Question: OSHA recently released its updated regulatory agenda, are there any surprises?
Response: President Trump issued an Executive Order in January calling for agencies to roll back regulations. On July 20, 2017, OSHA issued an updated agenda in which it substantially rolled back its rulemakings consistent with the Executive Order. That said, OSHA has withdrawn many prominent rulemakings and has designated many others as Long-Term Action Items. Given the importance of several of these rulemakings, it may be considered surprising.
OSHA has withdrawn the following key rulemakings from its Agenda: Bloodborne Pathogens, Combustible Dust, Injury and Illness Prevention Program, Preventing Backover Injuries and Fatalities, Chemical Management and Permissible Exposure Limits, Revocation of Obsolete Permissible Exposure Limits, Subpart Q (Welding, Cutting and Brazing) Update, 1-Bromopropane Standard, Styrene Standard, and Updating Requirements for the Selection, Fit Testing, and Use of Hearing Protection Devices. OSHA explained that it is withdrawing these rulemakings from the Agenda “due to resource constraints and other priorities.”
OSHA has moved the following key rulemakings to its Long-Term Action Item List: Injury and Illness Reporting and Recording of Musculoskeletal Disorders, Infectious Diseases, Amendments to Cranes and Derricks in Construction, Process Safety Management, Emergency Response and Preparedness, and Update to the Hazard Communication Standard. OSHA did not identify any time-frame by which it will take action on these rulemakings.
The current Agenda contains fourteen items in the Pre-Rule, Proposed Rule, and Final Rule Stages. By comparison, OSHA’s 2016 Agenda contained 32 items. The following rulemakings are pertinent but are still only in the Pre-Rule Stage: Mechanical Power Presses, Powered Industrial Trucks, and Lock-out/Tag-out.
The Agenda also includes two proposed rulemakings in which OSHA seeks to amend the electronic tracking of injuries and illnesses rule. In the first, OSHA proposes to delay the initial reporting date of workplace injuries and illnesses to December 1, 2017. In the second, OSHA states that it is reconsidering the rule. While OSHA is not clear on the scope of any reconsideration, it presumably relates to the anti-retaliation portion of the rulemaking.
While reasonable minds may differ on the fairness and feasibility of some of the rulemakings that OSHA has either withdrawn or designated as Long-Term Action Items, the current administration should be careful not to weaken OSHA’s regulatory scheme. Safety in the workplace is of paramount importance.
Darren Hunter is a partner and an experienced OSHA practitioner in the Chicago law firm of Rooney Rippie & Ratnaswamy LLP. This column does not constitute legal advice or the formation or proposal of an attorney-client relationship to or with any person or entity. In addition, this column should not be understood to represent the views of ISHM, the law firm, the individual attorneys at the firm, or of any of the firm’s clients or former clients.