Recently, Jordan Barab, Deputy Assistant Secretary of Labor for the U.S. Occupational Safety and Health Administration spoke at the U.S. Small Business Labor Safety (OSHA/MSHA) Roundtable meeting held in Washington, DC. Mr. Barab provided an update on OSHA’s regulatory agenda and rulemaking activities that would likely have an impact on small businesses. Mr. Barab divided the regulatory agenda into rulemaking activities that are pending final agency action, are in the proposal or early rulemaking stage, or are reserved for long-term agency action. Those rulemakings that are pending final agency action are at the top of OSHA’s agenda and are being given significant priority.
According to Mr. Barab the following rules are pending final agency action:
Subpart D: Walking Working Surfaces and Personal Fall Protection Systems (Slips, Trips, and Fall Prevention).
Improve Tracking of Workplace Injuries and Illnesses (also known informally as Electronic Recordkeeping Rule)
Confined Space in Construction
Regarding the silica rule, Mr. Barab indicated that the standard is “innovative but OSHA is trying to make it user friendly.” OSHA is currently reviewing public comments in response to the proposed rule issued on September 12, 2013 and public hearings held March 18, 2014 through April 4, 2014.
During the meeting, Mr. Barab was asked whether the final rule for Subpart D, Walking Working Surfaces and Personal Fall Protection Systems would cover rolling stock or whether a separate rule regarding fall protection from rolling stock would be initiated. In response, Mr. Barab indicated that it is unlikely that the final rule for Subpart D would address the issue of fall protection and rolling stock.
Mr. Barab noted that of the four final rulemakings, Confined Space in Construction would likely be released first and that the final standard generally aligns with the general industry confined space standard. This is consistent with statements that Dr. David Michaels recently made to ACCOSH. OSHA believes that aligning the confined space in construction standard with the general industry confined space standard will be more appealing to employers given this is a standard they currently implement.
Mr. Barab noted that the following rules are in the proposal stage:
Clarification of Continuing Obligation to Maintain Records
Crane Operator Certification
Standards Improvement Process
In addition to these rulemakings, OSHA has started the early stages of rulemaking to revise the PSM standard in response to the President’s Executive Order. According to Mr. Barab, OSHA has committed to conducting a Small Business Advocacy Review (SBAR) panel by May 28, 2015. Under the Small Business Regulatory Enforcement Fairness Act, OSHA must hold a SBAR panel before publishing a proposed rule with an Initial Regulatory Flexibility Analysis. This panel consists of small business representatives who are allowed an opportunity to provide recommendations on regulatory alternatives in an effort to reduce the burden on small businesses.
Other rulemakings that are currently in the early stages include Communication Towers and updating existing permissible exposure limits (PELs). OSHA is preparing a Request for Information (RFI) for Communication Towers and issued one for Chemical Management and Permissible Exposure Limits (PELs) on October 10, 2014. Mr. Barab mentioned that the Agency is currently considering whether to extend the deadline for providing information in response to this RFI. Currently the deadline for submission of information is April 8, 2015. Mr. Barab did not give a timeframe for a possible extension.
As for long term agency action, Mr. Barab discussed OSHA’s continued desire to promulgate an Injury and Illness Prevention Program (I2P2) standard. Mr. Barab noted that ultimately the promulgation of such a standard “involved more work than the agency initially anticipated; however, it is not a standard the agency is dropping.” Mr. Barab went on to state that currently OSHA is looking at updating existing guidance documents relating to injury and illness prevention programs. The current guidance, Safety and Health Program Management Guidelines, which was issued in 1989 provides voluntary guidelines on safety and health management practices for employers. Mr. Barab also noted that combustible dust and backover injuries remain long-term agency goals.
In sum, OSHA continues to move forward with significant rulemakings and shows no signs of slowing down during these next two years of this Administration.