Recently, Jordan Barab, Deputy Assistant Secretary of Labor for the U.S. Occupational Safety and Health Administration spoke at the U.S. Small Business Labor Safety (OSHA/MSHA) Roundtable meeting held in Washington, DC. Mr. Barab provided an update on OSHA’s regulatory agenda and rulemaking activities that would likely have an impact on small businesses. Mr. Barab divided the regulatory agenda into rulemaking activities that are pending final agency action, are in the proposal or early rulemaking stage, or are reserved for long-term agency action. Those rulemakings that are pending final agency action are at the top of OSHA’s agenda and are being given significant priority.

According to Mr. Barab the following rules are pending final agency action:

  • Silica
  • Subpart D: Walking Working Surfaces and Personal Fall Protection Systems (Slips, Trips, and Fall Prevention).
  • Improve Tracking of Workplace Injuries and Illnesses (also known informally as Electronic Recordkeeping Rule)
  • Confined Space in Construction

Regarding the silica rule, Mr. Barab indicated that the standard is “innovative but OSHA is trying to make it user friendly.” OSHA is currently reviewing public comments in response to the proposed rule issued on September 12, 2013 and public hearings held March 18, 2014 through April 4, 2014.

During the meeting, Mr. Barab was asked whether the final rule for Subpart D, Walking Working Surfaces and Personal Fall Protection Systems would cover rolling stock or whether a separate rule regarding fall protection from rolling stock would be initiated. In response, Mr. Barab indicated that it is unlikely that the final rule for Subpart D would address the issue of fall protection and rolling stock.

Mr. Barab noted that of the four final rulemakings, Confined Space in Construction would likely be released first and that the final standard generally aligns with the general industry confined space standard. This is consistent with statements that Dr. David Michaels recently made to ACCOSH. OSHA believes that aligning the confined space in construction standard with the general industry confined space standard will be more appealing to employers given this is a standard they currently implement.

Mr. Barab noted that the following rules are in the proposal stage:

  • Beryllium
  • Clarification of Continuing Obligation to Maintain Records
  • Crane Operator Certification
  • Standards Improvement Process

In addition to these rulemakings, OSHA has started the early stages of rulemaking to revise the PSM standard in response to the President’s Executive Order. According to Mr. Barab, OSHA has committed to conducting a Small Business Advocacy Review (SBAR) panel by May 28, 2015. Under the Small Business Regulatory Enforcement Fairness Act, OSHA must hold a SBAR panel before publishing a proposed rule with an Initial Regulatory Flexibility Analysis. This panel consists of small business representatives who are allowed an opportunity to provide recommendations on regulatory alternatives in an effort to reduce the burden on small businesses.

Other rulemakings that are currently in the early stages include Communication Towers and updating existing permissible exposure limits (PELs). OSHA is preparing a Request for Information (RFI) for Communication Towers and issued one for Chemical Management and Permissible Exposure Limits (PELs) on October 10, 2014. Mr. Barab mentioned that the Agency is currently considering whether to extend the deadline for providing information in response to this RFI. Currently the deadline for submission of information is April 8, 2015. Mr. Barab did not give a timeframe for a possible extension.

As for long term agency action, Mr. Barab discussed OSHA’s continued desire to promulgate an Injury and Illness Prevention Program (I2P2) standard. Mr. Barab noted that ultimately the promulgation of such a standard “involved more work than the agency initially anticipated; however, it is not a standard the agency is dropping.” Mr. Barab went on to state that currently OSHA is looking at updating existing guidance documents relating to injury and illness prevention programs. The current guidance, Safety and Health Program Management Guidelines, which was issued in 1989 provides voluntary guidelines on safety and health management practices for employers. Mr. Barab also noted that combustible dust and backover injuries remain long-term agency goals.

In sum, OSHA continues to move forward with significant rulemakings and shows no signs of slowing down during these next two years of this Administration.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.