The Department of Labor’s semiannual regulatory agenda was released back on November 27, 2013 and was published in the Federal Register on January 7, 2014 and includes all the regulations that OSHA expects to actively consider for review, proposal or formal declaration in the coming year. OSHA has a full slate of regulations in the prerule, proposed rule and final rule stages they plan to tackle in 2014. Some of these regulations are for the construction industry standards and others will affect construction companies if and when a final rule is published.
Reinforced Concrete in Construction and Preventing Backover Injuries and Fatalities – Prerule Stage
Fatalities from struck-by and caught-in/-between injuries are two of the four leading causes in the workplace with 75 workers fatally backed over in 2011. Emerging technologies such as cameras and proximity devices along with use of spotters and traffic control plans may be able to greatly reduce the number. OSHA is currently conducting site visits to employers after holding stakeholder meetings on backovers. The next step is to initiate a Small Business Regulatory Enforcement Act (SBREFA) Small Business Advocacy Review Panel which is scheduled to take place in June 2014.
OSHA believes that the current rules pertaining to post-tensioning and reinforcing steel are inadequate in addressing worker hazards. Injuries from steel reinforcing are typically caused by unsafe material handling, impalement and structural collapse with injuries received during post-tensioning work are usually due to improper training and misuse of equipment. OSHA is currently gathering information on these types of injuries and is scheduled to analyze comments in April 2014.
Occupational Exposure to Crystalline Silica – Proposed Rule Stage
A proposed rule on Occupational Exposure to Crystalline Silica was published on September 12, 2013 in order to measure exposure amounts and limit exposure of respirable crystalline silica to workers by updating the current permissible exposure limit (PEL). The current PEL for construction is based on particle counting technology which is obsolete and threshold limit that is over 40 years old. Silica is found in a number of building materials including shingles, asphalt, bricks, drywall, porcelain, stucco, cement and concrete. Long-term exposure and inhalation of crystalline silica dust can lead to bronchitis, silicosis and lung cancer. Comments on the proposed rule were due December 11, 2013 but were extended to January 27, 2014 and again to February 11, 2014. Public hearings on the proposed rule are set to commence on March 18, 2014.
Injury and Illness Prevention Program – Proposed Rule Stage
OSHA is planning to issue a proposed rule in September 2014, commonly referred to as I2P2, which would require employers to implement an injury and illness prevention plan. Employers would be required to identify and correct hazards on a rolling basis. I would think that construction companies with good, proactive safety plans already do this since hazards at each construction site are unique and constantly changing. Before the proposed rulemaking can take place a SBREFA Small Business Advocacy Review Panel has to be conducted.
Improve Tracking of Workplace Injuries and Illnesses – Proposed Rule Stage
The notice of proposed rulemaking to Improve Tracking of Workplace Injuries and Illnesses was published on November 8, 2013. The goal is to improve accuracy and availability of records and statistics while enabling a more efficient and timely collection of data through an updated and modernized reporting system. The proposed rule would require companies with 250 or more employees to submit injury and illness data electronically to OSHA on a quarterly basis. Industries with a high injury and illness rate such as construction would have slightly different requirements. Construction companies with 20 or more employees would be required to submit electronic reports on injuries and illnesses on a yearly basis. Public meetings were held on January 9 – 10, 2014 with comments due by February 6, 2014. No further timetable for rulemaking has been established yet.
Cranes and Derricks in Construction: Operator Certification – Proposed Rule Stage
On February 10, 2014, OSHA issued a proposed rule on Cranes and Derricks: Operator Certification. The proposed rule would extend the current date set requiring employers to ensure that crane operators are certified from November 10, 2014 to November 10, 2017. The final rule on this was published on August 9, 2010 with an effective date of November 10, 2010. The final rule had an exception that crane operator certification requirement would be phased in with an effective date of November 10, 2014. Comments on the proposed rule are being accepted until March 12, 2014. There are also plans to for proposed rulemaking to make amendments to the Cranes and Derricks in Construction Standard in order to correct some errors and clarify language in the text.
Electric Power Transmission and Distribution; Electrical Protective Equipment – Final Rule Stage
The construction industry standard regarding worker safety during the construction of electric power transmission and distribution lines is almost 40 years old and a revised standard has been in the works for over a decade. The revised standard is intended to reduce the annual fatality rate for power line workers and will also address fall protection in aerial lifts for workers. The final rule on this was scheduled to be published in November 2013 but a review by the Office of Information and Regulatory Affairs was not completed until December 20, 2014. No new timetable has been set for publication of the final rule.
Confined Spaces In Construction – Final Rule Stage
This is another rule that has been in the works for over a decade. The general industry standard regarding confined spaces does not extend to the construction industry due to the unique characteristics and ever-changing conditions of construction sites. The timetable for publishing a final rule on Confined Spaces in Construction has been extended a number of times of the past several years. The final rule is currently scheduled to be published this month according to the regulatory agenda but with only a couple of days left in February it seems unlikely it will meet that timetable.
It is unclear how far any of these prerules, proposed rules and final rules will move forward this year. OSHA continuously extends dates and timetables during their rulemaking processes. Probably the only safe bet among the various rules discussed is the Cranes and Derricks in Construction: Operator Certification. The provision in the current regulation requires certification for crane operators by November 10, 2014 and this proposed rule would extend that deadline to November 10, 2017. I would expect that this would move from the proposed rulemaking stage to a final rule in order to have more time to address the issues with the crane operator certification regulation as it is currently written.