July 14, 2013

OSHA’s current regulatory priorities

From:  Association of Corporate Counsel

Matthew Deffebach/Haynes and Boone LLP

On July 3, 2013, the Department of Labor issued its Semiannual Agenda of Regulations. Executive Order 12866 requires the semiannual publication of the listing of all regulations the Department of Labor expects to have under active consideration for promulgation, proposal or review during the coming one-year period. Here are some of the highlights regarding OSHA’s agenda.

A. Pre-Rule: OSHA is Soliciting the Public to Comment on Whether or Not, or How Best, to Initiate a Rulemaking

Bloodborne Pathogens. OSHA will undertake a review of the Bloodborne Pathogens Standard. The review will consider the continued need for the rule; whether the rule overlaps, duplicates, or conflicts with other Federal, State or local regulations; and the degree to which technology, economic conditions or other factors may have changed since the rule was evaluated. Timetable: October 2013 for OSHA to end the review and issue findings.

Combustible Dust. The U.S. Chemical Safety Board (“CSB”) completed a study of combustible dust hazards in late 2006, which identified 281 combustible dust incidents between 1980 and 2005 that killed 119 workers and injured another 718. Based on these findings, the CSB recommended that OSHA pursue a rulemaking on this issue. Timetable: November 2013 for OSHA to initiate the Small Business Regulatory Enforcement Fairness Act (“SBREFA”) review to assess the impact of the proposal on small businesses.

Infectious Diseases. According to OSHA, employees in health care and other high-risk environments face long-standing infectious disease hazards. OSHA is considering the need for a standard to ensure that employers establish a comprehensive infection control program and control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease. Timetable: August 2013 for OSHA to initiate SBREFA.

B. Proposed Rule: OSHA Issues a Proposal for Public Commentary

Occupational Exposure to Crystalline Silica. According to OSHA, both industry and worker groups have recognized that a comprehensive standard for crystalline silica is needed to provide exposure monitoring, medical surveillance, and worker training. The Office of Management and Budget (“OMB”) has been reviewing the rule for more than two (2) years. After beginning a review of the silica proposal in February 2011, OMB has continued to extend its assessment of the proposed rule and has held at least 10 meetings with stakeholders regarding the proposal. Timetable: July 2013 for OSHA to issue the proposal through Notice of Proposed Rulemaking (“NPRM”).

Occupational Exposure to Beryllium. OSHA convened a Small Business Advocacy Review Panel under SBREFA and completed the SBREFA Report in January 2008. OSHA also completed a scientific peer review of its draft risk assessment. Timetable: October 2013 for OSHA to issue through NPRM.

Injury and Illness Prevention Program. As employers are well aware, OSHA is developing a rule requiring employers to implement an Injury and Illness Prevention Program. According to OSHA, it involves planning, implementing, evaluating, and improving processes and activities that protect employee safety and health. While OSHA has indicated publication of the proposed rule in January 2014, the agency has yet to initiate the prerequisite SBREFA review. Nonetheless, Dr. David Michaels at the June 2013 American Society of Safety Engineers annual conference identified the I2P2 regulation as his “highest priority.” Timetable: January 2014 for NPRM.

Consensus Standard Update – Signage. Most employers continue to use signs meeting the consensus standards currently referenced in OSHA standards. The older signs not only have a long life; employers do not want to use “newer” versions and be subject to a “de minimus” citation, namely, a citation for a technical violation of the applicable OSHA standards. According to OSHA, a preliminary review indicates that signs meeting the latest edition of the consensus standards, which are not referenced in the current OSHA regulations, would advance workplace safety over and above the currently required signs.

In addition, OSHA maintains that signs meeting the latest edition can use multiple language panels that could be a benefit to non-English speaking workers, and also meet the legal criteria for “adequate warnings” based on case law. OSHA proposes updating the reference to the version of the consensus standards, while grandfathering older signs that comply with the current OSHA requirements. Using the same strategy as in other consensus standard reference updates, OSHA will publish a Direct Final Rule (“DFR”) concurrently with a Notice of Proposed Rulemaking. If OSHA does not receive significant adverse comments on the DFR, it will confirm the effective date of the DFR and withdraw the NPRM. If OSHA does receive a significant adverse comment, it will withdraw the DFR and proceed with the rule proposal process. Timetable: OSHA to Direct Final Rule on June 13, 2013 and NPRM Comment Period to end July 15, 2013.

Clarification of Employer’s Obligation to Make and Maintain Accurate Records of Work-Related Injuries and Illnesses. OSHA is proposing to amend its recordkeeping regulations to clarify that the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. This proposal seeks to remedy, in part, the U.S. Court of Appeals for the D.C. Circuit’s decision in the Volks Constructors case where the Court of Appeals rejected OSHA’s argument that failing to update OSHA logs during the five-year retention period is a “continuing violation,” which would toll the OSHA six (6) month statute of limitations. Timetable: November 2013 for NPRM.

C. Final Rule: OSHA Revises a Previous Proposal Based on Public Commentary Before Publishing it in the Federal Register

Confined Spaces in Construction. OSHA agreed to issue a proposed rule to protect construction workers in confined spaces as the confined space regulation appears under the general industry regulations. Timetable: December 2013 for OSHA to issue a Final Rule.

Electric Power Transmission and Distribution; Electrical Protective Equipment. The construction industry standard addressing the safety of workers during the construction of electric power transmission and distribution lines is nearly 40 years old. Thus, OSHA has developed a revised standard. OSHA also intends to amend the corresponding standard for general industry so that requirements for work performed during the maintenance of electric power transmission and distribution installations are the same as those for similar work in construction. Timetable: July 2013 for OSHA to issue a Final Rule.

Walking Working Surfaces and Personal Fall Protection Systems (Slips, Trips, and Fall Prevention). Slips, trips and falls are among the leading causes of work-related injuries and fatalities. Since the initial publication of OSHA’s standards, new technologies and procedures have become available to protect employees from these hazards. OSHA has been working to update these rules to reflect current technology. Timetable: November 2013 for OSHA to issue a Final Rule.


As often is the case with OSHA’s regulatory agenda, employers can only wait and see what actually gets published within the different stages of the regulatory process.


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