OSHA Drops Update to Walking & Working Surfaces and Fall Protection Rules

Apparently OSHA has withdrawn its draft Final Rule on walking and working surfaces and personal fall protection systems.   The agency has been in the process of revising the rule for 25 years, if nothing else, just to keep it current with industry practice.   The Final Rule changes were at the White House in the last step of review before release, but they were withdrawn suddenly and without explanation on December 23.

It is extremely unusual for an agency to get this far down the road with a new rule and then drop it.  Sometimes it happens if the review finds flaws in the proposal or in the economic impact analysis.  There have been occasions when new industry practices or standards supersede the proposal, but in this case there is another theory that may explain it.   The Administration is pushing hard for new silica standards.   Congress had blocked the White House from finalizing the new rule on silica, but that roadblock went away when opponents of the rule failed to work the provision into the budget bill that passed right before Christmas.   It appears that the White House may have pulled the slips, trips and falls final rule so that it could focus on the new silica rule.  That is a bit of a shame, since fall protection, scaffolding and ladder violations make up three of the top 10 violations every year.   OSHA’s leaders swear they intend to publish a final rule on slips, trips and falls in 2016, but that will be tough the further we get into an election year.  There is a good article that gives more explanation here.

New Rules on Blowout Preventers Being Finalized/ BOP Company Asks BSEE to Be Flexible

BOP Technologies JPGIt looks like BSEE’s new rules on blowout preventers and well control have cleared the first internal hurdle and are now being reviewed by the Interior Department’s lawyers.    BSEE Director Brian Salerno posted on his Director’s Corner Blog that the agency has waded through the more than 170 comments to the docket and met repeatedly with industry and has now sent the draft of the final rule up the ladder to the Department of Interior.   The next stop is the White House Office of Management and Budget for a review before being released to the public as a final rule.

One of my clients, a new Houston-based startup, BOP Technologies released this statement on the proposed rules: http://boptechnologies.com/designer-of-next-generation-bop-asks-government-to-be-flexible-on-blowout-rules/

The President’s Last Word on Safety

We are still 13 months away from the next President taking office, but in political terms the Obama Administration is winding down.   That has some very big implications for any new safety initiatives that the White House may want to push through.  In the final year of a Presidency, it gets harder and harder to accomplish anything.     As a practical matter, it is unlikely that anything controversial comes out after about July.

With that in mind, we can start to figure out what President  Obama really wants to accomplish before he leaves office.   Every quarter, the agencies publish what is called the Unified Agenda, where they give the status of the new regulations they are working on.   Usually the Unified Agenda is more of a wish list than a plan, but in the last year of an administration the agenda tells us a little bit about what really has a chance of being released and what is just window dressing.    When an agency completes a new proposed or final rule, it needs to go to the Office of Management and Budget for review, which can take a while.  That means the earlier in the year the agency finishes its work, the more likelihood that the changes will be accepted and finalized.

So, if we assume that the last point when a new regulation can be published is around the end of July, then the last point when an agency can finish their work and send the draft to the White House for review is probably April.  Knowing that, lets look at what four agencies, OSHA, the Coast Guard, BSEE and PHMSA, hope to release:

Occupational Health and Safety Administration (OSHA)

Silica Final Rule – This is the agency’s top priority and the agenda says it will be finished in February.  It has been ready to go for a while, but was delayed when Congress stepped in to temporarily block the rule.   Congress could throw up another roadblock as it debates the new budget spending bill, but that fight is liable to be worked out by the end of the week when the new spending bill needs to be in place.  OSHA says the rule will save 700 lives and 1,600 cases of silicosis annually  Chances of a new rule this administration:  Very likely.

Recording and Reporting of Occupational Injuries – OSHA sent this to the White House for review this fall, so it could presumably be released whenever the Administration chooses.   It would dramatically change the way industry reports incidents and OSHA officials have talked a lot about how important it is.   Larger companies would have to report their quarterly incidents on line and the database would be available to the public.   Opponents have warned that it could become a treasure hunt for plaintiff’s lawyers, opponents of a company or unions, but OSHA has consistently maintained that outside scrutiny increases safety.  The rule is scheduled to be released in March.  Chances of a new rule this administration:  Very likely.

OSHA Standards Based on National Consensus Standards Eye and Face Protection – The agency is simply adopting industry standards for PPE.  However, in an example of how hard it is for government to stay up with industry changes, a new ANSI standard (ANSI Z-87.1) came out while the regulations were under review, so OSHA is working on another proposed rule to update eye and face protection standards again.   Chances of a new rule this administration :  Very likely.

Walking Working Surfaces and Personal Fall Protection Systems (Slips, Trips, and Fall Prevention) – This is one of those proposed changes that sits at the agency so long that industry loses sight of what may come out.  The proposed rule was released back in 1990 and then released with changes in 2010.  The proposal has been sitting at the White House since July, but for some reason it is not scheduled for release until April, which may be a sign that the review at OMB uncovered some concerns with the economics or other measures and they decided to send it back for more polishing.   Chances of a new rule this administration:  Likely.

Process Safety Management and Prevention of Major Chemical Accidents – After a series of industrial accidents involving chemicals, the President tasked the agencies with coming up with a better way to protect the public from chemical incidents.   It got a lot of attention and hearings were held all over the country.   The OSHA focus was going to be on improving PSM and to applying it to the landside oil and gas industry.    But there are limits to how fast even the President can rush the rulemaking process.  It is listed on the agenda as being in the pre-rule stage and there aren’t even plans to release a proposal under this administration, which means it is up to the next president to decide whether this happened and it may result in no changes at all.  Chances of a new rule this administration:  Zero.

