President-Elect Trump’s Potential MSHA and OSHA Initiatives

The nomination of a new Secretary of Labor has not yet been announced as of the writing of this article, but will impact Department of Labor (DOL) agency appointments. However, the presence of the current Obama safety and health sub-cabinet officers is predictable until the inauguration on January 20.

Construction industry personnel, union Trump supporters and former industry or conservative personnel who successfully stayed in agency career positions can be seen as leading candidates to fill DOL agency slots in the second or third wave of appointments, extending months beyond Inauguration Day.

Joe Main likely will remain as the assistant secretary of MSHA until January 20, making it the first day in almost eight years that the former coal union safety director will not control the fate of MSHA’s enforcement and regulatory agenda.

Main’s political operative Laura McClintock, deputy assistant secretary for policy, is expected to stay for as long as it takes the new administration to identify Obama political appointees and begin to fill the 4,000 jobs that are presidential appointments.

Similarly, Dr. David Michaels likely will linger at OSHA before returning to George Washington University and their plaintiffs’ lawyer and union friendly “public interest” group. His political operative, Jordan Barab, deputy assistant secretary, likely will stay at OSHA if the new administration permits.

Promises to Keep

Don’t be surprised if Main has a few more “promises to keep,” and Dr. Michaels has more “advances” to secure with last-minute regulations or policies. In particular, the MSHA metal/nonmetal inspection changes are primed for Main’s signature, regardless of a recent Congressional letter asking agencies to stop issuing new mandates until after President Trump takes office.

Executive Orders (EO) will be issued quickly by our new President revoking or suspending many Obama EOs and agency policies, particularly those adopted without rulemaking or without Congressional authority, or adopted or effective after or late in the Obama administration.

The easiest way for the new administration to accomplish reversing these policies is with a general revocation EO, for a specific time frame, perhaps suggesting that revoked policies and interpretations can be reviewed by the new administration and subjected to rulemaking, if appropriate. Individually targeted policy reversals and regulation revocations produced significant Congressional and political opposition in the Reagan administration that the Trump one likely will seek to minimize.

Among the non-coal MSHA policies (including those impacting aggregates, stone, sand and gravel, cement, metals and industrial minerals) that can be addressed by the new Trump administration are:

The MSHA Pattern of Violations (POV) Criteria are subject to new EO directives and revocation since MSHA expressly admitted that they were not issued via rulemaking, but simply adopted by the agency and therefore subject to agency change.

The MSHA Corrective Action POV Plan Mandates adopted by MSHA without rulemaking also are subject to new EO revocation. SeeP16-01 Corrective Action Program.

The Obama MSHA POV Rule, while partially adopted in a rulemaking, exceeded statutory authority by using non-final citations, potentially subjecting the rule to revocation, and perhaps resulting in reinstatement of the prior successful rule.

The MSHA area inspection policy (MSHA P15-IV-01 Examination of working places) and pending rule, and proposed civil penalty increases, are likely to be addressed by a new administration EO. Other MSHA and OSHA issued policy and interpretations also are likely to be addressed. The long list of only 2016 OSHA “Interpretations” is informative and reveals the massive challenge that the new administration faces.

New Administration Initiatives

The Trump administration also likely will examine a second wave of OSHA/MSHA/NIOSH intiatives via EOs to address such items as:

  • Mandatory drug and alcohol testing in investigations, long avoided by the agencies.
  • Dodd Frank reporting of MSHA violations.
  • Prohibiting federal financial support for, and use of, foreign agency standards (e.g. IARC) by U.S. agencies.

Other items of long-term industry concern, like agency failures to comply with Federal Advisory Committee Act provisions, could also be addressed by the Trump administration after its initial agenda is underway.

The author urges patience, perseverance and continued support for reform of the safety agencies, understanding that the task is enormous and needs to be conducted in hundreds of federal agencies. Yet, only participation, preparation and commitment by regulated parties and Congress can feed the reform movement the information the new administration needs to secure success.

Henry Chajet is a partner at Husch Blackwell LLP. He provides strategic counsel to clients, to prevent or reduce risks from situations of crisis and uncertainty, in environmental, employee health and safety, and antitrust law matters. He also represents clients in rulemaking and legislative proceedings, as well as in investigations and litigation involving unfounded enforcement actions. Chajet is a member of Husch Blackwell’s Technology, Manufacturing & Transportation team.

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