Regulatory Update: Q&A With NGFA's Jess McCluer

In August, Grain Journal sent interview questions to McCluer at his Arlington office to get an update on some regulatory and safety-related issues of concern to the grain and feed industries.

What are the biggest issues in the area of OSHA enforcement for the grain and feed industries?

In April, OSHA issued its first-ever heat illness and injury National Emphasis Program (NEP), which applies to grain handling facilities. Specifically, the scope of the NEP includes 4245 – Farm Product Raw Material Merchant Wholesalers and 4931 – Warehousing and Storage. Grain handling facilities fall under both codes that are determined to be high-risk industries.

As part of the program, OSHA will initiate inspections proactively in more than 70 high-risk industries in indoor and outdoor work settings when the National Weather Service has issued a heat warning or advisory for a local area.

On days when the heat index is 80 degrees F or warmer, OSHA inspectors and compliance assistance specialists will engage in proactive outreach and technical assistance to help stakeholders keep workers safe on the job. Inspectors will look for and address heat hazards during inspections, regardless of whether the industry is targeted in the NEP.

Prior to implementing the NEP, Regional and Area offices will engage in outreach to employers in the target industries. The NEP will remain in effect for three years.

On days when the heat index is 80 degrees F or warmer, OSHA inspectors and compliance assistance specialists will engage in proactive outreach and technical assistance to help stakeholders keep workers safe on the job.

During NGFA’s Harvest Safety Week in August, representatives from OSHA discussed the status of the NEP in a recorded conversation with NGFA, while Aaron Gelb, partner at Conn Maciel Carey LLP, conducted a separate webinar about the implications of the NEP for the grain handling industry. These sessions are available to view at ngfa.org/safety.

OSHA Regions V, VI, VII, VIII, and X have emphasis programs that include the grain handling industry. Some of them extend as far as the fall of 2024. Under a recent OSHA directive, they now can be extended up to five years, so they no longer need to be renewed annually. Therefore, if OSHA is not doing an inspection due to a worker complaint or an injury or fatality, they are doing a programmed inspection as part of the emphasis program that includes grain handling facilities.

Prior to implementing the NEP, Regional and Area offices will engage in outreach to employers in the target industries. The NEP will remain in effect for three years.

OSHA

What are the main issues with regard to OSHA proposed rules in the Biden administration?

The following are the top priority issues for the agency that were highlighted by Secretary of Labor Marty Walsh and Assistant Secretary of Occupational Safety and Health Douglas Parker in public statements prior to the publication of the June 2022 semi-annual regulatory agenda:

• COVID-19: The final COVID-19 standard applicable to health care workplaces is scheduled to be issued in September 2022.

• Heat stress and illness: There is no set date for the next step in OSHA’s attempt in developing a heat stress standard, except to analyze comments in response to the agency’s advance notice of proposed rulemaking. The proposed rule is expected to be published at the end of 2022 or the beginning of 2023. NGFA submitted comments opposing the creation of a one-size-fits-all federal regulation to replace an existing program that OSHA can currently enforce through the General Duty Clause.

• Infectious diseases: A proposal addressing workplace infectious disease hazards (such as COVID-19, Severe Acute Respiratory Syndrome [SARS], tuberculosis, chickenpox, shingles, and measles) is not expected until May 2023.

What are NGFA’s views on the Biden administration’s proposed changes to existing regulations?

NGFA would like OSHA to incorporate its recommended changes to the following proposed rules:

• Hazard Communication: In 2012, OSHA incorporated the third version of the UN Globally Harmonized System for Labeling (GHS) in the hazard communication standard. However, the GHS is a living document, and the UN subcommittee recently approved the eighth version. The NGFA submitted comments to OSHA’s proposed rule published in February 2021, along with several other trade groups including the U.S. Chamber of Commerce, recommending that the agency harmonize the existing hazard communication standard with the GHS. There is no date for the publication of a final rule.

