OSHA Sets Oct. 6 Hearing on Per-Employee Citation Rule

Tidying up its respiratory and training standards to keep per-employee citation on track against serious violators won't be easy after all, OSHA has learned. The agency announced an Oct. 6 "informal public hearing" at 10 a.m. local time at its headquarters building in Washington, D.C., to take comments and testimony on the rule changes it proposed last month, which make explicit that some respiratory and training standards apply on a per-employee basis. Several contractor groups sought a 90-day extension and a hearing, and their comments suggest the contractor community views the changes as far more significant and threatening than OSHA said they are.

The U.S. Chamber of Commerce submitted comments Sept. 17 that say the secretary of Labor has no authority to enact such changes because deciding whether one or more penalties must be assessed in a case is a duty given to the Occupational Safety and Health Review Commission (OSHRC) by the OSH Act. The proposed changes violate the Administrative Procedure Act and will be struck down by a reviewing court, state the Chamber's comments, which were submitted by Randel K. Johnson, vice president of Labor, Immigration and Employee Benefits for the Chamber..  

The proposed changes respond to OSHRC decisions that upheld or rejected per-employee citations and penalties, depending on the precise wording of the standard in question. OSHA's proposal characterized the changes as not significant, but the Associated General Contractors of America said they "will have a significant impact on the regulated employers and small businesses," and the 1,300-member Specialized Carriers & Rigging Association said they "will have a substantial impact on construction employers and in particular our smaller business members." George S. Kennedy, the National Utility Contractors Association's vice president of safety, filed a comment saying NUCA "is concerned that the amendments proposed by OSHA will have a greater impact on the construction industry and our membership than OSHA has envisioned."

A notice of intention to appear to testify at the Oct. 6 hearing -- it will continue on Oct. 7 if necessary -- must be submitted in writing no later than Sept. 26; testimony will be limited to 10 minutes. Fax the notice to the OSHA Docket Office at 202-693-1648, identified by the docket number OSHA-2008-0031 or by RIN 1290-AC23.

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