New OSHA Reporting for 2015: Controversy Emerging Over Agency Enforcement

In an alert last month, NASF reminded companies of OSHA’s new reporting and recordkeeping requirements for the 2015 calendar year.  The agency’s new rule on its face appears very straightforward, but controversy is emerging as employers are already raising questions about its implementation.

The new rule requires that, effective January 1, 2015, any work-related fatality, inpatient hospitalization, amputation, or loss of an eye must be reported to OSHA within strict timeframes specified by the agency. Previously, only fatalities and inpatient hospitalizations of 3 or more employees were reportable.

New Enforcement Memo Causes Concern

According to OSHA, the rule will allow the agency to better focus its efforts to prevent fatalities and serious work-related injuries. However, in recent days, an internal OSHA enforcement memo surfaced that outlines what types of information shared by companies in reports would trigger an inspection and likely violations.

Since January 1, OSHA has reportedly received over 1000 reports from across the country. OSHA area offices are apparently following up on companies that report under the new rule with, among other things, a “rapid response” investigation, starting with a two-page questionnaire for the employer followed by a request for a “root cause” analysis of the incident to identify failures in safety procedures.

More controversy is likely in the coming months. In the meantime, below are some basic compliance tips and key OSHA resources to better understand the rule and your organization’s compliance responsibilities.

A Brief Primer on the Rule

What does the rule require?

The rule expands the list of severe work-related injuries that all covered employers must report to OSHA. The revised provisions:

  • retain the current requirement to report all work-related fatalities within 8 hours; and
  • add the requirement to report all work-related in-patient hospitalizations, amputations and loss of an eye within 24 hours to OSHA.

Who must keep records and who is exempt?

The rule provides partial exemptions from recordkeeping to two groups of employers. First, it updates the list of industries that are exempt from the requirement to routinely keep OSHA injury and illness records due to relatively low occupational injury and illness rates.

Second, the rule confirms that an employer in any industry who employed no more than 10 employees at any time during the preceding calendar year is not required to maintain OSHA records for the rule unless requested to do so in writing by OSHA or a state agency.

All employers are required to report severe work-related injuries in real time!

While certain employers are exempt from keeping records, ALL EMPLOYERS will be required to report to OSHA any work-related fatalities within eight hours of learning about the incident.  All employers must also report to OSHA any in-patient hospitalization, amputation, or eye loss within 24 hours of finding out about it.

Are there differences between federal OSHA and “state plan” states?

Employers located in States under Federal OSHA jurisdiction must have been compliant with the new requirements on January 1, 2015. Those located in states that operate their own safety and health programs (State Plan States) should check with their state plan for the implementation date of the new requirements. More information on your state can be found here.

How do I notify OSHA?

The agency has outlined several options for reporting, including calling OSHA’s toll-free number at 1-800-321-OSHA (6742), calling the closest Area Office during normal business hours, and using an online form that OSHA is making available.

Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA. Further, for an in-patient hospitalization, amputation or loss of an eye, these incidents must be reported to OSHA only if they occur within 24 hours of the work-related incident.

What compliance resources are currently available from OSHA?

As a resource for employers, OSHA has issued a fact sheet of the rule as well as supporting materials on the agency’s website, including the actual regulatory language. In addition, OSHA has attempted to clarify several aspects of the rule, particularly for the definitions of amputation and eye loss incidents, in a December 2014 letter of interpretation (LOI) just released this month.

Posted in Law & Regulation

Small Business Administration Releases Annual Report on Small Business Profiles for States and U.S. Territories

This month the Small Business Administration’s Office of Advocacy released its annual report on small businesses throughout the country. The report includes a breakdown of small business activity by state and U.S. territory, and includes the number of small firms, employment, and owner demographics, as well as a list of each state’s top small business industries by number of firms and number of employees. To view this report, click here.

Posted in Business, Law & Regulation

President Releases FY2016 Budget

President Releases FY2016 Budget
President Obama released his proposed $4 trillion budget for Fiscal Year (FY) 2016 on February 2, 2015. The President’s proposal will now be considered by Congress, which has already indicated its opposition to many of his proposals. Agency proposals with a direct impact on many surface finishing operations are discussed below.

Environmental Protection Agency
The President has requested $8.14 billion in funding for EPA in FY16. His proposal maintains climate change programs as its top priority, including carbon standards and other clean air initiatives. Also included are additional funding for remediation and water infrastructure grants for states, increased funding for additional site cleanups through the Hazardous Substance Superfund (6% increase over FY15), funding to enhance chemical facility security (in partnership with Homeland Security), and $4 billion in mandatory funding for clean power project incentives.

