Fall 2018 Regulatory Agenda: No Surprises
Lots happening these days: the grizzly murder of a Saudi journalist, baseball championships (Go Dodgers!!), mid-term elections, Presidential temper tantrums about "Horseface" and "Pocahontas." The usual.
But by far the most important thing happening today is the Fall 2018 Regulatory Agenda. Release of the Regulatory Agenda is a much anticipated (for regulatory geeks) semi-annual event that gives the President the opportunity to boast about his efforts to allegedly "Cut Burdensome Red Tape and Unleash the American Economy”
Or, as we here at Confined Space like to call it, his efforts to cut worker, environmental and consumer protections and release the scourge of unbridled, predatory Capitalism upon the American people.
This latest version was released in the wee hours of the morning -- about the same time as the Dodgers 13th inning walkoff victory over the Brewers. Happily, at OSHA and MSHA, at least, there's not a whole lot of new protection-cutting going on. In fact, nothing significantly new has appeared on the regulatory agenda for the worker safety and health agencies. Just the same old story -- in Democratic of Republican administrations -- pretty much everything is delayed, because the one thing that experienced regulators (or de-regulators) can agree on is that "Regulatory Agencies Plan. God laughs."
SBREFA! Say it Loud and There's Music Playing....
Let's start with some good news for a change. OSHA has more or less met its deadline by convening a SBREFA (small business review) panel to launch the process of issuing a standard protecting telecommunication tower workers who have a tendency to fall hundreds of feet to their deaths with disturbing frequency. This effort was launched under the Obama administration. That this would be the first SBREFA panel of this administration is not surprising as the communication tower industry has been lobbying OSHA for regulatory action. (Yes, some industries actually like regulations -- as long as they feel they can control the outcome sufficiently.)
Next up on the SBREFA front is Emergency Response, an effort started under the Obama administration, that seeks to update, consolidate and enhance OSHA's requirements for protecting emergency response workers. This SBREFA panel is supposed to launch this month. Following Emergency Response is SBREFA for Workplace Violence, currently scheduled for March (delayed two months from its original January 2019 date.)
SBREFA, for those just tuning in, is a process where OSHA and the Small Business Administration’s Small Business Advocacy office organize panels of “Small Entity Representatives” (SERs) — actual small business owners or health and safety staff — to discuss the impact of a possible standard on their industry based on preliminary economic and feasibility information compiled by OSHA. Based on the comments of the SERs, OSHA and SBA issue a report within four months of initiation of the panel, which informs the next major stage of the regulatory process — the proposal.
The SBREFA process was created under the Gingrich Congress in the mid-90s to provide small businesses with a first bite of the regulatory apple. (One might ask why the normal public comment process doesn’t provide the same opportunity, and why labor wasn’t also given a similar early bite?) SERs generally advise OSHA that no new standard is needed, thank you very much. But they also frequently provide some useful information that OSHA later uses to tweak the proposal to address some small business concerns.
As we've said before, it's good that these are moving forward, although it is highly unlikely that any of these will become final during this Presidential term. First, two years (or less) is far to short to go from SBREFA to a final for any significant OSHA standard. Second, getting to the next step -- the proposal -- will run up against Trumps One-in/Two-out Executive Order which would require the Department of Labor to find two regulations to repeal for every one that OSHA added.
Rollbacks Moving Forward
In other news, OSHA is planning to finalize both its rollback of beryllium protections for construction and maritime workers, as well as its rollback of its "electronic recordkeeping" regulation by June 2019. Both of these will need to go to OMB for the traditional 90-day review, so the staff over there will have a busy Spring if these are to make it to the finish line as planned. Both proposals were pretty flimsy and evidence-challenged, so we'll see what OMB makes of them.
