Some Pleasant Surprises in Agency Regulatory Plans

Last week, the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget released the semiannual regulatory agenda. I pointed out that the agenda, which contains the regulatory agencies’ planned actions, was quite late. Although the plans share problems from past years, like simply pushing back the target dates for regulatory actions, there are some pleasant surprises. For example, the National Highway Traffic Safety Administration (NHTSA) is moving forward with some proactive regulatory responses to the Toyota recalls of 2009, and the EPA plans to propose or finalize updates to National Emissions Standards for Hazardous Air Pollutants (NESHAPs) for 30 sources. Here’s an overview of some highlights (not covering everything) from the regulatory plans. More information about each individual rulemaking can be found by following the links.

Occupational Safety and Health Administration

• OSHA has eight occupational standards working through the arduous pre-rule stage of rulemaking. These include updates to standards for occupational exposure to beryllium, blood-borne pathogens, combustible dust, and infectious diseases. OSHA is also planning an occupational exposure standard for diacetyl. OSHA is also working on standards to prevent workers from being run over by vehicles in reverse, the Injury and Illness Prevention Program (I2P2), and upgraded standards to protect workers installing reinforced concrete.
• OSHA will propose a standard to reduce the allowable occupational exposure to silica dust. The regulatory plans say the agency planned to publish the proposed rule in June, but the proposed rule is currently under OIRA review (and has been in violation of Executive Order 12,866’s limit of 120 days to review the rule since Jun. 14, 2011).
• OSHA will re-open the docket to receive comments about small business concerns for the proposed rule to add a column to record musculoskeletal injuries and illness to OSHA’s injury and illness reporting logs. The proposed rule was withdrawn from OIRA on Jan. 26, 2011 “so that the agency could gather more information from stakeholders in the small business community.” OSHA reopened the record with a request specifically for additional information focused on small business interests.
• OSHA will issue final rules or interim final rules to explain procedures to protect whistleblowers from retaliation, to be consistent with several laws including the National Transit Systems Security Act of 2007, the Consumer Product Safety Improvement Act of 2008, the Corporate and Criminal Fraud Accountability Act of 2002, the Consumer Financial Protection Act of 2010, the Affordable Care Act of 2010, the Seaman’s Protection Act of 2010, and the Food Safety Modernization Act of 2008.

National Highway Traffic Safety Administration

• NHTSA began preliminary rulemaking action to revise and expand the data recording requirements for event data recorders in light duty vehicles. These devices, better known as “black boxes,” record a small amount of vehicle data, which can be used to reconstruct a crash. This rulemaking would seek to expand the data the boxes collect to give NHTSA more information about the circumstances of a crash. NHTSA will issue an Advanced Notice of Proposed Rulemaking in Oct. 2011. NHTSA will propose a separate rule to require that black boxes are installed in all vehicles in Oct. 2011.
• NHTSA will propose an upgrade of the minimum motor vehicle safety standard for accelerator control. NHTSA plans to propose a requirement for the brake to override the throttle. This would help to prevent unintended acceleration such as seen in the Toyota cases.
• NHTSA will propose to expand the information included in the Early Warning Reporting database to include reports from insurance companies. Including insurance reports would greatly expand the hazard screening capacity of the database, because insurance companies have the most comprehensive information about motor vehicle crashes.
• NHTSA will propose, in cooperation with EPA, fuel economy standards for passenger cars and light trucks for model years after 2017. EPA will propose greenhouse gas emissions standards for vehicles. The joint proposal is expected in September 2011.

Food and Drug Administration – Food Safety

• FDA will propose regulations on import tolerances for unapproved new animal drugs in food. This proposed rule would set limits on the amount of allowable drug residual in food. 
• FDA will propose guidance on good manufacturing practices in the manufacture, processing, packing, and holding of animal food. This proposed rule was required under the Food Safety Modernization Act of 2010, and the agency must issue a final rule by July 2012. The proposed rule is expected in September 2011.
• FDA will propose safety standards for produce. This proposed rule will cover safe production and harvesting guidelines for fruits and vegetables to prevent microbial contamination. FDA must propose this rule by Jan. 4, 2012.
• FDA will propose accreditation requirements for third party testing facilities for laboratory analysis of foreign food. The statutory deadline for this rule is July 2012.
• FDA plans to issue a final rule on the procedure for the agency to suspend the registration of a food facility if it has caused or contributed to adverse health consequences or death.

Environmental Protection Agency – Air & Radiation

• EPA will propose or finalize upgraded NESHAPs for 30 source categories. Proposed standards include: polyvinyl chloride and copolymers, petroleum refining, and chromium electroplating.
• EPA plans to propose several rules related to the mandatory greenhouse gas reporting standard. These rules include details about confidentiality claims under the mandatory greenhouse gas reporting rule and proposed amendments to the confidentiality determinations for inputs to the equations EPA uses in the mandatory reporting rule.
• EPA will propose New Source Performance Standards for electric utility steam generating units for greenhouse gas emissions. The agency is required to issue a proposed rule by Jul. 26, 2011 and a final rule by May 25, 2012 under court order.
• EPA will also propose several rules to protect stratospheric ozone, including the phase-out of exemptions for methyl bromide, and a proposed list of substitutes for ozone-depleting substances in fire protection. EPA will issue final rules to list n-propyl bromide and hydrocarbon refrigerants as ozone depleting substances.
• EPA will propose a review of secondary National Ambient Air Quality Standards for nitrogen oxides and sulfur oxides.

Environmental Protection Agency – Water

• EPA will propose reporting requirements for Concentrated Animal Feeding Operations (CAFOs). The proposed rule is due by Oct. 14, 2011 and the final rule is due by Jul. 13, 2012 under the terms of a settlement agreement.
• EPA will also propose regulations for CAFOs in the Chesapeake Bay Watershed. EPA will consider whether Chesapeake Bay states are effectively managing pollution control to meet nutrient and sediment pollution limits needs to meet Bay water quality standards. Under a settlement agreement with the Chesapeake Bay Foundation, EPA must issue a proposed rule by Jun. 30, 2012 and a final rule by Jun. 30, 2014.
• EPA plans to issue proposed rules for stormwater discharges at developed areas.  A settlement agreement requires EPA to issue a proposed rule by Sept. 30, 2011. The National Research Council found that the current standards are not adequate to control pollution from stormwater runoff in developed areas.
• EPA plans to issue a final rule to specify a sufficiently sensitive test for permit applications and reporting under the National Pollutant Discharge Elimination System.

Environmental Protection Agency – Solid Waste and Emergency Response

• EPA will propose a rule for national oil and hazardous substance pollution contingency plans to add a list of dispersants and spill mitigating substances that are approved for use in emergency contingency plans. This is meant to allow EPA to assess dispersants ahead of time, so hazards and other considerations can be probed before an emergency.
• EPA will propose an updated list of national priority sites under the Superfund program. EPA must update the list annually.
• EPA plans two actions on coal ash. The first is a new notice of data availability that it planned to release in June, but has not been published yet. The agency has not determined how it will proceed with the coal ash rule, and it will not advance the proposal to the final rule stage. The second is a long-term action to develop standards to use coal ash as mine fill. EPA plans to develop this proposal with the Office of Surface Mining at the Department of Interior.

Environmental Protection Agency – Office of Environmental Information

• EPA will propose rules to modify reporting requirements under the Toxics Release Inventory (TRI). EPA will propose deleting acrylonitrile from TRI reporting, and it plans to modify the reporting requirements for metal mining. EPA will propose to amend TRI reporting requirements to allow for electronic reporting of releases.