According to EPA’s budget justification, it has requested the following funding level increases for it’s FY2014-2018 Strategic Plan goals:

Funding Level Increases Above FY15 Enacted Budget EPA Goals
+ $120 million Goal 1: To protect and improve air quality for all Americans and reduce greenhouse gas emissions and develop adaptation strategies to address climate change.
+ $70 million Goal 2: To protect and restore America’s waters to ensure that drinking water is safe and sustainably managed and that aquatic ecosystems sustain fish, plants, wildlife, and other biota, as well as economic, recreational and subsistence activities.
+ $178 million Goal 3: To clean up communities, advance sustainable development, and protect disproportionately impacted low-income and minority communities from the releases of harmful substances.
+ $47 million Goal 4: To ensure the safety of chemicals in our environment, reduce the risk, and prevent pollution at the source.
+ $66 million Goal 5: To protect human health and the environment through vigorous and targeted civil and criminal enforcement and use Next Generation Compliance strategies and tools to improve compliance with environmental laws.

Notably for surface finishing operations, the EPA budget justification states that “in support of the White House Executive order to Improve Chemical Facility Safety and Security, the EPA has been working with other federal partners to bring together federal regulatory representatives and stakeholders with a vested interest in reducing the risks associated with the handling and storage of chemicals…In FY 2016, we expect to implement actions to incorporate stakeholder feedback and best practices to strengthen community planning and preparedness, enhance federal operational coordination, improve data management, and modernize policies and regulation.”

For detailed information on the FY16 Budget Request, click here.

Department of Labor & OSHA
The Department of Labor has requested $13.2 billion in discretionary funding for FY 2016, a $1.3 billion increase (10.9%) over the FY 2015 enacted budget. The request includes increased funding for: employment services for the unemployed, the number of registered apprenticeships, development of industry credentials in job training programs, state incentive programs to launch paid leave programs, and reforms to the unemployment insurance program, among others.

This request also includes $592 million for the Occupational Safety and Health Administration (OSHA), and increase of $39 million (7%) over last year’s enacted budget. As outlined in the Administration’s request, this funding would include the following programmatic increases:

  • $5,150,000 and 23 Full-Time Equivalents (FTEs) to enable the agency to implement Executive Order (EO) 13650, “Improving Chemical Facility Safety and Security,” including the modernization of OSHA’s PSM Standard and other chemical-related standards and the development of related guidance materials.
  • $6,700,000 and 40 FTEs to support the implementation of the Rapid Response Investigation protocols to manage the workload resulting from the enhanced reporting requirements in the 2014 revisions to the Recordkeeping Standard, which require employers to report work-related hospitalizations, amputations, and losses of an eye.
  • $3,402,000 and 22 FTEs to strengthen the whistleblower program, including 10 FTEs for Whistleblower Investigators to address increased workload in FY 2016; 7 FTEs for Investigative Assistants to reduce the administrative burden on Whistleblower Investigators and supervisors, and improve case processing efficiency; and 5 FTEs to handle training and program management activities including statistical analysis, IT development, and auditing functions.
  • $3,487,000 to give State Plans the resources to enhance enforcement of the 11(c) whistleblower protection statute and to provide State Plan States with the resources to run programs that are as effective as OSHA’s Federal Enforcement.
  • $3,900,000 and five FTE,s of which $3,000,000 would be used to consolidate OSHA’s existing databases within DOL’s consolidated database center. An additional request of $900,000 and five FTEs would support a new data analytics unit.

Furthermore, “OSHA’s FY 2016 budget request also includes a proposed amendment to its appropriation language to allow targeted inspections of small establishments that may have potential for catastrophic incidents (e.g., those with Process Safety Management (PSM) or the EPA’s Risk Management Program-covered processes). The current appropriations language limits OSHA’s ability to conduct safety and health inspections of small businesses (10 or fewer employees) in industry codes that have lower-than-average workplace injury and illness rates. Neither the number of workers in a company nor low injury and illness rates, however, is predictive of the potential for high-consequence catastrophic incidents, resulting in multiple casualties and extensive property damage that can damage whole communities. This would not apply to farming, harvesting, or processing operations on farms.“

Congressman John Kline (R-MN), Chairman of the House Education and Workforce Committee, has already voiced criticism of the President’s budget request, stating that it represents “more spending, more taxes, and more government” and that rather “we must provide employers with certainty and flexibility so they can grow their businesses, create jobs, and give workers the raise they’ve earned.”

To view a complete summary of DOL’s budget request, click here. 

