Two industry groups opposed to OSHA''s ergonomics standard are accusing the agency of a "stealth maneuver" because it inserted 2,000 pages of "eleventh hour" evidence in the ergonomics record that would change the way the rule''s cost is estimated.
The National Association of Manufacturers (NAM) and the National Coalition on Ergonomics (NCE) renewed their calls for OSHA to allow additional time for stakeholders to review and comment on the data.
Estimates of how much the ergonomics rule would cost American business vary widely, and are a hotly debated part of the controversial proposal.
A survey of NAM members conducted earlier this year pegged the cost of complying with the ergonomics regulation in its first year at $6.7 billion. OSHA estimates the rule would cost business $4.2 billion, and generate $9 billion in savings each year.
An OSHA spokesperson denied that the additional information submitted by the agency changed cost estimates. The agency delivered the data a few days before the post-hearing comment period on the proposal closed Aug. 10.
"It is routine to place additional, supplementary information in the docket while the public record is open," said the spokesperson. The new data is nothing more than backup information, such as product supply catalogues, the spokesperson added.
But an attorney for the NCE was reported to have said OSHA has experienced a "sea change" in its approach to the cost analysis of the rule.
Industry groups argued that because the new data was submitted after the close of the public comment period in June, they have not been able to evaluate or respond to the documents.
"If OSHA has seen the light and decided that its preliminary economic analysis was flawed and in need of revamping, we welcome that development," said NAM Vice President for Human Resources Pat Cleary. "OSHA cannot legally restrict its economic analysis on evidence that it has shielded from public scrutiny by submitting it after the public comment period has closed," he concluded.
Despite industry demands that the comment period be extended this year, this latest skirmish in the ergonomics war may have more to do with what happens next year.
OSHA is unlikely to extend the comment period, because the agency is committed to issuing a final rule this year.
Industry complaints about the legality OSHA''s rulemaking process are probably intended to bolster business''s legal challenges to the ergonomics standard, a battle that is widely expected to begin next year.
by James Nash