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Latest DoL Semiannual Reg Agenda

Posted in on Thu, Jul 17, 2014

The Department of Labor (DoL) has released its latest Semiannual Reg Agenda.  The following summary was prepared by Adele Abrams, Esq.:

The Obama Administration’s Spring 2014 Regulatory Agenda was released May 23, 2014.  This continues a trend of releasing the agenda on the eve of a holiday. The Regulatory Agenda is no longer published in the Federal Register but can be found on Regulations.gov, the federal government’s main portal for regulations.

The Agenda for the Department of Labor lists 91 regulatory items, of which OSHA and MSHA account for 42 (OSHA 33, MSHA 9).  (These numbers includes items that are technical or relatively minor changes to regulations.)

OSHA

For OSHA, the Regulatory Agenda lists nine items in the “pre-rule” stage:  bloodborne pathogens, combustible dust, infectious diseases, backover injuries and fatalities, chemical management and permissible exposure limits, process safety management, shipyard fall protection, communication towers, and emergency response and preparedness.

The last two of those items, communication towers and emergency response and preparedness, are new additions to OSHA’s regulatory agenda since the last agenda was published in December, 2013. For communication towers, the Agenda states that a Request for Information will be published in June, 2014.  The emergency response and preparedness item is a follow-up to a request for information published by OSHA in 2007; the Agenda states that OSHA will hold stakeholder meetings in July, 2014.

The item from the pre-rule list that has garnered the most attention is the rulemaking on combustible dust.  The 2014 Agenda lists the next step as initiating SBREFA in December, 2014. The 2013 Agenda listed “initiating SBREFA” as occurring in April, 2014.

With regard to “chemical management and PELs,” the 2014 Agenda lists as next steps a May, 2014 Request for Information.  The Agenda does not give any timetable for next steps on Process Safety Management changes, beyond the analysis of the comments OSHA received from the just completed Request for Information.

The “proposed rule” list includes crystalline silica, beryllium, amendments to the construction crane standard, operator certification for crane operators, recordkeeping changes, and updating OSHA standards on eye and face protection.

The proposed rule on crystalline silica has of course already been published and hearings have been held, earlier this year.  The Agenda does not list any new target dates for action on crystalline silica, beyond the end of the post hearing comment period which is July, 2014.

Although the Agenda lists July, 2014 as the target date for publication of a proposed rule on beryllium exposure, other reports have indicated that the next step on beryllium will be an Advanced Notice of Proposed Rulemaking, in part to consider whether construction will be included in a new standard.

OSHA has listed the following as “final rules” it plans to promulgate in the coming months (with target publication date for the final rule):

  • confined spaces in construction (Aug. 2014),
  • walking-working surfaces (Oct. 2014),
  • two rules on injury and illness recordkeeping and reporting (the electronic quarterly and annual reporting of injuries (March, 2015), and the NAICS update and changes regarding reporting of hospitalizations (June, 2014),
  • several procedural rules for handling whistleblower complaints under recently enacted statutes.

OSHA listed two items as “long-term actions.”  One is the separate column for recording and reporting Musculoskeletal Disorders.  The other is the Injury and Illness Prevention Program (I2P2).  Previously I2P2 was listed as a proposed rule, with a publication date of September, 2014.  The 2014 Agenda does not specify a date of publication of a proposed rule, nor for initiation of the SBREFA panel process.

MSHA 

The most notable change for MSHA from the 2013 Agenda is the change for respirable crystalline silica.  The previous agenda listed it for a proposed rule, to be published in June, 2014.  The new Agenda lists respirable crystalline silica as a “Long-Term action” with no specified date for an NPRM.

MSHA lists two rules for final action in the coming months:  proximity detection systems for continuous miners in underground coal mines, and a training provision in the rule on Refuge Alternatives in Underground Coal Mines that was remanded to MSHA by the Court of Appeals.

Amending the criteria and procedures for proposed assessment of civil penalties continues to be listed on MSHA’s Agenda, as a proposed rule, though the targeted publication date, May, 2014, likely will not be met.

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