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Full of Surprises: OSHA Spring Regulatory Agenda Released

May 10th, 2018 | Jordan Barab

When Spring is in the air, this man’s fancy turns to (where else?) the 2018 Spring Regulatory Agenda to discover  what movement OSHA will be planning to move forward (or backward) to protect American workers from injury, illness and death in the workplace.

And the news is not totally bad this time around.

The good news from the new Regulatory Agenda is that OSHA has moved several items from the Long Term Agenda to the Short Term Agenda — Emergency Response and Preparedness, an Update to the Hazard Communication Standard, Tree Care, and Preventing Workplace Violence in Health Care and Social Assistance.  The Long Term Agenda generally means that the next major action (such as an official proposal) is more than a year in the future, either because the item has been deliberates sentenced to purgatory, or because there is simply too much work to get to the next major stage within a year. (Katie Tracy of the Center for Progressive Reform has put together this handy chart to save your eyesight and help with translation.)

The other good news is that nothing was removed from OSHA’s Regulatory Agenda. Previously, the Trump administration had removed such important items as combustible dust, noise in construction, several chemical standards and protections for workers at risk from being backed over by construction vehicles.

SBREFA: One Step Forward

The Labor Department has announced an ambitious schedule of OSHA small business review (SBREFA) panels for the next year covering  Communication Tower Safety (May 2018), Emergency Response (October 2018), Workplace Violence (February 2019) a Hazard Communication Standard update (February 2019), Tree Care (April 2019).

SBREFA is a process where OSHA and the Small Business Administration’s Small  Business Advocacy office organize panels of “Small Entity Representatives” (SERs) — actual small business owners or health and safety staff — to discuss the impact of a possible standard on their industry based on preliminary economic and feasibility information compiled by OSHA. Based on the comments of the SERs, OSHA and SBA issue a report within four months of initiation of the panel, which informs the next major stage of the regulatory process — the proposal.

The SBREFA process was created under the Gingrich Congress in the mid-90s to provide small businesses with a first bite of the regulatory apple. (One might ask why the normal public comment process doesn’t provide the same opportunity, and why labor wasn’t also given a similar early bite?)  SERs generally advise OSHA that no new standard is needed, thank you very much. But they also frequently provide some useful information that OSHA later uses to tweak the proposal to address some small business concerns.

Now, this is a pretty darn ambitious regulatory schedule — five SBREFA panels in a year — especially for an anti-regulatory Republican administration. That is certainly a good thing, and especially good to see workplace violence among those panels. But there are several caveats that need to be raised.

First, I’m a more-than-a-bit skeptical they can keep to this schedule — especially since the first one is scheduled for this month.  Given the work involved here, the other smaller items OSHA is moving forward on, and the resources being put into deregulatory actions on beryllium and recordkeeping, plus the 10% cut sustained by the standards budget last year, it’s hard to see them keeping to this schedule. On the other hand, we’ve seen no forward movement on any regulatory items in the first 16 months of this administration, so it’s possible that significant preparatory work has been going on behind the scenes.

The second caveat is that these are only SBREFA panels.  The next major step is an actual proposal, which contains a proposed regulatory text and several hundred pages of “preamble” with in-depth analysis of significant risk, economic and technological feasibility. Written comments on the proposal are then solicited and a hearing is generally held — a hearing that can last days or weeks, depending on the size and complexity of the proposed standard.

Depending on the size and complexity of the standard, it can often take one to three years to get from SBREFA to a proposed standard, and then several years to get to a final standard from there.

In addition, don’t forget Trump’s “One in/Two out” Executive Order (EO) that requires agencies to repeal two standards or regulations of equal cost for every one that’s added.  While I have yet to see this EO invoked, it is assumed that the agency would have to determine which two standards are going to be revoked by the time they get to the proposal stage. Given that it takes almost as much work to revoke an old standard as it does to issue a new standard, OSHA would essentially be forced to conduct three rulemakings (one for the new rule, and two for the revoked rules) for every new rule it wants to add.  And all that is assuming that the agency can figure out which protections workers will lose when, for example, communications tower workers gain protections.

The bottom line is that none of these new standards are likely to see the light of day during this Presidential term. But any forward movement is always welcome.

There are a few small items — revisions, corrections and small updates — that are moving to the proposal and final stages — the most significant of which is the long-awaited fourth iteration of the Standards Improvement Project (SIPS) where small improvements and updates are made to numerous standards in a single rulemaking.

And Two Steps Back

Still languishing on the long term agenda are OSHA standards dealing with infectious disease and Process Safety Management which covers safety in chemical plants. Both of these had SBREFA panels during the Obama administration  They’re both fairly major rules which means a) they involve quite a bit of work to get to the proposal stage, b) OSHA budget cuts will slow the process further, and c) given their likely cost, this administration will undoubtedly be reluctant to move forward on them and hard-pressed to find protections of equal cost to remove. Slow movement on the infectious disease standard is especially disappointing considering news of another Ebola outbreak in the Democratic Republic of the Congo., a recent severe flu season and the coming of mosquito season as the weather warms.

The bad news, of course, is that the most significant regulatory movement by OSHA continues to be in reverse with a proposal undermining beryllium protections for construction and maritime workers, delay in full implementation of the beryllium standard for general industry employees and a proposal to roll back some provisions of the electronic recordkeeping standard, which OSHA is predicting for sometime in July.

The National Employment Law Project also points out DOL backsliding in protection of young workers, action at the Department of Agriculture weakening protections for meat processing workers and EPA’s actions that could result in more worker exposure to toxic pesticides.

This blog was originally published at Confined Space on May 10, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

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