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June 04, 2014
OSHA's latest regulatory agenda contains a big surprise

OSHA has been actively pursuing a regulation requiring employers to establish an injury and illness prevention plan (I2P2). But the agency’s latest regulatory agenda suggests a change in direction. Keep reading to learn what’s changed and what it means for you.

I2P2 proposed rule delayed

Although I2P2 plans are the law in many states, federal OSHA has not yet required that employers establish formal written I2P2 plans to find and fix workplace hazards under penalty of enforcement.

As recently as last fall, OSHA expressed support for a regulation and anticipated a notice of proposed rulemaking would be forthcoming in September. But in its most recent regulatory agenda, OSHA moved the I2P2 into its “long-term action” category. Although this doesn’t mean an end to the initiative, it does suggest a change in direction, according to attorney Tressi Cordaro, a shareholder with Jackson Lewis in Washington, D.C.

Cordaro, who specializes in OSHA matters, believes the change reflects shifting priorities and limited resources. “My take on it, and that of other attorneys I’ve talked to, is that it’s more of a bandwidth issue.” According to the current regulatory agenda, OSHA plans to announce three final rules between now and October: changes to reporting and recordkeeping rules, confined space in construction, and walking/working surfaces in general industry. As well, the agenda shows that OSHA anticipates issuing a notice of proposed rulemaking in July on occupational exposure to beryllium. And coming this month (June), OSHA says it will publish a request for information on a possible new regulation for communication tower safety.

“They’re trying to get a lot in, and to me it comes down to a lack of staffing to move forward on the rest of the agenda. They’ve prioritized and moved I2P2 to the back burner for now.” Cordaro believes that by moving recordkeeping, confined space, and walking/working surfaces ahead of I2P2, OSHA has made a decision to focus on existing rulemakings and see them through to final rule status before starting a new rulemaking on injury prevention.

OSHA’s regulatory agenda “aggressive” with 29 rulemakings

OSHA has been addressing the subject of cell phone tower safety and has been encouraging employers to use best practices to stem the recent tide of fatalities. Requesting information for a possible standard should put affected employers on notice, says Cordaro. She adds, “As an employment attorney, I strongly recommend that once the request for information is put out, those that are affected provide the agency with information they’re asking for so that a rule is developed based on accurate facts.”

Cordaro calls the current regulatory agenda “aggressive” and expresses doubt as to whether OSHA will be able to meet all deadlines for final rules as indicated. She points to a final rule on electric power generation and transmission that was published in April, but had been expected last November.

In all, the ambitious spring regulatory agenda sets out action on 29 rulemakings. Highlights include the following:

Final rule stage. Final rules expected this year or later are:

  • Occupational injury and illness recording and requirements—NAICS update and reporting revisions. OSHA anticipates a final rule in June 2014 that would update the list of industries partially exempt from injury and illness recordkeeping requirements by using the newer North American Industrial Classification System (NAICS) rather than the Standard Industrial Classification (SIC) system. In addition, the rule would revise the requirements regarding employers’ obligations to report fatalities and certain injuries to OSHA.
  • Confined spaces in construction. The current confined space regulations apply only to general industry; OSHA plans to issue a final rule for confined space operations in the construction industry in August 2014.
  • Walking and working surfaces and personal fall protection systems. OSHA plans to issue a final rule in October 2014 that will incorporate current technology into its standard for preventing slip, trip, and fall hazards and establish requirements for personal fall protection systems.
  • Improve tracking of workplace injuries and illnesses. OSHA plans to issue a final rule requiring employers subject to its requirements for injury and illness recordkeeping to electronically submit certain information from the OSHA 300 Log, OSHA 301 Incident Report, and OSHA 300A summary. Currently, employers are only required to submit this information upon request, typically as part of an inspection or survey. OSHA anticipates the final rule by March 2015.

Proposed rule stage. Among those actions:

  • Occupational exposure to crystalline silica. OSHA proposed in September 2013 to lower the permissible exposure limit (PEL) for crystalline silica and create comprehensive standards for silica exposure. The post-comment rule period on occupational exposure to silica extends through July 18.
  • Occupational exposure to beryllium. OSHA plans to publish a Notice of Proposed Rulemaking on beryllium exposure in July 2014.
  • Amendments to the cranes and derricks in construction standard. OSHA is proposing corrections and amendments to the standard for cranes and derricks in construction published in August 2010. The Notice of Proposed Rulemaking is expected in July 2014.
  • Cranes and derricks in construction: Operator certification. OSHA plans to address problems with crane operator certification requirements in an earlier rulemaking with a possible separate rulemaking on crane operator certification. While these issues are addressed, OSHA has extended existing requirements for employers to ensure crane operator competency by 3 years to November 2017. A Notice of Proposed Rulemaking was issued in February 2014, and public hearings were held in April and May.
  • Updating OSHA standards based on national consensus standards for eye and face protection. OSHA intends to publish a direct final rule by September 2014 that will update references in its eye and face protection rule to incorporate the 2010 edition of the ANSI Eye and Face Protection consensus standard (ANSI Z-87.1).

Prerule stage. Prerule actions include:

  • Combustible dust. The combustible dust rulemaking has been shifted from the proposed rule to the pre-rule stage. A required small business impact review on combustible dust has been pushed back about eight months.
  • Bloodborne pathogens. OSHA plans to consider whether its bloodborne pathogens standard is necessary and whether it overlaps, duplicates, or conflicts with other regulations.
  • Infectious diseases. OSHA is considering the need for a standard to protect workers from exposure to diseases such as tuberculosis, measles, varicella, and other infectious diseases. Analysis under the Small Business Regulatory Enforcement Fairness Act (SBREFA) began in May 2014.
  • Preventing backover injuries and fatalities. OSHA is seeking information about backover injuries and the hazards of reinforcing concrete operations in construction. Stakeholder meetings have been held on backovers, and OSHA is conducting site visits to employers; SBREFA analysis is projected to begin in August 2014. OSHA is continuing to seek information about the injuries and hazards of reinforcing steel operations.
  • Chemical management and permissible exposure limits. OSHA is requesting information to help the agency identify effective ways to address occupational exposure to chemicals, as many of the permissible exposure limits (PELs) currently in effect are widely considered outdated.
  • Process safety management and prevention of major chemical accidents. OSHA issued a request for information in December 2013 aimed at modernizing the process safety management standard to meet the goal of preventing major chemical accidents.
  • Communication towers. OSHA plans to issue a request for information on communication tower safety in response to a dramatic increase in fatalities linked to this type of work.
  • Emergency response and preparedness. OSHA plans to conduct stakeholder meetings beginning in July 2014 to address possible deficiencies in its emergency preparedness regulations. A previous request for information resulted in many comments on the need for further action to protect emergency responders, as current standards do not address the full range of hazards these workers face.
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