Chapter 5
Jurisdictional Standards
5.1 Regulations and Jurisdictional Requirements
A special category of standards that affects practically all organizations is that group of regulatory standards promulgated by federal, state, and local jurisdictions such as OSHA, DOT, DOE, EPA, Cal-OSHA, counties, cities, and regional governing bodies. These standards have the distinction of being enforceable by legal sanction, typically fines, and in some cases incarceration. This is different from standards that may have been agreed upon by contract between two companies, which do not have the same means of enforcement.
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A regulation is an implementation of a law established by an official governmental jurisdiction for the purpose of achieving specific public good. It is put in place after action by a legislative body either instructing or authorizing an agency to create regulations in a particular area. The general category of regulations includes both administrative requirements and engineering regulations, the latter of which often have specific engineering requirements, but also almost always reference various local, national, or international codes and standards. As an example, many jurisdictions, especially at the state level, require compliance with the ASME Boiler and Pressure Vessel Code for pressure vessels, the International Building Code (IBC) for general construction, and the National Electrical Code for electrical installations. The practice of giving voluntary consensus standards (VCS) the force of law by referring to them in a law or regulations is referred to as “incorporation by reference” and is dealt with in more detail in Section 5.3.
Compliance with these codes becomes a legal requirement since they are specified in the regulations.
Because jurisdictions typically have wide responsibilities, are subject to various standards of openness, and for various reasons may not be ready to adopt the latest standard, it is common to have the required code or standard edition out of phase with the most recently published edition of a given code. This is typically the case with the National Electrical Code, for example, where reference to a given edition by a jurisdiction often lags behind the current code edition by several years. The OSHA regulations typically reference the VCS in effect at the time the regulations were written. For most regulations, this means the edition of standards that were in effect in the early 1970s (although a formal OSHA Letter of Interpretation states that compliance with a later edition will be viewed as a de minimis violation if the later edition provides an equal or greater level of safety). Care must be exercised to ensure that the correct edition of the standard is followed as well as identified in any contract documents.
The following table lists some jurisdictional organizations, with a brief discussion of the standards provided by each. Following this listing is a more detailed discussion of one organization (OSHA), its regulations, and their application. This list includes examples of state occupational safety organizations along with a number of organizations at the federal level. It does not attempt to address the myriad of city, county, regional, and other lower level jurisdictions.
| Organization | Jurisdiction |
| Cal-OSHA, VOSH, Oregon OSHA, etc. (see OSHA) | These are state organizations performing the same role within a state that OSHA performs generally. In order for a state program to be recognized by Fed OSHA as a suitable program in lieu of the federal one, the state occupational safety and health organization must demonstrate a program |
| essentially equivalent to the federal program. A number of states have chosen to implement such programs for a variety of reasons, but typically because they believe that they can achieve the same results with less intrusion or by means more favorable to local businesses. In some cases, they may choose to be more stringent than Fed OSHA | |
| CPSC | The Consumer Product Safety Commission maintains many standards for product safety, ranging from architectural glazing materials through bicycle helmets, infant bath seats, and baby cribs. Many of the CPSC standards are administrative and relate to product labeling, but there are many performance and other standards for individual products |
| DOE | The Department of Energy is a cabinet level department that was created by the Department of Energy Organization Act of 1977, which combined the Federal Energy Administration, the Energy Research and Development Administration, and the Federal Power Commission, along with some programs from other agencies. Originally concerned only with nuclear material, DOE responsibilities have expanded to include energy conservation, domestic energy production, and a significant amount of research in genomics and other physical sciences. It operates a number of well-known national laboratories, including Argonne, Brookhaven, Lawrence Livermore, Los Alamos, Oak Ridge, Idaho, and others DOE publishes a wide range of directives used to manage its efforts. Many of these are identified as guides and do not contain actual requirements, so they do not rise to the level of actual standards. It is also responsible for a large number of regulations relating to energy conservation, nuclear safety management, occupational radiation protection, chronic beryllium disease prevention, and worker safety and health for DOE contractors |
| DOT | The mission of the Department of Transportation is to “Serve the United States by ensuring a fast, safe, efficient, accessible and convenient transportation system that meets our vital national interests and enhances the quality of life of the American people, today and into the future.” Because of this broad mission, the DOT has equally broad portfolios of responsibilities and regulatory authority. It includes under its |
