DEPARTMENT OF LABOR (DOL)

2004 Regulatory Plan

Executive Summary: Protecting America's Workers

Since its creation in 1913, the Department of Labor has been guided by the idea that workers deserve safe and healthy workspaces, as well as protection of their wages and pensions. Protecting America's workers is a top priority of the Secretary of Labor. The Department works to enforce laws and regulations to ensure the health and safety of the American workforce. The vast majority of employers work hard to keep their employees and workplaces safe and secure. DOL also strives to provide employers with the knowledge and tools they need to carry out their legal obligations. The Secretary has made protecting workers through the coupling of compliance assistance and tough enforcement one of her top priorities. Her compliance assistance initiative is based on the proven success that comes when government, employers, unions and employees work together.

Compliance assistance works to prevent injuries. Educating and encouraging employers helps workers far more than enforcement alone, since no enforcement process can possibly identify every violation of the law, and fines and penalties can never fully redress losses of life, health, and economic well-being.

The Department is committed to aggressively enforcing the laws that protect employees, including the rights of workers returning to their jobs after military service. Workers also need information about protection of their health insurance and pension benefits. In addition, DOL has responsibilities beyond worker protection. The Department recognizes that workers need constant updating of skills to compete in a changing marketplace. DOL helps employers and workers bridge the gap between the requirements of new high-technology jobs and the skills of the workers who are needed to fill them.

The Secretary of Labor's Regulatory Plan for Accomplishing These Objectives

In general, DOL tries to help employees and employers meet their needs in a cooperative fashion. DOL will maintain health and safety standards and protect employees by working with the regulated community.

DOL considers the following proposals to be proactive, common sense approaches to the issues most clearly needing regulatory attention.

The Department's Regulatory Priorities

DOL has identified 16 high priority items for regulatory action. Six items address health and safety issues, which are central to DOL's mission and which represent a major focus of the Secretary. Two agencies, the Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration (OSHA), are responsible for these initiatives.

MSHA administers the Federal Mine Safety and Health Act of 1977 (Mine Act). The agency is committed to ensuring safer and healthier workplaces for the nation's miners in a number of ways, and will continue to concentrate on improving existing health standards and addressing emerging health hazards in mining.

MSHA is considering lowering the existing permissible exposure limit (PEL) for asbestos at metal and nonmetal and coal mines, to reduce the risk of asbestos-related death and disease among miners. MSHA also is considering specifying criteria for the method used for sample analysis (RIN 1219-AB24). MSHA published an advance notice of proposed rulemaking (ANPRM) and conducted a series of public meetings in 2002 to allow early participation by interested parties in the rulemaking. MSHA is preparing a proposed rule that fully considers comments received in response to the ANPRM, testimony at the public meeting, current scientific evidence, and the experience of other agencies.

MSHA also continues its rulemaking on Diesel Particulate Matter Exposure of Underground Metal and Nonmetal Miners (RIN 1219-AB29). A proposed rule was published in August 2003. MSHA will address several provisions in the final standard, including changing the diesel particulate matter surrogate from total carbon to elemental carbon for the interim and limit changing the interim limit concentration-based limit to a personal exposure limit (PEL) establishing the hierarchy of controls that MSHA applies to metal and nonmetal mines pursuant to its enforcement policy for exposure-based health standards, allowing Personal Protective Equipment (PPE), and addressing the diesel particulate matter control plan.

The Occupational Safety and Health Administration oversees a wide range of measures in the public and private sectors. OSHA is committed to establishing clear and sensible priorities, and to continuing to reduce occupational deaths, injuries, and illnesses.

OSHA's high-priority initiatives address health standards. The first, a revision to the Respiratory Protection Standard, will address Assigned Protection Factors for different types of respirators (RIN 1218-AA05). This action will improve respiratory protection for employees required to wear respirators and will make it easier for employers to choose the appropriate respirator for a given task. OSHA published an NPRM on June 6, 2003, and informal public hearings were held on January 28-30, 2004.

OSHA's second initiative in the area of health standards addresses worker exposures to crystalline silica (RIN 1218-AB70). This substance is one of the most widely found in workplaces and data indicate that exposure to it may cause silicosis, a debilitating respiratory disease, and perhaps cancer as well. OSHA has obtained input from small businesses about regulatory approaches through a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel, and the Panel report was submitted to the Assistant Secretary of OSHA on December 19, 2003. OSHA is currently preparing a risk assessment and plans to complete an external peer review of a draft assessment by February 2005. This rule was discussed in the 2002 OMB Report to Congress on the Costs and Benefits of Regulations.

OSHA's third health initiative addresses worker exposure to hexavalent chromium (RIN 1218-AB45). Approximately 380,000 workers are exposed to this substance in general industry, maritime, construction and agriculture. Exposure to hexavalent chromium is associated with lung cancer and dermatoses. OSHA has obtained input from small businesses about regulatory approaches through a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel, and the Panel report was submitted to the Assistant Secretary of OSHA on April 20, 2004. The proposed rule was published on October 4, 2004. This standard was discussed in OMB's 2002 Report to Congress on the Costs and Benefits of Regulation.

The fourth health initiative, OSHA's Standards Improvement Project, will streamline a number of health standards by removing language that is outdated, duplicative, unnecessary or inconsistent (RIN 1218-AB81). These changes will reduce the time and effort needed to [[Page 72782]] understand and comply with these standards. An NPRM was published October 31, 2002. A hearing was held in July 2003, and a final rule has been prepared.

Protection of pension and health benefits continues to be a priority of the Secretary of Labor. Consistent with the Secretary's priorities for FY 2005, the Employee Benefits Security Administration (EBSA) will focus on compliance assistance for pension and group health plans through issuance of guidance. Specific initiatives for group health plans include guidance on the application of the Health Insurance Portability and Accountability Act (HIPAA) access, portability and renewability provisions (RIN 1210-AA54); and the HIPAA nondiscrimination provisions of the Employee Retirement Income Security Act (ERISA) (RIN 1210-AA77). With respect to pension plans, the Department will focus on establishing a safe harbor under which employers will be treated as having made timely deposits of participant contributions in their 401(k) plan (RIN 1210-AB02). The Department also will focus on the development of guidance that will facilitate the payment of benefits from 401(k) and other defined contribution plans that have been abandoned by their sponsors (RIN 1210-AA97).

ERISA's requirements affect an estimated 730,000 private sector employee pension benefit plans (covering approximately 99 million participants); an estimated 2.5 million group health benefit plans (covering 131 million participants and dependents); and 3.4 million other welfare benefits plans (covering approximately 190 million participants).

The Secretary's emphasis on meeting the needs of the 21st century workforce is reflected in the plan of the Employment and Training Administration (ETA) to issue regulations reflecting recent changes to the Trade Adjustment Assistance (TAA) program, as enacted in the Trade Act of 2002. The regulations will be issued in two parts: regulations covering TAA program benefits (RIN 1205-AB32), and regulations covering petition filing, investigations and the new Alternative TAA Program for Older Workers (RIN 1205-AB40). The proposed rules would address the many new features of the TAA program: consolidation of the TAA and NAFTA-TAA programs; rapid response services for workers to facilitate more rapid reemployment; expanded eligibility; increased benefits, including health care insurance assistance; and Alternative TAA for Older Workers program. The new regulations will be written in plain English, making them easier to read and use.

In its second initiative, ETA proposes to re-engineer the permanent labor certification process (RIN 1205-AA66). ETA's goals are to make fundamental changes that will streamline the process, save resources, improve the effectiveness of the program, and better serve the Department of Labor's customers. This rule was discussed in the 2002 OMB Report to Congress on the Costs and Benefits of Regulations.

The Employment Standards Administration (ESA) has set forth two priority regulatory initiatives. ESA's first initiative updates the child labor rules issued under the Fair Labor Standards Act (FLSA) to address changes in the nature of the workplace and situations in which minors may operate certain kinds of machinery (RIN 1215-AA09). While young workers need employment experiences that will help them gain the skills needed to find and hold good jobs later in life, they also need to focus on obtaining a high-quality education, and the assurance that their work hours are reasonable will help them in doing so.

