As times change, OSHA still shows signs of life

Published: October 01, 1995, By MacArthur, Malcolm D.

As a result of the "Republican Revolution" and the push to restrict activities by government agencies, the perception exists that the Occupational Safety and Health Administration (OSHA) has hunkered down in anticipation of being dismantled by the Congress. But whatever change will be made in the agency's structure and operations, for the time being it remains active on a number of fronts. They include injury and illness recordkeeping, ergonomics, forklift operator training and indoor air quality.

Recently OSHA released a preproposal draft of an amended injury and illness recordkeeping rule and held meetings with representatives from the business community, organized labor and state OSHAs. The agency implied that the proposal would be revised in response to comments provided by the public. It then made a total of approximately 58 substantive changes to the regulatory text and included industry-drafted discussion in the preamble.

The current version of the recordkeeping proposal was approved by agency head Joe Dear on June 5 and began its journey through the internal review process at the Dept. of Labor.

If all goes well from the OSHA perspective, the Secretary of Labor would approve it and forward the proposal to Office of Management and Budget (OMB) for review. OSHA is trying to get the proposal to OMB early, so that OMB review would be governed by the limited requirements of the "old" paperwork reduction act rather than the vigorous review under the amended paperwork reduction act.

Meanwhile, industry groups are continuing to develop regulatory and preamble language that more accurately reflects what OSHA has agreed to do and advocates approaches that OSHA is willing to include as alternatives.

On the subject of ergonomics, OSHA released a preproposal working draft of an "Ergonomic Protection Standard" several months ago. The agency held 11 meetings with interested persons to receive feedback on the draft regulatory text and appendices that total more than 500 pages.

Joe Dear had originally planned to publish an ergonomics proposal in 1994, but the November elections and strong opposition by the business community persuaded him to slow the process down. Dear is now saying that he will not move forward with a formal rulemaking until he senses support from Congress or the business community. Barring any significant new scientific developments, that time is likely to be years away.

In the interim, as part of OSHA's reinvention, the agency announced that it had hoped to develop by September 1995 an education and enforcement strategy to bring attention to ergonomics. This change in direction is consistent with signals from Congress, including the unsuccessful effort of Congressman Tom DeLay (R-TX) to prohibit OSHA from developing a standard. Although vetoed by President Clinton on June 7, 1995, a bill that passed Congress included language to prohibit OSHA from promulgating or issuing a standard or guidance on ergonomics.

The change in direction at OSHA coincides with the departure of Barbara Silverstein, who was spearheading OSHA's ergonomics efforts, and the rumored dismantling of the "OSHA Ergonomics Team."

OSHA is apparently operating under a "gentlemen's agreement," which provides that it will not have funds rescinded as long as it does not develop the regulatory text of an ergonomics standard.

With regard to forklift operator training, in March 1995 OSHA published a proposed rule on training for operators of powered industrial trucks. Currently, regulations require that operators be trained and that only trained operators be authorized to operate the trucks.

The proposed rule would revise the current one to provide specifics regarding the content and nature of training, rather than leaving it to employers to devise methods of training, as in the current rule.

To date, OSHA has received more than 100,000 comments in response to its proposed rule on Indoor Air Quality and Environmental Tobacco Smoke.

Hearings on the proposal began in September 1994 and did not conclude until March 1995. Participants in the hearing had until July 1995 to provide additional data to OSHA and until September of this year to counter testimony submitted in contradiction to their own. The November elections should have discouraged the agency from moving too quickly on this issue. OSHA is not stating publicly whether the standard remains an agency priority. However, no date for a final rule was provided in the agency's regulatory agenda.

Malcolm D. MacArthur is legal counsel to the Flexible Packaging Association, other trade groups and corporations.