Member Article

Supporting OSHA’s aggressive semi-annual regulatory agenda, Deputy Assistant Secretary of Labor for OSHA, Jordan Barab, recently warned a research symposium that, “despite what goes on in Congress, [OSHA] [has] absolutely no intention of pulling back or retreating.” Barab alerted attendees that OSHA’s regulatory agenda aims to extend enforcement beyond traditional manufacturing and construction sectors. Consistent with recent enforcement trends, Barab also defended OSHA’s increased use of willful citations, General Duty Clause citations, and negative press releases when it issues citations. Specifically, Barab indicated that OSHA is issuing more willful citations, which carry maximum fines of $70,000 per penalty, to achieve a greater deterrent effect. According to the July 14, 2011 BNA OSHA Reporter, Barab further commented that OSHA is justified in its increased use of General Duty Clause citations and will continue to use this statutory “catch all” to combat a host of workplace hazards, including those affecting employees due to summer heat.

The DOL announced its semi-annual regulatory agenda on July 7, 2011. Regarding OSHA, the DOL agenda contains thirty-one rules: (i) eight are Pre-Rules; (ii) five are Proposed Rules; (iii) fourteen are Final Rules; and (iv) four are Completed Rules. Generally, a Pre-Rule or “Advanced Notice of Proposed Rulemaking” is when OSHA solicits public comment on whether or not to initiate a rulemaking. A Proposed Rule is the rulemaking stage in which OSHA proposes to add to or change existing regulations through solicitation of public comments on the proposal. A Final Rule is the last step of the rulemaking process when OSHA responds to public comments on a Proposed Rule and makes appropriate revisions before publishing it in the Federal Register. Here is a brief overview of some highlights from the semi-annual regulatory agenda:

Pre-Rules

1. Combustible Dust: OSHA has commenced rulemaking to develop a combustible dust standard for the general industry. As the proposed rule is expected to have a significant impact on a substantial number of small entities, OSHA must conduct a review process under the Small Business Regulatory Enforcement Fairness Act (“SBREFA”), in which small entity representatives review the draft proposed rule and suggest revisions before it moves to the Proposed Rule stage. Notably, the SBREFA Review Panel has been delayed until December 2011. It was originally slated to begin this year in April.

2. Infectious Diseases: OSHA is planning to issue an infectious disease standard in which employers must establish a comprehensive infection control program and institute measures to protect employees in healthcare and other “high risk environments” from infectious disease exposures such as tuberculosis, measles, SARS, pandemic influenza, and others. According to the regulatory agenda, stakeholder meetings will begin in July 2011.

3. Injury and Illness Prevention Program: OSHA’s commitment to “I2P2” may remain firm, but its ability to execute is increasingly unclear. As many are aware given the publicity to date, under I2P2, employers would be required to inspect, identify and correct hazards in their workplaces. When the Pre-Rule was initially published in the December 2010 semi-annual regulatory agenda, OSHA planned to convene the SBREFA Panel by June 2011. The June 2011 date remains in the current regulatory agenda but no such review process has begun. According to Deputy Assistant Secretary Barab, the review will begin “shortly” but no date has been set. In the BNA Reporter, Barab conceded that the issuance of a Final Rule could take “several years.”

Proposed Rules

1. Occupational Exposure to Crystalline Silica: A notice of a Proposed Rule to create stricter exposure limits for silica will soon be published according to the regulatory agenda. Under the agenda, this publication was to occur in June 2011. The Proposed Rule has been under review by the Office of Management and Budget’s (“OMB”) Office of Information and Regulatory Affairs since February 14, 2011. During this time, OMB has held several meetings with stakeholders within the industry regarding concerns about the proposal and its economic feasibility. After the Notice of Proposed Rulemaking is issued, OSHA will hold public hearings on the proposal beginning in October 2011.

2. Recording and Reporting Musculoskeletal Disorders (“MSDS”): After withdrawing this Proposed Rule in January 2011, OSHA has announced in the regulatory agenda that it will review, in July 2011, the additional comments following stakeholder meetings after the rule was withdrawn earlier this year and even more additional comments submitted after a Notice of Limited Reopening of the Rulemaking Record. Under the proposal, employers would have to check an additional box for injuries or illnesses related to musculoskeletal disorders on their OSHA 300 logs.

3. Modernizing OSHA’s Recording and Reporting Requirements: In September 2011, OSHA proposes issuing a Notice of Proposed Rulemaking to change its reporting system to both update and modernize the “efficient and timely collection of data to improve the accuracy and availability of relevant records and statistics.” In turn, OSHA would be expanding its authority under the 29 CFR 1904 recordkeeping regulations to collect and make injury and illness information available under the regulations. According to Deputy Assistant Secretary Barab, the September publication date may now be unlikely as a “more realistic target” is the fall of this year.

Final Rules

1. Electrical Power Transmission and Distribution: Electrical Protective Equipment: After receiving public comments and conducting public hearings, OSHA intends to release into the Federal Register a Final Rule concerning electrical hazards and electrical personal protective equipment. The Final Rule will, among other things, update the construction industry standard for the safety of workers during the construction of electric power transmission and distribution lines. OSHA will also revise various general industry requirements affecting electric transmission and distribution work, including updating the provisions for providing electrical PPE to appropriate workers. This Rule, which is delayed from its original May 2011 publication date, is scheduled to be issued in September 2011.

2. Hazard Communication: OSHA has pushed back the date for issuing the Final Rule on harmonizing the hazard communication standard in 29 CFR 1910.1200 with the United Nation’s Globally Harmonized System for Classification in Labeling of Chemicals (“GHS”). The new rule, scheduled to also be issued in September 2011, is necessary to deal with the increasing problem of multiple sets of requirements for labels and safety data sheets for U.S. manufacturers, distributors and others involved in international trade. The GHS is designated to allow for one global system to increase understanding by using standardized pictograms and harmonized hazard statements.

While notably some of the regulatory agenda dates have already come and gone or are seemingly unrealistic, OSHA continues to push forward with its regulatory agenda. Given the aggressive enforcement actions from OSHA in 2010 and thus far in 2011, as confirmed by Deputy Secretary Barab’s recent comments, employers must be prepared for even more seemingly onerous regulations.

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