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Report: OSHA didn’t follow procedures when issuing guidance documents

A new report says in 80% of cases analyzed, OSHA didn’t follow proper procedures when issuing guidance documents. 

The Department of Labor’s Office of Inspector General (IG) says between Oct. 1, 2013 and March 18, 2016, OSHA issued 296 guidance documents.

Of 57 random documents reviewed by the IG, 46 (80%) didn’t follow written procedures for OSHA’s criteria for issuing guidance.

The IG says as a result, OSHA risked issuing guidance that would create or change rules – and add cost burdens for businesses – in violation of laws requiring public notice and comment.

4 successful challenges

That could lead to court challenges, according to the IG, and that’s what happened in four cases:

  • OSHA rescinded guidance about participation by employee representatives during OSHA inspections after stakeholders went to court to challenge the document.
  • As part of a settlement, OSHA rescinded interpretation of the Process Safety Management (PSM) list of covered concentrations of chemicals and replaced it.
  • OSHA rescinded an interpretation of the PSM standard’s Recognized and Generally Accepted Good Engineering Practices and replaced it as part of a settlement, and
  • A court threw out OSHA’s interpretation of the PSM standard’s Retail Exemption.

Non-compliance continues

The IG recommends OSHA improve procedures and train staff about issuing guidance documents. OSHA replied it’s working on fixes.

Neither the IG nor OSHA addressed what might happen to the other guidance documents that were issued in violation of the Administrative Procedures Act (APA) during the Obama administration.

The Trump administration has its own APA problems. The Washington Post reports the current administration has lost two-thirds of cases in court where it’s accused of violating the APA.

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