ESA's second initiative pertains to regulations issued under the Family and Medical Leave Act (FMLA) that were also discussed in OMB's 2001 and 2002 Reports to Congress on the Costs and Benefits of Regulations. Revisions will be proposed to the FMLA's implementing regulations to address issues raised by the decision of the U.S. Supreme Court in Ragsdale v. Wolverine World Wide, Inc., 122 S. Ct. 1155 (2002), and the decisions of other courts.

Finally, the Secretary 's commitment to protecting the employment rights of service members as they return to the civilian workforce is reflected by the Veterans' Employment and Training Service's (VETS) initiative to promulgate regulations implementing the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA provides employment and reemployment protections for members of the uniformed services, including veterans and members of the Reserve and National Guard. The Department has not previously issued implementing regulations under USERRA. Authoritative written guidance interpreting USERRA will ensure that our service members serve secure in the knowledge that they will be able to return to their jobs with the same pay, benefits, and status they would have attained had they not been away on military duty.

DOL--Employment Standards Administration (ESA)

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PROPOSED RULE STAGE

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88. FAMILY AND MEDICAL LEAVE ACT OF 1993; CONFORM TO THE SUPREME COURT'S RAGSDALE DECISION Priority:

Priority:

Other Significant

Unfunded Mandates:

Undetermined

Legal Authority:

29 USC 2654

CFR Citation:

29 CFR 825

Legal Deadline:

None

Abstract:

The U.S. Supreme Court, in Ragsdale v. Wolverine World Wide, Inc., 122 S. Ct. 1155 (2002), invalidated regulatory provisions issued under the Family and Medical Leave Act (FMLA) pertaining to the effects of an employer's failure to timely designate leave that is taken by an employee as being covered by the FMLA. The Department intends to propose revisions to the FMLA regulations to address issues raised by this and other judicial decisions.

Statement of Need:

The FMLA requires covered employers to grant eligible employees up to 12 workweeks of unpaid, job-protected leave a year for specified family and medical reasons, and to maintain group health benefits during the leave as if the employees continued to work instead of taking leave. When an eligible employee returns from FMLA leave, the employer must restore the employee to the same or an equivalent job with equivalent pay, benefits, and other conditions of employment. FMLA makes it unlawful for an employer to interfere with, restrain, or deny the exercise of any right provided by the FMLA.

The FMLA regulations require employers to designate if an employee's use of leave is counting against the employee's FMLA leave entitlement, and to notify the employee of that designation (29 CFR section 825.208). Section 825.700(a) of the regulations provides that if an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against the employee's 12 weeks of FMLA leave entitlement.

On March 19, 2002, the U.S. Supreme Court issued its decision in Ragsdale v. Wolverine World Wide, Inc., 122 S. Ct. 1155 (2002). In that decision, the Court invalidated regulatory provisions pertaining to the effects of an employer's failure to timely designate leave that is taken by an employee as being covered by the FMLA. The Court ruled that 29 CFR section 825.700(a) was invalid absent evidence that the employer's failure to designate the leave as FMLA leave interfered with the employee's exercise of FMLA rights. This proposed rule is being prepared to address issues raised by this and other judicial decisions.

Summary of Legal Basis:

This rule is issued pursuant to section 404 of the Family and Medical Leave Act, 29 U.S.C. section 2654.

Alternatives:

After completing a review and analysis of the Supreme Court's decision in Ragsdale and other judicial decisions, regulatory alternatives will be developed for notice-and-comment rulemaking.

Anticipated Cost and Benefits:

The costs and benefits of this rulemaking action are not expected to exceed $100 million per year or otherwise trigger economic significance under Executive Order 12866.

Risks:

This rulemaking action does not directly affect risks to public health, safety, or the environment.

Timetable:

_______________________________________________________________________

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

Undetermined

Small Entities Affected:

Businesses, Governmental Jurisdictions, Organizations

Government Levels Affected:

Undetermined

Federalism:

Undetermined

Agency Contact:

Alfred B. Robinson
Acting Administrator, Wage and Hour Division
Department of Labor
Employment Standards Administration
200 Constitution Avenue NW.
FP Building Room S3502
Washington, DC 20210
Phone: 202 693-0051
Fax: 202 693-1302
RIN: 1215-AB35

_______________________________________________________________________

DOL--ESA

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FINAL RULE STAGE

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89. CHILD LABOR REGULATIONS, ORDERS, AND STATEMENTS OF INTERPRETATION (ESA/W-H)

Priority:

Other Significant

Legal Authority:

29 USC 203(l)

CFR Citation:

29 CFR 570

Legal Deadline:

None

Abstract:

Section 3(l) of the Fair Labor Standards Act requires the Secretary of Labor to issue regulations with respect to minors between 14 and 16 years of age ensuring that the periods and conditions of their employment do not interfere with their schooling, health, or well- being. The Secretary is also directed to designate occupations that are particularly hazardous for minors 16 and 17 years of age. Child Labor Regulation No. 3 sets forth the permissible industries and occupations in which 14- and 15-year-olds may be employed, and specifies the number of hours in a day and in a week, and time periods within a day, that such minors may be employed. The Department has invited public comment in considering whether changes in technology in the workplace and job content over the years require new hazardous occupation orders, and whether changes are needed in some of the applicable hazardous occupation orders. Comment has also been solicited on whether revisions should be considered in the permissible hours and time-of-day standards for 14- and 15-year-olds. Comment has been sought on appropriate changes required to implement school-to-work transition programs. Additionally, Congress enacted Public Law 104-174 (August 6, 1996), which amended FLSA section 13(c) and requires changes in the regulations under Hazardous Occupation Order No. 12 regarding power- driven paper balers and compactors, to allow 16- and 17-year-olds to load, but not operate or unload, machines meeting applicable American National Standards Institute (ANSI) safety standards and certain other conditions. Congress also passed the Drive for Teen Employment Act, Public Law 105-334 (October 31, 1998), which prohibits minors under age 17 from driving automobiles and trucks on public roads on the job and sets criteria for 17-year-olds to drive such vehicles on public roads on the job.

Statement of Need:

Because of changes in the workplace and the introduction of new processes and technologies, the Department is undertaking a comprehensive review of the regulatory criteria applicable to child labor. Other factors necessitating a review of the child labor regulations are changes in places where young workers find employment opportunities, the existence of differing Federal and State standards, and the divergent views on how best to correlate school and work experiences.

Under the Fair Labor Standards Act, the Secretary of Labor is directed to provide by regulation or by order for the employment of youth between 14 and 16 years of age under periods and conditions which will not interfere with their schooling, health and well-being. The Secretary is also directed to designate occupations that are particularly hazardous for youth between the ages of 16 and 18 years or detrimental to their health or well-being. The Secretary has done so by specifying, in regulations, the permissible industries and occupations in which 14- and 15-year-olds may be employed, and the number of hours per day and week and the time periods within a day in which they may be employed. In addition, these regulations designate the occupations declared particularly hazardous for minors between 16 and 18 years of age or detrimental to their health or well-being.

Public comment has been invited in considering whether changes in technology in the workplace and job content over the years require new hazardous occupation orders or necessitate revision to some of the existing hazardous orders. Comment has also been invited on whether revisions should be considered in the permissible hours and time-of-day standards for the employment of 14- and 15-year-olds, and whether revisions should be considered to facilitate school-to-work transition programs. When issuing the regulatory proposals (after review of public comments on the advance notice of proposed rulemaking), the Department's focus was on assuring healthy, safe and fair workplaces for young workers, and at the same time promoting job opportunities for young people and making regulatory standards less burdensome to the regulated community.

The Department will also be considering what additional revisions to the hazardous occupation orders will be undertaken to address recommendations of the National Institute for Occupational Safety and Health in its May 2002 report to the Department.

Summary of Legal Basis:

These regulations are issued under sections 3(l), 11, 12, and 13 of the Fair Labor Standards Act, 29 U.S.C. sections 203(l), 211, 212, and 213 which require the Secretary of Labor to issue regulations prescribing permissible time periods and conditions of employment for minors between 14 and 16 years old so as not to interfere with their schooling, health, or well-being, and to designate occupations that are particularly hazardous or detrimental to the health or well-being of minors under 18 years old.

Alternatives:

Regulatory alternatives developed based on recent legislation and the public comments responding to the advance notice of proposed rulemaking included specific proposed additions or modifications to the paper baler, teen driving, explosive materials, and roofing hazardous occupation orders, and proposed changes to the permissible cooking activities that 14- and 15-year-olds may perform in retail establishments.

