MSHA, OSHA plan nine new rules by end of year

MSHA, OSHA plan nine new rules by end of year. Bradford T. Hammock, Henry Chajet and Mark Savit at law firm Jackson Lewis PC explain.

The Mine Safety and Health Administration is projecting two final rules this year, including the release in December of a controversial amended rule on assessing civil penalties, and the Occupational Safety and Health Administration has scheduled eight new rules for completion by year’s end, according to the agencies’ recent regulatory agendas.

Under MSHA’s regular penalty assessment scheme, the agency allocates numerical points to various penalty criteria in proposing a fine for a violation of a mine safety or health standard. The point total equates to a proposed fine from a penalty table. The agency, however, has proposed reallocating the weight of key criteria. For instance, the proposed penalty point structure gives increased weight to total negligence and violation history factors, while reducing the weight for mine size and gravity.

Mine operators have been critical of the proposed changes, because they suspect the revisions will lead to higher fines. Operators also object to another provision of the rule that could restrict greatly the ability of the Federal Mine Safety and Health Review Commission to set the amount of final penalty assessments independently.

MSHA has indicated it will release a final rule addressing fees for testing, evaluating, and approving mining products in August. Further, it also plans to issue proposed rules governing proximity detection devices in mobile machines underground in July and on respirable crystalline silica in April 2016.

OSHA plans to soon update its standards on eye and face protection based on national consensus standards. A final rule on slips, trips, and fall protection is coming in August, and a rule to improve tracking of workplace injuries and illnesses is now slated for September. In January 2016, the agency also plans a final rule to amend rules of agency practice and procedure concerning OSHA access to employee medical records (29 CFR ? 1913.10). The revisions are intended to improve OSHA’s efficiency in obtaining and using personally-identifiable employee medical information during investigations.

In addition, in July and September, OSHA plans to finalize procedures to implement whistleblower provisions contained in three statutes dealing with transportation, health care, and motor vehicles, respectively, and a fourth law covering food safety, consumer finance, and protection of seamen.

OSHA also plans to propose seven rules before the end of 2015. The agency has missed its May target to release proposed rules on beryllium and on clarifying the employer’s ongoing obligation to make and maintain accurate records of each recordable injury and illness. June is the scheduled release date for a proposal to amend its rule on state plans (29 CFR ? 1952) to eliminate the requirement for rulemaking to make changes to a state plan’s coverage or other descriptive language.

In July, OSHA plans to propose an amendment to its general industry respiratory standard, at 29 CFR ? 1910.134, to permit new quantitative fit testing protocols. September is the target for rulemaking to identify unnecessary or duplicative provisions or paperwork requirements primarily in its construction industry standards. Amendments and corrections to the cranes and derricks in construction standard are set to come out in November and a proposal addressing crane operator qualifications in construction, in December.

OSHA did not set a date for release of a final rule on crystalline silica. The agency issued a proposed rule in September 2013 and took comments and held hearings in the months that followed. OSHA said it would analyze comments from the rulemaking process in June.


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