standards consistent at 15 working days. This time interval
ensures timely communication of results to employees, while giving
employers sufficient time to adequately evaluate and communicate
exposure-monitoring results. In addition, many standards require
that the employer communicate a corrective action plan to the
employee when exposures exceed the Permissible Exposures Limit. It
is often impossible to develop an effective and realistic plan in
less than 15 working days.
Dow Chemical Company (Ex. 13) remarked:
Having consistency in this area will greatly reduce
administrative burden as well as
[[Page 1126]]
regulatory confusion. This, in turn, will facilitate better
compliance without diminishing employee protection.
The American Coke and Coal Chemicals Institute (ACCCI) (Ex. 3-28) also
supported the proposal by stating:
ACCCI is in agreement with the proposal revisions, as they would
facilitate regulatory compliance without adversely affecting
employee health. By increasing the notification period to 15 days,
it not only provides consistency with other standards but also
provides employers with the leeway to work through periods when
employees may be away from work and to coordinate any remedial
testing that may be warranted by the initial results.
Finally, the American Chemistry Council (Ex. 3-29) noted:
The wide variety of existing requirements creates confusion and
an unnecessary burden on employers to keep detailed records on
individual employees' different potential exposures. ACC recommends
OSHA establish a uniform reporting timeframe (e.g. fifteen days).
A few commenters urged OSHA not to limit the maritime shipyard
proposal (Ex. 3-1) or the construction proposals (Exs. 3-5, 7, 13, 24;
4-7) to a 5-day notification rather than a 15 day notification.
Northrop Grumman Newport News (Ex. 3-1) indicated that it:
Does not agree with the proposal to require notification ``as
soon as possible but no later than five working days'' after
shipyard employers receive exposure-monitoring results. The shipyard
employee population is as non-transitory as general industry in
spite of short-term and intermittent projects and that those
employees will receive exposure notification as effectively as in
general industry.
With respect to the construction industry, Phelps Dodge Corporation
(Ex. 3-7) stated:
We believe that the construction industry should also be allowed
15 working days to communicate the results of exposure monitoring.
While some employees in these fields are employed for only short
periods of time, the employer would still be able to reach them to
communicate their results in the vast majority of cases. Interaction
between employers and transient employees continues to take place
when paychecks or tax documents are mailed. We believe that the
proposed five-day time limit in the construction standard
effectively prohibits any meaningful employee involvement in
developing action plans.
Dow Chemical Company (Ex. 3-13) remarked:
While we understand the premise for the difference in report
times (namely, that the transient nature of construction work and
the construction workers may lead to difficulty in communicating
results), this has not been our experience. Construction workers
must still provide addresses to their employer and this information
can still be channeled to the individuals accordingly. Moreover,
employees in general industry as well as construction are advised of
their rights to access this information. To have inconsistent
notification requirements will be confusing for General Industry
employers that may have extensive construction work on their sites,
as they may have to comply with both standards. Dow believes that
both the General Industry and Construction Standards should follow
the proposed 15 working day requirement for employee notification.
Finally, Pinnacle West Capital Corporation (Ex. 4-7) observed:
We see no reason to have a shorter period for construction
workers. Our experience is that when we monitor a contractor's
employee, we provide notice to the construction company, who is then
required to provide it to their employee. The 15 working day period
would allow enough time to complete the notification. Even when the
worker has left the construction company's employment, they usually
have either his/her home address or know for which union he/she
works. This notification can be made to either place. Less than 15
working days almost make this almost impossible.
OSHA has concluded that a uniform time limit for notifying
employees in general industry has substantial benefits. It will improve
employer understanding of standards and improve compliance. As a
practical matter it will reduce employers paperwork burdens because
their compliance program will be simpler and uniform. There will be no
reduction in employee protection and probably improvement because of
improved compliance. The 15 working day period is a reasonable time for
notification in general industry with its more stable workforce and is
the time frame OSHA adopted in most of its health standards for general
industry.
Employment at a particular location is often brief in construction
and sometimes brief in shipyards. Therefore OSHA is finalizing the
proposal ``as soon as possible but not more than 5 working days''
requirement for asbestos in shipyards and MDA, lead, asbestos, and
cadmium in construction.
