OSHA has announced that it will NOT abandon its system for ensuring that electrical products used in the workplace are safe. The European Union requested that OSHA explore the possibility of adopting its system, known as Supplier’s Declaration of Conformity (“SDoC”).
Under the EU system, manufacturers declare that their products meet safety requirements before placing these products on the market, thus requiring EU governments to operate a post-market surveillance system to verify whether products are safety compliant after they already are on the market. Currently, OSHA requires employers to use electrical devices tested and certified by independent testing companies recognized by OSHA. These companies, known as “nationally recognized testing laboratories”, conduct tests to determine whether products are safe before manufacturers or distributors place them on the market and employers use them in the workplace. In 2008, in response to the EU’s request for the U.S. to adopt an SDoC system, OSHA issued a request for information (“RFI”). It was the second RFI on this issue published by OSHA in the last five years. By statute, OSHA must demonstrate, based on substantial evidence, that its safety regulations and standards will provide or maintain a high degree of protection for U.S. workers. After reviewing comments submitted in response to the RFI, OSHA determined that the burden required for OSHA to revise its standards was not met. OSHA also is not convinced that the cost of administering such a system is compatible with its current budget. Based on limited information obtained from post-market surveillance costs of two EU countries, OSHA estimated that implementing an SDoC system throughout the U.S. would cost hundreds of millions of dollars. OSHA also currently lacks explicit legislative authority to implement the enforcement powers required for an effective SDoC system, including issuing product recalls and bans, assessing fines, and imposing criminal penalties.