| authority the National Highway Traffic Safety Administration (NHTSA), the Federal Aviation Administration (FAA), the Federal Highway Administration (FHA), the Pipeline and Hazardous Materials Safety Administration (PHMSA), the Federal Motor Carrier Safety Administration (FMCSA), and others. It has regulations that address such issues as airline scheduling in the air traffic control system and rest requirements for truckers, safety of interstate motor carriers, and construction of roads and bridges. The regulations on truckers' logbooks are purely administrative, but there are also many regulations providing technical standards for concerns such as passenger and commercial vehicle safety devices, ground and aircraft based vessels for transporting pressurized gases, the process by which aircraft type licensing occurs, and minimum requirements for securing certain types of cargo in trucks (generally performance standards). It has teamed up with ASME to publish a national standard for cargo transport tanks (ASME Boiler and Pressure Vessel Code, Section XII, Rules for Construction and Continued Service of Transport Tanks) | |
| EPA | The Environmental Protection Agency is a relatively small government agency (<0.5% of the nation's budget), but has a disproportionately large impact on society due to the large number and range of its regulations. Close to 10% of its budget is related to civil and criminal enforcement of regulations covering climate change and air quality, water quality, cleanups, and chemical safety and pollution prevention. As with the other agencies listed, some EPA standards are essentially administrative. The general public is perhaps most familiar with EPA vehicle emissions and mileage standards. These affect everything from design of vehicles to the type of fuel that is available at gas stations |
| FDA | The Food and Drug Administration covers a wide range of areas including, as its name indicates, food and drugs, but also extending to medical devices. Most of its regulations would not be considered standards, but it maintains a significant database of “recognized consensus standards” for medical devices, ranging from test methods for calibration to acceptable materials for various applications |
| NRC | The Nuclear Regulatory Commission was established by the Energy Reorganization Act of 1974. It is responsible for enforcement of a number of regulations regarding civilian use of nuclear material and dealing with nuclear waste. Some of these regulations are technical and can justifiably be considered engineering standards, while others fall into the classification of general laws and regulations. Because its operations relate closely to and may overlap with those of other agencies, it has Memoranda of Understanding with those agencies, including the Departments of Justice, Labor, and Transportation, and with OSHA. The NRC is heavily involved with the ASME in writing rules for nuclear power plant components (ASME Boiler and Pressure Vessel Code, Section III, Rules for Construction for Nuclear Facility Components and Section XI, Rules for Inservice Inspection of Nuclear Power Plant Components), and also the ASME NOG (Nuclear Overhead Gantry) standards for electric overhead and gantry multiple girder cranes used at nuclear facilities and components of cranes at nuclear facilities |
| OSHA | Created by the Occupational Safety and Health Act of 1970, the Occupational Safety and Health Administration (OSHA), a part of the Department of Labor, is charged with assuring safe and healthful working conditions for employees by setting and enforcing standards, and by providing training, outreach, education, and assistance. OSHA regulations cover most private sector employers and their workers, and many public sector employees. Regulations (standards) cover most aspects of the workplace, and for those areas not specifically addressed elsewhere, the “general duty clause” has requirements for “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In general, formal interpretations as well as court cases have interpreted this to mean compliance with industry standards, although a responsible, effective, equivalent program is accepted. Specific areas for which standards are provided include agriculture, construction, general industry, and maritime employment. In areas where detailed standards are not provided, such as pressurized equipment, OSHA references other national standards such as the ASME Boiler and Pressure Vessel Code |
5.2 Jurisdictional Standards Implementation
It is typically the responsibility of businesses, including employers, airlines, mine owners, medical device manufacturers, and others to comply with jurisdictional engineering standards. While each jurisdiction has oversight authority, the extent to which this is exercised varies. In the case of medical devices, for example, the FDA performs a review of each device before accepting it for use. Within DOT, there are various administrations that use varying types and levels of oversight. The FAA has extensive certification procedures for aircraft designs, especially so for those that will be used as passenger aircraft, while the FHA has highway construction standards whose implementation is most often by contract. OSHA has extensive standards for employee safety, and has authority to inspect workplaces, but with over 100 million workplaces subject to its regulations, OSHA inspections are, on the average, rare. OSHA and the state OSH organizations conducted a total of approximately 100,000 workplace inspections in 2004 meaning that the average workplace will be subject to an OSHA inspection about once every 1000 years. Clearly, in this case, the good faith of most employers is very much depended on, while inspections are targeted toward those organizations identified as posing the greatest threat to employee safety.