Anticipated Cost and Benefits:

Preliminary estimates of the anticipated costs and benefits of this regulatory action indicated that the rule was not economically significant. Benefits will include safer working environments and the avoidance of injuries with respect to young workers.

Risks:

The child labor regulations, by ensuring that permissible job opportunities for working youth are safe and healthy and not detrimental to their education as required by the statute, produce positive benefits by reducing health and productivity costs employers may otherwise incur from higher accident and injury rates to young and inexperienced workers. Given the limited nature of the changes in the proposed rule, a detailed assessment of the magnitude of risk was not prepared.

Timetable:

_______________________________________________________________________

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

No

Government Levels Affected:

None

Agency Contact:

Alfred B. Robinson
Acting Administrator, Wage and Hour Division
Department of Labor
Employment Standards Administration
200 Constitution Avenue NW.
FP Building Room S3502
Washington, DC 20210
Phone: 202 693-0051
Fax: 202 693-1302
RIN: 1215-AA09

_______________________________________________________________________

DOL--Employment and Training Administration (ETA)

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90. REVISION TO THE DEPARTMENT OF LABOR BENEFIT REGULATIONS FOR TRADE ADJUSTMENT ASSISTANCE FOR WORKERS UNDER THE TRADE ACT OF 1974, AS AMENDED

Priority:

Other Significant

Legal Authority:

19 USC 2320; Secretary's Order No. 3-81, 46 FR 31117

CFR Citation:

29 CFR 90; 20 CFR 617;
20 CFR 618; 20 CFR 665; 20 CFR 671; . . .

Legal Deadline:

None

Abstract:

The Trade Adjustment Assistance Reform Act of 2002, enacted on August 6, 2002, contains provisions amending title 2, chapter 2 of the Trade Act of 1974, entitled Adjustment Assistance for Workers. The amendments, effective 90 days from enactment (November 4, 2002), make additions to where and by whom a petition may be filed, expand eligibility to workers whose production has been shifted to certain foreign countries and to worker groups secondarily affected, and make substantive changes regarding trade adjustment assistance (TAA) program benefits.

It is the agency's intention to create a new 20 CFR part 618 to incorporate the amendments and write it in plain English, while amending the WIA regulations at 20 CFR parts 665 and 671 regarding Rapid Response and National Emergency Grants as they relate to the TAA program.

The proposed part 618 consists of nine subparts: subpart A - General; subpart B--Petitions and Determinations of Eligibility to Apply for Trade Adjustment Assistance (and Alternative TAA); subpart C---Delivery of Services throughout the One-Stop Delivery System; subpart D--Job Search Allowances; subpart E--Relocation Allowances; subpart F-- Training Services; subpart G--Trade Readjustment Allowances (TRA); subpart H--Administration by Applicable State Agencies; and subpart I-- Alternative Trade Adjustment Assistance for Older Workers. Because of the complexity of the subject matter and the States' needs for definitive instructions on providing TAA benefits, the rulemaking for part 618 is divided into two parts. This notice of proposed rulemaking covers the general provisions (subpart A) and TAA benefits portions (subpart C through subpart H) of the regulations. A separate notice of proposed rulemaking will cover the two remaining subparts (subpart B and subpart I).

Statement of Need:

The Trade Adjustment Assistance Reform Act of 2002, enacted August 6, 2002, repeals the North American Free Trade Agreement-Transitional Adjustment Assistance provisions for workers affected by the NAFTA Implementation Act and adds significant amendments to worker benefits under Trade Adjustment Assistance for Workers, as provided for in the Trade Act of 1974.

The 2002 Trade Act amends where and by whom a petition may be filed. Program benefits for TAA eligible recipients are expanded to include for the first time a health care tax credit, and eligible recipients now include secondarily affected workers impacted by foreign trade. Income support is extended by 26 weeks and by up to one year under certain conditions. Waivers of training requirements in order to receive income support are explicitly defined. Job search and relocation benefit amounts are increased. Within one year of enactment, the amendments offer an Alternative TAA for Older Workers program that targets older worker groups who are certified as TAA eligible and provides the option of a wage supplement instead of training, job search, and income support.

The Department is mandated to implement the amendments within 90 days from enactment (November 4, 2002), and it issued operating instructions in a guidance letter on October 10, 2002, and later published in the Federal Register (67 FR 69029-41). State agencies rely on the regulations to make determinations as to individual eligibility for TAA program benefits. TAA program regulations as written have been described as complicated to interpret. With the new TAA program benefit amendments contained in the Trade Act of 2002, it is imperative that the regulations be in an easy-to-read and understandable format.

Summary of Legal Basis:

These regulations are authorized by 19 U.S.C. 2320 due to the amendments to the Trade Act of 1974 by the Trade Adjustment Assistance Reform Act of 2002.

Alternatives:

The public will be afforded an opportunity to provide comments on the TAA program changes when the Department publishes the proposed rule in the Federal Register.

Anticipated Cost and Benefits:

Preliminary estimates of the anticipated costs of this regulatory action have not been determined at this time and will be determined at a later date.

Risks:

This action does not affect public health, safety, or the environment.

Timetable:

_______________________________________________________________________

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

No

Small Entities Affected:

No

Government Levels Affected:

Federal, State

Agency Contact:

Timothy F. Sullivan
Director, Trade Adjustment Assistance
Department of Labor
Employment and Training Administration
200 Constitution Avenue NW.
FP Building Room C5311
Washington, DC 20210
Phone: 202 693-3708
Email: sullivan.timothy@dol.gov
RIN: 1205-AB32

_______________________________________________________________________

DOL-- (ETA)

91. REVISION TO THE DEPARTMENT OF LABOR REGULATIONS FOR PETITIONS AND DETERMINATIONS OF ELIGIBILITY TO APPLY FOR TRADE ADJUSTMENT ASSISTANCE FOR WORKERS AND ISSUANCE OF REGULATIONS FOR THE ALTERNATIVE TAA Priority:

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Legal Authority:

19 USC 2320; Secretary's Order No. 3-81, 46 FR 31117

CFR Citation:

29 CFR 90; 20 CFR 617; 20 CFR 618; 20 CFR 665; 20 CFR 671; . . .

Legal Deadline:

None

Abstract:

The Trade Adjustment Assistance Reform Act of 2002, enacted on August 6, 2002, contains provisions amending title 2, chapter 2 of the Trade Act of 1974, entitled Adjustment Assistance for Workers. The amendments, effective 90 days from enactment (November 4, 2002), make additions to where and by whom a petition may be filed, expand eligibility to workers whose production has been shifted to certain foreign countries and to worker groups secondarily affected, and make substantive changes regarding trade adjustment assistance (TAA) program benefits.

It is the agency's intention to create a new 20 CFR part 618 to incorporate the amendments and write it in plain English, while amending the WIA regulations at 20 CFR parts 665 and 671 regarding Rapid Response and National Emergency Grants as they relate to the TAA program.

The proposed part 618 consists of nine subparts: subpart A--General; subpart B--Petitions and Determinations of Eligibility to Apply for Trade Adjustment Assistance (and Alternative TAA); subpart C--Delivery of Services throughout the One-Stop Delivery System; subpart D--Job Search Allowances; subpart E--Relocation Allowances; subpart F-- Training Services; subpart G--Trade Readjustment Allowances (TRA); subpart H--Administration by Applicable State Agencies; and subpart I-- Alternative Trade Adjustment Assistance (ATAA) for Older Workers. Because of the complexity of the subject matter and the States' needs for definitive instructions on providing TAA benefits, the rulemaking for part 618 is divided into two parts. This notice of proposed rulemaking covers the petitions and determinations (subpart B) and ATAA (subpart I) of the regulations. A separate notice of proposed rulemaking will cover the remaining subparts (subpart A and subparts C through H).

Statement of Need:

The Trade Adjustment Assistance Reform Act of 2002, enacted August 6, 2002, repeals the North American Free Trade Agreement-Transitional Adjustment Assistance provisions for workers affected by the NAFTA Implementation Act and adds significant amendments to worker benefits under Trade Adjustment Assistance for Workers, as provided for in the Trade Act of 1974.

