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OSHA Publishes New Reg Agenda

Posted in on Fri, Jan 18, 2013

OSHA’s new Regulatory Agenda can be found at http://www.osha.gov/pls/oshaweb/owasrch.search_form?p_doc_type=UNIFIED_AGENDA&p_toc_level=0.

From Adele Abrams, Esq., ASSE’s Federal Representative –

On January 8, 2013, the Department of Labor’s Fall 2012 Regulatory Agenda was published in the Federal Register.  The Regulatory Agenda had been released on-line on December 21, 2012.  This was the first Regulatory Agenda published in 2012; the last published agenda was Fall 2011.

For OSHA and MSHA, the 2012 Agenda contains only one significant new item, an OSHA rule on exposure to beryllium, which is now listed at the “proposed rule” stage. In early 2012 the Steelworkers Union and Materion Brush, the largest processor and supplier of beryllium, jointly submitted to OSHA specific proposed changes to the existing beryllium standard.

The Regulatory Agenda projects that OSHA will publish a proposed standard on exposure to crystalline silica standard in May, 2013, and MSHA would follow soon thereafter by issuing an NPRM in August.   The draft OSHA proposal is apparently still under review at OMB, where it has been since February 2011.  Some have suggested that it will be revised to include hazards associated with fracking operations that generate crystalline silica exposures to workers.

The Regulatory Agenda lists a pretty ambitious plan for publication of final rules this year.  OSHA is scheduled to publish final rules on Confined Space in Construction, Electrical Power Distribution, Walking-Working Surfaces, Cooperative Agreements, Recordkeeping and Reporting of Injuries and
Illnesses, along with 3 procedural rules for handling Retaliation Complaints
(whistleblower) during 2013.   The final rules that MSHA has listed for 2013 are the standard on lowering miners’ exposure to coal mine dust and changes to the pattern of violations regulation.

The Regulatory Agenda also lists 3 OSHA rules (all at the “pre-rule” stage) as scheduled for SBREFA panels in 2013:  the Injury and Illness Prevention Program (I2P2) rule, for which the SBREFA panel was scheduled to be completed by January 2013; Infectious Diseases, for which the SBREFA panel process is scheduled to be initiated in April 2013; and Combustible Dust, for which the SBREFA panel process is scheduled to be initiated in October 2013.

Overall, this is a “compacted” agenda – for example, it lists OSHA publishing one final rule per month between March and August.  It would be quite unusual to be able to get that many final rules through the agency, department and OMB review process in that time frame, even if all of the analytical and drafting work has been completed.  Similarly, initiating and completing three distinct SBREFA panels in one year would require that a great deal of agency attention go to those regulatory proposals and the panels, perhaps not allowing other final and proposed rules to be completed.

Another issue, of course, is what, if any impact will the unexpected resignation of Secretary Solis have, and whether this will trigger personnel changes at OSHA and MSHA which could affect the timetable and direction of the regulatory agenda. For example, while the “I2P2” rulemaking was part of Secretary Solis’ “P3” initiative (strategic plan) for the department, a new secretary may not share the same priorities. It is also unclear whether any final rules would be permitted to be released during the period that the Secretary of Labor slot is vacant.

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