Trump's OSHA to Roll Back More Worker Safeguards, Slow Walk Others

by Katie Tracy

The White House released its Spring 2018 Unified Agenda of Regulatory and Deregulatory Actions on May 9 with little fanfare. A close examination of the agenda for the Occupational Safety and Health Administration (OSHA) shows that protecting worker health and safety is anything but a priority for the Trump administration. Rather, the agency will continue to focus on weakening worker protections.

OSHA's spring agenda lists 20 planned activities – 15 carryovers from the fall agenda, four agenda items moved from the agency's list of long-term actions to now in play, and one new activity.

The 15 carryover items include 14 announcements of delays, ranging from one to seven months. For example, one carryover on the agenda is the agency's plan to weaken the 2017 beryllium standard by easing safety requirements on the construction and maritime industries. The standard protects workers from chronic disease and lung cancer, but the Trump administration seems to be in no hurry, delaying enforcement of the standard while it considers revoking provisions of the rule that the industry finds inconvenient. The agency says it still intends to finalize the revised standard but is sliding back its deadline by three months, from September to December 2018.

OSHA is delaying by six months the date by which it expects to issue an advanced notice of proposed rulemaking on strengthening its existing lead standard by lowering the blood lead level at which an employee may be returned to a former job. Shamelessly, the agency doesn't bother to explain the delay, even though the science supporting this rule has been well established for at least a decade.

The one carryover agenda item that isn't a delay is the agency's plan to finalize a 2016 proposed rule to incorporate into the existing respiratory standard new protocols for testing the seal between a respirator's face piece and the wearer's face. The agency says it's still on track to finalize the new fit test protocols by September 2018.

The four agenda items moved from the agency's list of long-term actions to the list of actions it plans to move on include an update to the Hazard Communication standard and standards on emergency response and preparedness, tree care, and preventing workplace violence in the health care and social assistance sectors. For the first item, OSHA plans to issue a proposed rule by February 2019. For the remaining three items, the agency is planning to initiate small business review panels in accordance with the Small Business Regulatory Enforcement Fairness Act (SBREFA) before moving forward with a proposed standard. This means all of these rules are in the early stages of development and won't become final anytime soon. (Watch CPRBlog for more as these panels get underway. We'll be watchdogging the Small Business Administration's Office of Advocacy to ensure it doesn't seek to undermine the rulemaking effort on behalf of big business trade associations, as it has so often done in the past.)As noted, exactly one to-do item is new to the agenda. OSHA plans by November 2018 to request information from the public about the effectiveness of control measures for silica dust that are not already included for tasks and tools in its silica standard for construction (specifically in Table 1 of the final rule).

Though the addition of items to OSHA's agenda seems like a positive development, it's hard to see how the agency will complete these additional obligations along with the 14 activities for which it is already behind schedule. I suspect we'll see many of these activities delayed once again in the Fall 2018 agenda due later this year.

Speaking of delays, OSHA's current list of Long-Term Actions – those that the agency is delaying indefinitely and for which it has no current plans for future action – includes four standards that would address critical health and safety hazards. One would restore a checkbox to the OSHA 300 Log of Work Related Injuries so that employers and workers can better track musculoskeletal injuries. There's just no logical reason not to track this information unless companies don't want the agency or the public to know how widespread musculoskeletal injuries are in certain high-risk industries. Another rule indefinitely delayed would require employers in the health care and similarly high-risk industries to establish a comprehensive infection control program and measures to protect workers from infectious disease.

OSHA will also not move forward on developing a standard to prevent major chemical disasters, at least in the near future, which means the agency won't be prepared the next time a major industrial disaster strikes. Last but not least, the agency has no plans to move ahead with an update to its existing standard on shipyard fall protection to provide more comprehensive coverage and to reflect technological developments in this industry.

Here's a complete list of the regulatory and deregulatory actions and delays listed on OSHA's spring 2018 agenda (also in PDF form):

                                                                          OSHA RULES IN PLAY
Rule Name RIN Latest Update Spring 2018 Fall 2017
Occupational Exposure to Beryllium 1218-AB76 OSHA is delaying by 3 months (sliding from Sept. 2018 to Dec. 2018) the date it expects to finalize its proposed rule to revoke ancillary provisions from the 2017 final rule limiting exposure to beryllium for the shipyard and construction industries.