The Regulatory Dungeon
Meanwhile, still languishing in OSHA regulatory dungeon are standards addressing the hazards of infectious diseases for health care workers, and an update of OSHA's Process Safety Management standard which protects workers in chemical facilities. Both of these standards remain on OSHA's dreaded "Long Term Agenda," which means you shouldn't hold your breath waiting for the next stage. The next stage for both of these is issuance of the actual proposal, followed by notice & comment, and public hearings. We are unlikely to see either of these proposals soon for several reasons. First, they're big, resource-intensive projects and OSHA's standards budget was cut by 10% two years ago. Second, they will run up against the above-mentioned one-in/two-out Executive Order mentioned above. And third, despite the ever-present threat of chemical plant disasters and new, deadly infectious diseases (pandemic flu, Zika, MERS, Ebola, etc.), no one at OSHA (or in the entire administration) seems to be putting much priority on addressing these hazards.
You can check out the entire OSHA agenda in this easy-to-understand chart put together by the ever-resourceful Katie Tracy of the Center for Progressive Reform.
Regulatory Humility
As mentioned above, the release of the Regulatory Agenda gives the President the opportunity to boast about how he's killing "job-killing regulations" that threaten the survival of Western Civilization. This year's Introduction to the regulatory agenda included this explanation of the Trump administration's regulatory philosophy: "We approach regulation with humility, trusting Americans to direct their energy and capital productively and to reap the benefits that result from a free exchange of goods and ideas."
Of course, if you are a student of history, you know that just "trusting Americans" (or at least the American business community) to safeguard workplace safety, the environment and consumer protections hasn't worked out so well. As bad as things are now, as much work as we have before us to realize the promise of the laws that Congress passed to protect the American people, imagine how much worse things would have been without regulatory protections.
If you are a student of history, you know that just "trusting Americans" (or at least the American business community) to safeguard workplace safety, the environment and consumer protections hasn't worked out so well.
And then we might ask how successful the Administration has actually been in it's regulation-killing campaign? Even conservative observers are not too excited about the Administration's actual accomplishments. For example, law professor Jonathan H. Adler, writing in the conservative National Review, notes that the Trump administration's deregulatory efforts at EPA have "not fared too well." With EPA, he blames Scott Pruitt, "who came in with ample experience suing the federal government but little interest in managing a vast regulatory bureaucracy, let alone knowledge of how to reform it from the inside." Adler adds that "The EPA transition team contained far more people who could write punchy op-eds on the perils of over-regulation than it did experienced policy hands with the knowledge and expertise to navigate the administrative process."
Adler doesn't hold much hope for the future, absent legislation that would dismantle the country's environment structure:
Acting EPA administrator Andrew Wheeler has the practical environmental-policy experience Pruitt lacked and appears to understand that it takes more than a press release or vague proposal to change policy. But the Trump EPA is pushing ahead with deregulatory measures that appear legally vulnerable, either because they have not been developed with sufficient care or because they are at odds with the relevant statutory requirements.
Despite the one-in/two-out Executive Order, Connor Raso of the Brooking Institution calls the Trump administration's regulatory record "one of inaction. The Trump administration has halted the growth of regulation that imposes costs but so far has left the existing regulatory framework largely in place." Raso determines that "Trump era agencies have not issued many rules that impose costs." Nor surprise there. Republican administrations -- even those not headed by Donald Trump -- generally hate regulations. More surprising is Raso's observation that the Trump administration "has also done relatively little deregulation."
As of last December, the Administration's list of "deregulatory actions" mostly consisted of "fairly narrow subjects such as tax withholdings on a subset of wagering or new electrical safety requirements for certain fuel cell and hybrid vehicles," as well as deregulatory actions started under the Obama administration.
Of Raso's findings are from last December. Because deregulation takes almost as long as issuing new regulations in the first place, the administration's deregulatory "successes" will build if they successfully get to the end of the regulatory process on the items that they're in the process of rolling back (and if they survive inevitable court challenges.) Four years is plenty of time to stop protections that are in process and to begin the rollback process, but not much time to permanently remove a significant number of regulations -- especially where the process is slow, such as OSHA.
Give them another four years, however.....
We'll keep you posted. Watch this space.
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Reposted from Confined Space