The 2002 Trade Act amends where and by whom a petition may be filed. Program benefits for TAA eligible recipients are expanded to include for the first time a health care tax credit, and eligible recipients now include secondarily affected workers impacted by foreign trade. Income support is extended by 26 weeks and by up to one year under certain conditions. Waivers of training requirements in order to receive income support are explicitly defined. Job search and relocation benefit amounts are increased. Within one year of enactment, the amendments offer an Alternative TAA for Older Workers program that targets older worker groups who are certified as TAA eligible and provides the option of a wage supplement instead of training, job search, and income support.

The Department is mandated to implement the amendments within 90 days from enactment (November 4, 2002), and it issued operating instructions in a guidance letter on October 10, 2002, and later published in the Federal Register (67 FR 69029-41). State agencies rely on the regulations to make determinations as to individual eligibility for TAA program benefits. TAA program regulations as written have been described as complicated to interpret. With the new TAA program benefit amendments contained in the Trade Act of 2002, it is imperative that the regulations be in an easy-to-read and understandable format.

Summary of Legal Basis:

These regulations are authorized by 19 U.S.C. 2320 due to the amendments to the Trade Act of 1974 by the Trade Adjustment Assistance Reform Act of 2002.

Alternatives:

The public will be afforded an opportunity to provide comments on the TAA program changes when the Department publishes the proposed rule in the Federal Register.

Anticipated Cost and Benefits:

Preliminary estimates of the anticipated costs of this regulatory action have not been determined at this time and will be determined at a later date.

Risks:

This action does not affect public health, safety, or the environment.

Timetable:

_______________________________________________________________________

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

No

Government Levels Affected:

Federal, State

Agency Contact:

Timothy F. Sullivan
Director, Trade Adjustment Assistance
Department of Labor
Employment and Training Administration
200 Constitution Avenue NW.
FP Building Room C5311
Washington, DC 20210
Phone: 202 693-3708
Email: sullivan.timothy@dol.gov
RIN: 1205-AB40

_______________________________________________________________________

DOL--ETA

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FINAL RULE STAGE

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92. LABOR CERTIFICATION PROCESS FOR THE PERMANENT EMPLOYMENT OF ALIENS IN THE UNITED STATES

Priority:

Other Significant

Legal Authority:

29 USC 49 et seq; 8 USC 1182(a)(5)(A), 1189(p)(1)

CFR Citation:

20 CFR 656

Legal Deadline:

None Abstract: The Employment and Training Administration (ETA) is in the process of reengineering the permanent labor certification process. ETA's goals are to make fundamental changes and refinements that will streamline the process, save resources, improve the effectiveness of the program and better serve the Department of Labor's (DOL) customer.

Statement of Need:

The labor certification process has been described as being complicated, costly and time consuming. Due to the increases in the volume of applications received and a lack of adequate resources, it can take up to 2 years or more to complete processing an application. The process also requires substantial State and Federal resources to administer and is reportedly costly and burdensome to employers as well. Cuts in Federal funding for both the permanent labor certification program and the U.S. Employment Service have made it difficult for State and Federal administrators to keep up with the process. ETA, therefore, is taking steps to improve effectiveness of the various regulatory requirements and the application processing procedures, with a view to achieving savings in resources both for the Government and employers, without diminishing protections now afforded U.S. workers by the current regulatory and administrative requirements.

Summary of Legal Basis:

Promulgation of these regulations is authorized by section 212(a)(5)(A) of the Immigration and Nationality Act.

Alternatives:

Regulatory alternatives are now being developed by the Department. The public was afforded an opportunity to comment on the Department's plans for streamlining the permanent labor certification process in a notice of proposed rulemaking which was published in the Federal Register on May 6, 2002.

Anticipated Cost and Benefits:

Preliminary estimates of the anticipated costs and benefits have not been determined at this time. Preliminary estimates will be developed after a decision is made as to what regulatory amendments are necessary and after the implementing forms and automated systems to support a streamlined permanent labor certification process have been developed.

Risks:

This action does not affect public health, safety, or the environment.

Timetable:

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Federal, State

Agency Contact:

William L. Carlson Chief,
Division of Foreign Labor
Certification
Department of Labor
Employment and Training Administration
200 Constitution Avenue NW.
FP Building, Room N5306
Washington, DC 20210
Phone: 202 693-3010
Fax: 202 693-2768
Email: carlson.william@dol.gov
RIN:1205-AA66

_______________________________________________________________________

DOL--Employee Benefits Security Administration (EBSA)

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PROPOSED RULE STAGE

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93. RULEMAKING RELATING TO TERMINATION OF ABANDONED INDIVIDUAL ACCOUNT PLANS

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Legal Authority:

29 USC 1135; 29 USC 1002(16)(A)

CFR Citation:

29 CFR 2591

Legal Deadline:

None

Abstract:

This rulemaking will establish a procedure and standards for distributing the benefits of individual account plans that have been abandoned by their sponsoring employers or plan administrators.

Statement of Need:

Thousands of individual account plans have, for a variety of reasons, been abandoned by their sponsors, creating problems for plan participants, administrators, financial institutions (e.g., banks, insurance companies, mutual funds), the courts and the Federal Government. At present, the potential liability and costs attendant to terminating such plans and distributing the assets inhibits financial institutions and others from taking on this responsibility. Due to ongoing administrative costs and other factors, the continued maintenance of such plans is often not in the interest of the participants and beneficiaries. This rulemaking will establish a procedure for a financial institution that holds the assets of such a plan to terminate the plan and distribute its assets to the participants and beneficiaries. The rulemaking will also include standards for determining when plans may be terminated pursuant to this procedure and for carrying out the functions necessary to distribute benefits and shut down plan operations.

Summary of Legal Basis:

Section 505 of ERISA provides that the Secretary may prescribe such regulations as the Secretary finds necessary and appropriate to carry out the provisions of title I of the Act. Section 403(d)(1) provides that, upon termination of such a plan, the assets shall be distributed generally in accordance with the provisions that apply to defined benefit plans, ``except as otherwise provided in regulations of the Secretary.'' ERISA section 3(16)(A) permits the Secretary to issue regulations designating an administrator for a plan where the plan document makes no designation and the plan sponsor cannot be identified.

Alternatives:

Alternatives will be considered following a determination of the scope and nature of the regulatory guidance needed by the public.

Anticipated Cost and Benefits:

Preliminary estimates of the anticipated costs and benefits will be developed, as appropriate, following a determination regarding the alternatives to be considered.

Risks:

Failure to provide guidance in this area will leave the retirement benefits of participants and beneficiaries in abandoned plans at risk of being significantly diminished by ongoing plan administrative expenses, rather than distributed to participants and beneficiaries in connection with a timely and orderly termination of the plan.

Timetable:

Regulatory Flexibility Analysis Required:

Undetermined

Small Entities Affected:

Businesses, Organizations

Government Levels Affected:

None

Agency Contact:

Jeffrey Turner
Senior Pension Law Specialist
Department of Labor
Employee Benefits Security
Administration
N 5669
200 Constitution Avenue NW
Room N5669
FP Building
Washington, DC 20210
Phone: 202 693-8500
RIN: 1210-AA97

_______________________________________________________________________

DOL--EBSA

94. AMENDMENT OF REGULATION RELATING TO DEFINITION OF PLAN ASSETS--PARTICIPANT CONTRIBUTIONS Priority:

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

29 USC 1135

CFR Citation:

29 CFR 2510.3-102

Legal Deadline:

None

Abstract:

This rulemaking will amend the regulation that defines when participant monies paid to or withheld by an employer for contribution to an employee benefit plan constitute ``plan assets'' for purposes of title I of ERISA and the related prohibited transaction provisions of the Internal Revenue Code. The regulation contains an amendment to the current regulation that will establish a safe harbor period of a specified number of business days during which certain monies that a participant pays to, or has withheld by, an employer for contribution to a plan would not constitute ``plan assets.''

Statement of Need:

This amendment of the participant contribution regulation would, upon adoption, establish a ``safe harbor'' period of a specified number of days during which certain monies that a participant pays to, or has withheld from wages, by an employer for contribution to an employee benefit plan, would constitute plan assets for purposes of title I of ERISA and the related prohibited transaction provisions of the Internal Revenue Code. The amendment is needed to provide greater certainty to employers, participants and beneficiaries, service providers and others concerning when participant contributions to a plan constitute plan assets.

