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Fall 2011 Regulatory Agendas: Occupational Safety and Health

Posted on January 31, 2012 by James Griffin

Twice each year, the departments and independent agencies of the Federal government publish public agendas of their rulemaking activities. These semiannual agendas both review recent new rules and announce upcoming rule activities. While each agency and department creates its own agenda, the agenda system as a whole is organized by the Office of Management and Budget under the Regulatory Flexibility Act, Administrative Procedure Act, and in conformance with several executive orders. 
 
Traditionally, the agendas are published in the Federal Register, but since 2007, the Internet has been the primary medium of distribution. On Friday, January 20, 2012, the Regulatory Information Service (a sub-unit of the OMB) softly published the “Fall 2011″ regulatory agenda on its Web site. As the Federal Register has yet to publish any notice of its own on these agendas, let’s get right to Lion’s semiannual review of the EHS agencies agendas. 
 
The Occupational Safety and Health Administration (OSHA), under the Department of Labor has several items scheduled for development this year. 
 
OSHA, having received substantial data on reductions in injury and illness in the workplace, is developing a rule requiring employers to implement an Injury and Illness Prevention Program. The “I2P2,” as it is sometimes referred to, will take the place of the voluntary Safety and Health Program Management Guidelines published in 1989. OSHA believes data from similar industry and international initiatives show that implementing an Injury and Illness Prevention Program will dramatically reduce the number and severity of workplace injuries in the U.S. This program is still in a prerule stage; meetings began on this issue in June 2010, and are slated to continue in early 2012, when OSHA will consider the potential impact on small businesses under its Small Business Regulatory Fairness Act. 
 
In an attempt to eliminate or revise duplicative, unnecessary, and inconsistent health and safety standards, OSHA has proposed its fourth Standards Improvement Project. The Agency’s Standards Improvement Project “Phase I” was published in June, 1998 at 63 FR 33450, followed by Phase II in January, 2005 (70 FR 1111) and Phase III on June 8, 2011 (76 FR 33590). The focus of Phase IV will be to identify unnecessary or duplicative provisions or paperwork requirements in the construction standards at 29 CFR 1926, and will initiate the rulemaking process by publishing a Request for Information in March 2012.
 
OSHA is working to update its Permissible Exposure Limits (PELs) to protect workers from exposure to harmful chemicals in the workplace. The Agency’s original PELs were adopted in 1971 (section 6(a) of the OSH Act), and since few of them have been updated. Industry, labor, and professional occupational safety and health organizations agree that many of these limits are outdated, and newer data indicates that occupational health and safety risks exist for many chemicals at levels below OSHA’s current PELs. OSHA published a rule in 1989 lowering PELs for over 200 chemicals, and adding PELs for 164 additional chemicals; this rule, however, was challenged and ultimately vacated due to deficiencies in OSHA’s analysis. Stakeholder and web forum meetings have been held to discuss means to address outdated PELs, and OSHA is developing a Request for Information which they plan to have ready in August 2012.
 
Workers in a wide range of industries are exposed to crystalline silica, a known human carcinogen. Long term exposure (10 years or more) to crystalline silica has been shown to result in chronic silicosis, an occupation disease that is ultimately fatal. OSHA, industry, and worker groups have recognized the need for a comprehensive standard regarding exposure to crystalline silica, as current Permissible Exposure Limits (PELs) in many industries – especially shipyards and construction – are derived from obsolete methods of analysis. OSHA has attempted to address this problem through non-regulatory means, including a Special Emphasis Program on silica in 1997, and dissemination of guidance information through the Agency’s website. A Small Business Regulatory Enforcement Fairness Act report on this proposed rule was completed in 2003. A Peer Review of Health Effects and Risk Assessment was initiated in 2009, and finished in 2010. A notice of proposed rulemaking is slated to appear in February 2012.
 
OSHA is proposing modifications to 29 CFR part 1904.41, to update and modernize its occupational injury and illness reporting system. By expanding its legal authority to collect and share injury and illness information required under part 1904, OSHA hopes to enable more efficient and timely collection of data, and improve the accuracy and availability of records and statistics. Stakeholder Meetings were held on this issue in May 2010, and a notice of proposed rulemaking is scheduled for release in February 2012.
 
OSHA has proposed revising Appendix A to Subpart B of its Injury and Illness Recording and Reporting regulation – a list of industries which are partially exempted from maintaining records of occupational injuries and illnesses. The industries currently included in Appendix A to Subpart B are granted partial exemption because they are classified as “low-hazard industries” by the Standard Industrial Classification (SIC) system. The SIC system was created in 1937, and now is being phased out by most regulatory bodies. Today the North American Industry Classification System, or NAICS code is the preferred method for classifying industries. The proposed rule change will reflect this preference, as well as update Appendix A to include more recent injury and illness data. A notice of proposed rulemaking first appeared in June 2011 (76 FR 36414), and the initial comment period ended in September of that year. The record was reopened a week later on September 28, 2011 (76 FR 59952), the 2nd comment period ended in October. OSHA expects to complete its analysis of the comment docket by May of 2012.
 
Since 1990, when OSHA first proposed a rule addressing slip, trip, and fall hazards, new technologies have become available to protect employees from these hazards. The Agency is working to update the requirements for personal fall protection systems to reflect the current technology. The original notice of proposed rulemaking appeared in April 1990 (55 FR 13360), and a 2nd notice of proposed rulemaking appeared in May 2010 (75 FR 28861). A public hearing was held in January 2011, and final action is expected from OSHA in October 2012.
 
Hazard Communication (RIN: 1218-AC20)
OSHA will take action this year to align its Hazard Communication Standard with the Global Harmonization System (GHS) for classifying and labeling chemicals. The Agency believes this change will provide for consistent information and definitions of hazardous chemicals internationally, address industry concerns for a standardized MSDS format, and increase understanding by using standardized pictograms and harmonized hazard statements. A notice of proposed rulemaking appeared in September 2009 (74 FR 50279), and final action is expected from OSHA in February 2012.