National Labor Relations Board
The President requested an additional $3.8 million for the National Labor Relations Board (NLRB) and an additional $3 million for the Federal Mediation and Conciliation Service (FMCS), representing a 1.4% and 6.7% increase over FY15 respectively. The National Mediation Board’s budget would remain the same. This represents total budget requests of $278 million for the NLRB, $48.75 million for the FMCS, and $13.23 million for the NMB. These requests are in part a response to the NLRB’s projections of increased financial costs for administration law judge hearings and for field investigations.

Equal Employment Opportunity Commission
The Equal Employment Opportunity Commission (EEOC) requested $373 million for FY16, an increase of $8.6 million over FY15. This funding increase represents proposed pay increases for staff, rent and relocation expenses, and technology updates.

Department of Homeland Security
The President’s FY16 proposal is largely similar to the FY15 budget levels in legislation Congress is currently considering. Under normal procedures the FY15 funding would have passed in the last Congress, but given disagreements between Republicans and Democrats in the last Congress, an agreement was reached to fund the Department of Homeland Security (DHS) only through February of this year. As a result, congressional Republicans and the President will still have to pass a funding bill for the remainder of this year before considering the FY16 proposal. This has proven to be an early battle in Congress, however, as the current Republican-proposed legislation contains policy riders that would limit the President’s executive actions on immigration, including protecting immigrants from deportation, providing them with work authorization, and providing protections for children who were illegally brought into the U.S. – provisions in the current legislation that many Democrats strongly oppose and the President will be likely to veto unless compromise is reached.

The FY16 proposal is requesting total budget authority of $64.9 billion, including $41.2 billion in net discretionary funds, a 3.8% increase in the funding being considered in the FY15 spending bill and a 7.9% increase over his FY15 request. The top priorities highlighted in DHS’ budget request include funding to secure the border, protect against cyber attacks, and prepare for natural disasters.

For an overview of DHS’ FY 2016 budget request, click here.

Posted in Business, Economy, Government Relations, Law & Regulation

Senators Introduce Bill to Change Composition of NLRB, Consider Measures to Overturn Expedited Election Rule

Senate Majority Leader Mitch McConnell (R-KY) and Senator Lamar Alexander (R-TN) have introduced a bill to change the composition and procedures of the National Labor Relations Board. (NLRB), the body responsible for investigating and adjudicating employment complaints filed by workers, unions, and employers.

The bill, which has been referred to the Senate Health, Environment, Labor and Pensions (HELP) Committee, is intended to address recent NLRB regulations and procedural changes that the Senators argue have led to politically motivated and partisan outcomes. Senator McConnell stated: “The NLRB’s politically motivated decisions and controversial regulations threaten the jobs of hardworking Americans who just want to provide for their families. So it’s time to restore balance and bipartisanship. The NLRB Reform Act would turn the board’s focus from ideological crusades that catch workers in the crossfire to the kind of common-sense, bi-partisan solution workers deserve.”

The NLRB Reform Act would reform what Senators McConnell and Alexander argue is the board’s partisanship, activist general counsel, and slow decision-making by making the following changes to the current National Labor Relations Act:

  • Increase the number of board members from five to six, require an even split between Republicans and Democrats, and require a four member majority for board decisions.
  • Provide parties 30 days to seek review of a general counsel’s complaint in federal district court and will have new discovery rights allowing them to obtain memoranda and other documents relevant to the complaint within 10 days.
  • Allow either party to appeal to a Federal Court of Appeals if the board fails to reach a decision in their case within one year. To incentivize this, funding for the NLRB would be reduced by 20% if the board is not able to decide 90% of its cases within one year over the first two-year period once the legislation is enacted.

Congressional Republicans are also considering using the Congressional Review Act (CRA) to overturn the NLRB’s expedited election rule, which shortens election periods from the current median of 38 days down to as few as 10 days after a petition is filed. The rule is scheduled to take effect on April 14. However, even if Republicans do pass a resolution to overturn the rule, the President is expected to veto the bill and Republicans lack the two-thirds majority necessary to override his veto.

Posted in Business, Government Relations, Law & Regulation

NASF and Industry Partners Urge Congress to Support Regulatory Reform Legislation

NASF, the National Association of Manufacturers (NAM) and other industry partners are urging Congress to pass The Small Business Regulatory Flexibility Improvements Act of 2015 (H.R. 527). This legislation, currently being considered by the House of Representatives, would reform the regulatory process to ensure that all federal agencies appropriately consider the impact of their rules on small businesses across America.

