OSHA Agenda Addresses I2P2, Silica, Combustible-Dust Standards

By Roy Maurer Jul 19, 2013

The U.S. Occupational Safety and Health Administration (OSHA) intends to issue nine final and nine proposed rules in the next six to 12 months on matters ranging from record-keeping and confined spaces in construction to silica and beryllium exposures, according to the Department of Labor’s spring 2013 regulatory agenda, released July 3, 2013.

The remaining eight items on OSHA’s agenda, which are at the prerule stage of development, include a proposed combustible-dust standard and reviews of the bloodborne pathogens and chemical-exposure-limits standards.

Final Rules

OSHA announced nine rules that are closest to becoming law. Four of them involve procedures for the handling of whistle-blower complaints.

By December 2013 the agency plans to issue rules for handling whistle-blower complaints and for providing protection to employees who report allegations of fraud against shareholders; and employees working for commercial motor carriers, railroad carriers and public-transportation agencies.

By February 2014, workers in the health care industry who engage in protected activities under the Patient Protection and Affordable Care Act (PPACA) would be covered by OSHA.

By April 2014, OSHA will issue final whistle-blower rules under the Consumer Financial Protection Act, the Seaman’s Protection Act, the PPACA and the FDA Food Safety Modernization Act.

The other five final rules are as follows:

Occupational Injury and Illness Recording and Reporting Requirements, NAICS Update and Reporting Revisions (July 2013): This rulemaking is a double. First, OSHA is reclassifying the list of industries that are partially exempt from record-keeping requirements, generally due to their relatively low rates of occupational injury and illness. The current list of industries is based on the Standard Industrial Classification system, but this rulemaking will use a list based on the North American Industry Classification system (NAICS).

Second, this rulemaking will require employers to report to OSHA, within eight hours, all work-related fatalities and all work-related in-patient hospitalizations and, within 24 hours, all work-related amputations.

Currently, companies must report to OSHA, within eight hours, any work-related incident that results in an employee’s death or the in-patient hospitalization of three or more employees.

Electric Power Transmission and Distribution, Electrical Protective Equipment (July 2013): OSHA has revised the construction-industry standard addressing the safety of workers when they build electric power transmission and distribution lines. The agency said it also 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 construction work.

Walking Working Surfaces and Personal Fall Protection Systems—Slips, Trips and Fall Prevention (November 2013): This rule addresses slip, trip and fall hazards and establishes requirements for personal fall protection systems that reflect current technology.

Confined Spaces in Construction (December 2013): This would extend the general industry confined-space regulations to the construction industry.

Vertical Tandem Lifts (April 2014): In 2011 a U.S. Court of Appeals remanded two provisions of OSHA’s vertical tandem lift final rule because they weren’t technologically feasible. OSHA will publish a notice announcing a limited reopening of the record to address these two issues.

Proposed Rules

The agenda includes a January 2014 deadline to publish a notice of proposed rulemaking for an injury and illness prevention program rule, which OSHA chief David Michaels has considered the agency’s highest-priority regulatory proposal. The rule involves “planning, implementing, evaluating and improving processes and activities that protect employee safety and health,” OSHA said.

Sometime in July 2013 the agency plans to issue a proposed rule governing occupational exposure to crystalline silica. The silica proposal has been under review at the Office of Management and Budget since February 2011. A similar rule for occupational exposure to beryllium is to be released in October 2013.

The comment period for updating safety signage ended July 15, 2013, and a final rule is expected in September. Safety signs conforming to the current standard will be grandfathered.

A new addition to the agenda amends the record-keeping regulations to clarify that “the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation.” The duty “continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred” and “does not expire if the employer fails to create the necessary records when first required to do so.”

“This proposal is OSHA’s first effort to undo or undermine the recent important decision by the U.S. Court of Appeals for the D.C. Circuit in Volks Constructors, in which the court rejected OSHA’s argument that failing to accurately record or update OSHA logs during the five-year retention period is a continuing violation,” said Eric Conn, head of the national OSHA Practice Group at Epstein, Becker, Green, based in the Washington, D.C., office.

OSHA argued that it could issue citations to businesses that fail to record an injury up to six months after the five-year retention period expires, as opposed to six months after an employer neglects to record an incident. OSHA maintained that the failure to record an injury, and, thereafter, the failure to retain the nonexistent record, constituted an ongoing violation of the act throughout the five-year retention period.

“The problem with this proposed rulemaking effort is that OSHA’s six-month statute of limitations is not a rule or a regulation. It’s the law set by Congress in the Occupational Safety and Health Act,” said Conn.

Other proposed rules include:

  • Corrections and amendments to the final standard for cranes and derricks.
  • The proposal to eliminate the requirement to engage in the rulemaking process in order to make changes to an OSHA state plan.

Prerule Stage

By October 2013, OSHA will begin reviewing the bloodborne pathogen standard to consider its continued need.

OSHA will do a small-business review of a combustible-dust hazard standard in November. The U.S. Chemical Safety Board completed a study of combustible-dust hazards in 2006, which identified 281 combustible-dust incidents between 1980 and 2005 that killed 119 workers and injured 718.

OSHA can cite companies for combustible-dust hazards, but it doesn’t have a comprehensive regulation on the issue.

A request for information is scheduled for August 2013 regarding the revision of OSHA’s permissible exposure limits for chemicals, which were originally adopted in 1971 and are considered outdated by many occupational safety organizations.

Roy Maurer is an online editor/manager for SHRM.

Follow him on Twitter @SHRMRoy.

Related Articles:

OSHA Publishes 2012 Regulatory Agenda Just in Time for 2013, SHRM Online Safety & Security, December 2012

Obama 2nd Term Promises Slew of Regulatory Actions from OSHA, SHRM Online Safety & Security, November 2012

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