By Amanda R. Strainis-Walker

OSHA recently launched a Regional Emphasis Program (REP) that will focus enforcement resources on employers operating in the automotive supply manufacturing industry.  This new Auto Supply Manufacturers enforcement program will target manufacturers in the southeast that supply engines, airbags, trim, or any other automotive products.  The specific geographic areas covered by the inspection program include at least Georgia, Mississippi, and Alabama.

“Hazards associated with the Auto Parts Supplier Industry that are the focus of this REP continue to be the source of serious injuries, including amputations, and deaths to employees,” OSHA explained in the REP.  “The objective of this REP is to reduce employee exposures to safety related hazards in the Automotive Parts Supplier Industry.”

As a result of the REP, most automotive supply manufactures located in the Southeast can expect a comprehensive, wall-to-wall OSHA inspection within the next two years.  The only way these automotive supply manufacturers can avoid such an inspection is if they were already the subject of a comprehensive OSHA inspection during the preceding two years, or if they were mistakenly identified as an automotive supply manufacturer under NAICS classification code –  3663XX.

OSHA Area Offices have started to send letters notifying automotive supply manufacturers about the REP, as well as common causes of occupational injuries in the industry—machine guarding, lockout/tagout (LOTO), and electrical hazards.  These topics will also be the primary focus of inspections under the enforcement program.  The automotive supply manufacturers receiving the letter will be at the beginning of the inspection cycle, and should take steps now to prepare for OSHA’s knock on the door.

Recommended Steps to Prepare:

  1. Ensure injury and illness recordkeeping forms are current, accurate, and ready to produce to OSHA.
  2. Review written programs to confirm they are up-to-date, compliant, and consistent with what is happening on the plant floor.  Focus on LO/TO, including the requirement to conduct annual LO/TO certifications.
  3. Certify employee training is current, and fill in any gaps as needed.
  4. Conduct regular walkthrough inspections to affirm employees are following company policies and training.
  5. Consider having a third-party safety audit conduct conducted, preferably under the protection of the attorney-client privilege.

Here is a copy of the Auto Parts Industry Emphasis Program directive.  Please contact us with questions about this new emphasis program.

Back in January, we posted a breaking news story here on the OSHA Law Update blog about a major settlement of an OSHA enforcement action renewing the grain industry’s right to have employees work inside grain bins with energized sweep augers under certain specified conditions — aka, Ten Sweep Auger Safety Principles.

Since the settlement became a final order of the OSH Review Commission in January, federal OSHA’s national office in Washington, DC issued a May 3, 2013 Enforcement Memorandum to all of the Agency’s Regional Offices that memorialized the terms of the settlement and turned them into a national enforcement policy.  Specifically, the Enforcement Memo clarified what engineering and work practice controls to eliminate or mitigate the danger to employees from the moving parts of a sweep auger that are acceptable to OSHA to allow employees to work inside the bin with the auger while it is operating.

Grain and Feed Milling Technology ran a featured article in the July/August 2013 edition of its online journal, authored by Eric J. Conn, the Head of Epstein Becker & Green’s national OSHA Practice Group, detailing the roller coaster ride that has been OSHA’s enforcement policy in connection with work inside grain bins with energized sweep augers, and explaining the current enforcement policy, which does provide real clarity as to the conditions that OSHA considers to be acceptable for that work.

Here is a link to the full article in Grain and Feed Milling Technology Magazine.

By Eric J. Conn, Head of the OSHA Practice Group

Pursuant to the Regulatory Flexibility Act, the federal government and its agencies, such as OSHA, are required to give notice of significant rulemaking and other regulatory activity by publishing “semi-annual” regulatory agendas that outline the status of on-going and intended federal regulations and standards.  Someone needs to tell the Administration that “semi-annual” means twice yearly, not every other year.

Historically, the Office of Information and Regulatory Affairs (OIRA) issues a Spring regulatory agenda sometime during the summer, and a Fall regulatory agenda sometime in the winter.  Before last week (the final week of 2012), however, there had been no regulatory agenda published for 2012.  The only regulatory agenda published during 2012, was for Fall 2011.

