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By Stephen Lee
Existing worker safety rules almost certainly won’t be affected by President Donald Trump’s latest bid to erase regulations, sources tell Bloomberg BNA.
Rather, Trump’s Feb. 24 executive order will serve mostly to show his supporters that he’s serious about curtailing government rules, said Baruch Fellner, an industry attorney with Gibson Dunn & Crutcher LLP.
“It’s good optics for the president, as it was for prior presidents,” Fellner told Bloomberg BNA. “But [Trump] can’t afford to go for the jugular, given his attempt to consolidate support among working people. They like OSHA, and many of them belong to unions.”
Under the order, each agency must set up a task force to identify regulations that eliminate jobs, inhibit job creation, are outdated or impose costs that outweigh their benefits.
One reason few observers anticipate the rollback of OSHA rules is that doing so would require the agency to open a brand new notice-and-comment rulemaking—a process that can take years.
Notice and comment rulemaking “is difficult and requires a lot of process and resources,” said Marc Freedman, executive director of labor policy at the U.S. Chamber of Commerce. “So this isn’t going to have the dramatic impact that I think the Trump language would suggest.”
More fundamentally, most employers aren’t troubled enough by specific OSHA regulations to demand their repeal, according to Jordan Barab, the agency’s second-in-command under President Barack Obama.
“It’s the old phenomenon: any standard that OSHA’s working on threatens to bring the downfall of Western civilization, but once it’s issued it becomes mom and apple pie,” Barab told Bloomberg BNA.
To illustrate his point, Barab pointed to OSHA’s 1991 bloodborne pathogen standard.
“Back then, the whole medical establishment said they couldn’t afford it, that it was impossible to practice medicine or dentistry if you had to wear gloves,” Barab said. “We look back at that now and laugh. It’s been like that for every single OSHA standard.”
The now-defunct Office of Technology Assessment also found in the 1990s that both industry and OSHA “wildly overestimate” the expected costs of the agency’s rules, in part because they don’t take future technological change into account, Barab said.
Fellner challenged Barab’s observation, saying the fact that employers don’t complain about OSHA rules doesn’t mean they aren’t hurt by them.
“The truth is, businesses are appropriately focused on running their businesses, rather than reviewing Federal Register documents that seek the impact of specific rules,” Fellner said.
In Fellner’s view, employers are more aggrieved by the way standards are interpreted by different OSHA inspectors than by the standards themselves. He cited the agency’s process safety management and lockout/tagout rules as prime examples.
“You wake up on Monday and it’s ‘X,’ you wake up on Tuesday and it’s ‘Y,’” Fellner said.
OSHA could also comply with the Trump order by identifying regulations issued late in the Obama administration, such as the silica and beryllium rules, Freedman said. Those rules are causing pain in part because they’re so new and employers haven’t had time to adapt to them, he said.
Still, Freedman conceded that agencies such as the Environmental Protection Agency and Consumer Financial Protection Board are likelier targets of the Trump order than OSHA.
Both Fellner and Barab agreed that the likeliest target of Trump’s executive order would be the many industry consensus standards that OSHA adopted en masse in the early 1970s, which address a wide range of safety and health hazards and are commonly understood to be outdated.
“There’s a sufficient number of dead wood regulations out there that affect very little, insofar as the real workings of employment is concerned,” Fellner said.
But snipping those rules “is going to elicit a yawn, because nobody knew they were there in the first place,” Fellner said.
“If they’re really serious about updating outdated standards, what they need to be doing is figuring out a system for making OSHA rulemaking much faster than it is now,” Barab said.
In the meantime, the Labor Department still has yet to confirm a secretary, presenting obvious challenges in complying with the executive order.
“At this stage, it’s hard to imagine how the people who are there now are in a position to make the determinations that this executive order calls for,” Freedman said.
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