Note: OSHA has listed this agenda item as in the proposal stage, although the proposed rule for construction and maritime was issued in June 2017 and the agency appears to be moving to finalize the rule by year-end. The agency issued a direct final rule revising the general industry standard on May 7, 2018.
Proposed Final
Standards Improvement Project IV 1218-AC67 OSHA is delaying by 5 months (sliding from Feb. 2018 to July 2018) the date it expects to finalize its 2016 proposed rule to update several existing standards and paperwork requirements identified as unnecessary or duplicative. Final Final
Amendments to Cranes and Derricks in Construction Standard 1218-AC81 OSHA is delaying by 3 months (sliding from Sept. 2018 to Dec. 2018) the date it expects to propose a rule to amend its 2010 final standard to make corrections and other clarifications. Proposed Proposed
Communication Tower Safety 1218-AC90 OSHA now intends to initiate by May 2018 a small business review panel to consider regulatory approaches the agency ought to take to address the higher-than-average fatality rate among workers in the communication tower industry. Previously, the agency's agenda said it was planning to complete a review panel by March 2018. Pre-rule Pre-rule
Emergency Response and Preparedness 1218-AC91 OSHA has moved this rulemaking from its list of Long-Term Actions to the prerule stage and now intends to initiate by Oct. 2018 a small business review panel on a draft rule to address significant hazards to emergency response workers. Pre-rule Long-Term Action
Update to the Hazard Communication Standard 1218-AC93 OSHA has moved this rulemaking from its list of Long-Term Actions to the proposed stage and now intends to issue a proposed rule by Feb. 2019 to update the agency's hazard communication standard to maintain alignment with the Globally Harmonized System of Classification of Labeling of Chemicals (GHS) and other countries that have adopted the GHS. Proposed Long-Term Action
Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection 1218-AC94 OSHA is moving ahead without delay on its plan to finalize a rule by Sept. 2018 that would amend the agency's respiratory standard finalized in 1998 to incorporate new fit test protocols. Final Final
Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records 1218-AC95 OSHA is delaying by 6 months (sliding from June 2018 to Dec. 2018) its plans to finalize updates to make more efficient its internal procedures on obtaining and using personally identifiable employee medical information. Final Final
Crane Operator Qualification in Construction 1218-AC96 OSHA is delaying by 6 months (sliding from Nov. 2017 to May 2018) its plans to propose a rule specifying what criteria employers use to determine if operators are qualified to safely operate cranes on construction sites (as a component of the agency's 2010 final cranes standard). The proposed rule is on schedule for the May deadline as of now - it is currently pending review by OIRA (since Feb. 22, 2018). Proposed Final
Mechanical Power Press Update 1218-AC98 OSHA is delaying by 6 months (sliding from Mar. 2018 to Sept. 2018) its expected date for requesting information from the public about how it should proceed with updating its mechanical power presses standard to address the use of hydraulic or pneumatic power presses and other technological changes over the past 40 years. Pre-rule Pre-rule
Powered Industrial Trucks 1218-AC99 OSHA is delaying by 5 months (sliding from Jan. 2018 to June 2018) its expected date for requesting information from the public about how it should proceed with updating its outdated standard on powered industrial trucks. Pre-rule Pre-rule
Lockout/Tag-out Update 1218-AD00 OSHA is delaying by 1 month (sliding from May 2018 to June 2018) its expected date for requesting information from the public about recent technological advancements employing computer-based controls of hazardous energy that conflict with the existing lock-out/ tag-out standard. Pre-rule Pre-rule
Tree Care Standard 1218-AD04 OSHA is moving this rulemaking from its list of Long-Term Actions to the prerule stage and now intends to initiate by Apr. 2019 a small business review panel on a draft standard for tree care operations, which it began in response to an industry petition it granted in 2008. Pre-rule Long-Term Action
Cranes and Derricks in Construction: Exemption Expansions for Railroad Roadway Work 1218-AD07 OSHA is delaying by 6 months (sliding from Dec. 2017 to June 2018) its expected date for proposing revisions to its Cranes and Derricks in Construction standard to expand the exemptions for railroad roadway work as required by a settlement agreement reached in Sept. 2014. Proposed Proposed
Preventing Workplace Violence in Healthcare and Social Assistance 1218-AD08 OSHA is moving this rulemaking from its list of Long-Term Actions to the prerule stage and now intends to initiate by Jan. 2019 a small business review panel on a draft standard to prevent workplace violence in health care, which it initiated in response to union petitions it granted in 2017. Pre-rule Long-Term Action
Blood Lead Level for Medical Removal 1218-AD10 OSHA is delaying by 6 months (sliding from July 2018 to Jan. 2019) its expected date for issuing an advanced notice of proposed rulemaking on strengthening the existing lead standard by lowering the blood lead level at which an employee may be returned to a former job. Pre-rule Pre-rule
Technical Corrections to 36 OSHA Standards and Regulations 1218-AD12 OSHA is delaying by 4 months (sliding from Feb. 2018 to June 2018) its expected date for making technical corrections to certain OSHA standards.

Note: The name of this agenda item was previously "Technical Corrections to 16 OSHA Standards." The number has grown to 36 and now includes both standards and regulations.
Final Final
Puerto Rico State Plan 1218-AD13 OSHA is delaying by 6 months (sliding from June 2018 to Dec. 2018) its expected date for giving Puerto Rico's state plan final approval. Proposed Proposed
Improve Tracking of Workplace Injuries and Illnesses 1218-AD17 OSHA is delaying by 7 months its plans to issue a proposal to amend provisions of its 2016 final rule and remove a requirement for employers to submit electronically to OSHA information from the OSHA Form 300 and OSHA Form 301 for establishments with 250 or more employees. Proposed Proposed
Occupational Exposure to Crystalline Silica; Revisions to Table 1 in the Standard for Construction 1218-AD18 OSHA has added this item to its agenda and plans to request information from the public in Nov. 2018 about the effectiveness of control measures not currently included for tasks and tools listed in Table 1 of its crystalline silica standard finalized on March 25, 2016. Pre-rule N/A
                                                                      LONG-TERM ACTIONS
Occupational Injury and Illness Recording and Recordkeeping Requirements--Musculoskeletal Disorders (MSD) Column 1218-AC45 OSHA will continue to delay indefinitely its plans to restore the MSD column to the OSHA 300 log so that employers and workers can better track these injuries and the agency can collect better statistical data. Long-Term Action Long-Term Action
Infectious Diseases 1218-AC46 OSHA will continue to delay indefinitely the development of a standard to require employers in the health care and similarly high-risk industries to establish a comprehensive infection control program and control measures to protect workers from infectious disease. Long-Term Action Long-Term Action
Process Safety Management and Prevention of Major Chemical Accidents 1218-AC82 OSHA will continue to delay indefinitely the development of a standard to modernize its process safety management standard to prevent major chemical disasters. Long-Term Action Long-Term Action
Shipyard Fall Protection--Scaffolds, Ladders, and Other Working Surfaces 1218-AC85 OSHA will continue to delay indefinitely its plans to assess its options for updating its existing standard on shipyard fall protection to provide more comprehensive coverage and to reflect technological developments. Long-Term Action Long-Term Action



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