By Eric J. Conn, Head of the OSHA Practice Group
Pursuant to the Regulatory Flexibility Act, the federal government and its agencies, such as OSHA, are required to give notice of significant rulemaking and other regulatory activity by publishing "semi-annual" regulatory agendas that outline the status of on-going and intended federal regulations and standards. Someone needs to tell the Administration that "semi-annual" means twice yearly, not every other year.
Historically, the Office of Information and Regulatory Affairs (OIRA) issues a Spring regulatory agenda sometime during the summer, and a Fall regulatory agenda sometime in the winter. Before last week (the final week of 2012), however, there had been no regulatory agenda published for 2012. The only regulatory agenda published during 2012, was for Fall 2011.
Congressional Republicans had been hounding the Administration for a regulatory agenda since well before the Election, believing the long delay was because the President feared bad press and negative public reaction to the Administration's continued aggressive regulatory plans.
Senator Rob Portman (R-Ohio) sent a letter to the President in late August calling for an Spring Reg Agenda, and Congressman John Kline (R-MN), Chairman of the U.S. House Committee on Education and the Workforce, followed up with a November 1, 2012 press release stating:
"The Obama administration continues to play a game of regulatory hide-and-seek with the American people. Current law was designed to protect the public's right to know about rules and regulations being crafted behind the closed doors of the federal bureaucracy. However, on a range of issues including health care, retirement security, and workplace safety the president seems determined to keep his plans for new regulations secret."
The wait is finally over, as the Fall 2012 Regulatory Agenda was released last week (Friday, December 21, 2012) -- just in time for 2013. Here are the OSHA-related highlights. OSHA projects that during 2013, final agency action will be taken on 10 regulations, including the following:
1. A new Confined Spaces in Construction standard (by July 2013)
- For more than a decade, OSHA has been developing a counter-part to the general industry confined space standard (29 CFR 1910.146).
- The Final Rule for the construction industry is expected this summer.
2. An updated Electric Power Transmission and Distribution standard (by March 2013)
- Based on a high incident rate among electric line workers, forty years ago, OSHA developed a standard to address safety during the construction of electric power transmission and distribution lines. Early in 2013, OSHA expects to implement a series of revisions to this standard intended to address non-construction work performed during maintenance on electric power installations, and to update PPE and Fall Protection requirements for work on power generation, transmission, and distribution installations.
- The final rule is expected early this year.
3. Gutting Cooperative Programs (by April 2013)
- OSHA has proposed to amend its cooperative Safety and Health Achievement Recognition Program (SHARP) to eliminate most of the exemptions from enforcement inspections historically available to facilities that have qualified for the program.
- This change could effectively eliminate most of the incentives for employers to participate in this recognition program, which OSHA has historically administered to incentivize and support small employers to develop, implement, and continuously improve effective safety and health programs.
4. An updated Walking Working Surfaces standard; i.e., Fall Protection (by August 2013)
- OSHA started the process to update its 1990 Fall Protection standard (to reflect advances in technology and strategies for guarding against slips, trips and falls) more than a decade ago.
- The final rule is expected this summer.
5. Changes to Injury & Illness Recording/Reporting requirements (by May 2013)
- First, OSHA is updating the list of industries that are not required to maintain 300 Logs, and moving from the SIC system to NAICS;
- Second, OSHA is revising the criteria to increase the incidents that are required to be reported directly to OSHA.
The updated Regulatory Agenda also updates several other proposed regulations that are at varying degrees further back in the rulemaking process. The highlights from that list include:
1. New federal Injury & Illness Prevention Program Rule (I2P2)
- The I2P2 rule (a top priority for the leadership team at OSHA) would requiring employers to implement a Program to find and fix hazards not necessarily covered by any existing regulation.
- The status update in the Reg Agenda regarding I2P2 is somewhat bizarre. The rule is still listed in the Pre-rule State, but the Reg Agenda also continues to list January 2012 as the start of the SBREFA Panel (review of the impact of the regulation on small business). We are a full year past January 2012, and still no SBREFA panel has been convened.
- The Reg Agenda still projects SBREFA to be completed by the end of this month (January 2013), which is impossible since it has not started yet, and an NPRM to be published by the end of 2013, which is nearly impossible based on the status of the SBREFA process.
- Another top priority for the OSHA leadership team (driven largely by the Director of the Agency, who came to OSHA with an academic background in Epidemiology) has been to update many chemical specific Permissible Exposure Limits (PELs). Most of the existing PELs were adopted in 1971, under section 6(a) of the OSH Act, and only a few have been updated since.
- OSHA has long intended to revise many of the current PELs based on newer scientific data that OSHA believes indicate health risks exist at levels below OSHA's current PELs. A previous effort to do so resulted in a final standard that lowered PELS for over 200 chemicals and introduced PELs for 164 previously unregulated chemicals. That standard, however, was successfully challenged based on deficiencies in OSHA's analyses.
- The updated Reg Agenda reflects the next step in OSHA's mission to lower PELs, a Regulatory Review and Lookback Effort, which will begin with a Request for Information (RFI) (projected for May 2013), to seek input from the public to help the Agency identify effective ways to address occupational exposure to chemicals.
3. New comprehensive Combustible Dust Standard
- In 2009, OSHA commenced a rulemaking to develop a comprehensive combustible dust standard for general industry, following a series of recommendations from the U.S. Chemical Safety & Hazard Investigation Board (CSB).
- The Rulemaking process has already included an ANPRM, a series of stakeholder meetings, and an "expert" panel.
- The last Reg Agenda moved the Combustible Dust Rulemaking to the backburner, but this update reflects a renewed interest in this Rule, and projects that the SBREFA process will begin in October of this year.