OSHA Fine Increases Draw State Safety Agencies' Objection

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By Bruce Rolfsen

Aug. 17 — States with workplace safety agencies are balking at federal OSHA's insistence they increase fines in line with the federal government's 78 percent boost that began Aug. 2.

In letters to the Department of Labor, state officials said the department and its Occupational Safety and Health Administration exceeded their authority.

The department and the agency shouldn't have used the 2015 federal law allowing the fine increase to rewrite the federal regulations state workplace safety agencies must follow in order retain their federal approval, the states said.

The letters were among the public comments submitted to the department about the interim final rule that detailed the new fine structure.

“The rule does not and should not be understood to reflect an expectation that State Plans impose penalties in a manner identical to federal OSHA,” the chairman of the Occupational Safety and Health State Plan Association, Jim Krueger, wrote in an Aug. 15 letter letter to the department.

“The assessment of penalties has been and must continue to be one of the many factors considered in determining the effectiveness of states' enforcement activities,” continued Krueger, who oversees enforcement for the Minnesota state plan.

Raising Ire

In addition to the State Plan Association's objections, similar letters were sent by officials from Kentucky, New Mexico and North Carolina.

The states don't question that the 2015 law— the Inflation Adjustment Act Improvements Act of 2015—allowed federal OSHA to raise its fines in line with inflation since the last time penalties were increased in 1990.

The states objected to the interim final rule (81 Fed. Reg. 43,430) used to put the law into action. One of the interim final rule's provisions revised the explanation of what state plans must do to keep their federal approval—the State Plan Indices of Effectiveness—contained in 29 C.F.R. 1902.4.

North Carolina Department of Labor Commissioner Cherie Berry wrote in an Aug. 15 letter that while state plans have been expected to have “effective sanctions” against employers who violate standards, federal OSHA hadn't required states to have identical penalties.

The rule (RIN:1290-AA31) mandates that states adopt federal OSHA's penalty structure. “OSHA will require State Plans to increase their penalties to reflect the federal penalties increases at the state levels in order to maintain this ‘at least as effective',” the rule says.

The states said the law allowing federal OSHA to increase fines only applied to federal penalties, not fines imposed by states.

“Congress only specified that USDOL use an interim final rule to change federal civil penalties, not the Indices of Effectiveness applicable to state plans,” New Mexico's acting secretary of the Environment Department, Butch Tongate, wrote the department in an Aug. 15 letter.

Hearings Before Changes

The states said if federal OSHA wants to change the rule covering state plans, then the agency should follow the Administrative Procedure Act by beginning a separate rulemaking, including hearings, instead of depending on the interim final rule which required no hearings before taking effect.

State plan officials and federal OSHA have been at odds over fines levied by states since 2010 when OSHA Administrator David Michaels said he wanted the states to raise their fines to match OSHA's penalties.

Despite the federal pressure, by the end of fiscal year 2015, of the 21 state plans covering private employers, nine had average fines for serious violations that were less than half the federal average of $2,003. Only three states exceeded the federal average.

To contact the reporter on this story: Bruce Rolfsen in Washington at brolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com .

For More Information

The letters and other public comments about the interim final rule are available at http://www.regulations.gov by searching for Docket No. DOL-2016-0005.

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