Congressional Republicans had been hounding the Administration for a regulatory agenda since well before the Election, believing the long delay was because the President feared bad press and negative public reaction to the Administration’s continued aggressive regulatory plans.


Senator Rob Portman (R-Ohio) sent a letter to the President in late August calling for an Spring Reg Agenda, and Congressman John Kline (R-MN), Chairman of the U.S. House Committee on Education and the Workforce, followed up with a November 1, 2012 press release stating:

“The Obama administration continues to play a game of regulatory hide-and-seek with the American people. Current law was designed to protect the public’s right to know about rules and regulations being crafted behind the closed doors of the federal bureaucracy. However, on a range of issues including health care, retirement security, and workplace safety the president seems determined to keep his plans for new regulations secret.”

The wait is finally over, as the Fall 2012 Regulatory Agenda was released last week (Friday, December 21, 2012) — just in time for 2013.  Here are the OSHA-related highlights.  OSHA projects that during 2013, final agency action will be taken on 10 regulations, including the following:

1. A new Confined Spaces in Construction standard (by July 2013)

  • For more than a decade, OSHA has been developing a counter-part to the general industry confined space standard (29 CFR 1910.146).
  • The Final Rule for the construction industry is expected this summer.

2. An updated Electric Power Transmission and Distribution standard (by March 2013)

  • Based on a high incident rate among electric line workers, forty years ago, OSHA developed a standard to address safety during the construction of electric power transmission and distribution lines.  Early in 2013, OSHA expects to implement a series of revisions to this standard intended to address non-construction work performed during maintenance on electric power installations, and to update PPE and Fall Protection requirements for work on power generation, transmission, and distribution installations.
  • The final rule is expected early this year.

3. Gutting Cooperative Programs (by April 2013)

  • OSHA has proposed to amend its cooperative Safety and Health Achievement Recognition Program (SHARP) to eliminate most of the exemptions from enforcement inspections historically available to facilities that have qualified for the program.
  • This change could effectively eliminate most of the incentives for employers to participate in this recognition program, which OSHA has historically administered to incentivize and support small employers to develop, implement, and continuously improve effective safety and health programs.

4. An updated Walking Working Surfaces standard; i.e., Fall Protection (by August 2013)

OSHA recently identified the 10 most frequently cited standards from FY 2012 (October 1, 2011 through September 30, 2012). There were no surprises on the list, and it was consistent with years past with only a slight shuffling in the order.

OSHA posts on its website the list of top 10 violations (it has not updated the site with the FY 2012 list yet) in order to “alert employers about these commonly cited standards so they can take steps to find and fix recognized hazards addressed in these and other standards before OSHA shows up. Far too many preventable injuries and illnesses occur in the workplace.”

Here is the list for FY 2012:

  1. 1926.501 –    Fall Protection (cited 7,250 times during FY 2012)
  2. 1910.1200 – Hazard Communication (cited 4,696 times during FY 2012)
  3. 1926.451 –    Scaffolding (cited 3,814 times during FY 2012)
  4. 1910.134 –    Respiratory Protection (cited 2,371 times during FY 2012)
  5. 1926.1053 –  Ladders (cited 2,310 times during FY 2012)
  6. 1910.212 –    Machine Guarding (cited 2,097 times during FY 2012)
  7. 1910.178 –    Powered Industrial Trucks (cited 1,993 times during FY 2012)
  8. 1910.305 –   Electrical, Wiring Methods (cited 1,744 times during FY 2012)
  9. 1910.147 –    Lockout/Tagout (cited 1,572 times during FY 2012)
  10. 1910.303 –   Electrical, General Requirements (cited 1,332 times during FY 2012)

This year, OSHA also reported the Top 10 standards in terms of the highest assessed total penalties for FY.  It is worth noting that excavation hazards are not among the 10 most frequently cited standards, but citations related to those hazards are the 7th most highly penalized.  That is likely a result of the fact that many excavation-related citations have been characterized lately as Willful or Repeat with much higher penalties than Serious violations.  Here is the list:

