Posts Tagged ‘OSHA’

Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule

OHSA Notice

Should we call the proposed rule an ETS variant?

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They extended the comment period. (Only an old regulator would find this amusing. Love OSHA’s panache 😃)

The ETS on Vaccination and Testing was published in the Federal Register on November 5, 2021. The ETS also acts as a proposal for a permanent standard and OSHA has decided to extend the comment period for that rule by 45 days. Written comments on any aspect of the ETS must now be submitted by January 19, 2022


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The 5th U.S. Circuit Court of Appeals granted an emergency stay of the requirement by the federal Occupational Safety and Health Administration that those workers be vaccinated by Jan. 4 or face mask requirements and weekly tests.


This court action was completely predictable from the outset. OSHA no doubt knew this but had no option but to dedicate substantial resources to the task. In all likelihood, the ETS/regulation will never be finalized.

Many (probably most) proposed regulations are never completed. Others never get beyond the concept stage. Establishing an OSHA rule takes an average of 7 years. That is not at all atypical for Federal regulators. There are much better ways to accomplish the regulatory objectives as was demonstrated after Hurricanes Katrina and Rita in 2005. Unfortunately our political system frowns on collaborative approaches so we do things the hard way – accomplishing much less in much more time and at a far greater cost.

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  • Executive Branch fiats don’t work in this country (and we can be thankful for that), but those in power sometimes don’t get that (or don’t care). Fortunately, we (MMS) weren’t tasked with many political rules, largely to the credit of our leadership.
  • OSHA had done a good job of reinventing itself and improving its reputation and image. Now this.
  • OSHA has a no-win assignment: issue a complex rule disguised as an Emergency Temporary Standard (a convenient regulatory hook that is being challenged legally).
  • This is a very labor intensive exercise for OSHA. The 490 page rule standard that was issued today is just the beginning.
  • Well managed companies should have already developed a policy that best serves their business interest and fully considers the needs of customers and employees.
  • The OSHA directive takes the lagging companies off the hook. Rather than actually managing, corporate execs can simply point to the government directive.
  • It looks like enforcement falls on the companies which “must maintain a record and a roster of each employee’s vaccination status.”
  • OSHA is a bit late to the party. BSEE has been collaboratively working COVID issues with the offshore industry for nearly 2 years. Will they now be asked to inspect facility COVID records and enforce the OSHA mandate?
  • For the record, 100% of BOE’s employees are thrice vaccinated for COVID (initial Pfizer doses plus the booster).😃

The legal challenges are already in motion, and the arguments are compelling:

“The order is unconscionable. OSHA does not know how to run our companies. We do,” said Steve Fettig, Secretary and Treasurer of Tankcraft and Plasticraft. “OSHA does not know how to keep our employees safe. We do. And we have done so successfully since the start of the pandemic without the interference of a federal bureaucracy. We respect our employees’ fundamental right to make their own private, difficult medical choices.”

Milwaukee Journal

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Establishing an OSHA rule takes an average of 7 years, and the process has ranged from 15 months to 19 years between 1981 and 2010, the Government Accountability Office (GAO) reported to Congress in 2012

EHS Daily Advisor

OSHA’s long rule promulgation timeframes are actually quite typical for US regulatory agencies. In some cases, employees work on a single rule for most of their careers! On the plus side, the rigorous internal and public review processes help prevent arbitrary and capricious actions by regulators. However, the long promulgation process often results in regulations that are outdated before they are published. As a result, the entire process repeats and you have a regulatory “do loop.”

To avoid the daunting rulemaking process, regulators often resort to issuing notices, letters, or conditions of approval that accomplish some of their objectives. However, these actions are not always consistent with the rule promulgation requirements of the Administrative Procedures Act and other directives, and are less likely to survive legal challenges.

The optimal approach is for the regulator to establish clear objectives for the operating companies and a schedule for achieving those objectives. This approach was demonstrated following the 2005 hurricane season (Katrina and Rita) when numerous mooring system and other stationkeeping issues were identified. In a face-to-face meeting, Department of the Interior Secretary Gale Norton outlined her concerns and informed offshore operators that there would be no drilling from moored MODUs or jackups during hurricane season until the issues identified during Hurricanes Katrina and Rita were addressed.

The collaborative effort that followed was a resounding success. In addition to addressing station keeping concerns, a comprehensive list of hurricane issues was developed. Industry and government then worked together to assess mitigations and develop new standards and procedures. The essential MODU standards were completed before the 2006 hurricane season, and all of the related concerns were effectively addressed prior to the 2009 hurricane season. Had the government elected to promulgate regulations to address all of these issues, much of this work would have never been completed.




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and they will presumably do so with an emergency final rule. This will be interesting. Over-under on the days until publication? Number of public comments?

And since the Coast Guard functions as OSHA on the Outer Continental Shelf, will they be enforcing the offshore industry’s compliance with this mandate? BSEE inspectors?

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