Trump’s Order May Slow, Cancel Industry-Backed OSHA Rules

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By Bruce Rolfsen

President Donald Trump’s drive to cut regulations could slow or cancel rules under development by OSHA in an effort to alleviate the regulatory burden on industries. But industry officials say they’ve backed many of the rules since their inception.

The proposed rules range from revising requirements for construction crane operator certification to adding new respirator fit test procedures to the list of Occupational Safety and Health Administration-approved measures.

All the rulemakings began at the request of industry groups and businesses, often with the goal of changing existing OSHA rules that can cause confusion among employers.

The Trump administration on Jan. 20 issued a memorandum declaring rules in development must be reviewed Trump-appointed department or agency heads before moving forward. As of Feb. 3, no appointed leaders for OSHA or the Department of Labor have been confirmed.

In addition, a Jan. 30 executive order from Trump says that for every new rule an agency issues, the agency must identify at least two regulations for elimination. The cost savings from eliminating the rules must also be greater or equal to the costs of the new rule.

The White House’s Office of Management and Budget on Feb. 3 clarified the two-for-one mandate applied only to significant rules—those regulations with annual effect on the economy of $100 million or more.

What’s Certification?

The proposed OSHA rules closest to becoming final were three regulations making changes to OSHA’s 2010 rule for construction cranes (29 C.F.R. 1926 Subpart CC).

Crane owners and operators have pressed OSHA to revise an operator certification requirement set to take effect Nov. 10 mandating operators to be certified by third-party evaluators based on the type of crane and the crane’s lifting capacity.

The industry hopes OSHA will drop the capacity requirement, saying it would increase certification costs and tie up cranes for testing instead of construction.

“We do feel a more prescriptive rule would aid our industry,” Graham Brent, chief executive officer of the National Commission for the Certification of Crane Operators, told Bloomberg BNA Feb. 2.

Having a new rule in place by the Nov. 10 deadline would be difficult under any administration because of the slow rulemaking process, Brent said.

Dean McKenzie, head of OSHA’s Directorate of Construction, told construction industry members in November that if the rule (RIN:1218-AC96) wasn’t completed in time for the Nov. 10 deadline, OSHA could issue a directive extending the deadline.

There are two other proposed OSHA crane rules—one of which seeks to amend the 2010 rule by clarifying provisions that industry members and manufacturers had sought guidance for, including a broader definition for when a forklift is excluded from the rule and correcting a caption on approved hand signals (RIN:1218-AC81).

OSHA had been expected to issue a notice of proposed rulemaking this month.

The other proposed rule tries to implement a 2014 court settlement between OSHA and the Association of American Railroads explaining which types of railroad construction equipment are excluded from the rule ( Assoc. of Am. R.R. v. OSHA , D.C. Cir., No. 10-1386, 9/9/14 ).

Patti Reilly, a spokeswoman for the railroad group, told Bloomberg BNA Feb. 2, the association hopes that after the new administration reviews the rule and that the regulation will be approved (RIN:1218-AD07).

Tree Care, Respirators

Another rulemaking with industry support is a proposal to write OSHA’s first regulation specifically covering the tree care industry and such tasks as cutting and trimming trees (RIN:1218-AD04).

After the Tree Care Industry Association urged OSHA to start a rulemaking, the agency took a step forward in July when it held a day-long meeting with employer and worker representatives. A notice of proposed rulemaking was scheduled for October 2017.

The association’s senior safety adviser, Peter Gerstenberger, told Bloomberg BNA Feb. 2 the group is confident the rule it envisions would be able to pass a cost test.

The rule the association hopes OSHA writes would parallel the voluntary consensus standard (ANSI Z133-2012), that members now follow, Gerstenberger said. For employers adhering to the voluntary standard, a mandatory rule wouldn’t have additional costs.

Also on OSHA’s rulemaking agenda is a proposal from safety equipment manufacturer TSI Inc. for the agency to approve three new fit test protocols for respirators (RIN:1218-AC94). TSI says the new procedures would save time making sure respirators fit properly.

TSI officials couldn’t be reached by Bloomberg BNA for comment.

OSHA’s respiratory protection standard (29 C.F.R. 1910.134) requires that for any new fit test method to be approved, the review must proceed as a rulemaking, including accepting public comments.

The comment period for fit test methods closed in December (81 Fed. Reg. 69,740). The agency hasn’t estimated a date for issuing a final rule.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The White House executive order is available at http://src.bna.com/lXj.

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