O. Additional Issue for Comment
Social Security Numbers
OSHA's substance-specific standards require that exposure
monitoring and medical-surveillance records that the employer is
required to retain, include the employee's social security number
(SSN). In the preamble to the final methylene chloride standard (62 FR
1598, January 10, 1997), OSHA justified the requirement for employers
to document social security numbers by observing that the numbers are
correlated to employee identity in other types of records and that they
are a more useful differentiation among employees since each number is
unique to an individual for a lifetime and does not change as an
employee changes employers. In a letter of interpretation regarding the
use of social security numbers in the asbestos standard for
construction (April 16, 1999), the Agency provided the following
response. Many employees have identical or similar names and that
identifying employees solely by name makes it difficult to determine to
which employee a particular record pertains. The use of SSNs avoids
this problem because they are unique to an individual.
In addition, epidemiologic studies of employee health from
workplace exposures to toxic substances require that social security
numbers be attached to employee medical and monitoring records. Only in
that way can employee health end points be compared to employee
exposures over many years, over changes in employers and ultimately be
compared to death certificates.
However, OSHA has examined alternatives to requiring SSNs in its
requirements for employee identification due to growing concerns about
individual privacy. In Phase II of the Standards Improvement Project,
OSHA requested public comments on: the necessity, usefulness, and
effectiveness of SSNs as a means of identifying employee records in
exposure monitoring and medical-surveillance records. Further, OSHA
asked whether there were privacy concerns or issues raised by this
requirement. Finally, the Agency inquired about the existence of other
equally effective methods of uniquely identifying employees for OSHA
exposure and medical-surveillance records.
The Agency received 14 comments with respect to OSHA's requirements
to use employee SSNs in records (Exs. 3-1, 7, 9, 16, 17, 24, 26, 27,
28, 29; 4-6, 7, 11, 13). Seven commenters believed that SSNs needed to
be retained in OSHA standards (Exs. 3-9, 16, 17, 24, 27; 4-6, 13).
NIOSH (Ex. 9) strongly believes in the use of SSNs. NIOSH stated:
In NIOSH's experience, the SSN is the most practical identifier
when studying large workplace populations. Any other unique and
unchanging individual identifier that would accompany a worker
throughout his or her life would essentially serve as an SSN
surrogate. This alternative identifier would also have to be a
unique personal identifier
[[Page 1127]]
and would thus share any privacy concerns associated with the use of
SSNs.
NIOSH listed a number of shortcomings concerning the use of employer-
generated identifiers. They include:
1. Use of non-unique identification numbers or codes across
employers;
2. Re-issuance of previously used identification codes to different
individuals;
3. Periodic changes in identification codes with changes in company
ownership or organization;
4. Introduction of new or revised data management systems;
5. Changes in product lines;
6. Elimination of functions or activities;
7. Implementation of new payroll or other administrative systems;
8. Revision of job titles;
9. Abbreviations following personal names (e.g., Jr., Sr., Esq.)
10. Variations in spelling of names or name changes (for example,
through marriage).
The United Steel Workers of America (Ex. 3-16) remarked:
Employers currently use social security numbers on virtually all
employee records. Almost all health care institutions and insurance
companies identity individuals by social security number. We
understand OMB's privacy concerns, but employee exposure records are
an insignificant part of the problem of workplace privacy. Deleting
requirements for social security numbers would complicate record
handling. It would also complicate epidemiological studies, which
depend on social security numbers to ascertain vital status.
Also, Verizon Communications, Inc. (Ex. 3-24) offered its opinion on
why SSNs should be retained in OSHA health standards:
Anytime a SSN is used as an identifier on paperwork, one might
raise the issue of privacy. However, one should try to balance these
privacy issues against the need to have a unique identifier that can
be used to track individuals. Certainly, a SSN is unique and follows
the person for a lifetime. There is no ambiguity when such an
exclusive number is used. In work-related exposure situations, it is
desirable to track individuals for the short term and the long term.
