OSHA Issues Notice of Proposed Rulemaking for Crane Operator Certification – Shifting the Original Intent of the Negotiated Rulemaking Committee

In August 2010 OSHA issued the final cranes and derricks in construction standard, 1926 – Subpart CC. As part of that standard, crane operators were required to either be certified or qualified (depending on the option elected by an employer) by November 10, 2014. 29 C.F.R. § 1926.1427(k).  On February 10, 2014, OSHA proposed a three-year extension to the operator certification deadline until November 10, 2017 and requested public comment.

The extension was due, in part; to issues pertaining to the requirements in the standard addressing crane operator certification that arose shortly after OSHA issued the final rule.   After the final standard was issued, OSHA took the position that an operator is qualified to operate a particular piece of equipment if the operator is certified for that type and capacity of equipment or for higher-capacity equipment of that type.  Therefore, an operator certified to operate a 100-ton hydraulic crane may operate a 50-ton hydraulic crane but not a 200-ton hydraulic crane.

This interpretation created significant concern for many industry representatives, including employers and unions, and firms that offer crane operator training. In November 2012, International Union of Operating Engineers (“IUOE”) petitioned OSHA to reverse its interpretation and to amend the “Capacity and Type” language in 1926.1427(b)(1)(ii)(B) and 1926.1427(b)(1).

In response to these industry concerns and ACCSH’s recommendation that the Agency delay implementation of the operator certification deadline OSHA issued a three-year extension for operator certification from November 10, 2014 to November 10, 2017, which was further delayed by a year in August 2017 to November 10, 2018 while the agency gathered additional public input on the issue.

After more than four years, OSHA has finally issued a Notice of Proposed Rulemaking (NRPM) to update the cranes and derricks in construction standard. The NPRM was released on May 21, 2018 and seeks to revise the operator certification requirements in several major respects.

OSHA proposes to amend 29 CFR 1926 subpart CC by revising sections that address crane operator training, certification/licensing, and competency. The purpose of the amendments are to clarify training requirements for operators; to remove certification-by-capacity from certification requirements; to clarify and permanently extend an employer’s duty to evaluate potential operators for their ability to safely operate assigned equipment covered by subpart CC; and to require that employers document the evaluation.

Evaluation of Operators

In some respects the proposed rule undermines the intention of the initial negotiated rulemaking committee, C-DAC. It was C-DAC’s intention that certification was a definitive means of ensuring that operators were properly trained and competent to safely operate equipment covered by the standard.  If revised, the standard would make certification akin to a driver’s learner permit requiring employers to still evaluate an operator’s skill and competency to operate equipment safely.  The proposed standard is written in performance oriented language and does not establish what specific skills must be assessed and as drafted it is possible this requirement to evaluate an operator could change from job to job.  According to OSHA the proposed standard would “also require employers to evaluate the operator’s judgement.” Meaning an employer would have to assess the operators ability to apply his knowledge and skills but also the operators “ability to recognize risky or unusual conditions.”

Certification by Capacity of Crane

The proposed rule does seek to address the initial industry concerns regarding certification based on the capacity of the crane. OSHA proposes to eliminate any requirement that operator certification be based on the capacity of the crane.

OSHA is unaware of any direct evidence establishing a safety benefit for requiring certification by capacity. For these reasons, OSHA has preliminarily determined that, if the employer duty [to evaluate operators] becomes permanent requirement, employee certification by capacity of crane should no longer be required, rather, it should merely be an option for those employers who wish to use it.

Public comments or requests for an informal public hearing must be submitted to OSHA by June 20, 2018. A copy of the proposed rule can be found online.

 

Complimentary Webinar: Preventing Safety Liability at Multi-Employer Worksites

Multiple employers work together at the same site all the time.  So if someone gets hurt or if OSHA knocks, how do you know you have done enough to protect your company?  Safety liability can be serious business if you have not taken proper precautions to establish each employer’s roles and duty of care before beginning work.   Courtney Malveaux will cover this topic on June 20th.  More information and the link to register can be found here.  We hope you can join us!

PSM “Retail Exemption” in Farm Bill May Fall Victim to Politics

In an April 30th memorandum to Regional Administrators, Tom Galassi (Director for OSHA’s Directorate of Enforcement Programs) announced that OSHA’s process safety management (PSM) standard, which establishes requirements for preventing or minimizing explosion hazards related to chemicals, did not apply to “retail facilities.” This had previously been at the center of debate in a 2016 case before the DC Circuit Court of Appeals, Agricultural Retailers Ass’n V. US Dep’t of Labor, where the Court struck down the definition of “retail” provided by OSHA in a memorandum.  837 F.3d 60 (D.C. Cir. 2016).

