Patton Boggs Insights - December 2012: Administrative/Congress: Post-Election Avalanche Of Rules Could Be Coming

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Explore:  MSHA OSHA

POST-ELECTION AVALANCHE OF RULES COULD BE COMING

In the face of strong criticism by the business community that regulations were holding back the economy and job creation, in 2011 the White House began putting the brakes on numerous initiatives that were working their way through the regulatory process. However, with the election over, speculation has arisen that the floodgates will begin to open.

That could mean a number of new rules from OSHA and MSHA. Five OSHA rules remain under review at the White House: occupational exposure to silica, electric power transmission and distribution, the handling of retaliation complaints, standards improvement project, and occupational injury and illness recording and reporting. The MSHA rules are pattern of violations, proximity detection and civil penalties. All the rules might move forward, although the proposal on silica faces the biggest obstacles due to concerns over costs and benefits and new concerns raised about their impact on fracking.

Waiting in the wings is a proposed rule from MSHA to control respirable coal dust that could include a 50 percent cut in the current permissible exposure limit. The agency has not yet sent a final rule to the White House for review, but it is widely believed the rule is done and merely awaits a more favorable political climate. However, like the silica rule, it faces hostility in Congress. In 2012 budget language, Congress prohibited MSHA from implementing or enforcing a respirable dust rule. It went even further in 2013 budget language by refusing to permit MSHA to continue development of the rule. However, the agency’s 2013 appropriation has not been passed; MSHA and all other federal agencies continue to work at 2012 funding levels under a continuing resolution.