Because of the ability of many regulatory agencies to levy fines or other sanctions as well as because of the civil liability that is implied by noncompliance in the event of a mishap, there is incentive (in addition to that of doing the right thing by their employees or customers) for companies to maintain compliance. The truth, however, is that implementation of jurisdictional standards is very much up to those being regulated by them. Thus far, while there have been some notable exceptions, this approach has worked very well.
5.3 Incorporation by Reference
Incorporation by reference refers to the practice of codifying material published elsewhere by referring to it in a regulation. This custom is useful, efficient, and has significant benefits for society, but it also entails challenges.
By reviewing and accepting the requirements of a VCS as its own, a jurisdiction saves the tremendous investment of resources that would be required to develop its own standard to the same level of detail and quality. It typically joins many other jurisdictions in adopting the same standard or standards, benefiting from the experience and knowledge of many of the foremost experts in the field, while also providing consistency in requirements among cities, counties, and states. Those subject to the requirements benefit in that they can apply one familiar standard, typically recognized as industry best practice, possibly in a number of different jurisdictions. Thus, a company installing home heating systems, for example, can often expect to be required to meet the same requirements regardless of the city, county, or even state in which it is performing work. This reduces risk to the installer and at the same time provides benefits to the homeowner in reduced costs and less confusion as to what is required.
For over 40 years the use of VCS to the extent reasonably possible has been the policy of the federal government. This was first documented in OMB (Office of Management and Budget) Circular A-119, followed by the National Technology Transfer and Advancement Act of 1995. This policy has been taken to heart, and approximately 10,000 VCSs have by this means become a part of the law. States and local jurisdictions have made extensive use of the same approach, although often without an explicit policy.
The results of this policy have largely been successful, but its value and appropriateness are sometimes questioned. Criticisms typically revolve around a few points.
5.3.1 Access to Reference Standards
Incorporation by reference often means that the user of the standard does not have full access to it without purchasing a copy of the standard. The typical solution to this problem has been maintenance of a reference copy of the document in the offices of the regulatory agency that references it. This is clearly unsatisfactory in many cases. Travel to Washington, DC, to review an ASME standard in the offices of OSHA is hardly practical for a company in a faraway state. Incorporation of the actual text of the standard has been considered, but involves copyright issues as well as in increase in the length of the regulation, defeating one purpose of the policy. Posting the standard online has also been discussed, but also involves copyright issues. Changing the copyright laws to allow such publication has been considered, but any of the proposed approaches involves diminishing the value of the copyrighted material. It is usual for the SDO producing a standard to use the sales of that standard to finance many of the costs of developing it. Significantly changing the copyright laws in this area would significantly change the business model of SDOs, likely not for the better. An approach followed by the Department of Homeland Security was to purchase licenses to distribute and allow download of various ASTM standards for a flat fee.
5.3.2 Updating of Reference Standards
A second challenge, referred to briefly above, is the issue of keeping a regulation current as referenced standards evolve. It has historically been considered important to avoid allowing a regulation to be changed by an outside body (the SDO) and to avoid confusion, so it is usual to specify the edition of any referenced standards. There is even a potential constitutional issue regarding delegation of authority of or by congress if the edition is not specified.
