Court shoots down OSHA reform program

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A federal court has overturned an Occupational Safety and Health Administration project designed to reinvent workplace inspections, ruling that the agency didn't follow proper rulemaking procedures.

Last Friday, the D.C. Circuit Court of Appeals stymied OSHA's Cooperative Compliance Program, which gives businesses the opportunity to reduce workplace inspections by developing stringent safety policies. If OSHA wants to re-start the reinvention-minded project, the agency has to first propose it in the Federal Register and then give businesses the opportunity to comment on the proposal, the court ruled.

The Cooperative Compliance Program "is intended to, and no doubt will, affect the safety practices of thousands of employers," the court wrote in its ruling. "The value of ensuring that the OSHA is well-informed and responsive to public comments before it adopts a policy is therefore considerable."

Under the Cooperative Compliance Program, OSHA offered more than 10,000 employers in dangerous industries the opportunity to reduce their chances of an OSHA inspection by 70 to 90 percent. OSHA inspections can be time-consuming and result in heavy fines. In return, the companies had to agree to develop safety policies and programs that in some cases would go above the requirements of workplace safety laws.

In a pilot project of the program in Maine, companies reduced serious injuries by 70 percent.

The U.S. Chamber of Commerce, which challenged the program in court, argued that although the program was labeled "cooperative," OSHA coerced businesses into signing on.

Stephen A. Bokat, head of the chamber's legislative arm, praised the court's ruling.

"OSHA imposed these requirements without ever giving American business the right to review and comment on them," Bokat said. "It demonstrates OSHA's paternalistic attitude that they know better than business and have nothing to learn from business."

OSHA released a statement from Labor Secretary Alexis Herman saying that the Labor Department is "deeply disappointed in the court's ruling."

"While we are reviewing the decision, we will continue our outreach efforts aimed at helping high-hazard employers learn how they can improve workplace safety and health before an OSHA inspector arrives at their door," Herman said.

An OSHA spokesman said a decision on how the agency will proceed with workplace inspections and the Cooperative Compliance Program will come out later this week.

Regulatory agencies like OSHA are increasingly looking for alternatives to hard-nosed inspections to improve compliance with federal safety, health and environmental laws. The Environmental Protection Agency, the Food and Drug Administration and the Fish and Wildlife Service are among the agencies that have attempted to replace inspections with cooperative compliance programs.

The case is U.S. Chamber of Commerce vs. Labor Department (98-1036a).

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