Galassi’s recent memo states:

In light of the D.C. Circuit’s decision, the following PSM enforcement policy guidance applies:

OSHA will not issue citations under the PSM standard for employers in the following North American Industry Classification System (NAICS) codes:

424510 – Grain and Field Bean Merchant Wholesalers

424590 – Other Farm Product Raw Material Merchant Wholesalers

424910 – Farm Supplies Merchant Wholesalers

The retail exemption is based on the belief that these businesses do not handle chemicals in large volumes and, therefore, do not pose a high risk of hazardous release. However, those who are exempted are still expected to comply with other OSHA regulations, such as the storage and handling of chemicals.

The ARA’s (Agricultrual Retailers Association) continued push to have the retail exemption permanently written into the Farm Bill is now caught up in politicking. The bill failed in the House last week, 198-213.  Democrats opposed President Trump’s proposed stricter work requirements for food stamp recipients while the Republican Freedom Caucus “held the bill hostage, demanding that the House first vote on controversial immigration legislation in exchange for their support” (Politico).

The Senate, meanwhile, is working on a bipartisan Farm Bill but it is unknown if the PSM retail exemption will or will not be included in that bill.

OSHA Spring Regulatory Agenda…What to Expect from OSHA

It’s that time of year again…when OSHA tells us what is on the horizon for rulemaking activity. Last week the spring semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.

The Regulatory Agenda for the Department of Labor includes a total of twenty regulatory entries for OSHA specific actions. In this year’s regulatory agenda there are nine regulatory actions in the pre-rule stage, including Communication Tower Safety, Emergency Response and Preparedness, Mechanical Power Press Update and Prevention of Workplace Violence in Health Care and Social Assistance. Seven regulatory actions are in the proposed rule stage including  Amendments to the Cranes and Derricks in Construction Standard, Crane Operator Qualification in Construction and the addition of Puerto Rico as a State Plan and four regulatory actions are in the final rule stage.

Some of OSHA’s regulatory actions under consideration:

 

RULE

 

ANTICIPATED AGENCY ACTION

 

Occupational Exposure to Crystalline Silica; Revisions to Table 1 in the Standard for Construction

 

Request for Information in November 2018

 

Tracking of Workplace Injuries and Illnesses

 

Notice of Proposed Rulemaking in July 2018

 

Lock-out/Tag-out Update

 

 

Request for Information in June 2018

 

Crane Operator Qualification in Construction

 

Notice of Proposed Rulemaking in May 2018

 

Workplace Violence in Health Care and Social Assistance

 

SEBREFA Small Business Review in January 2019

 

Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records

 

Final Rule December 2018

 

Tree Care Standard

 

SBREFA Small Business Review in April 2019

 

The full federal Unified Agenda and Regulatory Plan can be found online at:

http://www.reginfo.gov/public/do/eAgendaMain

Trump Administration Takes Aim at Obama-era Beryllium Standard

On January 9, 2017, the Occupational Safety and Health Administration (OSHA) issued a final rule adopting a comprehensive standard for exposure to beryllium and beryllium compounds – a separate standard was promulgated for general industry, construction and shipyards. On May 4, 2018, OSHA issued a Direct Final Rule (DFR) regarding the beryllium standard for general industry.  This followed the Agency’s announcement on April 30th that it had reached settlement with several industry petitioners who had challenged the general industry standard in the US Court of Appeals for the Eighth Circuit.  The Agency has said that the DFR clarifies “aspects of the beryllium standard for general industry as it applies to process, operations, or areas where workers may be exposed to materials containing less than 0.1% beryllium by weight.”

This DFR adjusts the regulatory text of the general industry beryllium standard to clarify that OSHA does not intend for requirements that primarily address dermal contact to apply in processes, operations, or areas involving only materials containing less than 0.1% beryllium by weight. These clarifications are made through changes to the definition of beryllium work area; the addition of definitions of dermal contact, beryllium-contaminated, and contaminated with beryllium; clarifications of certain hygiene provisions with respect to beryllium contamination; and the clarifications to provisions for disposal and recycling. In addition, because under these changes it is possible to have a regulated area that is not a beryllium work area, this DFR makes changes to certain housekeeping provisions to ensure they apply in all regulated areas. Finally, this DFR also includes a change to the definition of “emergency”, adding detail to the definition so as to clarify the nature of the circumstances OSHA intends to be considered an emergency for the purposes of the standard.

