Late last year, on October 9, 2019, President Trump issued two Executive Orders (“EOs”) that could have a dramatic impact on the way OSHA and other executive agencies operate:
- Executive Order 13891, the Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents (Guidance Documents EO); and
- Executive Order 13892, the Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication (Transparency EO).
These EOs were designed to, according to the President:
“protect Americans from out-of-control bureaucracy and stop regulators from imposing secret rules and hidden penalties on the American people. . .”
In a nutshell, the Guidance Documents EO mandates that the public be provided with an opportunity to comment on proposed guidance and interpretive documents (similar to what is required under the Administrative Procedures Act for rulemaking). It requires notice and publication of guidance, and the creation of a comprehensive online database where all such guidance must be housed and easily searched.
The Transparency EO focuses on agency enforcement actions. Most significantly, it requires agencies to provide all parties potentially subject to an enforcement action the opportunity to engage with the agency over the merits of the action prior to commencement of the enforcement action. It also:
- prevents agencies from enforcing standards that are not public and that would cause unfair surprise to the regulated entity (i.e., no enforcement relying on guidance documents that are not created and maintained pursuant to the Guidance Documents EO);
- requires the publication of any potential new or expanded jurisdiction in the Federal Register;
- mandates the development of procedures for encouraging voluntary self-reporting in exchange for penalty reductions; and
- requires that agencies adhere to standards in the Paperwork Reduction Act when asking regulated parties for information without a formal subpoena or investigative demand.
The two new Executive Orders align with the President’s business-friendly agenda, making it more difficult for regulators to engage in backdoor rulemaking (i.e., supplementing or changing regulations via the issuance of guidance documents developed without public input), and easier for businesses to keep track of the regulatory requirements with which they must comply, and to head off enforcement actions before they begin.
How will the Executive Orders change the OSH regulatory landscape, and what should employers expect next? Continue reading