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EPA Finalized Amendments to the Risk Management Program (RMP) Rule

The United States Environmental Protection Agency (EPA) finalized amendments to the Accidental Release Prevention Requirements of Risk Management Programs (RMP) under the Clean Air Act, Section 112(r)(7) on December 21, 2016.

The revisions to EPA’s RMP regulations and related programs to modernize its chemical safety and security regulations, guidance, and policies are required under Executive Order (EO) 13650: Improving Chemical Facility Safety and Security.

The amendments to the current RMP regulation are intended to reduce the likelihood of accidental releases at chemical facilities, and improve emergency response activities when those releases occur, through:

  • Addressing and improving accident prevention program elements
  • Enhancing the emergency preparedness requirements
  • Ensuring LEPCs (Local Emergency Planning Committees), local emergency response officials, and the public can access information in a user-friendly format to help them understand the risks at RMP facilities and better prepare for emergencies.

Read the Final Rule

PPWO Update – Status of Overtime Rule

On Tuesday, November 22, 2016, a federal judge in Texas granted a preliminary injunction Tuesday delaying implementation of a regulation that would extend overtime eligibility to an estimated 4.2 million workers. The rule was challenged in court by 21 states and numerous business groups including U.S. Chamber of Commerce, of which GCCA is a member.

Below is the latest overview of where the overtime regulation stands, and some thoughts about what might be coming in 2017. The following information was written by the Partnership to Protect Workplace Opportunity (PPWO).

Litigation

The regulation is currently blocked by a preliminary injunction (PI) issued by U.S. District Judge Amos Mazzant on November 22. The federal government has filed to appeal this PI to the 5th Cir. Ct. of Appeals and their motion for expedited consideration has been granted.  Under that request, the last briefs will be due January 31 with oral arguments to follow at a yet to be determined date, with a decision after that.  The key point is that this appeal will carry over into the Trump administration and the new administration will have to decide whether to continue with the appeal (i.e. defending the regulation), or abandon the appeal and let the injunction stand.

Still pending before Judge Mazzant is the business groups’ Motion for Summary Judgment.  If Judge Mazzant grants this motion, it would result in a permanent injunction and moot the appeal of the PI, forcing the government to reinitiate an appeal of the permanent injunction. Obviously, such an appeal would also carry over into the Trump administration.

The AFL-CIO will be petitioning to intervene in the case at the District Court level. This is a petition that must first be granted by the judge, and would not alter the underlying legal posture of the case—the PI would remain, and the arguments would not change. The only impact is that if the Trump administration does not continue the appeal, there would now be a party who could.

Congress

While the House adjourned on Thursday, pro forma sessions have occurred, which means the opportunity to subject the overtime regulation to Congressional Review Act (CRA) consideration in the next Congress (under the CRA, if a house of Congress adjourns before the 60 legislative day for consideration of a regulation expires, that regulation may be taken up in the next Congress within a 45 legislative day window) is still fluid.

One question that will have to be addressed if a CRA resolution is possible is how to handle the CRA’s prohibition on the agency issuing a regulation that is in “substantially the same form.”  The CRA provides that such a regulation can be issued only if Congress enacts specific authorization after the resolution of disapproval.  What exactly constitutes a substantially similar regulation is unclear as this phrase has never been tested.  Any legislation specifically authorizing a new regulation would have to move without the privileged procedure of a CRA resolution. It could also include specific provisions such as blocking any regulation that included an automatic update.

Incoming Trump Administration

When the new administration takes office after January 20, this regulation will be one of the first items with which it will have to deal.  As noted above, the most immediate question will be whether to continue defending the regulation though the legal appeal process.  If the new administration declines to continue the appeal, it would no longer be a party.  If the AFL-CIO (or another outside party) is granted intervenor status, the appeal would continue to some final resolution.  If no other party is granted intervenor status, and the government declines to pursue the appeal, then the injunction would stand and the regulation would remain blocked.

If the regulation is permanently enjoined, then the next question faced by the new administration would be whether to pursue a revised overtime regulation.  While Secretary of Labor nominee Andrew Puzder has spoken out strongly against the Obama Administration overtime regulation, we do not yet have any indication about what approach the new administration would take with regard to a new overtime rulemaking.

Bottom line: the rule is blocked from going into effect until further notice.  Any change in that status cannot come until sometime in February at the absolute earliest, and likely later than that. There are no signals yet as to how the incoming Trump administration will respond to the legal challenge, or whether it will pursue a new regulation. 

GCCA Continues Industry Discussions with US Food and Drug Administration

In early December, representatives from the Global Cold Chain Alliance met with the US Food and Drug Administration to explore opportunities to collaborate with the agency as it moves forward with implementation and enforcement of the Food Safety Modernization Act (FSMA). The discussion focused on the unique nature of the third-party logistics industry and the importance of inspectors better understanding how 3PL facilities operate. GCCA and FDA will be exploring opportunities to provide education for inspectors and industry as FSMA implementation continues.

OSHA Issues Final Rule on Walking Working Surfaces and Personal Protective Equipment

By Lowell Randel, GCCA Vice President of Government and Legal Affairs

The Occupational Safety and Health Administration (OSHA) recently issued a new final rule that updates and revises the general industry Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) standards on slip, trip, and fall hazards, which are a leading cause of worker deaths and lost-workday injuries (29 CFR part 1910, subparts D and I).

The final rule applies to all general industry workplaces and covers all walking-working surfaces, which include horizontal and vertical surfaces such as floors, stairs, roofs, ladders, ramps, scaffolds, elevated walkways, and fall protection systems. OSHA estimates the final rule will prevent close to 30 worker deaths and nearly 6,000 lost-workday injuries each year.

Major changes and new requirements to the rule include:

  • Fall protection flexibility
  • Updated scaffold requirements to match OSHA’s construction scaffold standards
  • Phase-in of ladder safety systems or personal fall arrest systems on fixed ladders (20 years)
  • Phase-out of the “qualified climber” exception in outdoor advertising
  • Rope descent systems (RDS) and certification of anchorages
  • Personal fall protection system performance and use requirements
  • Inspection of walking-working surfaces
  • Training and retraining as necessary in a manner the worker understands

The final rule will go into effect on January 17, 2017. Learn more about the rule.

Gearing up for the Impending ELD Mandate

By Scopelitis, Garvin, Light, Hanson & Feary (Scopelitis)

The December 18, 2017 compliance deadline for the Federal Motor Carrier Safety Administration’s electronic logging device (ELD) service is looming for the transportation industry. It is up to carriers to ensure their devices are compliant. Learn more in The Transportation Brief, produced by GCCA’s transportation law services provider Scopelitis. Continue reading

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