The press has described the DFR as narrowing, easing, or limiting the standard’s definitions. In this Direct Final Rule, OSHA is adopting a number of clarifying amendments to address the application of the standard to materials containing trace amounts of beryllium. OSHA believes this rule will maintain safety and health protections for workers while reducing the burden to employers of complying with the current rule. According to OSHA, “this direct final rule is expected to be an Executive Order (E.O.) 13771 deregulatory action” with a net annual cost savings of  $0.36 million per year.  OSHA will consider comments on the DFR and if no significant adverse comments are received by June 4, 2018, OSHA will publish a Federal Register notice confirming the effective date of the changes and the DFR will take effect on July 4, 2018.

On May 11th OSHA began enforcement of certain requirements of the beryllium rule.  For generally industry, construction and shipyards this included the permissible exposure limits.  Further, in general industry enforcement began for the exposure assessment, respiratory protection, medical surveillance and medical removal requirements. According to OSHA, “The agency will delay enforcement of other ancillary provisions for general industry until June 25, 2018.  The Agency plans to issue a proposal to further extend this compliance date for the ancillary provisions to Dec. 12, 2018.” For the construction and shipyard industries, only the permissible exposure limits and short term exposure limit are being enforced until OSHA undertakes additional rulemaking for those industries.

 

 

OSHA’s National Stand-Down to Prevent Falls in Construction – May 7-11, 2018

Today marks the first day of OSHA’s 5th annual National Stand-Down.  The week-long event aims to focus attention on  the fact that “Fatalities caused by falls from elevation continue to be a leading cause of death for construction employees, accounting for 370 of the 991 construction fatalities recorded in 2016 (BLS data).”  The Safety Stand-Down prompts employers and employees to pause and use this week as an opportunity to discuss safety, in particular fall hazards and prevention.  OSHA has partnered with groups such as the National Institute for Occupational Safety and Health (NIOSH), the American Society of Safety Engineers (ASSE), and the U.S. Air Force to help support this cause.  Additionally, OSHA has published a poster and dedicated a section on its website to spread awareness and assist employers who would like to become involved.  If you are interested in learning more, go to: https://www.osha.gov/StopFallsStandDown/index.html

OSHA Only Requiring Electronic Submission of 300A Forms

In the last Regulatory Agenda, OSHA indicated that it was undergoing rulemaking to revise the Improve Tracking of Workplace Injuries and Illnesses regulation promulgated under the Obama administration. Specifically, OSHA noted it was considering deleting the requirement for employers with 250 or more employees at an establishment to electronically submit its 300 Log, 301 Forms along with the 300A Form.  What was not clear at the time was what OSHA was going to require for submission in July since the agency has not yet issued a Notice of Proposed Rulemaking revising the standard.

Recently, OSHA made clear that it will not collect or require employers with 250 or more employees per establishment to submit the 300 Log or the 301 Forms.  OSHA will require all employers covered by the regulation to only submit the 2017 300A Form by July 1, 2018. Beginning in 2019 and every year thereafter, the 300A Forms must be submitted by March 2.

Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. OSHA announced that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule, including the collection of the Forms 300/301 data. The Agency is currently drafting that NPRM and will seek comment on those provisions.

Also, last week we blogged about OSHA’s reversal in position regarding the electronic filing of 300A Forms by employers in state plans that have not adopted the Improve Tracking of Workplace Injuries and Illnesses requirements.  OSHA is now requiring those employers to submit their 300A Forms using the Injury Tracking Application on OSHA’s website by July 1, 2018.  However, an agency official recently clarified that since OSHA does not have jurisdiction in those states with state plans, it is prohibited from enforcing the regulation and can not issue citations to employers for failing to electronically submit the 2017 300A, and since those certain state plans have yet to adopt the regulation they are equally prohibited from enforcing the requirement and can not issue citations to employers. So while OSHA is requiring employers in state plans that have not yet adopted the regulation to submit their 2017 300A it has acknowledged that it has no enforcement authority for those employers who fail to do so.

 

OSHA Clarifies That Employers in State Plans Must Submit Injury & Illness Data

In a news release issued today, OSHA notified employers in state plans that they must submit their injury and illness data through OSHA’s portal even if their state has not yet adopted the new requirements of the “Improve Tracking of Workplace Injuries and Illnesses” regulation. According to OSHA,

“[the agency] determined that Section 18(c)(7) of the Occupational Safety and Health Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the Injury Tracking Application (ITA) online portal, even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”

OSHA had previously required only employers in state plans that had adopted the new requirements of the regulation to submit their data to OSHA.  The news release went on to say,

An employer covered by a State Plan that has not completed adoption of a state rule must provide Form 300A data for Calendar Year 2017.  Employers are required to submit their data by July 1, 2018. There will be no retroactive requirement for employers covered by State Plans that have not adopted a state rule to submit data for Calendar Year 2016.