There is a strong emphasis within the public health arena to follow
and protect workers, especially over a working lifetime with
multiple employers. Verizon believes that this need outweighs the
potential privacy issues involved in using a SSN for tracking
purposes. Verizon is not aware of anything comparable to a SSN that
could serve a similar purpose. Even if there were, privacy issues
might also be raised with its use. In summary, it is Verizon's
opinion that if one balances the uniqueness of SSN and the strong
public health policy to follow and protect these individuals
employees against the public's interest in maintaining adequate
privacy, the scales are tipped in favor of retaining the current
system.
Four commenters disagreed with continuing the use of SSNs (Exs. 3-
1, 7, 28; 4-7) and suggested that some other identification system
should be developed to identify employees for the purposes of exposure
monitoring or medical-surveillance. Northrup Grumman Newport News (Ex.
3-1) expressed:
OSHA should not continue to require that social security numbers
be used as identifiers in employee exposure records. Widespread
personal security concern associated with using them to identify
individuals and records makes this practice unpopular and
unnecessary in today's environment.
Many companies, including Northrop Grumman Newport News, have
already implemented alternative employee identification systems to
allay employee security concerns and are in the process of phasing-
out routine use of social security numbers as identifiers. If OSHA
were to continue to require the use of social security numbers,
employers using alternative numbering systems would be forced to
maintain redundant and more secure social security number systems.
This would be unnecessarily cumbersome, would not provide added
benefit to OSHA, employers or employees and would be a continued
concern to employees worried about personal security issues.
Another commenter, Pinnacle West Capital Corporation (Ex. 4-7), stated:
We see no value in requiring monitoring records to include the
social security number (SSN). Most employees, either ours or
contractors are reluctant to give their SSN for privacy reasons. The
only reason we were ever told that SSNs were necessary was for use
in future epidemiological studies. We use our unique employee
numbers for our workers. If needed for an epidemiological study, we
could cross-reference the SSN from our employee numbers. That should
be adequate to meet this need.
Finally, a few commenters recognized the need to identify employees
for exposure monitoring and medical-surveillance but suggested that
some other identification system might be developed in the future (Ex.
3-26, 29; 4-13). The American Chemistry Council (Ex. 3-29) indicated
that it believed SSNs are the most effective means of tracking lifetime
exposures to employees. ``However, we also recognize potential privacy
concerns within individual companies that may warrant further
discussion and consideration. ACC would be interested in discussing
alternatives with other stakeholders should OSHA convene such a
group.'' The International Chemical Workers Union (Ex. 4-13) indicated
that it is concerned about identity theft and that a means must be
found to both protect employees privacy and ensure continuity of
records across time and across employers.
Finally, the American Society of Safety Engineers (Ex. 4-11)
remarked that employers should have the flexibility to use any system
that enables accurate identification and tracking of employees for
medical purposes.
OSHA health standards require employers to keep social security
numbers with monitoring and medical records which employers are
required to retain. All employers have access to employee social
security numbers for tax purposes. OSHA's Access to Employee Exposure
and Medical Records standard, 29 CFR 1910.1020, grants access to
employee medical records only to the employee, those who the employee
authorizes in writing to have access and to OSHA in circumstances
requiring OSHA to rigorously protect the employee's privacy. So there
is no additional privacy concern created by having social security
numbers included in the medical records beyond that already existing in
the employers use of the social security numbers for payroll and tax
purposes.
Access to employee exposure records is similar except that a
collective bargaining agent for an employee does have access to the
monitoring data for employees. That assists collective bargaining
agents to negotiate on employee health protection issues.
However, there is no requirement and no need for an employer to
attach social security numbers to employee exposure records it intends
to post or provide to anyone other than the employee whose record it
is.
OSHA is not taking action in this final rule concerning the use of
SSNs in the various health standards. OSHA believes that all commenters
have raised significant concerns and that it will need to investigate
this issue in greater detail.
First Aid
One commenter (Ex. 3-20), the American Heart Association, responded
to the proposal with a request to eliminate or revise the OSHA
Directive CPL-2-2.53, Guidelines for First Aid Training Programs. The
request to revise the OSHA Directive is not a part of rulemaking and
therefore has not been considered in this final rule.
