Gary Visscher, Esq.
Fall 2020 Regulatory Agenda: OSHA and MSHA
The Fall 2020 Regulatory Agenda, released on December 10, is a government-wide listing of regulations which each agency expects to take some type of action or review on over the coming twelve months. (The complete agenda, which can be searched by department, is at https://www.reginfo.gov/public/do/eAgendaMain)
The twice-yearly (spring and fall) Regulatory Agenda includes anticipated dates for each listed action, though the listed dates are seldom met (as is obvious in the newest Agenda, which in many cases lists dates for actions that have already been missed). Still, the Regulatory Agenda provides a list of priorities and a convenient summary of the status of regulations on which each agency is working.
The priorities will likely change as of January. It is common for a new administration, of either party, to initially put a 60 or 90 day “pause” on regulatory activities while it reviews the items being worked on and establishes its own priorities. In addition, we can anticipate that executive orders put in place by the Trump Administration which affect regulatory actions across the federal government will be rescinded.
The latest listings for OSHA and MSHA reflect little change from the previous agenda, which was released in June. It should also be noted that neither OSHA nor MSHA includes any mention of the “elephant in the room” -- an Emergency Temporary Standard regarding COVID-19, which is likely to be the first major regulatory issue for both agencies under the new administration.
OSHA lists three rules in “final rule” stage, and all three address procedural issues for OSHA’s responsibilities in administering federal whistleblower statutes.
A much longer list – 14 items – is listed as in the “proposed rule” stage, indicating that a Notice of Proposed Rulemaking may be issued in the next year. They include:
(1) A long-awaited update of the Lock-Out/Tag-Out standard.
(2) Updates and revisions to the Powered Industrial Truck standard (and a separate rulemaking on Powered Industrial Truck design standard)
(3) Revisions to Table 1 in the Construction Crystalline Silica standard
(4) Revisions to the medical surveillance/medical removal provisions in the crystalline silica standard (response to court order in the case challenging OSHA’s standard)
(5) “technical” changes to the Walking Working Surfaces standard
(6) A new “tree care” standard
(7) A new standard on communication tower safety
(8) Codification of provisions on drug testing and safety incentives (from injury and illness reporting rule)
OSHA also lists 4 rules at the “prerule” stage, indicating a proposed rule is at least a year off. The four rules listed are:
(1) A comprehensive standard on Emergency response
(2) Removing provisions outdated provisions in the mechanical power presses rule
(3) A new standard on Prevention of workplace violence in health care and social assistance
(4) Revising (by reducing the blood lead levels for Medical Removal) the general industry and construction lead standards.
Several of OSHA’s most significant regulatory initiatives remain listed as “long-term actions” with no specific action scheduled. Some of these may become priorities, however, under a new administration. They include:
(1) New standard on infectious disease
(2) Amendments and additions to the Process Safety Management standard on prevention of chemical accidents
(3) Requiring a separate column on the injury and illness reporting forms for musculoskeletal disorders (MSDs)
(4) Revisions to Medical Surveillance and Medical Removal provisions in substance-specific health standards to achieve greater consistency and uniformity.
MSHA does not list any rules in the “final rule” stage for the next 12 months. At the proposed rule stage, MSHA lists 4 rules:
(1) Respirable Crystalline Silica standard
(2) Alternatives to Petitions for Modification for certain surveying equipment
(3) Requiring safety programs for surface mobile equipment
(4) Rule on testing and approval of certain electric motor driven mine equipment
MSHA lists one action at the “prerule” stage: Exposure of Underground miners to diesel exhaust.
In addition, MSHA’s “Retrospective Study of Respirable Coal Mine Dust Rule,” which generated considerable controversy when it was initiated several years ago, remains listed under the agency’s “long-term actions.”