Summary of Legal Basis:

Section 505 of ERISA provides that the Secretary may prescribe such regulations as she finds necessary and appropriate to carry out the provisions of title I of the Act. Regulation 29 CFR 2510.3-102 provides that the assets of an employee benefit plan covered by title I of ERISA includes amounts (other than union dues) that a participant or beneficiary pays to an employer, or has withheld from wages by an employer, for contribution to the plan as of the earliest date on which such contributions can reasonably be segregated from the employer's general assets; the regulation also specifies the maximum time period for deposit of such contributions by the employer.

Alternatives:

Alternatives will be considered following a determination of the scope and nature of the regulatory guidance needed by the public.

Anticipated Cost and Benefits:

Preliminary estimates of the anticipated costs and benefits will be developed, as appropriate, following a determination regarding the alternatives to be considered.

Risks:

Failure to provide the safe harbor that would be afforded by the proposed amendment with regard to monies contributed to employee benefit plans would deprive employers, other plan fiduciaries, and service providers of the certainty they need to optimize compliance with the law. Also, any risk of loss or lost earnings resulting from permitting employers who would otherwise transmit contributions to the plan sooner than the time specified in the safe harbor should be minimal, while the benefits attendant to encouraging employers to review and modify their systems or practices to take advantage of the safe harbor may be significant.

Timetable:

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

None

Federalism:

Undetermined

Agency Contact:

Agency Contact: Louis J. Campagna
Chief, Division of Fiduciary
Interpretations, Office of Regulations and
Interpretations
Department of Labor
Employee Benefits Security
Administration
200 Constitution Avenue NW
Rm N5669
FP Building
Washington, DC 20210
Phone: 202 693-8512
Fax: 202 219-7291
RIN: 1210-AB02

_______________________________________________________________________

DOL--EBSA

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FINAL RULE STAGE

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95. REGULATIONS IMPLEMENTING THE HEALTH CARE ACCESS, PORTABILITY, AND RENEWABILITY PROVISIONS OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

29 USC 1027; 29 USC 1059; 29 USC 1135; 29 USC 1171; 29 USC 1172; 29 USC 1191c

CFR Citation:

29 CFR 2590

Legal Deadline:

Other, Statutory, April 1, 1997, Interim Final Rule.

Abstract:

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) amended title I of ERISA by adding a new part 7, designed to improve health care access, portability and renewability. This rulemaking will provide regulatory guidance to implement these provisions.

Statement of Need:

In general, the health care portability provisions in part 7 of ERISA provide for increased portability and availability of group health coverage through limitations on the imposition of any preexisting condition exclusion and special enrollment rights in group health plans after loss of other health coverage or a life event. Plan sponsors, administrators and participants need guidance from the Department with regard to how they can fulfill their respective obligations under these statutory provisions.

Summary of Legal Basis:

Part 7 of ERISA specifies the portability and other requirements for group health plans and health insurance issuers. Section 734 of ERISA provides that the Secretary may promulgate such regulations as may be necessary or appropriate to carry out the provisions of part 7 of ERISA. In addition, section 505 of ERISA authorizes the Secretary to issue regulations clarifying the provisions of title I of ERISA.

Risks:

Failure to provide guidance concerning part 7 of ERISA may impede compliance with the law.

_______________________________________________________________________

Timetable:

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

No

Government Levels Affected:

None

Federalism:

This action may have federalism implications as defined in EO 13132.

Agency Contact:

Amy Turner
Pension Law Specialist
Department of Labor
Employee Benefits Security
Administration
Room N5677
200 Constitution Avenue NW
FP Building
Washington, DC 20210
Phone: 202 693-8335
RIN: 1210-AA54

_______________________________________________________________________

DOL--EBSA

96. PROHIBITING DISCRIMINATION AGAINST PARTICIPANTS AND BENEFICIARIES BASED ON HEALTH STATUS

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Legal Authority:

29 USC 1027; 29 USC 1059; 29 USC 1135; 29 USC 1182; 29 USC 1191c; 29 USC 1194

CFR Citation:

29 CFR 2590.702

Legal Deadline:

None

Abstract:

Section 702 of the Employee Retirement Income Security Act of 1974, amended by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), establishes that a group health plan or a health insurance issuer may not establish rules for eligibility (including continued eligibility) of any individual to enroll under the terms of the plan based on any health status-related factor. These provisions are also contained in the Internal Revenue Code under the jurisdiction of the Department of the Treasury, and the Public Health Service Act under the jurisdiction of the Department of Health and Human Services.

On April 8, 1997, the Department, in conjunction with the Departments of the Treasury and Health and Human Services (collectively, the Departments) published interim final regulations implementing the nondiscrimination provisions of HIPAA. These regulations can be found at 26 CFR 54.9802-1 (Treasury), 29 CFR 2590.702 (Labor), and 45 CFR 146.121 (HHS). That notice of rulemaking also solicited comments on the nondiscrimination provisions and indicated that the Departments intend to issue further regulations on the nondiscrimination rules. This rulemaking contains additional regulatory interim guidance under HIPAA's nondiscrimination provisions. In addition, the rulemaking contains proposed guidance on bona fide wellness programs.

Statement of Need:

Part 7 of ERISA provides that group health plans and health insurance issuers may not establish rules for eligibility (including continued eligibility) of any individual to enroll under the terms of the plan based on any health status-related factor. Plan sponsors, administrators, and participants need additional guidance from the Department with regard to how they can fulfill their respective obligations under these statutory provisions.

Summary of Legal Basis:

Section 702 of ERISA specifies the respective nondiscrimination requirements for group health plans and health insurance issuers. Section 734 of ERISA provides that the Secretary may promulgate such regulations as may be necessary or appropriate to carry out the provisions of part 7 ERISA. In addition, section 505 of ERISA authorizes the Secretary to issue regulations clarifying the provisions of title I of ERISA.

Risks:

Failure to provide guidance concerning part 7 of ERISA may impede compliance with the law.

Timetable:

Regulatory Flexibility Analysis Required:

No

Government Levels Affected:

Undetermined

Additional Information:

This item has been split off from RIN 1210-AA54.

Agency Contact:

Amy Turner
Pension Law Specialist
Department of Labor
Employee Benefits Security
Administration
Room N5677
200 Constitution Avenue NW
FP Building
Washington, DC 20210
Phone: 202 693-8335
RIN: 1210-AA77

_______________________________________________________________________

DOL--Mine Safety and Health Administration (MSHA)

----------------

PROPOSED RULE STAGE

----------------

97. ASBESTOS EXPOSURE LIMIT

Priority:

Other Significant

Legal Authority:

30 USC 811; 30 USC 813

CFR Citation:

30 CFR 56; 30 CFR 57; 30 CFR 71

Legal Deadline:

None

Abstract:

MSHA's permissible exposure limit (PEL) for asbestos applies to surface (30 CFR part 56) and underground (30 CFR part 57) metal and nonmetal mines and to surface coal mines and surface areas of underground coal mines (30 CFR part 71) and is over 20 years old. MSHA is considering rulemaking to lower the PEL in order to reduce the risk of miners developing asbestos-induced occupational disease. A report by the Office of the Inspector General (OIG) recommended that MSHA lower its existing permissible exposure limit for asbestos to a more protective level, and address take-home contamination from asbestos. It also recommended that MSHA use Transmission Electron Microscopy to analyze fiber samples that may contain asbestos.

Statement of Need:

Current scientific data indicate that the existing asbestos PEL is not sufficiently protective of miners' health. MSHA's asbestos regulations date to 1967 and are based on the Bureau of Mines (MSHA's predecessor) standard of 5 mppcf (million particles per cubic foot of air). In 1969, the Bureau proposed a 2 mppcf and 12 fibers/ml standard. This standard was promulgated in 1969. In 1970, the Bureau proposed to lower the standard to 5 fibers/ml, which was promulgated in 1974. MSHA issued its current standard of 2 fibers/ml in 1976 for coal mining (41 FR 10223) and 1978 for metal and nonmetal mining (43 FR 54064). During inspections, MSHA routinely takes samples, which are analyzed for compliance with its standard.

Other Federal agencies have addressed this issue by lowering their PEL for asbestos. For example, the Occupational Safety and Health Administration, working in conjunction with the Environmental Protection Agency, enacted a revised asbestos standard in 1994 that lowered the permissible exposure limit to an 8-hour time-weighted average limit of 0.1 fiber per cubic centimeter of air and the excursion limit to 1.0 fiber per cubic centimeter of air (1 f/cc) as averaged over a sampling period of thirty (30) minutes. These lowered limits reflected increased asbestos-related disease risk to asbestosexposed workers.

