OMB Publishes List of Upcoming Regulations
The Office of Management and Budget (OMB) published its spring Unified Agenda on July 7. The agenda is a compilation of regulations that agencies expect to advance between now and April 2012, as well as rules the agencies have completed in the past six months.
OMB releases the Unified Agenda twice a year, in April and October. While the release is habitually late, it is unusual for OMB to be almost three months behind schedule in publishing the document. As a result, agencies have completed many of the actions included in the agenda. But the agenda also provides a preview of the many regulations expected to be released in the coming year. Highlights of the agenda are discussed below, organized by agency.
U.S. Environmental Protection Agency (EPA)
EPA indicated it would finalize in July its transport rule, which regulates emissions from power plants that cause pollution in neighboring states. The rule was finalized on time on July 6. The Cross-State Air Pollution Rule (CSAPR) requires more than 20 states to reduce power plant emissions that contribute to ozone and fine particle pollution in other states.
EPA and the National Highway Traffic Safety Administration (NHTSA) will continue to work together on fuel efficiency and greenhouse gas emission standards for cars and light trucks manufactured in 2017 and beyond. In the fall of 2010, the two agencies published a Notice of Intent (NOI) indicating they were working on a proposal to raise emission standards to between 47 and 62 miles per gallon (mpg) by 2025. In meetings during the week of June 19, the Obama administration announced that it was considering requiring these emission standards to improve by five percent every year starting in 2017, with a final standard of 56.2 mpg for passenger vehicles manufactured in 2025. The administration now indicates it intends to publish a proposal in September and issue a final rule in the summer of 2012.
EPA and NHTSA have also recently finished a final rule that would set emission standards for heavy-duty vehicles. The rule was submitted to the Office of Information and Regulatory Affairs (OIRA) on July 7 for review. OIRA has 120 days to complete its review of the rule and return it to the agencies for publication in the Federal Register.
EPA has once again revised its timeline for the regulation of coal ash, likely due to intense pressure from industry. In December 2010, EPA indicated that it would not undertake coal ash regulation in 2011. However, on July 7, the agency submitted to OIRA for review a Notice of Data Availability (NODA) to provide industry, environmentalists, and others with new data EPA has available on coal ash. EPA originally released a NODA on coal ash in 2007 at the start of the rulemaking process, so advocates are hopeful that this indicates the process is moving forward.
Coal ash is a byproduct of coal combustion that can contain harmful chemicals such as arsenic, lead, and other heavy metals. It has been linked to cancer and other health problems. In June 2010, the agency released a highly contentious proposed rule that sought to determine whether coal ash should be regulated as a hazardous waste or treated as conventional waste. Along with the proposal, EPA released the original draft the agency submitted to OIRA and the subsequent markup. This markup, along with the stark differences between EPA’s original draft and the proposal, may indicate significant industry interference in the rulemaking process.
Consistent with a court order from 2008, EPA proposed in March changes to its air toxics rule that regulates mercury emissions from coal and oil power plants. While EPA regulates mercury emissions from a wide variety of sources, power plants had not been subject to this regulation. The state of New Jersey, along with others, sued EPA, requesting that it not exclude power plants from the mercury standard. In 2008, the D.C. Circuit Court of Appeals vacated EPA’s exemption rule and required the agency to regulate power plant mercury emissions. EPA extended the public comment period to accept input through Aug. 4 but still expects to release the final rule by the mid-November deadline.
Occupational Safety and Health Administration (OSHA)
OSHA is moving forward slowly with its Injury and Illness Prevention Program (I2P2). First mentioned in the Unified Agenda in the fall of 2010, the I2P2 regulation would require employers to create and implement an injury prevention program to help protect workers from dangerous situations and health hazards in the workplace. OSHA indicates that it has begun an analysis of the effect of such a rule on small businesses. If finalized, this rule will be an important step toward protecting workers. The current injury and illness prevention regulation is a voluntary program that has come under scrutiny in recent months for being insufficient to protect workers.
In January 2010, OSHA published a proposed rule to add a column to its injury reporting form for employers to report work-related musculoskeletal disorders (MSD). One year later, OSHA pulled the proposal due to industry complaints that the column would create an undue reporting burden on small businesses. In the new agenda, OSHA lists the MSD regulation as a proposed rule but provides no timeline for a revised proposal. Instead, it has reopened the rulemaking record, allowing the public to submit more comments on the proposal. The agency hopes to analyze the newly submitted comments by the end of July.
In February, OSHA submitted to OMB a long-awaited crystalline silica rule that would protect workers, in industries like concrete and glass manufacturing and a variety of construction activities, from exposure to crystalline silica (through dust inhalation or in mineral form). Long-term exposure to the substance is linked to debilitating illness and death. OSHA’s proposal should have been released for publication by May 15, but it has been under review at OIRA for almost 150 days, significantly exceeding the 120-day window for review. According to the agenda, the agency expects to hold hearings on its proposal in October. OSHA first put crystalline silica on the agenda in 1997.
Mine Safety and Health Administration (MSHA)
Coal miners are also adversely affected by exposure to crystalline silica. Coordinating with OSHA’s efforts to regulate exposure to the substance, MSHA anticipates issuing a proposed rule as soon as August to update its exposure standards.
In February, MSHA published a proposed rule that would clarify the criteria by which mine operators' patterns of health and safety violations are assessed. As proposed, this rule would take steps to prevent blatant violations of mine safety regulations in order to catch delinquent operators such Massey Energy, whose neglect caused the Upper Big Branch disaster in April 2010 that killed 29 miners. However, MSHA is moving slowly with the regulation. The comment period was extended through April and no final rulemaking is planned for the coming year.
Food and Drug Administration (FDA)
Two proposed rules listed in the Unified Agenda were published by FDA in April. The first would require chain restaurants to provide patrons with nutrition labeling on standard menu items. The second would require nutrition information to be provided for certain vending machine items. These rules are part of FDA’s roll-out of the Affordable Care Act of 2010 and would provide consumers with more accurate information on the food they purchase. FDA has not listed a date for the finalization of either rule.
FDA intends to propose in October a rule that will outline efforts to protect the public from intentional food contaminations. The proposal is expected to lay out ways to identify hazards and protect the food supply chain at vulnerable points, restrict the distribution of contaminated food, and target food products that are vulnerable to contamination. According to the Food Safety and Modernization Act of 2010, FDA must publish a final rule on intentional contamination by July 2012.
Federal Motor Carrier Safety Administration (FMCSA)
Two proposals out of FMCSA intend to ensure drivers of commercial vehicles do not create hazards on the road. First, FMCSA released in December 2010 a proposed rule to restrict cell phone use while driving a commercial vehicle. Numerous studies have indicated that talking on a cell phone is linked to increased accident rates. Second, FMCSA intends to issue a proposed rule in December that will create an online database for positive alcohol and substance tests performed on drivers of commercial vehicles. Prospective employers will be able to access the database to see if a driver has tested positive in the past on an alcohol or substance abuse test and to ensure the driver has completed the Department of Transportation’s return-to-duty process before hiring the driver.
The full Unified Agenda is available online. Some agencies will hold web conferences or other public discussions on their plans. For example, the Department of Labor is holding web conferences July 11-15 to allow the public to weigh in on its agenda. Visit an agency’s website or look at its agenda preamble for more information on how to comment on its plan for the coming year.