On the other hand, it is usual that products are produced to the current, or at least a very recent, version of a VCS. This can cause products that strictly comply with a regulation to be unavailable, and the available products to be technically out of compliance. Several approaches have evolved to address this issue. Some agencies use an equivalence approach, assessing later versions of a standard for equivalence. Technical amendments to regulations are sometimes issued. At times regulatory agencies have chosen informally to ignore technical noncompliances resulting from following a different version of a standard. A more formalized approach, reducing uncertainty for the regulated parties, was taken by OSHA with the issuance of a formal letter of interpretation stating that compliance with later versions of a reference standard would be considered a de minimus violation if the standard provides a level of protection equal to or greater than that provided by the referenced version.
Various other approaches have been considered, including the use of simplified procedures for changes to regulations that are not expected to be controversial, and writing into regulations a requirement that SDOs notify the regulatory agency allowing the revision to be explicitly addressed. While not yet in widespread use, these approaches may become more popular as their success in balancing the needs for transparency, stability, and flexibility are recognized.
5.4 Sample Jurisdictional Standard: The OSHA Regulations
Jurisdictional standards can accomplish their purposes by expressing specific items that must be accomplished or they can operate by specifying results to be achieved. The OSHA regulations most often do the former, both for consistency of application and because they were mainly developed at a time (early 1970s) when the safety discipline was not yet as well developed as it is today. They tell a person or employer what to do, often in great detail. When specific requirements are given, each requirement must be complied with, whereas when a performance standard is provided it is the responsibility of the affected party to determine and implement a means of achieving the required level of performance. The OSHA regulations provide safety standards for almost all fields of employment, however, and the approach does vary. For the cases in which there is not an applicable regulation, the General Duty Clause (see Section 5.4.1) is applied.
In the section of the OSHA regulations for general industry for overhead cranes (29 CFR 1910.179), many particulars of operational limitations and required inspections are specified. For example, there is a fairly detailed discussion of how the end of a wire rope may be attached to the drum. The OSHA section on Process Safety Management (PSM) of Highly Hazardous Chemicals (29 CFR 1910.119) (introduced in 1992, 20 years after most OSHA standards), on the other hand, is somewhat an anomaly in the OSHA regulations, being essentially a performance standard. Rather than providing explicit quantity–distance limits, as is done in the related section on explosives safety (29 CFR 1910.109), the PSM section requires the employer to perform process hazard analyses on the processes covered by the standard, providing a list of six different suitable analysis methodologies, and allowing for others as well. It lists a number of items that must be addressed in the analysis, and then requires that the employer establish a system to address the findings of the analysis, that the analysis be updated and revalidated at least every 5 years, that a system be in place to manage changes, and that employees be trained and informed throughout. The employer is allowed wide latitude in implementation, provided the approach is effective.
Regarding another example of a prescriptive requirement, an employer-user purchasing an air receiver, in order to ensure compliance with the OSHA regulations in 29 CFR 1910.169, must purchase a vessel that has been designed and constructed in accordance with the ASME Boiler and Pressure Vessel Code, Section VIII, Division 1. To meet the letter of the law, the 1968 edition (that edition is cited in the law because it was current at the time the regulation was written) of the code must be used. Flexibility to use a later edition of the code is provided by a formal letter of interpretation [1], which allows use of later editions if they provide an equal or greater level of protection, which they are recognized as doing. The user would therefore normally specify current ASME code construction in the contract with his supplier, and would obtain a vessel designed and constructed, with documentation and an ASME code stamped nameplate (referred to overall by OSHA as “Nameplate, Records, and Stamping,” or NRS), in accordance with the ASME Boiler and Pressure Vessel Code. If the supplier provides a vessel that does not meet these requirements, that is a matter between the user and the supplier, but the user who accepts the noncompliant vessel and puts it into service could be cited for an OSHA violation. Another letter of interpretation addresses what to do in the case of a vessel for which NRS are not available [1].