Summary of Legal Basis:

Promulgation of this regulation is authorized by section 101 of the Federal Mine Safety and Health Act of 1977.

Alternatives:

The Agency has increased sampling efforts in an attempt to determine current miners' exposure levels to asbestos, including taking samples at all existing vermiculite, taconite, talc, and other mines to determine whether asbestos is present and at what levels. In early 2000, MSHA began an intensive sampling effort at operations with potential asbestos exposure. These efforts continue. While sampling, MSHA staff discussed with miners and mine operators the potential hazards of asbestos and the types of preventive measures that could be implemented to reduce exposures. The course of action MSHA takes in addressing asbestos hazards to miners will, in part, be based on these sampling results.

Anticipated Cost and Benefits:

MSHA will develop a preliminary regulatory economic analysis to accompany any proposed rule that may be developed.

Risks:

Miners could be exposed to the hazards of asbestos during mine operations where the ore body contains asbestos. There is also potential for exposure at facilities in which installed asbestoscontaining material is present. Overexposure to asbestos causes asbestosis, mesothelioma, and other forms of cancers.

Timetable:

_______________________________________________________________________

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

Undetermined

Small Entities Affected:

Businesses

Government Levels Affected:

None

Additional Information:

The Office of the Inspector General's ``Evaluation of MSHA's Handling of Inspections at the W.R. Grace & Company Mine in Libby, Montana,'' was issued in March 2001.

Agency Contact:

Marvin W. Nichols Jr.
Director, Office of Standards
Department of Labor
Mine Safety and Health Administration
Room 2352
1100 Wilson Boulevard
Room 2350
Arlington, VA 22209
Phone: 202 693-9440
Fax: 202 693-9441
Email: nichols-marvin@dol.gov

RIN: 1219-AB24

_______________________________________________________________________ DOL--MSHA

-----------

FINAL RULE STAGE

-----------

98. DIESEL PARTICULATE MATTER EXPOSURE OF UNDERGROUND METAL AND NONMETAL MINERS

Priority:

Other Significant

Legal Authority:

30 USC 811; 30 USC 813

CFR Citation:

30 CFR 57

Legal Deadline:

None

Abstract:

On January 19, 2001, MSHA published a final rule addressing diesel particulate matter (DPM) exposure of underground metal and nonmetal miners (66 FR 5706). The final rule established new health standards for underground metal and nonmetal mines that use equipment powered by diesel engines. The rule establishes an interim concentration limit of 400 micrograms of total carbon per cubic meter of air that became applicable July 20, 2002, and a final concentration limit of 160 micrograms to become applicable after January 19, 2006. Industry challenged the rule and organized labor intervened in the litigation. Settlement negotiations with the litigants have resulted in further regulatory actions on several requirements of the rule. One final rule has been published (67 FR 9180). This new rulemaking will address many of the remaining issues. MSHA issued an advance notice of proposed rulemaking (ANPRM) on September 25, 2002 (67 FR 60199) to obtain additional information and published a notice of proposed rulemaking (NPRM) in August 2003.

Statement of Need:

As a result of the first partial settlement with the litigants, MSHA published two documents in the Federal Register on July 5, 2001. One document delayed the effective date of 57.5066(b) regarding the tagging provisions of the maintenance standard; clarified the effective dates of certain provisions of the final rule; and gave correction amendments (66 FR 35518).

The second document was a proposed rule to clarify 57.5066(b)(1) and (b)(2) of the maintenance standards and to add a new paragraph (b)(3) to 57.5067 regarding the transfer of existing diesel equipment from one underground mine to another underground mine. The final rule on these issues was published February 27, 2002, and became effective March 29, 2002.

As a result of the second partial settlement agreement, MSHA proposed specific changes to the 2001 DPM final rule. On September 25, 2002, MSHA published an ANPRM. In response to commenters, MSHA proposed changes only to the interim DPM standard of 400 micrograms per cubic meter of air. In a separate rulemaking, the Agency will propose a rule to revise the final concentration limit of 160 micrograms per cubic meter of air. The scope of both rulemakings is limited to the settlement agreement. The current rulemaking addresses the following provisions:

57.5060(a) - Whether to change the existing DPM surrogate for the interim limit from total carbon to elemental carbon; and change the concentration limit to a comparable permissible exposure limit.

57.5060(c) - Whether to adapt to the interim limit the existing provision that allows mine operators to apply to the Secretary for additional time to come into compliance with the final concentration limit. MSHA also agreed to propose to include consideration of economic feasibility, and to allow for annual renewals of such special extensions.

57.5060(d) -- Whether to remove the existing provision permitting miners to engage in certain activities in concentrations exceeding the interim and final limits upon application and approval from the Secretary, since the Agency agreed to propose the current hierarchy of controls that MSHA applies in its existing metal and nonmetal exposure based health standards for abating violations.

57.5060(e) -- Whether to remove the existing prohibition on the use of personal protective equipment.

57.5060(f) - Whether to remove the prohibition on the use of administrative controls.

57.5061(a) -- Whether to change the reference from ``concentration'' to PEL.

57.5061(b) -- Whether to change the reference from ``total carbon'' to ``elemental carbon.''

57.5061(c) - Whether to delete the references to ``area'' and ``occupational'' sampling for compliance.

57.5062 -- Whether to revise the existing diesel control plan.

Summary of Legal Basis:

Promulgation of these regulations is authorized by sections 101 and 103 of the Federal Mine Safety and Health Act of 1977.

Alternatives:

This rulemaking would amend and improve health protection from that afforded by the existing standard.

Anticipated Cost and Benefits:

MSHA's preliminary economic analysis indicates that making the changes under consideration would result in a cost savings to the mining industry.

Risks:

Several epidemiological studies have found that exposure to diesel exhaust presents potential health risks to miners. These potential adverse health effects range from headaches and nausea to respiratory disease and cancer. In the confined space of the underground mining environment, occupational exposure to diesel exhaust may present a greater hazard due to ventilation limitations and the presence of other airborne contaminants, such as toxic mine dusts or mine gases. We believe that the health evidence forms a reasonable basis for reducing miners' exposure to diesel particulate matter. Proceeding with rulemaking on the provisions discussed above will more effectively reduce miners' exposure to DPM.

Timetable:

_______________________________________________________________________

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

Agency Contact:

Marvin W. Nichols Jr.
Director, Office of Standards
Department of Labor
Mine Safety and Health Administration
1100 Wilson Boulevard,
Room 2350
Arlington, VA 22209
Phone: 202 693-9440
Fax: 202 693-9441
Email: nichols-marvin@dol.gov

RIN: 1219-AB29

_______________________________________________________________________

DOL--Occupational Safety and Health Administration (OSHA)

-----------

PRERULE STAGE

-----------

99. OCCUPATIONAL EXPOSURE TO CRYSTALLINE SILICA

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

Undetermined

Legal Authority:

29 USC 655(b); 29 USC 657

CFR Citation:

29 CFR 1910; 29 CFR 1915; 29 CFR 1917; 29 CFR 1918; 29 CFR 1926

Legal Deadline:

None

Abstract:

Crystalline silica is a significant component of the earth's crust, and many workers in a wide range of industries are exposed to it, usually in the form of respirable quartz or, less frequently, cristobalite. Chronic silicosis is a uniquely occupational disease resulting from exposure of employees over long periods of time (10 years or more). Exposure to high levels of respirable crystalline silica causes acute or accelerated forms of silicosis that are ultimately fatal. The current OSHA permissible exposure limit (PEL) for general industry is based on a formula recommended by the American Conference of Governmental Industrial Hygienists (ACGIH) in 1971 (PEL=10mg/cubic meter/(% silica + 2), as respirable dust). The current PEL for construction and maritime (derived from ACGIH's 1962 Threshold Limit Value) is based on particle counting technology, which is considered obsolete. NIOSH and ACGIH recommend a 50ug/m3 exposure limit for respirable crystalline silica.

