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Inside OSHA article

This article appears with the permission of Inside Washington Publications. All Rights Reserved.

GOP lawmaker demands DOJ review
McIntosh INVESTIGATION: OSHA paid contractors to testify at ergo hearings

A House Republican is asking the Department of Justice (DOJ) to provide a legal opinion on the use of contractors in OSHA's ergonomics rulemaking process, charging that the agency paid 28 contractors $10,000 each to appear at OSHA's hearings on its ergonomics proposal.

Congressional and industry officials suggest these payments may be illegal and at the very least severely damage the agency's credibility as well as the credibility of the agency's public hearings on ergonomics.

In a May 31 letter (reprinted on page 7) to DOJ, Rep. David McIntosh (R-IN), Chairman of the Subcommittee on National Growth, Natural Resources, and Regulatory Affairs of the Committee on Government Reform says his committee's investigation has raised major questions about the use of contractors by the Department of Labor (DOL).

As part of the probe, McIntosh found that 28 contractors have been awarded $10,000 to testify at the ergonomics hearings, a committee staffer said. "These are public hearings that are supposed to give the public the opportunity to testify," the source stated, adding that OSHA's behavior is "unheard of."

The staffer noted that many of these witnesses did not identify themselves as OSHA contractors at the public hearing or in written testimony. While noting that its investigation is still ongoing and that some contractors have not yet been analyzed, the staffer said all of OSHA's paid contractors that have been scrutinized by the congressional committee supported the agency's ergonomics rule in their public testimony.

In response to the accusations, an OSHA official said the agency "routinely uses paid witnesses" and people who believe this practice is unusual are "dead-wrong." A labor source stated the latest charge brought forth against OSHA is "ridiculous" and the compensation for scientific experts is "standard practice for the agency."

While some observers note that the practice of government agencies paying experts to testify at pubic hearings is not abnormal, these sources say 28 paid witnesses may be excessive.

In the letter to DOJ, McIntosh says he believes the ergonomics rulemaking is defective and asks for a legal analysis of DOL's action, especially "the possible augmentation of DOL full-time equivalents by use of contractors and improper use of contractors for inherently governmental functions in the rulemaking process.

The investigation has peaked the interest of other legislators. During last week's debate on a motion to strike the Northup amendment that would prevent OSHA from spending any FY-2001 funds on ergonomics, Rep. Anne Northup (R-KY) cited OSHA's use of contractors in defense of her amendment. Rep. Rosa DeLauro (D-CT) responded by saying that industry's "high-prized lawyers" are also being well compensated for their role in the hearings.

Sen. Mike Enzi (R-WY), who chairs the Health, Education, Labor and Pensions Subcommittee on Employment, Safety and Training, may hold a hearing on this issue, according to a spokesperson for the lawmaker. Sen. Christopher "Kit" Bond (R-MO) is also looking into the matter.

McIntosh, who asked DOL on May 10 for a list of all contracts awarded by OSHA relating to its ergonomics standard, said of the 70 contracts the agency informed him of, 41 were awarded non-competitively and added the list provided by DOL also includes "28 awards for individuals to testify at DOL's rulemaking hearings."

The ongoing investigation was triggered originally by McIntosh's interest in DOL's use of non-codified documents after OSHA's home office letter fiasco (Inside OSHA, Feb. 21, p14). Now it has branched out to an area that one industry source believes could "kill the ergonomics rule."

The text of McIntosh's letter to DOJ follows.

Text of McIntosh Letter to DOJ on OSHA Contracting
May 31, 2000


Randolph Moss, Esq.
Acting Assistant Attorney General for Office of Legal Counsel
Department of Justice
10th Street and Constitution Avenue, N.W.
Washington, D.C. 20530

David W. Ogden, Esq.
Acting Assistant Attorney General
Civil Division
Department of Justice
10th Street and Constitution Avenue, N.W.
Washington, D.C. 20530

Dear Messrs. Moss and Ogden:

I am writing to bring to your attention two Department of Labor (DOL) pending final rulemakings which, I believe, are defective.

First, DOL's regulatory proposal to use unemployment compensation for paid family leave seems to me to be backdoor legislating. As a consequence, on May 18, 2000 and May 31st, I wrote Office of Management and Budget Director Jack Lew and DOL Secretary Alexis Herman, respectively, to object to DOL's pending final rule, entitled "Birth and Adoption Unemployment Compensation" (popularly known as "Baby UI"). Copies of my letters are enclosed. In light of the Supreme Court's decision in Food and Drug Administration v. Brown & Williamson Tobacco Corp. (120 S. Ct. 1291), and pursuant to the Constitution and Rules X and XI of the United States House Of Representatives, I request that the Department of Justice (DOJ) provide a legal opinion of its ability to defend the Administration's proposed major revision of unemployment compensation against a claim of usurpation of legislative authority, which is solely granted to Congress under Article I of the Constitution.

Second, the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs, which I chair, is investigating possible augmentation of DOL full-time equivalents by use of contractors and improper use of contractors for inherently governmental functions in the rulemaking process. As part of this investigation, on May 10, 2000, I wrote Secretary Herman for information about its contract awards for its ergonomics rulemaking. On May 10th, I also wrote one of DOL's contractors for its ergonomics rulemaking. Copies of my letters are enclosed. On May 26th, DOL provided a listing of 70 contracts awarded from 1996 to 2000 for this rulemaking, including 41 non-competitive awards and 28 awards for individuals to testify at DOL's rulemaking hearings. Pursuant to the Constitution and Rules X and XI of the United States House of Representatives, I request that DOJ provide a legal opinion of the propriety of DOL's use of contractors for what may be inherently governmental functions related to this rulemaking, DOL's use of paid witnesses in its rulemaking hearings, and DOL's use of noncompetitive contracting for noncommercial functions related to its rulemakings.

Please provide both legal analyses before finalization of these rules. If you have any questions about this letter, please contact Professional Staff Member Barbara Kahlow at 226-3058 or Subcommittee Counsel Bill Waller on 226-2067.


David M. McIntosh
Subcommittee on National Economic Growth
Natural Resources, and Regulatory Affairs

cc: The Honorable Dan Burton
The Honorable Dennis Kucinich


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