Department of Labor Releases the Semiannual Unified Regulatory Agenda for Fall 2011
OSHA’s new Regulatory Agenda for Fall 2011 was released in late January. In it, a total of 27 items are listed with their respective next stage in the process: 7 Prerule, 5 Proposed Rules, 11 Final Rules, and 4 Long Term Actions. Therefore, according to the agenda, stakeholders can expect to see up to 11 final actions in the next 9 to 12 months. Items categorized as Long Term Actions technically signify that meeting the next milestone is not expected within the next 12 months, however, this is often interpreted by stakeholders as a change or commentary on the Agency’s regulatory priorities.
White House Office of Management and Budget (OMB) is Currently Reviewing Four OSHA Rulemaking Items
OMB is currently reviewing four (4) OSHA rulemaking items including Hazcom/GHS (final rule), Injury & Illness Recording and Reporting Requirements (proposed rule), Silica(proposed rule), Reinforced Concrete in Construction & Backover Injury Prevention(prerule). OMB is supposed to complete its review within 90 days of receipt, however it is not uncommon for OMB to take additional time. For example, Silica has been undergoing final review by OMB for the past 12 months. All four of these reviews are anticipated to be completed in February and March.
Hazard Communication / Global Harmonized Standard (GHS) Rulemaking
The final rule is currently at OMB for review where it was announced an extension which will delay the release until March. GHS is a system for standardizing and harmonizing the classification and labeling of chemicals with the UN’s international standard. It’s an approach to defining health, physical and environmental hazards of chemicals; creating classification processes that use available data on chemicals for comparison with the defined hazard criteria; and communicating hazard information, as well as protective measures, on labels and Safety Data Sheets (SDS). The rule has been stymied at OSHA andOMB because of debate over the provision which includes identifying “Unclassified Hazards” on SDSs whereby labor stakeholders are supporting its inclusion and many in the businesscommunity opposing it for fear of creating confusion on how to comply with the new rule. The rule is anticipated to be finalized in early 2012.
OSHA Injury & Illness Prevention Program (IIPP or I2P2) Rulemaking
The rulemaking item is expected begin its SBREFA (Small Business Regulatory Enforcement Fairness Act) panel in March. The new I2P2 rule would, among other requirements, mandate all employers to develop and implement a written safety and health program which focuses on identifying and mitigating hazards in the workplace to reduce injuries and illnesses (white paper). Advocates for the rule are supportive of the required proactive approach to identifying / mitigating hazards. Some stakeholders are opposing the rule because it creates significant confusion among employers as to how to comply with a rule which inherently creates a dynamic performance threshold. Because compliance may become a ‘moving target’, there are added concerns over how OSHA will enforce the rule. RAND corporation recently completed a study of Cal-OSHA’s I2P2 rule which it concludes the effectiveness / results of the requirement as mixed. A proposed rule is unlikely in CY2012.
Occupational Exposure to Crystalline Silica Rulemaking
The proposed rule has been at OMB for review for one year where it is expected to be released back to OSHA by March. The new rule would include an amendment to the PEL, however, some industry groups are arguing that enforcement of the existing PEL will be more effective than a new PEL. A National Emphasis Program (NEP) on Crystalline Silica has been in effect since 2008. Stakeholders have expressed their concerns and support to OMBthroughout 2011. Much of the delay in the review could be, at least partially, to expressed concerns over how the agency conducted peer reviews and what the permissible exposure limit(s) might be published.
Request for Information (RFI) and Section 610 “LookBack” Review for Permissible Exposure Limits
OSHA is required, under Section 610 of the Regulatory Flexibility Act, to conduct “lookback reviews” to determine whether the standard(s) reviewed should be maintained without change, rescinded, or modified. The agency selects which standard will be reviewed, but it is typical for standards to undergo such a review 10 to 15 years after it has been promulgated. Older standards or issues, such PELs, are sometimes selected when there is an appropriate need due to possible obsolescence of the standard. There is general consensus among safety & health professionals that a number of the PELs need to be updated to reflect modern science and sampling methodologies. As part of the agency’s continued effort to solicit stakeholder input, OSHA will also publish a Request for Information (RFI) in the Federal Register in August.
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