Issue link: http://palletcentral.uberflip.com/i/763062
palletcentral.com PalletCentral • November-December 2016 29 The once-shining star of the OSHA regulatory agenda – the "I2P2" rule (injury/illness prevention program) – had already been moved to the back burner according to the Spring 2016 regulatory agenda, and now has fallen off the stove entirely. In its place, OSHA recently finalized revised "Safety & Health Management Program" guidelines that are voluntary. However, historically, OSHA has often included adoption of these provisions as part of corporate-wide settlement agreements, which makes such programs an enforceable part of abatement requirements. Look to see more of these types of settlements in the next administration, since these deals are typically negotiated between employers and career OSHA personnel at the local area level. Some initiatives that squeaked in under the wire, such as the electronic recordkeeping/anti-retaliation rule and the respirable crystalline silica standard, are already in litigation between industry and OSHA and there are a few options that the new administration could take to kill or delay these rules. The FY 2017 spending bill for the Department of Labor was never enacted (the fiscal year started October 1, 2016) and funding for OSHA has been through a continuing resolution. When the lame duck Congress reconvenes before year's end, it is possible that "riders" could be attached to any final funding package, prohibiting OSHA from spending funds to enforce either rule. The e-recordkeeping rule's whistleblower provisions are currently slated to take effect on December 1, 2016, while the data reporting requirements kick in on July 1, 2017. Both of those deadlines could be voluntarily pushed back by OSHA, or the "new" OSHA attorneys could withdraw the agency's current objection to injunctive relief sought in the pending litigation, and allow the law to be stayed pending final resolution. The federal government attorneys could also be instructed not to vigorously defend the litigation or to enter into a settlement that is favorable to industry's position on each standard (e.g., eliminating some provisions entirely). One of the most disputed portions of this rule was the provision that OSHA has interpreted as barring post-accident drug tests unless impairment of the injured worker is believed to be a causal factor in the incident. OSHA could simply change its interpretation of this provision and eliminate the controversy in that manner. On August 1, 2016, OSHA civil penalties were hiked by 80 percent, to a new high of $124,709 for willful and repeat violations, and to a maximum of just over $12,000 for serious and other-than- serious citations. This occurred through a hidden provision in the 2015 debt reduction bill that appears to have slid by many members of Congress. Congress could seek to undo this increase, which was formalized by OSHA through a rulemaking, but that is not likely to be a high priority at the present time. More likely is that Congress will eliminate the planned "cost of living" increases that would occur each year thereafter. More generally, in terms of how OSHA will operate, it is likely What can we expect from OSHA under a Trump Administration? The shor t answer is "E xpect the unexpected."