Uncooperative Compliance

Industry groups are not cooperating with the Occupational Safety and Health Administration's new Cooperative Compliance Program.

The U.S. Court of Appeals for the District of Columbia Circuit in February halted OSHA's Cooperative Compliance Program (CCP) until the court can review industry concerns that the new program is unfair. Because of the lengthy litigative process, the CCP, if allowed to run, would not start up again until the fall, according to OSHA.

"We think the CCP is coercive," said Joe Davis, a spokesman for the U.S. Chamber of Commerce, one of several groups involved in the lawsuit. "We also don't think OSHA is attempting to go through the proper regulatory channels to get new regulations on the book. They're trying to circumvent that process."

The chamber, along with the National Association of Manufacturers, the American Trucking Associations, the Food Marketing Institute and several other trade associations, is contending that OSHA needed to have a comment period before starting up the CCP. OSHA argues that the CCP is an enforcement program, so a comment period was not required. The industry groups also hold that the OSHA program violates a Supreme Court ruling that neutral criteria must be used when selecting companies for inspection.

The CCP targets the most dangerous workplaces in the country, allowing companies to agree to develop better safety policies with the help of OSHA safety and health experts. If a company agrees to join the CCP, the company is removed from OSHA's primary inspection list, reducing the chances of an OSHA inspection from 100 percent to 30 percent. OSHA inspections often lead to fines and lost work time.

Stephen Gaskill, OSHA's communications director, said the CCP would be a positive step for industry, noting that 10,000 work sites have signed up for the program.

"What we've offered instead of just wall-to-wall inspections is a choice. The intent of this program is to help companies use OSHA's safety and health professionals to fix problems," Gaskill said. "We're not just inspectors. We're safety and health professionals. Our goal is to make sure workers go home safe at night."

But Quentin Riegel, a spokesman for the National Association of Manufacturers, said the CCP is not really a voluntary program.

"A lot of companies feel that they have no choice," Riegel said. "This system of in effect forcing companies into the program has never been subject to notice and comment rulemaking."

Not so, said Gaskill, who argued that businesses have been consulted on the project, and pilot programs for the CCP have been running for several years.

"There's a core group that's opposed to everything OSHA does, regardless of how we do it," Gaskill said. "There's a core group that's opposed to this agency."

Industry groups are also charging OSHA with sneaking ergonomics regulations into the CCP. Ergonomics has been a highly contested political issue for several years. Congress barred OSHA from publishing any proposed ergonomics rules this fiscal year.

The CCP "is sort of a back door for OSHA," Davis charged. "We think industry and government should work together to come up with good, sound, scientific-based regulations that will help solve real problems."

Gaskill says the ergonomics guidelines under the CCP are meant to help businesses develop good safety policies. "We were not being prescriptive with ergonomics," Gaskill said.

OSHA submitted a motion for expedited review of the CCP last week, but the court denied the motion. OSHA and the industry groups will be submitting briefs to the court in April and May.