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OSHA Demotes I2P2 Rule to Long-Term Action List in Spring Regulatory Agenda

Thursday, May 29, 2014

By Stephen Lee, Robert Iafolla and Bruce Rolfsen  

May 27 --Any hope that President Barack Obama's safety regulators will issue their long-heralded injury and illness prevention program (I2P2) rule was scuttled May 23 when the Occupational Safety and Health Administration pushed the rulemaking onto the long-term actions section of its spring 2014 regulatory agenda.

OSHA's agenda also pushes back the target dates on several health regulations and includes a new proposed rule for communications tower workers.

The I2P2 rule (RIN 1218-AC48) would have held employers responsible for finding and correcting hazards in their own workplaces. Worker advocates have endorsed the rulemaking as a catchall that would address a broad range of hazards, and OSHA chief David Michaels has hailed it as his top regulatory priority since taking office in 2009.

Earlier, OSHA had said it would kick off the I2P2 rulemaking process by moving swiftly to a small business review panel. Now, no date for next actions is listed, making it virtually impossible to finalize the rule under the Obama administration, Celeste Monforton, a former OSHA policy analyst, told Bloomberg BNA May 27.

Unions Deeply Disappointed

“When the administration came in, David Michaels, Joe Main [assistant secretary of labor for mine safety and health] and Seth Harris [former deputy secretary of labor] all talked about this as the key way to prevent injuries and illnesses,” said Monforton, now a lecturer at George Washington University School of Public Health and Health Services. “So the fact that they've abandoned that approach is extremely disappointing. For them to abandon it, I'm sure that was not an easy decision for David Michaels to make.”

OSHA didn't respond to a request for comment.

Eric Frumin, safety and health director at the labor federation Change to Win, echoed Monforton's sentiments.

“Yes, it's disappointing,” Frumin told Bloomberg BNA May 27. “For individual rules, maybe one or two [delays] doesn't make that much of a difference. But for rules that would save lives and force clueless employers to do the basics, these are terrible frustrations, and workers and their families are going to pay the price.”

Both Frumin and Monforton also acknowledged, however, that the move didn't come as a surprise, particularly as OSHA has already indicated that most of its standard-setting resources have been being directed towards its silica rulemaking.

“I always feel it's troubling when you have a regulatory agency that can only do essentially one regulation at a time,” said Monforton.

Industry Lawyer Applauds Move

Baruch Fellner, an industry attorney with Gibson, Dunn & Crutcher LLP, called the announcement “a welcome acknowledgement of reality.”

In the past, many agencies have simply allowed rulemakings they don't intend to push forward to languish on the regulatory agenda, rather than indicating their intent to de-emphasize them, as OSHA did in this case.

Monforton said the agency may have been motivated by political concerns.

“I think [OSHA is] much more sensitive to criticism from opponents,” she said. “So to the extent that I2P2 gives the Chamber of Commerce and people on Capitol Hill a talking point about a flood of regulations, OSHA can say, 'We have moved this to long-term actions. It's nothing that we're working on.' ”

Similarly, Fellner said the looming 2014 midterm elections, as well as the 2016 presidential election, may have played a role in the agency's thinking. The rule has turned into a “political third rail” because industry has long feared that it would enable OSHA to widen the scope of its enforcement, especially into ergonomics, he said.

Chamber Official Sees Substantive Problems

But Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, said May 27 that he thinks OSHA's action had more to do with substantive problems with the I2P2 rule itself.

Most critically, he said OSHA may have had problems proving that a significant risk exists in American workplaces--which the agency must do before it can issue standards--to warrant such a broad rule, especially with national injury and illness rates consistently falling.

“I have a very hard time imagining that the people in the Department of Labor, and particularly OSHA, make any moves with the explicit or even implicit intention of signaling something to the business or employer community,” Freedman said.

Frumin, meanwhile, said that if nothing else, OSHA's regulatory agenda directly challenges big business's complaints that the administration is burdening them with too many regulations.

“If the 1 percent, the Business Roundtable, the Fortune 500 or the Chamber of Commerce want to pretend that they're the aggrieved party, they're free to their opinion, but they're not fooling anybody,” Frumin said. “The Chamber of Commerce's view of being overregulated is sort of like the French aristocracy right before the revolution.”

Beryllium Rule Bumped Back to July

Elsewhere in the regulatory agenda, OSHA moved its target date for publishing its proposed rule for beryllium (RIN 1218-AB76) from April to July. The United Steelworkers and Materion Corp., a beryllium-producing giant, developed and jointly recommended to OSHA a proposed rule in February 2012.

USW and Materion met with senior OSHA staff on the beryllium rulemaking in July 2013. OSHA head Michaels said at the meeting that the agency was committed to completing the proposal by the end of 2013, according to a joint USW-Materion letter sent to Labor Secretary Thomas Perez in October 2013.