In cases where there is confusion, ambiguity, or simply a question as to the intent and application of a regulatory standard, it is usual for the jurisdiction to accept letters of inquiry (as do other consensus standard developing bodies). These letters of inquiry are responded to with letters of interpretation, formalizing the position of the regulatory body on the issue and publishing it for use of all employers. Such letters of interpretation provide guidance both to the employer and to the inspectors and other personnel in the regulatory organization, helping ensure uniform application of the regulations.
If an employer other than a federal agency wishes to operate some aspect of its business in a manner that does not comply with the OSHA regulations, then in order to avoid the possibility of citations, fines, or other sanctions, a waiver is normally required. For a federal agency employer an Alternate Standard (submitted to, and reviewed and approved by OSHA) takes the place of a waiver. Permission to deviate from requirements, which sometimes goes by different names for different standards developing organizations, is discussed in detail in Chapter 9.
Reference standards in regulatory requirements often get out of date. The intention is not to let this happen. However, because of workload as well as the barriers to changing regulations it often does. In order to make a significant change to any of the OSHA regulations there is a fairly rigorous review process that must be followed, with the result that some changes never get proposed, and some, if proposed, never get implemented. The public review process, while important to allow stakeholders a chance to weigh in on regulatory actions, can also stifle progress.
5.4.1 OSHA General Duty Clause
Many OSHA standards are quite prescriptive, while others such as the “Process Safety Management of Highly Hazardous Chemicals,” which provides performance standards in a specific area, are broadly written, allowing much flexibility to the user. When congress wrote the OSH Act of 1970, creating the Occupational Safety and Health Administration, it included a catch-all statement in Section 5(a)(1) of the act, requiring that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” This requirement is generally referred to as the General Duty Clause. Most major sections of the OSHA regulations do not repeat this requirement, requiring reference to the law itself when this requirement is to be applied, but the statement is repeated verbatim in 29 CFR 1960 Basic Program Elements for Federal Employees (found in 29 CFR 1960.8(a)).
This statement is applied only to those aspects of an employment that are not covered by more specific regulations. If an employer complies with all of the specific OSHA standards applicable to its operations, then it is considered to be in compliance with the General Duty Clause with respect to that issue. Thus, in the General Industry regulations, for example, 29 CFR 1910.5(f ) states, “An employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirement of 5(a)(1) of the Act, but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.”
Examples of categories falling under the General Duty Clause, for General Industry, are in-plant storage of pressurized nitrogen for process applications and requirements for lifting hardware not specifically addressed by 29 CFR 1910.184. In these cases, the usual OSHA approach would be to apply the most applicable industry VCS. Thus for in-plant pressurized nitrogen storage, OSHA would expect the employer to follow the ASME Boiler Vessel and Pressure Vessel Code unless the employer provides justification for some other approach to ensuring employee safety. For lifting appliances not addressed by the regulations, OSHA would expect compliance with the ASME standard for those particular devices. In either case, however, if an employer has in place a safety plan that addresses the issue effectively, it could normally be expected that OSHA would accept that plan in lieu of the ASME standard.
Also, when an employer performs operations for which the only OSHA standard is the General Duty clause (i.e., there is no specific applicable OSHA standard for the particular operation or area of operations), a very broad performance standard is being applied, and there may be an employer responsibility to develop and document its own standard. For operations of covered government agencies the requirement is specifically stated in 29 CFR 1960.18, Supplemental Standards, and the Supplementary Standard (the terms used in the title and in the text of the regulation are not the same) must meet certain review requirements and be submitted to OSHA for approval. For the private sector the responsibility is more generally included in the requirements for company safety plans, job hazard analyses, etc., but reference and enforcement directly to Section 5(a)(1) of the OSH Act may be expected if those company documents are found to be inadequate to ensure the safety of employees.
5.5 Summary
The above discussion examines some of the challenges facing organizations with jurisdictional authority, and the example illustrates some of the regulations and operations of a single such agency. Details vary from organization to organization, and from standard to standard, with a wide range of regulations and enforcement styles. The most significant reasons for organizations achieving compliance are the desire to do the right thing or a concern regarding liabilities and/or jurisdictional enforcing actions.
Appendix D lists some jurisdictional agencies.