III. Legal Considerations
The Agency concludes that the final rule does not reduce the
employee protections put into place by the rules being revised. There
is no change in exposure limits or action levels. There
[[Page 1128]]
are no reductions in respiratory protection, personal protective
equipment or industrial hygiene provisions. There is therefore no
change in risk and no need to determine significant risk, or the extent
to which the proposed rule would reduce or increase that risk, as would
be required by Industrial Union Department, AFL-CIO v. American
Petroleum Institute, 448 U.S. 607 (1980), the Supreme Court ruling
applying to standards addressing new hazards, setting more stringent
standards, or reducing employee protection. Accordingly, no further
analysis of significant risk is necessary as that has already been
determined when OSHA issued the underlying standards.
A number of the amendments made by this rule change medical and
monitoring provisions. These changes are covered by Sect. 6(b)(7) of
the OSH Act.
IV. Final Economic Analysis
OSHA has determined that this final rule is not an economically
significant regulatory action under Executive Order (E.O.) 12866. E.O.
12866 requires regulatory agencies to conduct an economic analysis for
rules that meet certain criteria. The most frequently used criterion
under E.O. 12866 is that the rule will impose annual costs on the
economy of $100 million or more. Neither the benefits nor the costs of
this rule exceed $100 million. OSHA has provided OMB's Office of
Information and Regulatory Affairs with this assessment of the costs,
benefits and alternatives, as required by section 6(a)(3)(C) of E.O.
12866.
OSHA has also determined that the final rule is not a major rule
under the Congressional Review provisions of the Small Business
Regulatory Enforcement Fairness Act. The Regulatory Flexibility Act of
1980 (RFA), as amended in 1996, requires OSHA to determine whether the
Agency's regulatory actions will have a significant impact on a
substantial number of small entities. OSHA's analysis, based on the
analysis in this section of the preamble as well as the later section
``OMB Review Under the Paperwork Reduction Act'' below, indicates that
the final rule will not have significant impacts on a substantial
number of small entities. Indeed, the final standard reduces the costs
and paperwork on all affected entities, including small businesses. The
rule benefits small entities by reducing costs and paperwork.
The final standard deletes or revises a number of provisions in
existing OSHA standards. The reasons for these changes are presented
and discussed in subsections A through N in the Summary and Explanation
of this preamble above. Most of the provisions delete requirements that
the Agency has concluded are unnecessary to protect employee health.
Some of the provisions provide greater flexibility in complying with
requirements or reduce reporting requirements that have proved to have
little if any value in protecting worker health. One provision updates
a reference to a current consensus standard (for first aid kits) and
another corrects a technical error in requirements for evaluating x-
rays for lung cancer.
The final rule is technologically feasible because it reduces or
eliminates current requirements on employers. The Agency considered
regulatory and non-regulatory alternatives to the final rule. Because
every final provision reduces requirements or provides flexibility to
employers by revising current standards, non-regulatory alternatives
are not an appropriate remedy to affect those changes. As discussed in
the Summary and Explanation section above, the Agency considered
alternatives to amending the several ancillary provisions. In most
cases, the Agency chose to revise older ancillary provisions to make
them consistent with standards more recently promulgated by the Agency.
In some cases, the final standard provided more flexibility in the way
information is communicated to employees or the Agency. All of the
final provisions were intended to reduce burden on employers--or
provide flexibility--while maintaining necessary protections for
employee health.
This Final Economic Analysis provides estimates of the cost savings
resulting from the final standard. All of the changes OSHA is making
are expected to reduce employers' costs of compliance. The revised
standard eliminates or reduces requirements for many ``ancillary''
provisions, provides greater flexibility for compliance for others, or
reduces paperwork/reporting requirements. For most of these changes,
economic benefits can be quantified. Where revisions have only provided
greater flexibility for compliance, the Agency has not calculated any
cost savings.
The Agency received several comments in response to the proposal
that asserted that the proposed standards would weaken employee
protection (e.g., AFL-CIO, Ex. 3-27). However, as discussed above in
the Summary and Explanation section, the Agency has concluded that the
final standards do not reduce protection for employees. Amending the
ancillary provisions of older standards will make them consistent with
the industrial hygiene and surveillance practices of more recent
standards.
The Agency received only a few comments on the estimates of cost
savings from the proposed standards. A co