DOL regulatory agenda holds a few surprises

| Published on January 30, 2012

Adele Abrams

Adele Abrams

On Jan. 20, 2012, the U.S. Department of Labor (DOL) released its “Fall 2011” semi-annual regulatory agenda, covering the Mine Safety and Health Administration (MSHA) and Occupational Safety and Health Administration (OSHA), as well as a number of other agencies governing employment laws.

The long-overdue release was not explained, nor did MSHA or OSHA offer on-line chat sessions this time to discuss the status of proposals and new initiatives with the regulated community — a departure from the approach taken with the past few releases.

The statement of regulatory priorities for the Department as a whole notes that the DOL is continuing its “Good Jobs for Everyone” strategy, which includes safe and healthful workplaces. It states that the mechanisms to achieve this goal include increased enforcement actions, more education and outreach, and additional regulatory actions to foster compliance.

The DOL’s “P3 Initiative” (Plan, Prevent, Protect) will be maintained, although, as discussed below, one of the key facets of this P3 approach that was delineated in the 2011-2016 strategic plan is now missing from MSHA’s agenda. The concept behind P3 is to require employers to “take full ownership” over their adherence to DOL requirements, and also to promote more openness and transparency that can put workers in a better position to determine whether their workplace “values health and safety.” This has already been advanced, at least in part, by MSHA’s renewed emphasis on miners’ rights through a new brochure and training video.

The P3 regulatory actions already in progress for OSHA and MSHA include rulemaking activities aimed at controlling the spread of infectious diseases, examination of workplaces in underground coal mines, and identifying pattern of violations at all mines. The OSHA “I2P2” initiative (workplace safety and health management programs, known as injury/illness prevention plans) — another key rulemaking under P3 — is also advancing, with a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel set to convene in March 2012.

In the DOL regulatory priorities statement, the agency observes that under P3, employers must create a plan to identify and remediate risks of legal violations and risks to workers, including a plan to inspect workplaces for safety hazards that could injure or kill workers.

Under the DOL’s vision of I2P2, workers must be given opportunities to participate in the creation of these plans, and the plans would have to be made available to workers so they could help monitor their implementation. The prevention aspect of P3 requires employers to completely implement such plans to ensure that there are no legal violations, not simply a “paper process.” The protection phase requires employers to verify, on a regular basis, that the plan’s objectives are actually being met — that the plan actually protects workers from health and safety risks and other violations of their workplace rights (e.g., under Section 105C of the Mine Act, which covers miners’ rights and whistleblower protections).

MSHA’s regulatory plan key rulemakings (aside from the Pattern of Violations listed above, which applies to all sectors) are focused on the coal sector. These include the aforementioned finalization of a new standard to clarify examination requirements in underground coal work areas (set for completion in March 2012); lowering miners’ exposure to coal dust and requirements for the use of continuous personal dust monitors in coal mines, both of which are set for completion in April 2012.

Both OSHA and MSHA will also be involved in regulatory actions to protect workers from the hazards of equipment that can pin, crush, or strike them through the use of proximity detection devices that could be employed during backing maneuvers.

The DOL indicates that technologies under consideration to prevent backing accidents include cameras, radar, and sonar to help view or detect the presence of workers on foot in blind areas. New monitoring technology, such as tag-based warning frequencies, which use radio and magnetic field generators to detect tags worn by workers, will also be considered. The MSHA proposal was slated for release in January 2012, but, obviously, that deadline has not been met. OSHA plans to issue a Request for Information in February 2012.

Another rulemaking item common to both OSHA and MSHA is modification of the crystalline silica standard, but OSHA will take the lead on that rulemaking. The silica rule went through a SBREFA panel years ago, and OSHA’s proposed rule has been hung up at the Office of Management and Budget’s OIRA agency now for nearly a year.

Normally, review takes 90 days. It is unclear when — or if — that rule will be proposed, although it remains a DOL priority and has been the subject of OSHA national emphasis programs since the 1990s.It is expected that, as proposed, the silica rule would cut the current exposure limit in half (bringing it to 50 ug/m3), and also dictate medical surveillance and exposure monitoring requirements, as well as specified best practices, for control of occupational silica exposure. MSHA states that it plans to follow the recommendations of the National Institute for Occupational Safety and Health (NIOSH) as well as the DOL’s Advisory Committee on elimination of pneumoconiosis among miners in addressing the silica exposure limit. OSHA’s new agenda calls for the proposed rule to be published in May 2012.

The agenda also calls for “retrospective” reviews of existing rules, and the safety/health rules targeted for this action under Executive Order 13563 include: OSHA’s Hazard Communication Standard, OSHA’s Bloodborne Pathogens Standard; updating of OSHA standards that incorporate national consensus standards related to acetylene and personal protective equipment; cranes and derricks in construction, a lookback at OSHA’s chemical standards, and review (and likely revision) of MSHA’s criteria and procedures for proposed assessment of civil penalties under 30 CFR Part 100.

