November-December 2016

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28 PalletCentral • November-December 2016 he dust has barely settled from the most contentious presidential election in history, and it is clear that big changes are in store for regulation and enforcement by the Occupational Safety & Health Administration (OSHA) in the next four years. Under President Obama, a number of regulatory initiatives were brought to fruition, including a crystalline silica rule, confined space in construction, and electronic submission of injury/illness data (and its companion provisions making retaliation against workers under Section 11(c) of the OSH Act a citable offense punishable by a maximum $124,709 penalty). Several more rulemaking actions are at the final rule stage (including walking/working surfaces fall protection requirements, expansion of the statute of limitations for recordkeeping violations, a new health standard for beryllium) and could still be completed before the White House changes hands on January 20, 2017. In addition, there are quite a few other action items on the regulatory agenda (combustible dust, modification of process safety management requirements, infectious disease control, I2P2) that were in progress but could not be completed during the Obama administration. Finally, the president had enacted numerous Executive Orders, some affecting workplace safety and health (including one that would debar federal contractors with a history of willful OSHA violations), that President-Elect Trump has vowed to repeal within his first 100 days. What can we expect from OSHA under a Trump Administration? The short answer is "Expect the unexpected." While candidate Trump declared that, as president, for every new regulation adopted two old regulations would be rescinded, as a practical matter that may be easier said than done. Each employer could probably point to a few OSHA rules that they would like to see evaporate, but there may not be unanimity on which regulations are "excessive" and OSHA cannot easily repeal standards for which it documented a need without providing something else with equivalent protection. For years, OSHA has been engaged in a broad-ranging Standards Improvement Project to update outmoded references in some rules, or get rid of them entirely. Much of the low-hanging fruit may have already been plucked. As a practical matter, there is unlikely to be a confirmed Assistant Secretary of Labor for OSHA for quite a while. First, Trump will have to nominate and obtain Senate approval for a new Labor Secretary, before moving to the next tier of appointments. In the interim, a career OSHA official will likely serve as "acting" assistant secretary during the first year of the new administration and my prediction is that the rulemaking agenda will be basically frozen in place until a new chief is on the scene. The combustible dust rule, which will greatly impact the pallet industry, was poised to undergo small business review in early 2017 but that step requires OSHA to release a draft rule publicly. It is safe to anticipate that the combustible dust rulemaking, already quite contentious, will stall once again as it has since 2009. However, while this rulemaking has been pending, OSHA actively inspects worksites for combustible dust hazards and can issue citations for housekeeping problems, fire hazards, or under the General Duty Clause (in part by referencing NFPA Standard 652 as making combustible dust a "recognized hazard" with a "feasible" means of control). T OSHA Forecast OSHA Forecast 2017 By Adele L. Abrams, Esq., CMSP SAFETY

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