本帖最后由 chenlf 于 2012-1-30 22:27 编辑
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第四部分: 由于OSHA没有按期在法规中消除UL和FM的特权位置,导致MET与OSHA第三场诉讼。OSHA采取多种手段,力图维持现有法规。
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比较有趣的部分是,OSHA先是以程序不合进行辩解,随后辩解平等竞争不关己事,不平等不代表产品不安全;其他如辩解UL会很在意自己的声誉、以保密原因不公开文件等等,读来都很熟悉、很有趣。(单词motion:动议)
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1994: The Third Case of MET v. OSHA % m* j$ y1 e! v: f# g
For MET, OSHA's July 1993 backpedaling was toomuch' to take, and it filed suit for a third time in January 1994. The suitcharged, in part, that a period of indefinite “temporary recognition"favoring UL and FM was a continuation of the “Special status" that thesettlement agreement had bound OSHA to eliminate. OSHA, said MET, was in breachof is agreement.
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In response, the government filed its usualmotion to dismiss, which ran to 23 pages this time. It insisted it had compliedwith all the terms of the settlement agreement, and besides, it claimed, METwas in the wrong court at the wrong time. The new NRTL rules were not really rulesat all but rather "standards" adopted under Section 6 of the OccupationalSafety and Health Act of 1970, and as such could be challenged only in theFederal Court of Appeals, not in Judge Young's Federal District Court. Furthermore, "standards"had to be challenged within 60 days of their issuance, and the 60-day period inthis instance had expired in 1988.
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Judge Young, speaking for the Federal District Court, threw out the government'smotion to dismiss. In its settlement agreement, he said, OSHA had pledged toundo the "anti-Competitive effects" created by its regulations.Although a year had now passed since the scheduled expiration of theirtemporary recognition, UL and FM continued to function as NRTLs, but withoutthe constraints that applied to the others. "Unlike the other NRTLs,"Judge Young said, "UL and FMRC are not subject to OSHA on-site reviews norpublication of their capabilities, in the Federal Register … This differential treatment of UL and FMRCperpetuates the same governmentally prescribed competitive advantages that this Court's Orders and the Settlement Agreement were intended toeliminate." As to the government's claim that MET was in the wrong court,the judge replied that the company was challenging the government's breach ofthe settlement agreement, not the "standards" themselves, and heldthat the District Court had jurisdiction over such breaches. 5 D# o6 ^* S3 _2 D
Confident that OSHA would now act expeditiously on UL's and FM'sapplications, MET proposed settlement talks, but to no avail: the governmentfiled a motion for the Court to reconsider its decision on the motion todismiss, on the new grounds that OSHA had never had the authority in the firstplace to agree to remove UL's competitive advantage. Judge Young gave the matterlittle thought, dismissing the government's arguments by writing "Motion denied. . ." in the margin. 7 ^) ?" J7 [7 `' l9 y) D, F: T
Having once more beaten back the government’sefforts to have the case thrown out, MET now pressed for a quick resolution.Perhaps anticipating an unwelcome outcome, UL intervened. Now there were three parties:MET, OSHA and UL. UL swiftly seized on the government’s most recent argumentthat OSHA had overstepped its hounds in promising to eliminate the competitiveadvantage enjoyed by UL and FM: OSHA's authority, it said, was limited to the provisionof a safe and healthful workplace. Its brief read, in part, "OSHA has noauthority to repair general unfairness [to competitors]. Simply stated, MET'salleged unfair situation' has nothing to do with achievement of a safe andhealthful working environment."
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MET countered that while OSHA was not generallyresponsible for ensuring equitable competition, it did have an obligation torectify any problem that it either caused or perpetuated. UL's position, MET maintained,was comparable to that taken by a corporation that "negligently injured aperson and then claimed that to compensate the injured party would be an [act beyondits authority]."
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Key Issue: Did UL Comply?
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For its part, OSHA now argued that whatever themerits of MET's legal claims, UL and FM were not in fact using the rules totheir advantage: "It is not true, as MET asserts, that UL and FM can gaincompetitive advantage by failing to maintain proper equipment and facilities ...This assertionignores the reality of the product testing business and assumes that UL [does]not care about [its] reputation." MET was incensed: why was ULdeemed to “care about its reputation” and MET not? To support the government's argument,UL filed an affidavit stating that it operated within OSHA regulations, leavingit to MET to prove otherwise. . @) S. q+ I! w1 U* N$ Q- |
MET attempted to obtain documents relating to OSHA's inspections ofUL, but the government initially refused to release them, claiming"deliberative process privilege". One ofthese "privileged" documents turned out to be a memo from Lead AuditorKenneth P. Klouse to OSHA, in which Klouse states that following a review ofUL's Client Test Data Program (CTDP), Compliance Management and Product AssuranceProgram (COMPASS), and Total Certification Program (TCP), he was forced toconclude that "UL Inc. operates organizational programs that appear to bebeyond the scope of the October 22, 1993 'Interpretations Used in Evaluating anNRTL's Capabilities' and may require review by OSHA legal personnel."Thus, even as the government was insisting that UL would not dare operateoutside OSHA's rules, the agency's lead auditor was confiding something verydifferent to his superiors.
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In announcing its decision on February 3, 1995, theCourt reiterated its authority to enforce settlement agreements, notwithstandingthe variable classification of 1910.7 as a "regulation" or a "standard." The Courtordered OSHA expeditiously tocomplete its review of UL's and FM’s applications.
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