OSHA also has a new Hazard Communication rulemaking at the final rule stage, and it, too, is over at the Office of Information and Regulatory Affairs (OIRA) for review. It will change the format of Material Safety Data Sheets (MSDSs) labeling, include the use of pictograms, and will require retraining of all workers.

In late January 2012, OIRA announced that it was extending the review period beyond the standard 90 days for that rule as well, after business interests lobbied against the inclusion of “unclassified hazards” in the HazCom rule. The rulemaking is designed to bring OSHA’s HazCom standard (29 CFR 1910.1200) in sync with the Global Harmonization System (GHS) adopted by many foreign countries, as well as by other US agencies (e.g., Department of Transportation, Consumer Products Safety Commission). Interestingly, MSHA has yet to put HazCom/GHS coordination on its regulatory agenda, which raises the specter that separate training, labeling, and MSDS formats could be required by MSHA that are required at OSHA-regulated worksites.

In addition to the OSHA rulemaking initiatives discussed above, OSHA will also seek to modernize its recordkeeping system (although the appropriations bills funding OSHA and MSHA have riders barring OSHA from spending funds to move forward with that rulemaking). The idea is to require employers to electronically submit injury and illness data to OSHA through modification of 29 CFR Part 1904. Currently, employers simply need to record (not report) injuries at OSHA-regulated entities, whereas MSHA-regulated companies must affirmatively report any injuries or illnesses resulting in medical treatment, lost-time, or restricted duty.

OSHA whistleblower protection regulations would also be altered under the agenda, through new procedural rules that cover various whistleblower standards that OSHA enforces (e.g., transportation, consumer product safety, Food and Drug Administration, and Sarbanes-Oxley Act, among others).

Other rules on OSHA’s agenda include the following:

  • Confined Space in Construction (final rule due June 2012);
  • Electrical Power Transmission and Distribution, Electrical Protective Equipment (final rule due May 2012);
  • Walking Working Surfaces and Fall Protection (final rule due October 2012); and,
  • Revision of Underground Construction and Demolition Standards related to cranes and derricks (direct final rule due February 2012).

With respect to MSHA’s ongoing revision of the Pattern of Violations (POV) criteria, the agency says that the current regulations do not “reflect the statutory intent for section 104(e)” of the Mine Act, and that Congress intended this enforcement tool to be used against mine operators with disregard for health and safety or whose chronic history of persistent S&S violations exposes miners to the same hazards again and again. The final rule should, MSHA says, improve consistency in applying POV criteria. The targeted final rule date is April 2012.

Another item on MSHA’s regulatory agenda concerns notification of the agency about legal identity. The existing requirements are not viewed as providing sufficient information for MSHA to identify all “operators” responsible for safety and health obligations under the Act, and so this initiative would expand the universe of information required to be submitted to MSHA. No further details are available about this activity, other than April 2012 is the due date for a proposed rule.

MSHA also plans to change its civil penalty structure once again, with a proposed rule slated for February 2012, according to the agenda. The last time MSHA changed Part 100 in 2007, it was a contributory factor in creating what — at one point — was a 19,000-case backlog at the Federal Mine Safety & Health Review Commission. MSHA’s goal this time around is to “improve the efficiency” of the agency’s efforts and “to facilitate the resolution of enforcement issues.” Beyond that, details are vague. However, at a recent conference, one MSHA metal/non-metal district manager suggested that the range of options on negligence (now allowing an inspector to select “no, low, moderate, high, and reckless disregard” as the choices) and gravity (which runs from no lost workdays to fatal and from no likelihood of occurrence through unlikely, reasonably likely, highly likely, and occurred) would become more limited. This does create speculation that under a revised scheme, more citations would be characterized as high negligence and significant and substantial.

What is perhaps most interesting about the MSHA agenda is that its “I2P2” rulemaking — which was once part of the DOL’s P3 priorities for MSHA — has disappeared from the agenda. This is curious given that, as recently as November 2011, the agency was still holding public hearings on the issue. In addition, having a safety and health management program in place is one of the “mitigating factors” MSHA would consider in de-selecting a mine from a POV list, according to the POV proposal. Moreover, in January 2012, Assistant Secretary Joe Main urged adoption of these comprehensive safety management programs in a letter he sent to the mining community, claiming: “In order to prevent mine deaths, operators must have in place effective safety and health management programs that are constantly evaluated, find-and-fix programs to identify and eliminate mine hazards, and training for all mining personnel.” Given the prominence of this approach in the agency’s communication, it is odd that the regulatory initiative was dropped from the agenda without explanation.

About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Md., a seven-attorney firm focusing on safety, health, and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies. She is a member of the Maryland, D.C., and Pennsylvania Bars, the U.S. District Courts of Maryland and D.C., the U.S. Court of Appeals, D.C. Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University’s National Law Center and earned her Bachelor of Science in Journalism from the University of Maryland, College Park. For more information, contact her at safetylawyer@aol.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.

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