Specifically, NGFA’s comments note that the proposed amendment to create a federal definition of “combustible dust” will have a direct impact on all grain, feed, processing, and milling facilities. There is also concern about how the proposed amendments to the standard put more of the burden on the manufacturer (i.e., grain handling facilities) to anticipate downstream events.

For example, grain elevators could be liable if the grain self-combusted or rotted and produced carbon dioxide. Many of these changes are based on letters of interpretation issued by OSHA following the 2012 Hazard Communication Standard.

• Improve Tracking of Workplace Injuries and Illnesses: Under this Biden administration proposal, OSHA proposes to amend its recordkeeping regulation to restore the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees. Under the current regulation, these establishments are only required to electronically submit information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

Click HERE to view NGFA’s Safety Training and Education Resources

As a member of the Coalition of Workplace Safety, led by the U.S. Chamber of Commerce, NGFA submitted comments to OSHA outlining concerns with the agency’s proposed rule. In the comments, the coalition expressed concerns with the agency’s attempt to require electronic submission of employer summary data and individual employee injury and illness data. “OSHA’s proposed rule does not serve to prevent employee injuries or illnesses in the workplace. Instead, electronic submission and public posting of this data serves only to put employers at risk for improper disclosure, mischaracterization of the data, and release of sensitive employer as well as employee information.”

The comments further note that OSHA fails to provide “any evidence to show that its previous collection and disclosure of summary injury and illness data resulted in the ‘reduction of occupational injuries and illnesses’, which it predicts the current rulemaking will achieve.”

• Walking-Working Surfaces Standard: OSHA is proposing changes to the Walking-Working Surfaces standards to clarify which handrail and stair rail system requirements apply to new stair rail systems. There has been confusion regarding sections 29 CFR 1910.29(f)(1)(ii)(B) and (f)(1)(iii)(A) that address the heights of handrail and stair rail systems installed either before or after Jan. 17, 2017. The proposed rule is designed to clarify the requirements. NGFA supports the changes.

The final COVID-19 standard applicable to healthcare workplaces is scheduled to be issued in September 2022.

FDA

What are the main issues going on with the FDA?

The U.S. Food and Drug Administration (FDA) is placing more emphasis on how facilities are controlling risks associated with mycotoxins. During recent animal food inspections, FDA’s enforcement actions indicate the agency generally expects some level of testing to be done to manage mycotoxin risk. The primary mycotoxins of interest to FDA are those for which regulatory guidance has been issued – aflatoxin, fumonisin, and deoxynivalenol.

Firms should consider how they are evaluating grains and grain by-products that are susceptible to mycotoxins for safety and whether their practices are adequate.

What are good sources of regulatory information grain and feed industry managers can use to stay abreast of changes?

The safety section on NGFA’s website, ngfa.org/safety, has information about NGFA’s alliance with OSHA, emphasis programs, training, and education.

Numerous safety tip sheets, interactive training modules, training videos, and guidance documents also are available. All this information is available at no charge to members and nonmembers.

In addition, NGFA conducts regional regulatory compliance seminars. We work with our state and regional affiliates to hold four to six seminars every year. These events are part of our alliance with OSHA and provide an opportunity for participants to interact with agency staff.

This year, NGFA conducted six seminars in Montana, North Dakota, Kansas, Nebraska, Texas (virtually), and Indiana. More seminars are scheduled in Colorado and Washington.

Through the NGFA-OSHA Alliance, NGFA worked with GEAPS and the Grain Handling Safety Council to develop a web page (standup4grainsafety.org) with resources developed by each group and our respective members that focus on a wide variety of safety topics.

Finally, the NGFA feed website (feed.ngfa.org) houses a variety of resources to help the industry understand and comply with FDA food safety requirements. In addition, the NGFA is actively involved in delivering the Food Safety Preventive Controls Alliance training designed to help the industry comply with the Food Safety Modernization Act animal food rules.