OSHA Engages in Backdoor Rulemaking — Courtesy of the Supreme Court

By Eric J. Conn

OSHA is attempting to reap the policy-making benefits of a Supreme Court decision that lets regulatory agencies offer new (even contradictory) interpretations of existing rules without following the Administrative Procedure Act’s (“APA”) notice-and-comment rulemaking process, with the most immediate and serious impacts seen in the regulatory landscape of chemical process safety. OSHA policymakers have shown they are eager to exercise new-found authority to unilaterally change the meaning or application of existing regulations to suit their current agenda (i.e., without soliciting stakeholder input and otherwise flouting the traditional checks on agency rulemaking afforded by the APA, such as economic and feasibility analyses).

Perez v. Mortgage Bankers

That is the reality following the high court’s 2015 decision in the closely watched Perez v. Mortgage Bankers case. The Supreme Court’s decision killed a longstanding doctrine, set by the D.C. Circuit, that changes to agency rules, even if the changes are “interpretive” in nature, must go through APA public notice-and-comment.Mortgage Bankers Mortgage Bankers reversed that principle, and held that notice-and-comment rulemaking is not required for “interpretive rules” or “administrative interpretations.”

The effect of the Supreme Court’s new precedence is to free regulators, like OSHA, to change, though internal fiat, long-held positions regarding how its rules must be followed and enforced, and (if recent efforts by OSHA testing its new authority stand) even to whom its rules apply. In the post-Mortgage Bankers world, OSHA has a powerful new tool for backdoor rulemaking, an already favorite route for OSHA to end-run the burdensome standard-setting process imposed by Congress.

OSHA Impact of Mortgage Bankers

OSHA wasted no time taking this new legal doctrine out for a spin. OSHA’s first efforts to utilize the new authority were seen in Continue reading