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Regulatory Rumble

The successful movement to stall OSHA's Ergonomics Rule shows how you can help shape the federal regulatory process-and maybe avoid a pain in the neck.
July 1, 2001
URL: http://www.entrepreneur.com/article/41314

Entrepreneurs narrowly dodged a bullet this year. If OSHA had had its way, your company would have been subject to a huge new set of ergonomics standards starting October 14. The 1,600-page rule, imposed just four days before former President Clinton left office, would have required businesses of all sizes to establish expensive ergonomics programs if two employees complained of repetitive stress injuries. But after business groups flooded Congress with objections, both the House and Senate voted in early March to nullify the rule, proving that business owners who make the effort to get involved can have a say in the regulations that will govern their companies.

The issues here are so complex and opinions so strong that OSHA, which had been exploring repetitive stress injuries for the past decade, received more public comments on its proposed ergonomics rule than on any other rule since 1988. In light of the controversy, both houses of Congress voted last fall to postpone implementation of the rule to allow further study. But OSHA forged ahead and issued its final rule. Immediately the U.S. Chamber of Commerce, the Society for Human Resources Management, the National Federation of Independent Business and numerous other business advocacy groups sued to stop the agency, filing 31 separate lawsuits claiming that it ignored many of the suggestions made during the public comment phase.

But it was Congress, responding to a flood of letters and faxes from business owners and advocates, that put a stop to it all. It was the first application of the little-known Congressional Review Act (passed in 1996 as part of the Small Business Regulatory Enforcement Fairness Act), which allows Congress to nullify regulations by passing joint resolutions by a simple majority in both houses. Under this law, the Labor Department can't reissue the regulations in substantially the same form. That means the whole issue goes back to the drawing board, and employers have time to deal with repetitive stress problems in ways that make sense in their own workplaces. (Note that under existing policy, OSHA can still take action against employers with a history of workplace injuries, whatever the type.)

How can you get involved in the regulatory process? By law, federal agencies can't issue regulations without first making them available for public comment. That means you can read any proposed regulations (typically on the Web site of the agency involved) and send written comments. So sit up and take notice when you hear about pending regulations. Consider the impact they would have on your business. Then make your opinion known.

In many cases, the agency will hold hearings in various cities around the country before writing proposed regulations. As a citizen, you're entitled to attend those hearings and to ask for a chance to speak. Once a regulation has been proposed, the relevant administrative committee typically holds hearings, inviting business and labor groups to send representatives-for instance, a few entrepreneurs who would be affected by these regulations. If you've been active on a committee for your industry group, you could be the business owner asked to speak in Washington.

Sometimes, as in the ergonomics fiasco, a federal agency pushes through cumbersome regulations in spite of the review process. The good news is that the law provides ways to restore balance-if business owners band together and speak loudly enough. Don't miss your chance to be heard.


Steven C. Bahls, dean of Capitol University Law School in Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.