In a letter sent to Congress, a large coalition of industry partners argue that the original Regulatory Flexibility Act (RFA), which requires federal agencies to transparently account for the impact of regulation on small businesses, has been arbitrarily applied across federal agencies and those that do apply it have widely divergent interpretations of its requirements.

Even with its limited adherence by federal agencies, NASF and its industry partners note that “in fiscal year 2014, the U.S. Small Business Administration’s Office of Advocacy reported compliance cost savings of $4.8 billion for small businesses” and that over the past 10 years that savings has been greater than $90 billion. Industry maintains that improvements to the RFA that are included in H.R. 527 would create even higher savings by requiring the Office of Advocacy to establish standards for conducting regulatory flexibility analysis during the rulemaking process and requiring agencies to consider the true impact of their rules on the entire regulated community.

Duplicative and inefficient regulatory burdens significantly and disproportionately impact small businesses and manufacturers. Please contact your legislators today and ask them to support H.R. 527 to ensure that agencies are required to consider less costly alternatives to burdensome and unnecessary regulations.

Posted in Business, Government Relations, Law & Regulation

NASF Submits Comments on EPA’s Proposed SNUR for Chemical Substances Used as Cleaners and Brighteners

On October 1, 2104, the EPA proposed a significant new use rule (SNUR) for 15 nonylphenol (NP) and nonylphenol ethoxylate (NPE) substances. EPA proposed that any new use would be a significant new use and subject to the pre-manufacture notice requirements under the Toxic Substances Control Act (TSCA).

NPs are used as intermediates to produce NPEs, which are used in a wide variety of applications, including some surface finishing applications. On January 15, 2015, NASF submitted comments to EPA on the proposed SNUR and identified several of the NP and NPE substances that are currently used in a variety of surface finishing applications, including:

* as building blocks or critical ingredients in cleaners,
* acid additives,
* coatings,
* rinse aids,
* surfactants,
* corrosion inhibitors,
* sealers,
* paint strippers,
* chromates,
* organic brightener systems for zinc, tin and copper plating.

More specifically, these chemical compounds are used in:

(1) electroless nickel plating systems to reduce the surface tension of the plating bath, reduce pitting or imperfections in the surface of the plated part, and minimize nickel mist from the tank;

(2) acid tin plating systems as a wetting agent, deposit brightener, and grain refiner; and

(3) alkaline soak cleaner and electro-cleaner formulations to remove soils from ferrous and non-ferrous substrates.

EPA indicated in the proposal that the proposed SNUR requirements would not apply to those uses that were ongoing as of October 1, 2014. Accordingly, these uses should not be considered significant new uses and should not be subject to the pre-manufacture notification requirements. EPA has not yet set a schedule for responding to comments and issuing a final SNUR for NP and NPE chemical substances. If you have any questions or would like additional information regarding this rulemaking, please contact Jeff Hannapel at jhannapel@thepolicygroup.com.

Posted in Government Relations, Law & Regulation

BREAKING NEWS: Maine Agrees to Remove Nickel Metal from State’s List of 49 “Worst Chemicals,” Keeps Nickel Compounds on List

In a major new development, the State of Maine has decided to remove elemental nickel from the state’s “worst chemicals” list.

Maine’s decision caps off a series of discussions and petitions over two years, led by NASF’s Strategic Partner the Nickel Institute, in which industry argued that the state had erred in listing the category “nickel and nickel compounds” as one of 49 “worst of the worst” chemicals for children.  Maine’s “Chemicals of High Concern” list is one element of the state’s safer chemicals policy, which empowers state officials to identify top chemicals of concern, require manufacturers to disclose and eliminate materials in products, and promote green chemistry.

The industry petitioned Maine last year, arguing among other concerns that the state had incorrectly categorized “Nickel and nickel compounds” under the single CAS number for metallic nickel (CAS number 7440-02-0).  The listing both needlessly conflated a range of chemicals under a single listing and inappropriately ranked all compounds as posing the highest threat level to human health.

Maine’s response in late January confirmed that upon closer review, metallic nickel indeed does not meet the state’s own restrictive toxicity criteria to warrant its listing as a Chemical of High Concern, and therefore metallic nickel will be removed from the list.  However, the state determined that nickel compounds as a category would remain listed as a Chemical of High Concern.

Nickel Institute and the NASF are reviewing the decision and its impacts, and whether the state will go further in addressing nickel in products in the future.  The groups are also monitoring other states that, like Maine, have been enacting laws that prioritize new and existing chemicals for use restrictions or bans.

Posted in Government Relations, Law & Regulation