Fate of Spring Regulatory Agenda is Riden’ With Biden

The federal Spring Regulatory Agenda was released a few days ago, but the fate of future OSHA standards is linked to the fate of the President Biden (or his replacement.)

The White House Office of Information and Regulatory Affairs (OIRA) issues its Regulatory Agenda two times a year — officially in the Spring and the Fall (although delays usually push that into Summer and Winter.) It lists standards and regulations that the agency is working on, the stage they are in and the planned dates of the next major step (if any).

Major steps in OSHA rulemaking include either a Request for Information (RFI) or Advance Notice of Proposed Rulemaking (ANPRM), followed by the small business review (SBREFA). The next step is the official proposal which then undergoes OIRA review, followed by a comment period, hearings, a post comment period, consideration of comments, a final draft, OIRA review and finally, issuance of a final standard.

Dates on the Agenda are not set in stone. They are often more aspirational than operational, and are therefore frequently delayed and rescheduled.

Regulatory Agenda: Filled with Hope; Shrouded in Dread

In any case, the newly arrived Spring Regulatory Agenda is filled with hope, and shrouded in dread.

Topping the list, of course, is OSHA’s heat standard. OSHA issued its proposed standard earlier this month with great fanfare, including an announcement from President Biden. The proposal was scheduled for August, but — in a first for OSHA — arrived two months early after a record short White House review. It will likely be close to two years before OSHA can transform that into a final standard.

Other Reg Agenda highlights include standards on

• Workplace Violence: The official proposal for OSHA’s workplace violence in health care and social services rulemaking is now scheduled for December 2024
• Infectious Disease:  The proposal for an infectious disease rule is now scheduled for November 2024, delayed from June in the previous agenda.
• Process Safety Management: OSHA’s Process safety management was promoted to a proposed rule stage from the pre-rule stage. But OSHA has provided no date for a proposal, which will likely be years in the future
• Communications Towers: OSHA’s proposed rule to project communication towers worker was postponed from March 2024 to February 2025.
• Tree Care:  OSHA’s tree care proposal has been bumped to December 2024 (from February)
• Personal Protective Equipment in Construction: OSHA’s final PPE in construction rule is now projected for Sept 2024
• Powered Industrial Trucks: OSHA’s final rule updating it powered industrial trucks standard (which covers vehicles like skid steers and fork lifts) is projected for Aug 2024.
• Silica (Medical Removal Protection): It’s hard to remember now, at one time no so long ago, courts didn’t kill OSHA standards, they actually ordered OSHA to strengthen them.  In 2017, the U.S. Court of Appeals for the District of Columbia Circuit ordered OSHA to either provide medical removal protection for workers sickened by silica exposure, or to explain better why MRP was not included. Supposedly, our court-remanded silica MRP rule promises to have a proposal out by October.

What Does This Mean?

As you can see, this is a fairly ambitious agenda. But a few caveats:

1. Deadlines set on OSHA’s regulatory agenda are almost never written in concrete, and are almost always postponed (with the notable exception of the heat proposal which was issued early.)
2. Note that, with the exception of Personal Protective Equipment in Construction, there are no final standards scheduled before the end of this Presidential term. Which leads to…
3. Election Day is November 5, in case you hadn’t heard. More significant is January 20, Inauguration Day. If Biden, or his Democratic substitute, is sworn in to office that day, workers will see a significant number of final OSHA standards issued over the next several years. Then we will only have the courts to deal with.

Needless to say, if Donald Trump is sworn in on January 20, 2025,  it is extremely unlikely that any of these will see the light of day until there is a new Democratic administration. The result: more workers will get sick, injured and killed in the workplace.

OSHA’s Regulatory Strategy

I have complained before about OSHA’s regulatory strategy over the past few years. Instead of issuing one or two final standards which would be almost impossible to repeal, OSHA has instead put its efforts into issuing a bunch of proposals — a gamble will either set them up well for a bunch of final standards next (Democratic) term, or if the worst happens and the gamble doesn’t pay off, all of that work goes down the drain for at least the next 4 years.

Bottom line: Vote this November as if your life (or the lives of your families, friends and co-workers) depended. 

An official proposal is much harder for a hostile administration to withdraw than regulatory action prior to the proposal stage.  Courts consider a proposal to be an official commitment to move forward. If a court finds an agency guilty of “unreasonable delay,” it can order the agency to move forward. It is unlikely, however, that such a process would conclude within a 4 year Presidential term.

Added to all of these problems is Trump’s promise to clean out “the deep state” and replace experienced government scientists and experts with political cronies, which would make it much harder to resurrect the standards in the next Democratic administration.
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Bottom line: Vote this November as if your life (or the lives of your families, friends and co-workers) depend on it. Because it does.