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OSHA will face difficult choices as the agency learns how to comply with the Trump administration’s executive order restricting new rulemakings, policy veterans and attorneys said.
“This is all new, uncharted territory,” Marc Freedman, the U.S. Chamber of Commerce’s executive director for labor law policy, told the midwinter meeting of the American Bar Association’s Occupational Safety and Health Law Committee in Jupiter, Fla.
The Trump administration executive order and implementation guidance told agencies that for every new rule they propose, two regulations must be offered for cancellation. The employer costs saved by deleting the two rules must be the same or greater than the employer costs of complying with the new rule.
The new policy is expected to slow ongoing OSHA rulemakings, such as an industry-backed effort to write regulations specifically for tree-trimming work and discourage the Occupational Safety and Health Administration from pursing wide-ranging rules, such as revising limits for chemical exposures.
The Trump policies ignore that OSHA rules save lives, said Jonathan Karmel of the Karmel Law Practice in Chicago, who often represents labor unions.
“There is no focus on what the benefits are any more,” Karmel said. Repealing rules will create costs for workers that the Trump policies don’t account for, he said.
Jordan Barab, OSHA deputy administrator for policy during the Obama administration, said the Trump initiative mandates OSHA remove protections for two sets of workers for every new group of employees the agency proposes to protect.
There may be some flexibility complying with the order.
Freedman said changes to guidance directives and interpretation letters that reduce compliance costs could be treated the same as removing rules.
Art Sapper, senior counsel for Ogletree Deakins PC’s Washington office, gave one example of a guidance change. OSHA could revise its directions for machinery lockout/tagout training, he said.
Lockout/tagout rules are intended to protect workers from being injured by equipment that starts without warning.
While the executive order may save employers time and money, it could increase OSHA’s regulatory costs.
For every new regulation OSHA works on, Barab said, agency staff would have to go through public comment periods and legal reviews for the two regulations it intended to strike.
“It would, essentially, triple OSHA’s work,” said Barab.
Randy Rabinowitz, executive director of the worker advocacy group Occupational Safety and Health Law Project, doubted the Trump order will survive an ongoing legal challenge.
A lawsuit filed by Public Citizen and others Feb. 8 in the U.S. District Court for the District of Columbia alleges the order exceeds President Donald Trump’s constitutional authority and directs agencies to engage in unlawful actions.
To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bna.com
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