Both industry and worker groups have recognized that a comprehensive standard for crystalline silica is needed to provide for exposure monitoring, medical surveillance, and worker training. The American Society for Testing and Materials (ASTM) has published a recommended standard for addressing the hazards of crystalline silica. The Building Construction Trades Department of the AFL-CIO has also developed a recommended comprehensive program standard. These standards include provisions for methods of compliance, exposure monitoring, training, and medical surveillance.

Statement of Need:

Over two million workers are exposed to crystalline silica dust in general industry, construction and maritime industries. Industries that could be particularly affected by a standard for crystalline silica include: foundries, industries that have abrasive blasting operations, paint manufacture, glass and concrete product manufacture, brick making, china and pottery manufacture, manufacture of plumbing fixtures, and many construction activities including highway repair, masonry, concrete work, rock drilling, and tuckpointing. The seriousness of the health hazards associated with silica exposure is demonstrated by the fatalities and disabling illnesses that continue to occur; between 1990 and 1996, 200 to 300 deaths per year are known to have occurred where silicosis was identified on death certificates as an underlying or contributing cause of death. It is likely that many more cases have occurred where silicosis went undetected. In addition, the International Agency for Research on Cancer (IARC) has designated crystalline silica as a known human carcinogen. Exposure to crystalline silica has also been associated with an increased risk of developing tuberculosis and other nonmalignant respiratory diseases, as well as, renal and autoimmune respiratory diseases. Exposure studies and OSHA enforcement data indicate that some workers continue to be exposed to levels of crystalline silica far in excess of current exposure limits. Congress has included compensation of silicosis victims on Federal nuclear testing sites in the Energy Employees' Occupational Illness Compensation Program Act of 2000. There is a particular need for the Agency to modernize its exposure limits for construction and maritime, and to address some specific issues that will need to be resolved to propose a comprehensive standard.

Summary of Legal Basis:

The legal basis for the proposed rule is a preliminary determination that workers are exposed to a significant risk of silicosis and other serious disease and that rulemaking is needed to substantially reduce the risk. In addition, the proposed rule will recognize that the PELs for construction and maritime are outdated and need to be revised to reflect current sampling and analytical technologies.

Alternatives:

Over the past several years, the Agency has attempted to address this problem through a variety of non-regulatory approaches, including initiation of a Special Emphasis Program on silica in October 1997, sponsorship with NIOSH and MSHA of the National Conference to Eliminate Silicosis, and dissemination of guidance information on its Web site. OSHA has determined that rulemaking is a necessary step to ensure that workers are protected from the hazards of crystalline silica. The Agency is currently evaluating several options for the scope of the rulemaking.

Anticipated Cost and Benefits:

The scope of the proposed rulemaking and estimates of the costs and benefits are still under development.

Risks:

A detailed risk analysis is under way.

_______________________________________________________________________

Timetable:

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Undetermined

Agency Contact:

Steven F. Witt
Director, Directorate of Standards and
Guidance
Department of Labor
Occupational Safety and Health
Administration
200 Constitution Avenue NW.
Room N-3718
FP Building
Washington, DC 20210
Phone: 202 693-1950
Fax: 202 693-1678

RIN: 1218-AB70

_______________________________________________________________________

DOL--OSHA

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PROPOSED RULE STAGE

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100. OCCUPATIONAL EXPOSURE TO HEXAVALENT CHROMIUM (PREVENTING OCCUPATIONAL ILLNESS: CHROMIUM)

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

This action may affect the private sector under PL 104-4.

Legal Authority:

29 USC 655(b); 29 USC 657

CFR Citation:

29 CFR 1910

Legal Deadline:

NPRM, Judicial, October 4, 2004.

Abstract:

In July 1993, the Occupational Safety and Health Administration (OSHA) was petitioned for an emergency temporary standard (ETS) to reduce the permissible exposure limit (PEL) for occupational exposures to hexavalent chromium (CrVI). The Oil, Chemical, and Atomic Workers International Unions (OCAW) and Public Citizen's Health Research Group (HRG) petitioned OSHA to promulgate an ETS to lower the PEL for CrVI compounds to 0.5 micrograms per cubic meter of air (ug/m3) as an eighthour, time-weighted average (TWA). The current PEL in general industry is a ceiling value of 100 ug/m3, measured as CrVI and reported as chromic anhydride (CrO3). The amount of CrVI in the anhydride compound equates to a PEL of 52 ug/m3. The ceiling limit applies to all forms of CrVI, including chromic acid and chromates, lead chromate, and zinc chromate. The current PEL of CrVI in the construction industry is 100 ug/m3 as a TWA PEL, which also equates to a PEL of 52 ug/m3. After reviewing the petition, OSHA denied the request for an ETS and initiated a section 6(b)(5) rulemaking.

OSHA began collecting data and performing preliminary analyses relevant to occupational exposure to CrVI. However, in 1997, OSHA was sued by HRG OCAW for unreasonable delay in issuing a final CrVI standard. The 3rd Circuit, U.S. Court of Appeals ruled in OSHA's favor and the Agency continued its data collection and analytic efforts on CrVI. In 2002, OSHA was sued again by HRG and Paper, Allied-International, Chemical and Energy Workers Ineternational Union (PACE) for continued unreasonable delay in issuing a final CrVI standard. In August, 2002 OSHA published a Request for Information on CrVI to solicit additional information on key issues related to controlling exposures to CrVI and on December 4, 2002, OSHA announced its intent to proceed with developing a proposed standard. On December 24, 2002, the 3rd Circuit, U.S. Court of Appeals ruled in favor of HRG and ordered the Agency to proceed expeditiously with a CrVI standard.

Statement of Need:

Approximately 380,000 workers are exposed to CrVI in general industry, maritime, construction, and agriculture. Industries or work processes that could be particularly affected by a standard for CrVI include: Electroplating, welding, painting, chromate production, chromate pigment production, ferrochromium production, iron and steel production, chromium catalyst production, and chromium dioxide and sulfate production.

Exposure to CrVI has been shown to produce lung cancer, an often fatal disease, among workers exposed to CrVI compounds. The International Agency for Research on Cancer (IARC) classifies CrVI compounds as a Group 1 Carcinogen: Agents considered to be carcinogenic in humans. The Environmental Protection Agency (EPA) and the American Conference of Governmental Industrial Hygienists (ACGIH) have also designated CrVI compounds as known and confirmed human carcinogens, respectively. Similarly, the National Institute for Occupational Safety and Health (NIOSH) considers CrVI compounds to be potential occupational carcinogens. OSHA's current standards for CrVI compounds, adopted in 1971, were established to protect against nasal irritation. Therefore, there is a need to revise the current standard to protect workers from lung cancer.

Summary of Legal Basis:

The legal basis for the proposed rule is a preliminary determination that workers are exposed to a significant risk of lung cancer and dermatoses and that rulemaking is needed to substantially reduce the risk.

Alternatives:

OSHA had considered non-regulatory approaches, including the dissemination of guidance on its web site. However, OSHA has determined that rulemaking is a necessary step to ensure that workers are protected from the hazards of CrVI and the Agency has been ordered by the U.S. Court of Appeals to move forward with a final rule.

Anticipated Cost and Benefits:

The proposed rulemaking includes estimates of the costs and benefits are being developed.

Risks:

A detailed risk analysis is included in the NPRM.

_______________________________________________________________________

Timetable:

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses, Governmental Jurisdictions

Government Levels Affected:

Undetermined

Agency Contact:

Steven F. Witt
Director, Directorate of Standards and
Guidance
Department of Labor
Occupational Safety and Health
Administration
200 Constitution Avenue NW.
Room N-3718, FP Building
Washington, DC 20210
Phone: 202 693-1950
Fax: 202 693-1678

RIN: 1218-AB45

_______________________________________________________________________

DOL--OSHA

-----------

FINAL RULE STAGE

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101. ASSIGNED PROTECTION FACTORS: AMENDMENTS TO THE FINAL RULE ON RESPIRATORY PROTECTION

Priority:

Other Significant

Legal Authority:

29 USC 655(b); 29 USC 657

CFR Citation:

29 CFR 1910.134

Legal Deadline:

None

Abstract:

In January 1998, OSHA published the final Respiratory Protection standard (29 CFR 1910.134), except for reserved provisions on assigned protection factors (APFs) and maximum use concentrations (MUCs). APFs are numbers that describe the effectiveness of the various classes of respirators in reducing employee exposure to airborne contaminants (including particulates, gases, vapors, biological agents, etc.). Employers, employees, and safety and health professionals use APFs to determine the type of respirator to protect the health of employees in various hazardous environments. Maximum use concentrations establish the maximum airborne concentration of a contaminant in which a respirator with a given APF may be used.

