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House Subcommittee Holds Hearing on the Adoption of Non-Consensus Standards

New York, May 03, 2006

The U.S. House of Representatives’ Subcommittee on Workforce Protection held a hearing last week on the adoption of non-consensus standards by the U.S. Department of Labor (DoL) and its subsidiary agencies. Primary focus was given to the Occupational Safety and Health Administration’s (OSHA) practice of incorporating non-consensus based guidelines for hazardous material exposure limits into federal regulations.

There has been an ongoing debate surrounding DoL’s incorporation practice, under which guidance documents incorporated into federal regulations become de facto standards, without the due process of a public comment period. The incorporation practice was the focal point of discussion at a House subcommittee hearing in 2002; currently, several lawsuits are challenging DoL’s practice. The hearing last week served as a forum to gauge current perspectives on the practice.

Chaired by U.S. Representative Charlie Norwood (R-GA), the hearing included testimony from four witnesses representing a cross-section of industries:

  • Elizabeth Marcucci, American Bakers Union (ABA)
  • Henry Chajet, Patton Boggs LLP
  • Jim Ruddell, National Stone, Sand and Gravel Association (NSSGA)
  • Frank Mirer, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UWA)

While critical of the rate at which OSHA adopts standards, one witness considered the non-consensus based guidelines adopted by OSHA as a valid starting point for workplace health and safety. All three of the other witnesses expressed strong objection to the practice, emphasizing that an open and transparent development process is critical to earning public confidence in a standard. In particular, the testimonies underscored the need for stakeholder participation in standardization activities, and for standards to be based on sound, scientific data.

“The use of voluntary consensus standards . . . will encourage long-term growth and help maintain the competitiveness of U.S. enterprises around the world,” said Mr. Ruddell of the NSSGA. “Today’s regulatory process requires the consideration of all available technical and economic feasibility data when setting permissible exposure limits for American workers.”

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