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Ambitious Rulemaking Agenda For 2013

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Twice a year, the federal government releases the Unified Agenda of Federal Regulatory and Deregulatory Actions. Compiled by the Regulatory Information Service Center, a small division within the US General Services Administration, the agenda reports information about Federal regulatory and deregulatory activities of the 60 Cabinet, Executive, and independent agencies.

The Department of Labor issued its fall regulatory agenda in December 2012. It’s a status list of all the pending regulations the agency has under development that are likely to hit specific milestones over the next 12 months and beyond.

In what some have called a tsunami of regulations from the Obama Administration, a few significant actions for HVACR contractors appear on the horizon. The development of federal rules must abide by the Administrative Procedures Act that requires a notice and comment approach. Agencies generally initiate the process by gathering information from stakeholders before releasing an Advanced Notice of Proposed Rulemaking for public comment. After comments have been received, the agency may follow up with a Notice of Proposed Rulemaking that addresses the previously received comments and request additional comments on the document. Finally, a Final Rule is released, addressing any new comments and setting a compliance date.

According to the Department of Labor’s fall agenda, a Final Rule is expected this summer of the Confined Spaces in Construction Rule. In 1993 the Occupational Health and Safety Administration (OSHA) issued a confined space rule to protect employees while engaged in general industry work. Since 2003, OSHA has been writing a rule on confined spaces specifically for the construction industry, because of the unique characteristics of construction worksites.

Under the proposed rule, a “confined space” could be interpreted to include attics or crawlspaces in a single family residence. If this were the case, HVACR contractors may have to put in place certain workplace policies and safety measures to protect the workers in and around the confined space.

Throughout the rulemaking process ACCA has provided comments on this rule. Because the confined space in construction rule could have a significant impact on small businesses, in 2003 OSHA convened a Small Business Advocacy Review (SBAR) Panel, made up of representatives of a variety of construction trades, including a representative from ACCA. Overall, the Panel found that a draft version of the regulation was complicated, confusing, and with a high cost of compliance. A specific question raised in the report was “Would a basement without a stairway, acrawl space, or an attic be considered a hazardous-enclosed space or a confined space?”

OSHA pressed on with the rulemaking process and published a proposed rule in 2007. ACCA supplied comments in February of 2008 on the proposed rule, requesting that attics and crawl spaces should be exempt from the definition of a confined space. ACCA participated in an informal hearing in July 2008 at OSHA headquarters and assisted in the drafting of comments by the Small Businesses Administration’s Office of Advocacy that urged a thorough review of the rule’s impact on small business entities.

All sections of the construction industry, from the heavy-highway sector to roofing contractors are anxiously awaiting the final rule, the compliance measures, and costs that it will require.

The other item of interests to HVACR contractors, really all employers, is the Injury and Illness Prevention Programs (I2P2). The I2P2 rule would require employers to implement an Injury and Illness Prevention Program and involves planning, implementing, evaluating, and improving processes and activities that protect employee safety and health. This is a broad area of jurisdiction that has many OSHA watchers raising their alarm bells. OSHA would like employers to “find and fix” hazards without waiting for an OSHA inspector or a workplace accident to reveal them.

As a first step, the Agency plans to hold stakeholder meetings to obtain input for an injury and illness prevention rulemaking. OSHA intends to convene an SBAR panel under the Small Business Regulatory Enforcement Fairness Act (SBREFA) in the coming months.

While many small businesses have safety policies in place that have successfully protected their workforce, there is a concern that OSHA could render them inadequate under the new rule. Some have expressed a concern that an aggressive interpretation of an I2P2 rule would create a backdoor channel for new rules outside the normal rulemaking process. The agency could use a broadly interpreted I2P2 Rule to eliminate the need for any further OSHA rulemakings, shortcutting the need to show technical and economic feasibility.

With many predicting that Congress will be gridlocked for the next two years, it should be easier to keep an eye on the federal agencies as they propose new costly rules on small businesses. Considering that just one agency, the Department of Labor, listed more than 60 rules it expects will be finalizing or proposing over the next 12 months, it’s going to be a busy year.

Charlie McCrudden

Posted In: ACCA Now, Government

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