Currently, OSHA relies on the APFs developed by NIOSH in the 1980s unless OSHA has assigned a different APF in a substance-specific health standard. However, many employers follow the more recent APFs published in the industry consensus standard, ANSI Z88.2-1992. For some classes of respirators, the NIOSH and ANSI APFs vary greatly.

This rulemaking action will complete the 1998 standard, reduce compliance confusion among employers, and provide employees with consistent and appropriate respiratory protection. On June 6, 2003, OSHA published an NPRM on Assigned Protection Factors in the Federal Register at 68 FR 34036 containing a proposed APF table, and requesting public comment. The extended comment period ended October 2, 2003, and an informal public hearing was held January 28-30, 2004.

Statement of Need:

About five million employees wear respirators as part of their regular job duties. Due to inconsistencies between the APFs found in the current industry consensus standard (ANSI Z88.2-1992) and in the NIOSH Respirator Decision Logic, employers, employees, and safety and health professionals are often uncertain about what respirator to select to provide protection against hazardous air contaminants.

Summary of Legal Basis:

The legal basis for this proposed rule is the determination that assigned protection factors and maximum use concentrations are necessary to complete the final Respiratory Protection standard and provide the full protection under that standard.

Alternatives:

OSHA has considered allowing the current situation to continue. Accordingly, OSHA generally enforces NIOSH APFs, but many employers follow the more recent consensus standard APFs. However, allowing the situation to continue results in inconsistent enforcement, lack of guidance for employers, and the potential for inadequate employee protection.

Anticipated Cost and Benefits:

The estimated compliance costs for OSHA's proposed APF rule are $4.6 million. The APFs proposed in this rulemaking help to ensure that the benefits attributed to proper respiratory protection under 29 CFR 1910.134 are achieved, as well as provide an additional degree of protection.

Risks:

The preamble to the final Respiratory Protection rule (63 FR 1270, Jan. 8, 1998) discusses the significance of the risks potentially associated with the use of respiratory protection. No independent finding of significant risk has been made for the APF rulemaking since it only addresses a single provision of the larger rule.

_______________________________________________________________________

Timetable:

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

No

Government Levels Affected:

Federal, Local, State, Tribal

Agency Contact:

Steven F. Witt
Director, Directorate of Standards and
Guidance
Department of Labor
Occupational Safety and Health
Administration
200 Constitution Avenue NW.
Room N-3718, FP Building
Washington, DC 20210
Phone: 202 693-1950
Fax: 202 693-1678

RIN: 1218-AA05

_______________________________________________________________________

DOL--OSHA

102. STANDARDS IMPROVEMENT (MISCELLANEOUS CHANGES) FOR GENERAL INDUSTRY, MARINE TERMINALS, AND CONSTRUCTION STANDARDS (PHASE II)

Priority:

Other Significant

Legal Authority:

29 USC 655(b)

CFR Citation:

29 CFR 1910, subpart Z; 29 CFR
1910.1001 to 1910.1052; 29 CFR
1910.142; 29 CFR 1910.178; 29
CFR 1910.219; 29 CFR 1910.261; 29
CFR 1910.265; 29 CFR 1910.410; 29
CFR 1917.92; 29 CFR 1926.1101; 29 CFR
1926.1127; 29 CFR 1926.1129; 29 CFR
1926.60; 29 CFR 1926.62

Legal Deadline:

None

Abstract:

The Occupational Safety and Health Administration (OSHA) proposed to remove or revise provisions in its health standards that are out of date, duplicative, unnecessary, or inconsistent. Where appropriate, the Agency is primarily changing that provision to reduce the burden imposed on the regulated community by these requirements. In this document, substantive changes standards will revise or eliminate duplicative, inconsistent, or unnecessary regulatory requirements without diminishing employee protections. Phase I of this Standards Improvement process was completed in June 1998 (63 FR 33450). OSHA plans to initiate Phase III of this project at a future date to address problems in various safety and health standards.

Statement of Need:

Some parts of OSHA's standards are out of date, duplicative, unnecessary, or inconsistent. The Agency needs to periodically review its standards and make needed corrections. This effort results in standards that are easier for employers and employees to follow and comply with, and thus enhances compliance and worker protection.

Summary of Legal Basis:

The legal basis for the proposed rule is a preliminary finding that the OSHA standards need to be updated to bring them up to date, reduce inconsistency, and remove unneeded provisions.

Alternatives:

OSHA has considered updating each standard as problems are discovered, but has determined that it is better to make such changes to groups of standards so it is easier for the public to comment on like standards. OSHA has also considered the inclusion of safety standards that need to be updated. However, the Agency has decided to pursue a separate rulemaking for safety issues because the standards to be updated are of interest to different stakeholders.

Anticipated Cost and Benefits:

This revision of OSHA's standards is a deregulatory action. It will reduce employers' compliance obligations.

Risks:

The project does not address specific risks, but is intended to improve OSHA's standards by bringing them up to date and deleting unneeded provisions. The anticipated changes will have no negative effects on worker safety and health.

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Timetable:

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

No

Small Entities Affected:

No

Government Levels Affected:

None

Agency Contact:

Steven F. Witt
Director, Directorate of Standards and
Guidance
Department of Labor Occupational Safety and Health
Administration
200 Constitution Avenue NW.
Room N-3718, FP Building
Washington, DC 20210
Phone: 202 693-1950
Fax: 202 693-1678

RIN: 1218-AB81

_______________________________________________________________________

DOL--Office of the Assistant Secretary for Veterans' Employment and Training (ASVET)

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PROPOSED RULE STAGE

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103. UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT REGULATIONS

Priority:

Other Significant Legal Authority: 38 USC 4331(a)

CFR Citation:

20 CFR 1002

Legal Deadline:

None

Abstract:

The Secretary's commitment to protecting the employment rights of servicemembers as they return to the civilian work force is reflected by the initiative to promulgate regulations implementing the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) with regard to States, local governments and private employers. USERRA provides employment and reemployment protections for members of the uniformed services, including veterans and members of the Reserve and National Guard. The Department has not previously issued implementing regulations under USERRA, although the law dates back to 1994.

Statement of Need:

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301-4333, provides employment and reemployment rights for members of the uniformed services, including veterans and members of the Reserve and National Guard. Under USERRA, eligible service members who leave their civilian jobs for military service are entitled to return to reemployment with their previous employers with the seniority, status and rate of pay they would have attained had they not been away on duty. USERRA also assures that they will not suffer discrimination in employment because of their military service or obligations.

Following the attacks of September 11, 2001, the President authorized a major mobilization of National Guard and Reserve forces that has continued into 2004. In the past three years, the Department has experienced a tremendous increase in the number of inquiries about USERRA from employers and members of the Guard and Reserve. The high volume of requests for technical assistance indicates that there is a significant need for consistent and authoritative USERRA guidance. USERRA regulations will provide the Department's interpretations of the law and procedures for enforcing the law.

Summary of Legal Basis:

USERRA authorizes the Secretary of Labor, in consultation with the Secretary of Defense, to issue regulations implementing USERRA with regard to States, local governments and private employers. 38 U.S.C. 4331(a).

Alternatives:

In lieu of regulations, the Department could choose to continue its compliance assistance efforts, and could issue interpretations of USERRA in the form of a USERRA Handbook, policy memoranda or other less formal means. These would not benefit from broad-based public input, nor would they receive the same level of deference as regulations. See United States v. Mead Corp., 533 U.S. 218, 230 (2001).

_______________________________________________________________________

Timetable:

_______________________________________________________________________

Regulatory Flexibility Analysis Required:

No

Small Entities Affected:

Businesses, Governmental Jurisdictions, Organizations

Government Levels Affected:

Local, State

Agency Contact:

Robert Wilson
Chief, Investigation and Compliance
Division
Department of Labor
Office of the Assistant Secretary for
Veterans' Employment and Training
200 Constitution Avenue NW.
Room S-1316
Washington, DC 20210
Phone: 202 693-4719
Fax: 202 693-4755

RIN: 1293-AA09

BILLING CODE 4510-23-S