A Regulatory Look Ahead: Slow Moving for OSHA
Oct. 5, 2012
Experts agree that several factors contribute to the slowdown in the standards-setting process at OSHA: procedural requirements, the agency and administration’s shifting priorities based on the political climate and the fact that SHA is one of only three government agencies that must meet a higher standard of judicial review. While the process is slow, it is moving forward.
Earlier this year, OSHA came out with its first major general industry rule in years: the revision of the Hazard Communication standard to incorporate the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). While there are no other regulations to be finalized this year or early next that are on par with the magnitude of the HazCom/GHS rulemaking, there are a few that employers should keep an eye on.
Electrical utilities – One of the few major final rules remaining on OSHA’s regulatory agenda for this year is the plan to revise both the general industry and construction rules for work involving electric power, transmission and distribution installations (e.g., work typical of utility companies). The rule essentially will sync the construction and general industry regulations for electric utility work. Barring any overly lengthy Office of Management and Budget (OMB) regulatory review, it is expected that the rule will be finalized and published later this year.
The construction industry standard addressing this type of work is over 35 years old and is not very flexible, which perhaps is the driving force behind the rulemaking. At the same time, the agency plans 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.
The rule will be a comprehensive overhaul for the construction regulation. For general industry work, the rule will result in new requirements for protection from electric arcs, fall protection equipment and minimum approach distances, as well as provisions for the exchange of information between host employers and contractors.
I2P2 – Perhaps the most far-reaching rulemaking on OSHA’s agenda is the creation of an Injury and Illness Prevention Program (I2P2) requirement. This rule would require employers to “find and fix” all hazards at their worksites (regardless of whether there is a specific OSHA standard), with employee involvement.
The I2P2 rulemaking has received much attention from small business groups who wonder if it will require extensive resources to implement and whether it will be used as an enforcement tool for issues such as ergonomics. This opposition (as well as actual and anticipated pressure from Congress and other groups) likely is the reason the rulemaking has moved slowly. But OSHA is sticking firm with its plans to move forward with the rule.
Currently, OSHA is working on several options for a draft proposed I2P2 rule. Once this is finished, the agency will convene the mandated Small Business Regulatory Enforcement Fairness Act (SBREFA) process. At that time, the draft proposed rule would be made available. The small business panel then will provide their comments, which OSHA will analyze and incorporate as necessary into a proposed rule. It is unlikely that the proposed rule will be published before 2013, which puts a final rule quite some time away.
Confined spaces in construction – OSHA is working on a rule that would provide protections for construction workers who must enter confined spaces. Currently, OSHA only has a permit-required confined space rule for general industry employers. However, the agency and several industry groups agree that construction workers face these hazards as well. The rulemaking currently is receiving a lot of resources at OSHA; it had been put on the back-burner while OSHA finalized the cranes and derricks rulemaking. It is possible the final rule will be published late this year or early next year. (A major sticking point is how close the construction rule should be to the existing general industry rule, which is of particular significance to many companies who perform both types of work.)
Recordkeeping – OSHA has several rulemakings in the works related to injury and illness recordkeeping, which has been a major focus of the current OSHA administration since it took office.
First, OSHA has proposed to update the list of industries that are partially exempt from keeping injury and illness records. The current list is based upon Standard Industrial Classification (SIC) codes and also upon injury history data that is outdated. For this reason, OSHA wants to switch the list and base it upon the newer North American Industry Classification System (NAICS) codes and more current industry data. The result of this action will be that some industries currently required to keep records will be exempt, and some industries currently exempt will be required to keep records. The net is about 80,000 additional sites that will be required to keep logs.
OSHA also is planning to change requirements for the types of incidents that have to be reported to the agency. Currently, federal OSHA requires that employers call OSHA within 8 hours and report any fatality, as well as the hospitalization of three or more employees. OSHA is proposing to change the requirement so employers would have to report the hospitalization of one or more employees, as well as add a requirement to report work-related amputations within 24 hours. The requirement to report fatalities would remain as it currently is. (Note: Some states with approved OSHA plans already have more stringent reporting requirements.)
A third recordkeeping change would create an electronic system for injury recordkeeping. The proposed rule is at the OMB for review. If OMB completes its review without significant change, the proposed rule could be published later this year. However, like I2P2, this rule change could meet much opposition, depending on the direction OSHA pursues in terms of frequency of reporting, detail of data to be reported and public accessibility of data.
Silica – OSHA also has plans to revise the rule to protect workers from crystalline silica exposure. The agency actually had the proposed rule ready in February 2011 and sent it to OMB for the mandated regulatory review. However, OMB has extended that review; as of the writing of this article, the review was ongoing.
During the OMB process, OMB, OSHA and various industry groups held numerous meetings. Some groups have concerns about the costs associated with this rulemaking, whether or not there are adequate monitoring techniques available and whether construction should have a separate rulemaking from general industry. It remains to be seen how OSHA will proceed with this rulemaking, given the strong opposition.
OSHA always has a hard time getting major rules promulgated, and in an election year and with a tough economy, it becomes even more challenging. But the agency slowly is making progress on a few rules, some that will impact almost every EHS professional.
Travis Rhoden is a workplace safety editor with J. J. Keller & Associates Inc., a leading source for OSHA compliance products and services. Visit http://www.jjkeller.com for more information.