The SBREFA process review
It is unclear what the future of the SHARP program, the VPP and other consensus standards will be upon the issuance of a formal OSHA I2P2 rule by OSHA.
Background on OSHA and I2P2
In 1995, OSHA held its first stakeholder meetings to discuss preliminary ideas for a safety and health program rule. It then drafted its first attempt at a rule in 1998. It underwent SBREFA review and other analysis as required by law in October 1998, but ultimately the rule was never published and the rule was removed from the Regulatory Agenda in August 2002. However, this effort shows the long history of interest OSHA has had with I2P2 type management systems.
Current Rulemaking Status
OSHA initiated the I2P2 rulemaking process once again in early 2010 with the announcement of several stakeholder meetings in various locations around the country. The meetings were held to gather input from affected entities to discuss preliminary ideas for a safety and health program rule and the significant issues that such a rule would impose. A summary of the stakeholder comments for each meeting is available on the OSHA website.
In January 2012, OSHA published its white paper entitled “Injury and Illness Prevention Programs White Paper” on its website. In it, OSHA provides context and history on Injury and Illness Prevention Programs, and attempts to define the beneficial impact of such a regulation. In its conclusions, OSHA states that “Injury and illness prevention programs are based on proven managerial concepts that have been widely used in industry to bring about improvements in quality, environment and safety and health performance”. It goes on to state “OSHA believes that adoption of injury and illness prevention programs based on simple, sound, proven principles will help millions of U.S. Businesses improve their compliance with existing laws and regulations, decrease the incidence of workplace injuries and illnesses, reduce costs (including significant reductions in workers’ compensation premiums) and enhance their overall business operations.”*
A second white paper is anticipated to be published on the OSHA website in the next 90 days addressing enforcement methodologies for I2P2 programs. This is likely to be the more contentious topic, and will likely cause significant discussions regarding the efficacy of enforcement when dealing with management systems adoption and implementation.
OSHA initiated the SBREFA review process regarding the I2P2 rulemaking on January 6, 2012, when the agency notified the Small Business Administration (SBA) of its intention to convene a review panel to garner information regarding the impact of the proposed rule on small business as required by law.
Congress passed the Small Business Regulatory Enforcement Fairness Act (SBREFA) in 1996 in response to concerns raised by small businesses that Federal regulations were too complex and too expensive to implement. The SBREFA process is intended to assist small businesses in understanding and complying with regulations, as well as providing small businesses with a voice during the regulatory development process.
When an agency proposes a new regulation that it expects to affect a substantial number of small businesses, it must notify the U.S. Small Business Administration (SBA) Office of Advocacy. The Office of Advocacy then recommends small entity representatives to be consulted on the rule and its effects. Upon completion, OSHA will convene a small business advocacy review panel, consisting of representatives from OSHA, the SBA, and the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs. This review panel has 60 days to hear comments from the small entity representatives and to review the proposed draft rule and the related analysis. The panel then has 60 days to draft and submit a report back to OSHA on their findings.
At that point, OSHA will review the report submitted by the SBREFA review panel and may or may not make appropriate revisions to the proposed rule based upon the panel recommendations. Once this step is completed, the agency will formally announce the proposed rule by publication in the Federal Register alongside the SBREFA panel report. Upon publication in the Federal Register, anyone may submit comments that must be considered by the issuing agency. This is the appropriate time for affected entities, such as small businesses, to submit their individual comments for consideration by the agency regarding the impact of the proposed rule.
Considering a January 6, 2012 start to the SBREFA process, the 60 day panel review process should be completed in early March. Assuming a 90 day review and modification period by OSHA, we can expect to see a proposed I2P2 regulation in the July 2012. Of course, 2012 is an election year and it is quite possible that the agency decides to postpone publication of the I2P2 rule until after the elections in November.
*OSHA Injury and Illness Prevention Programs White Paper – January 2012
10 • The Crucible March/April 2012
| Page 2
| Page 3
| Page 4
| Page 5
| Page 6
| Page 7
| Page 8
| Page 9
| Page 10
| Page 11
| Page 12
| Page 13
| Page 14
| Page 15
| Page 16
| Page 17
| Page 18
| Page 19
| Page 20