The Coast Guard

Inspection of Towing Vessels – The Coast Guard began working with industry to develop a novel way to inspect towboats more than a decade ago.   The approach focused more on safety management and less on prescriptive requirements, but even with industry involvement and the strong push from Congress, it has taken a long time to get the final rule out.  Industry needs it because, without a clear regulation that establishes the Coast Guard’s authority over their vessels, towboat companies run the risk that OSHA may step in on marine accidents.  It looks like the proposal has finally made it through all of the regulatory hurdles and the final rule is listed as coming out in February, 2016.   Chances of a new rule this administration: Very Likely. 

Transportation Worker Identification Credential (TWIC) – Reader Requirements – This is the rule that everyone loves to hate.  Dock and maritime workers have been required to have TWIC cards with computer chips for many years and that program has been fraught with problems.   The Department of Homeland Security has wanted to add a requirement for readers (hence the reason for the computer chip), but has had a hard time pushing through a system that was rugged enough for industrial use.  The estimated price tag for industry is $234.3 million over ten years and it is scheduled to be released in February.   Industry will need to read the final rule closely because there are a number of open questions over what types of vessels will need readers. Chances of a new rule this administration: Very Likely. 

Offshore Oil and Gas Related Rules – The Coast Guard came out of the Macondo incident investigations with a number of proposals to improve the vessel side of offshore oil and gas safety.  None of them made it to the final rule stage under this administration, so they will have to wait for the next President to see the light of day.  The Coast Guard does say it hopes to have proposals for SEMS on vessels and offshore safety training ready for public review in June, but that looks unlikely.   One note of caution – The Coast Guard has a strong record for following through on its safety proposals, so not coming out in the next six months doesn’t mean these proposals are gone forever.  Chances of a new rule this administration: Not Under This President. 

Bureau of Safety and Environmental Enforcement (BSEE)

Managing and Mitigating Well Control and Blowout Preventer Risks – This is a hot issue right now, with the industry pushing for a delay and more study and BSEE saying, “enough talk; its time for action.”  In many ways this is the centerpiece of the President’s pledge to prevent future drilling disasters.  There are parts that industry says are impossible or not currently practical and BSEE is listening closely to these concerns, but overall, the agency will put out the rule come hell or high water.   It is scheduled to come out in January.  It will be impossible to hit that date and still do the thorough review that such a complex rule needs, but it is as clear a signal as an agency can send that it intends to get something out under Obama’s watch.  Chances of a new rule this administration: Very Likely.

Improving Crane and Helicopter Safety on Offshore Facilities – These are two areas of high risk for the offshore industry  and BSEE has made both a high priority.   Cranes figure in an unacceptable number of offshore incidents and there is an international push on to improve helicopter safety.   In the case of cranes, BSEE is incorporating the API specification  “Offshore Pedestal-Mounted Cranes” (API Spec 2C), so it has a high degree of industry input and the final rule is predicted for April.   Helicopters are another matter and may take a good deal of public consideration.   BSEE doesn’t even plan to come out with the proposed rule until September of next year, which means it will not be a priority for this Administration.   Chances of a new rule this administration: Very Likely For Cranes/Unlikely for Helicopters.

Improving Oil Spill Response Plans and Procedures – BSEE will “update regulations for offshore oil spill response plans by incorporating requirements for improved procedures. The procedures that will be required are based on lessons learned from the Deepwater Horizon spill, as well as nearly two decades of agency oversight and applicable BSEE research.”   This hasn’t gotten a tremendous amount of public attention but is one of BSEE’s key follow-ups from Macondo.   The proposed rule is scheduled to come out in May, which means it could be out in time to create a stir before the elections, but will be left to the next President to figure out what to do with it.   Chances of a new rule this administration: Zero.

Arctic Drilling Requirements  – BSEE and BOEM “will finalize a joint rule that promotes safe, responsible, and effective exploratory drilling activities on the Arctic OCS by taking into account the unique aspects and risks of operating in the Arctic, in order to ensure protection of the Arctic’s communities and marine environment.”  Is that clear?   Some have questioned whether the Administration seriously wants any exploration in the Arctic, but the Agenda says this rule will be out in January.   This may be a case where the White House wants to put it’s approach into the regulations and not risk that another, more pro-drilling Administration will come in with its own ideas.   Chances of a new rule this administration: Very Likely.

Pipeline and Hazardous Materials Safety Administration (PHMSA) 

Operator Qualifications – PHMSA has a problem.  Despite a widespread program to make sure workers are qualified, the industry is still having accidents.   In a reaction to some recent problems, PHMSA  plans to “expand the existing Operator Qualification (OQ) scope to cover new construction and certain other currently uncovered tasks, require operators use trained and qualified individuals when performing new construction work, and add program
effectiveness requirements for operators to gauge the effectiveness of the OQ programs.”   However, the Unified Agenda says this rule is scheduled for June.  That would just after the last of the Presidential primaries.  Unless, the Administration wants to release the rule just in time to have it become a campaign issue, June is pretty late.  Chances of a new rule this administration: Unlikely.

Of course there is one fundamental rule that trumps everything else.  If there is a big accident in the next few months, all bets are off.  But you probably knew that already.