  1. 1926.501 — Fall protection, construction
  2. 1926.451 — Scaffolding, general requirements, construction
  3. 1910.147 — Control of hazardous energy (lockout/tagout), general industry
  4. 1910.212 — Machines, general requirements, general industry
  5. 1926.1053 — Ladders, construction
  6.  1910.178 — Powered industrial trucks, general industry
  7.  1926.652 — Excavations, requirements for protective systems
  8. 1910.1200 — Hazard communication standard, general industry
  9. 1910.305 — Electrical, wiring methods, components and equipment, general industry
  10. 1910.303 — Electrical systems design, general requirements, general industry

For purposes of comparison and evaluating trends, here is the Top 10 list of most frequently cited standards from FY 2011, which includes all of the same standards, only with slight differences in the order of frequency cited:

  1. 1926.451-  Scaffolding
  2. 1926.501-  Fall Protection
  3. 1910.1200-Hazard Communication
  4. 1910.134-   Respiratory Protection
  5. 1910.147-   Lockout/Tagout
  6. 1910.305-  Electrical-wiring methods
  7. 1910.178-   Powered Industrial Trucks
  8. 1926.1053-Ladders
  9. 1910.303- Electrical-general requirement
  10. 1910.212-   Machine Guarding

Late last year, I delivered a keynote address to the National Grain & Feed Association’s (NGFA) annual Country Elevator Conference regarding:

  1. Why it is important for grain handlers to prepare now for an OSHA inspection;
  2. What to do now to prepare for an OSHA inspection; and
  3. How best to manage an OSHA inspection once it begins.

The Grain Journal, a leading voice in the grain industry, published a three-part article series about my speech in its March/April issue.  The articles   – “OSHA Is Targeting You,” “Preparing for an Inspection,” and “During the Inspection” – can be found here at pages 68 – 80 of the March/April issue of Grain Journal.

By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green

OSHA is signaling a major departure from its position on acceptable exceptions to the Lockout/Tagout requirements in the agency’s electrical safety standards.  Historically, employers have been permitted to conduct electrical maintenance near energized parts in data centers that host critical business operations (i.e., operations which must stay live 24/7), under an “infeasibility” exception to the general rule that electrical equipment must be deenergized and locked out before maintenance is permitted.  A series of recent enforcement actions suggests this exception may no longer be available to data center operators.

OSHA’s electrical safety standards at 29 CFR 1910.333 generally require employers to deenergize and lockout electrical supply to a circuit before work can be performed nearby.  However, the OSHA standard includes an exception to deenergization if doing so is “infeasible due to equipment design or operational limitations.”  OSHA’s infeasibility exception is derived from the National Fire Protection Association’s industry guidance document 70E (“Work Involving Electrical Hazards”), which includes an identical infeasibility exception.  Under the infeasibility exception, employers are permitted to perform work on or near energized equipment provided the employees performing the work use other safety-related work practices, such as approved electrical personal protective equipment (e.g., insulated gloves and sleeves), appropriately rated tools, and take other appropriate measures to guard against electric shock and arc flash hazards (e.g., installing barriers or rubber insulation blankets).

Data center operators have long relied on this exception to perform work inside live electrical panels, because shutting down the entire panel will take down all equipment powered from that source, often including critical hardware hosting critical business operations.   The OSHA Practice Group at Epstein Becker & Green has become aware, however, of several OSHA enforcement actions in the Northeast, in which OSHA cited employers who operate 24/7 data centers for violations of OSHA’s electrical safety standards, because they performed electrical maintenance on or near energized equipment, under the auspices of the infeasibility exception.  An OSHA representative involved in two such cases indicated that OSHA intends for this enforcement initiative to apply nationwide.

Accordingly, what OSHA is now requiring from data center operators, is that no electrical work may be done in power cabinets/centers in which any portion of the cabinet is energized.  This new policy creates significant operational problems and costs.  Businesses and customers place a high premium on avoiding data center outages, and this new OSHA requirement necessarily has that result.  We are not aware of any employer challenging OSHA’s new data center policy to the point of an ALJ or OSH Review Commission judgment, and such a challenge may be worthwhile if the costs of complying with this new policy are too prohibitive.