Further, OSHA has clarified that all covered employers are only required to submit their 2017 300A form by July 1, 2018.  The regulation, as promulgated, required those employers with 250 or more employees at each establishment to submit all their injury and illness recordkeeping forms –  300A, 300 Log and corresponding 301 Forms – by July 1, 2018 through the ITA online portal.   OSHA announced that the only data that employers are required to submit is the 2017 300A Form, this is for federal jurisdiction and state plans, irrespective of whether the state has adopted the new regulation.

OSHA’s ITA website has the following announcement:

Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. OSHA announced that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule, including the collection of the Forms 300/301 data. The Agency is currently drafting that NPRM and will seek comment on those provisions.

We anticipate that OSHA will revise the requirements for employers with 250 or more employees per establismment and simply require all covered employers to submit their 300A Form to OSHA on an annual basis.

OSHA Enforcement of Parts of Beryllium Rule Begins May 11

Employers must ensure they are in compliance with most of OSHA’s beryllium rule’s requirements for general-industry and with the PEL and STEL in construction and shipyard industries by May 11, 2018. 

The rule (29 CFR 1910.1024, 29 CFR 1915.1024, and 29 CFR 1926.1124), promulgated in January 2017, sets a new, lower eight-hour permissible exposure limit (PEL) of 0.2 micrograms per cubic meter and a new short-term (15-minute) exposure limit (STEL) of 2.0 micrograms per cubic meter.

OSHA will not enforce any other part of the construction and shipyard beryllium standards such as ancillary provisions (engineering controls and medical surveillance) in construction and shipyard operations until further notice. According to OSHA, these are subject to additional rulemaking.

Further, OSHA said the general-industry rule has been the topic of “extensive settlement talks” with several parties. Except for certain provisions requiring changing rooms and showers and some engineering controls, all aspects of the rule in general industry will be enforced beginning May 11, 2018. The changing rooms and showers provisions are effective on March 11, 2019, and requirements for engineering controls on March 10, 2020.

Please contact Jackson Lewis if you have any questions about the rule or would like compliance assistance.

 

Review Commission Requests Outside Comments From Interested Parties To Evaluate Workplace Heat Stress Case

The Occupational Safety and Health Review Commission (OSHRC) is reviewing OSHA’s use of the general duty clause to issue citations against employers for heat-related hazards that are likely to cause death or serious bodily harm to employees. OSHRC accepted for review the case of Secretary of Labor, Department of Labor vs. A.H. Sturgill Roofing, Inc. which upheld a general duty citation against an employer for not adequately implementing a heat illness prevention program and a violation of 29 C.F.R. § 1926.21(b)(2) for failing to provide adequate training to its employees for heat-related hazards.  The employer was issued these citations after an employee died following a heat stroke on his first day on the job.

The ALJ held that the company’s employees were exposed to heat-related illness hazards during the roofing project and that all of the working conditions taken together established the existence of a heat-related illness hazard. The ALJ noted that it was not reasonable for a roofing employer to rely solely on a generic heat index to determine if a heat hazard exists at its worksite and to only implement a heat-related safety plan at the “danger” level.

The employer appealed the case to the Review Commission contending that other unknown factors such as pre-existing medical conditions may have led to the employee’s heat illness. The employer also argued that the reported heat index on the day of the incident was only at the “caution” level and that the company provided basic heat safety and planning that would have been required at that level per OSHA guidance.  In addition, the employer argued that there is no set standard of what constitutes a violative condition since there is no specific standard that identifies the temperature level and working conditions that would have triggered a specific response.

On review, OSHRC has taken the unusual step of requesting amici briefs from interested parties on the issue of workplace heat stress violations under the OSHA’s general duty clause. Specifically, OSHRC is looking for more information on the following issues:

  • Whether an employer’s knowledge or lack of knowledge of its employees’ underlying health conditions or ages, and any legal restrictions upon the employer in obtaining such information, are relevant to the Secretary’s burden to establish a violation of the general duty clause in this case; and
  • Whether the judge miscalculated the heat index on the day in question and, if so, whether the Secretary established the existence of a hazard even if the heat index remained in the lowest “caution” quadrant.

OSHRC originally requested briefs addressing these issues to be submitted by April 30, 2018 but has extended the deadline two weeks to May 14, 2018.

As we await a decision from OSHRC and as the temperature rises during the summer months, employers are advised to carefully evaluate the need and appropriateness of a heat-related illness safety program for employees that may be occupationally exposed to heat stress hazards in the workplace.

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