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Trump’s regulation order may put OSHA rules on chopping block

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Donald Trump

An executive order issued by President Donald Trump on Monday could significantly limit or even halt the introduction of new regulations over the next several years by the U.S. Occupational Health and Safety Administration and may put several recently passed regulations in jeopardy.

The Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs, posted on the White House website Monday, calls for two prior regulations to be identified for elimination every time a new regulation is issued. In addition, the order calls for agency heads to ensure the total incremental cost of all new regulations, including repealed regulations, that will be finalized this year have a cost of no greater than zero unless otherwise required by law.

New incremental costs associated with new regulations must be offset by eliminating existing costs associated with at least two prior regulations, the order says.

The order has generated some backlash. In a press release issued Monday, Richard Revesz, New York-based director of the Institute for Policy Integration at the New York University School of Law, called the one-in, two-out policy “a deeply flawed and irrational approach to regulation.”

For OSHA, the executive order will likely limit the amount of new regulation that will emerge under this administration by adding complexity to an already lengthy and cumbersome rulemaking process that requires time for notices, comments, economic feasibility studies and other required tasks, said Matthew Deffebach, partner at Houston-based law firm Haynes and Boone L.L.P.

In addition, President Trump’s nominations to fill leadership roles at OSHA and the U.S. Department of Labor are likely to be ideologically aligned with the administration’s goals of reducing regulation on businesses, and therefore less motivated to advance regulations, he said.

Several regulations were already in peril with the transition to the new administration because the Congressional Review Act allows all regulations passed within the 60 days leading up to President Trump’s inauguration to be reviewed and potentially vetoed. Recent rules about beryllium exposure and the statute of limitations on recordkeeping could fall victim to that process, Mr. Deffebach said.

The executive order further provides a tool to repeal regulations outside the 60-day window by allowing the administration and new leadership of OSHA to use the introduction of a new regulation as a way to put at least two regulations it would like to see eliminated on the chopping block, Mr. Deffebach said. Although possible, that could ultimately be unlikely, because offsetting new costs with eliminated costs could be challenging, he said.

“Even without the executive order, if OSHA wants to get rid of a regulation, it can already do that through a formal rulemaking,” Mr. Deffebach said. “But if there’s a motivation to get rid of rules that are controversial, this is something they can do. This may be an executive order that seems problematic, and it could be for other agencies, but for OSHA, it might not have that big of an impact.”

Two controversial regulations issued recently by OSHA also could be in jeopardy under the new administration’s executive order, observers say.

The silica rule, which reduces permissible exposure to crystalline silica for workers in the construction, general and maritime sectors, has been hotly contested by opponents who asked a federal appeals court in December to reject the regulation.

OSHA’s electronic recordkeeping rule, which requires certain employers to electronically submit injury and illness data to OSHA each year, is another regulation that has been the subject of opposition and could be in jeopardy.

 “Clearly the message from the executive branch is that they want to see less regulation, but which regulations may go is anybody’s guess,” Mr. Deffebach said. “It may be something where it really doesn’t result in other regulations being pulled off. If the agency’s mindset is in line with the president’s in favor of less regulation, those leaders don’t want to issue new regulations anyway.”

Ed Foulke, a partner in the Atlanta office of law firm Fisher Phillips L.L.P., said the idea of eliminating two regulations for every new regulation has been proposed in previous administrations.

“This isn’t something new, but because of the number of regulations promulgated during the past eight years, I think there is a clear interest by a lot of businesspeople to see some streamlining of regulation to make it less burdensome,” said Mr. Foulke, who noted keeping up with the regulatory landscape can amount to a full-time job that is often difficult for small and medium-sized companies.

However, Mr. Foulke noted that the reality of choosing which regulations to cut in a two-for-one scenario may prove difficult. “That’s going to be an interesting task,” he said. “If I was at OSHA right now, what would I get rid of? I don’t know. A lot of rules have been very helpful.”

The Park Ridge, Illinois-based American Society of Safety Engineers plans to discuss the implications of the executive order during meetings this week, but a spokesman said the society generally tries to work with each administration and respect its emphasis on enforcement or cooperation.

“ASSE supports ideas on both sides of the aisle,” he said, noting the society has typically supported Republican ideas, such as third-party audits under OSHA, as well as increased penalties proposed by Democrats. “In this Congress, there may be an opportunity to more easily update consensus standards referenced in the (Occupational Safety and Health Act).”

OSHA referred questions about the executive order to the federal Office of Management and Budget, which didn’t respond to a request for comment.