Fall Protection Rule Changes Withdrawn by OSHA

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By Bruce Rolfsen

Dec. 22 — A draft final rule revising workers' fall protection requirements was withdrawn Dec. 21 from its review at the White House's Office of Information and Regulatory Affairs.

The Occupational Safety and Health Administration walking and working surfaces and personal fall protection systems draft final rule is expected to revise the fall protection requirements for general industry at 29 C.F.R. 1910 Subpart D.

Construction and maritime workers are covered by other OSHA rules (13 SN 81, 6/8/10)(28 HRR 578, 5/31/10)(10 EHSDSN, 5/31/10)(8 WLR 785, 5/28/10)(56 CLR 400, 5/27/10)(40 OSHR 439, 5/27/10)(24 LRW 864, 5/27/10)(61 BTM 163, 5/25/10)(2010 HRDSN, 5/25/10)(98 Occupational Safety & Health Daily, 5/24/10)(98 DLR A-11, 5/24/10).

OSHA offered no explanation for why it withdrew the draft final rule (RIN 1218-AB80). The OIRA review is typically the last outside analysis of a would-be regulation prior to it taking effect.

“We aren't able to comment on the reason the rule was withdrawn, but the Department of Labor is committed to seeing it published in 2016,” OSHA spokesman Brian Hawthorne told Bloomberg BNA Dec. 22.

Hawthorne added that in 2014, the department withdrew apprenticeship and mining regulations and later resubmitted them to OIRA and issued the rules.

Rule Review Jam?

The withdrawal decision may be a result of OSHA submitting to OIRA on Dec. 21 the draft final rule updating silica protection requirements, Peg Seminario, the AFL-CIO's director of safety and health, told Bloomberg BNA Dec. 22 (see related story).

In recent years, OIRA has generally not had more than two OSHA regulations under review at the same time. The addition of the silica rule (RIN 1218-AB70), would have raised the number to three.

The proposed walking and working surface requirements had been with OIRA since July 2. The review time had already exceeded OIRA's goal of completing its work within 120 days (18 SN 98, 7/14/15)(15 EHSDSN, 7/13/15)(2015 LEV3, 7/13/15)(45 OSHR 693, 7/9/15)(129 Occupational Safety & Health Daily, 7/7/15).

The walking and working surfaces proposal is generally not considered to be controversial, Seminario said. The withdrawal is more likely a case of OIRA being unable to complete the review on schedule, and OSHA giving silica a higher priority.

“My sense is that it is a question of capacity,” Seminario said.

The other OSHA draft final rule at OIRA is the proposal to require employers to submit electronic summaries of their injury and illness log information, allowing OSHA to post the data on its website (RIN 1218-AC49) (2015 LEV3 10, 10/19/15)(33 HRR 1113, 10/19/15)(45 OSHR 1039, 10/15/15)(29 LRW 2106, 10/14/15)(195 Occupational Safety & Health Daily, 10/8/15)(195 DLR A-9, 10/8/15).

Industry Concern

Lawrence Halprin, an attorney with Keller and Heckman LLP, told Bloomberg BNA Dec. 22 that OIRA could have concerns with the fall protection draft final rule that couldn't be quickly resolved with OSHA.

Halprin helped represent the National Chimney Sweep Guild in a Sept. 25 meeting with OIRA and OSHA officials, the only meeting with outside groups OIRA has held on the draft final rule.

The guild, Halprin said, is concerned the proposed fall protection requirements for working on roofs and using ladders aren't practical for chimney sweeps, who often work alone during house calls.

Homeowners likely don't want chimney sweeps drilling into roofs to mount fall protection anchors or pay the additional costs the OSHA proposal would result in, Halprin said.

Broader issues with the rule, Halprin said, include OSHA trying to incorporate general duty clause violations into the regulation; the lack of specific requirements, in some cases, for when fall protection is required; and how to apply the regulation to workers on top of vehicles or trailers.

To contact the reporter on this story: Bruce Rolfsen in Washington at brolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com