OSHA Takes First Steps at Deregulation

By Guy Burdick

On July 1, the Occupational Safety and Health Administration (OSHA) took its first steps at deregulation, publishing one final rule and many proposals.

The final rule revokes 29 Code of Federal Regulations (CFR) §1911.10, the requirement for the assistant secretary of labor for occupational safety and health to consult with the Advisory Committee on Construction Safety and Health (ACCSH) in the creation of rulemakings to promulgate, modify, or revoke construction industry standards (90 Fed. Reg. 27996). The rule also revokes §1912.3, the OSHA general regulations governing the advisory committee, which would reduce the committee’s membership from 15 members to the nine mandated by statute.

The Department of Labor (DOL) described the requirements as “more burdensome than those mandated by statute.” The requirement to consult the advisory committee would needlessly delay the secretary of labor’s plans to implement President Donald Trump’s Executive Order (EO) 14192, “Unleashing Prosperity Through Deregulation,” according to the rule’s preamble. The rule is effective immediately.

OSHA proposed removing the agency’s COVID-19 in Healthcare Emergency Temporary Standard and its recordkeeping and reporting requirements (90 Fed. Reg. 28336). The proposal is part of the agency’s EO 14192 actions. Comments are due September 2.

Another OSHA proposal would withdraw a proposed rule that would have added a column to the OSHA 300 log where employers could record work-related musculoskeletal disorders (MSDs). The proposal would also terminate the rulemaking (90 Fed. Reg. 28257). The proposal’s withdrawal is effective immediately.

OSHA proposed clarifying its interpretation of the General Duty Clause of the Occupational Safety and Health Act (29 U.S.C. §654(a)(1)) and excluding known hazards that are inherent and inseparable from the nature of a professional activity or performance from General Duty Clause enforcement (90 Fed. Reg. 28370). Comments are due September 2.

The proposed rule cited SeaWorld of Florida, LLC v. Perez, a case in which OSHA cited SeaWorld under the General Duty Clause following a SeaWorld trainer’s death during an Orca whale performance. The D.C. Circuit upheld OSHA’s citation, but in a dissenting opinion, then-Judge Brett Kavanaugh argued that the General Duty Clause doesn’t authorize OSHA to “regulate hazards arising from normal activities that are intrinsic to professional, athletic, or entertainment occupations.”

Professions that would be excluded from General Duty Clause enforcement under the narrowed interpretation include:

• Animal handling and performance;
• Hazard-based media and journalism activities;
• Live entertainment and performing arts;
• Motorsports and high-risk recreation;
• Professional and extreme sports; and
• Tactical, defense, and combat simulation training.

The agency proposed removing its Open Fires in Marine Terminals standard (90 Fed. Reg. 28362), as it says the standard is no longer necessary to protect workers in marine terminals. The standard, adopted in 1983, prohibits open fires and fires in drums or other containers at marine terminals. Due to cargo containerization and technological advancements, marine terminal workers are no longer exposed to cold conditions for extended periods, rendering open or drum fires unnecessary. Marine terminal workers also have access to heated jackets, which weren’t available in 1983.

The agency hasn’t issued a citation under the open fires standard since 2012, according to the proposal’s preamble. Comments are due September 2.

OSHA also proposed removing the House Falls in Marine Terminals Standard (90 Fed. Reg. 28358). House falls are spans and supporting members, winches, blocks, and standing and running rigging forming part of a marine terminal and used with a vessel’s cargo gear to load or unload cargo at a terminal. The agency proposed removing the standard because marine terminals no longer use house falls, as most cargo has been containerized and is moved by cranes. Comments are due September 2.

The agency also proposed removing its Safety Color Code for Marking Physical Hazards Standard (90 Fed. Reg. 28282). The rulemaking would remove similar provisions of the sawmills and textiles standards, as well. According to OSHA, the hazards are already addressed in the Specifications for Accident Prevention Signs and Tags Standard. Comments are due September 2.

The DOL proposed removing regulations on procedures for coordinating enforcement activities by OSHA, the Employment and Training Administration (ETA), and the Wage and Hour Division (WHD) related to migrant farmworkers (90 Fed. Reg. 28247). Removing the regulations, issued in 1980, would enable DOL agencies to coordinate migrant farm labor law enforcement in more efficient and effective ways, according to the proposal’s preamble. Comments are due September 2.

OSHA proposed rescinding its construction illumination requirements (90 Fed. Reg. 28366). Under current requirements, construction areas, aisles, stairs, ramps, runways, corridors, offices, shops, and storage areas must be lighted with either natural or artificial illumination. §1926.56 contains OSHA’s minimum illumination requirements for work areas. According to OSHA, the requirements aren’t necessary or appropriate because they don’t reduce significant risks to workers. The agency concluded that the hazard posed by a lack of illumination is obvious to workers and employers, as are the means to address it. Comments are due September 2.