“It sure appears that there must be multiple factors at the other end of this process that we're not aware of,” James Frederick, the USW's assistant director for health, safety and environment, told Bloomberg BNA May 27. “We certainly thought they were on track to move this along by now.”

The agenda moves initiating a small business review panel on a rule for infectious diseases (RIN 1218-AC46) from January to May. It calls for a regulatory lookback review on the bloodborne pathogens rule--which began in 2009--to be completed in July.

New Communications Tower Oversight

Crews working on cellular phone antennas and other communication towers would be protected under a new regulation (RIN 1218-AC90).

“Communication tower construction and maintenance activities are not adequately covered by current OSHA fall protection and personnel hoisting standards,” the justification for the proposed rule stated.

OSHA was spurred to improve safety for tower workers following the deaths of 13 workers in 2013, more than the previous two years combined.

Falls have been the primary cause of the fatalities, the agency's notice said. They are often the result of improper or inconsistent use of safety gear. In other cases, towers have collapsed during modification work, such as replacing cross braces, OSHA officials have said at safety meetings.

For the tower rule, the agenda says OSHA will issue a request for information in June.

Other than the communication tower rule, OSHA isn't putting on the table any other new construction-related regulations. For most of the other proposed regulations, the agenda provides updated milestone dates.

OSHA is now saying it will start the small business review of the standard to prevent accidents from vehicles traveling in reverse (RIN 1218-AC51) in August, not June as previously stated.

For Standards Improvement Project IV (RIN 1218-AC67), a catchall for miscellaneous changes to construction rules, the agenda calls for publishing a notice of proposed rulemaking in August. OSHA had not previously set a date.

Combustible Dust Bumped to Pre-Rule

The agency downgraded its rulemaking status for combustible dust (RIN 1218-AC41) from the proposed rule stage to the pre-rule stage, while pushing back the deadline for small business panel review from April to December.

“That's a good example of a disappointment,” Frumin said.

But that change to the agenda doesn't mean the agency has lost interest in regulating combustible dust, said Freedman. Instead, it may indicate that OSHA is going to wait for the National Fire Protection Association to finish updating its consensus industry standard on combustible dust before moving forward with the rulemaking, he said.

OSHA's regulatory agenda reflects the progress made on its proposed rule for silica, noting the public hearings it hosted in March. The agenda item on silica includes the closing of the post-hearing comment period in July. It doesn't list an expected date for publication of a final rule.

PELs Information Request Coming

The agenda also records OSHA's effort to find a way of updating permissible exposure limits for hundreds of chemicals (RIN 1218-AC74). The agency submitted a request to gather information on ways to address chemical exposure to the White House for approval in April. The agenda item predicts publication of the information request in May.

In light of the April 2013 disaster at a Texas fertilizer facility that killed 11 first responders, OSHA added a rulemaking on the regulatory agenda to address aspects of emergency response and preparedness (RIN 1218-AC91).

The agency solicited comments in 2007 on the need for further action to protect emergency responders.

OSHA listed on its agenda plans to host a stakeholder meeting in July on lessons from the fatal explosion in West, Texas. The meeting will also cover ways to integrate knowledge from the West explosion with other information the agency has collected on emergency response and preparedness.

OSHA is one of three agencies leading the Obama administration's chemical safety working group, which was created by an executive order designed to respond to the West disaster.

As part of its activity on the working group, the agency issued in December an information request on possibly updating its process safety management standard and related standards to prevent chemical disasters. The new regulatory agenda says OSHA will analyze the responses from that request in July.

Recordkeeping Rule on Track

OSHA also continues to see progress on changes to recordkeeping requirements.

The major update is OSHA's intention to issue in March 2015 a final rule (RIN 1218-AC49) for the plan requiring employers to file electronically with OSHA their injury and illness records and increasing filing requirements for larger employers. Previously, no date had been set for a final rule.

A companion proposal to revise which industry groups are exempt from filing (RIN 1218-AC50) is currently under review at the Office of Management and Budget's Office of Information and Regulatory Affairs.

Publication Date Again Raises Eyebrows

The administration quietly slipped out its regulatory agenda the day before the Memorial Day weekend, marking the fourth time in a row it has been released shortly before a major holiday.

The previous agenda was issued the day before Thanksgiving, the one before came out the day before Independence Day and the previous one came out shortly before Christmas. Before that, the administration didn't publish the semiannual agenda for the first time ever.

“It undermines the administration's argument that they're being transparent, that they've met all the obligations and tried to make this an above-board activity,” Freedman said. “It doesn't speak well to their intentions to respect the regulatory process and make people aware of what they're doing.”

 

To contact the reporter on this story: Stephen Lee, Robert Iafolla and Bruce Rolfsen in Washington at stephenlee@bna.com, riafolla@bna.com and brolfsen@bna.com

To contact the editor responsible for this story: Jim Stimson at jstimson@bna.com


The Department of Labor's spring 2014 regulatory agenda is available at http://1.usa.gov/1mmRpkl.

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