174 F.3d 206 (D.C. Cir. 1999), 98-1036, Chamber of Commerce of United States v. United States Dept. of Labor

Docket Nº:98-1036.
Citation:174 F.3d 206
Party Name:CHAMBER OF COMMERCE OF THE UNITED STATES, National Association of Manufacturers, American Trucking Associations, Inc., and Food Marketing Institute, Petitioners, v. UNITED STATES DEPARTMENT OF LABOR, Occupational Safety & Health Administration, and Alexis M. Herman, Secretary, United States Department of Labor, Respondents. Food Distributors Intern
Case Date:April 09, 1999
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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174 F.3d 206 (D.C. Cir. 1999)

CHAMBER OF COMMERCE OF THE UNITED STATES, National

Association of Manufacturers, American Trucking

Associations, Inc., and Food Marketing

Institute, Petitioners,

v.

UNITED STATES DEPARTMENT OF LABOR, Occupational Safety &

Health Administration, and Alexis M. Herman,

Secretary, United States Department of

Labor, Respondents.

Food Distributors International, et al., Intervenors.

No. 98-1036.

United States Court of Appeals, District of Columbia Circuit

April 9, 1999

Argued Dec. 3, 1998.

Page 207

On Petition for Review of an Order of the Occupational Safety and Health Administration.

Page 208

Baruch A. Fellner argued the cause for petitioners. With him on the briefs were William J. Kilberg, Eugene Scalia, Stephen A. Bokat, Janice S. Amundson, Daniel R. Barney, Lynda S. Mounts, George Green, and Peter A. Susser.

Bruce Justh, Assistant Counsel for Appellate Litigation, U.S. Department of Labor, argued the cause for respondents. With him on the brief were Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health, and Barbara Werthmann, Counsel for Appellate Litigation.

Before: SILBERMAN, GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge SILBERMAN.

GINSBURG, Circuit Judge:

The Occupational Safety and Health Administration, part of the United States Department of Labor, issued a "Directive" pursuant to which each employer in selected industries will be inspected unless it adopts a comprehensive safety and health program designed to meet standards that in some respects exceed those required by law. The Chamber of Commerce objects to the Directive on the grounds that prior notice and an opportunity to comment were required by the Administrative Procedure Act, and that the envisioned inspections will violate the Fourth Amendment to the Constitution of the United States. Because we agree with the Chamber that the agency issued the Directive in violation of the APA, we do not reach the constitutional issue.

I. Background

According to the OSHA, the Directive, which establishes the "OSHA High Injury/Illness Rate Targeting and Cooperative Compliance Program," represents a new, cooperative approach to the problem of worker safety at some 12,500 relatively dangerous workplaces. The Directive first provides that each of these sites will be placed on a so-called "primary inspection list" and subjected to a comprehensive inspection before the end of 1999. (But for the Directive, the OSHA might have searched some of the sites, but it does not claim that it would have searched all of them). The Directive next provides that the agency will remove a workplace from the primary inspection list, and reduce by 70 to 90 percent the probability that it will be inspected, if the employer participates in the agency's "Cooperative Compliance Program."

Participation in the CCP obligates the employer to satisfy eight requirements. An employer must agree, for example, to "[i]dentify and correct hazards" and to "[w]ork toward a significant reduction of injuries and illnesses." Most important is the requirement that the employer implement a "comprehensive safety and health program" (CSHP) that meets the standard established in the OSHA's 1989 Safety and Health Program Management Guidelines.

The Directive spells out what is entailed. Most of the requirements are procedural. A CSHP, for example, should include regular, employer-conducted inspections of the workplace, investigations of "near-miss" incidents, and a means by which employees can complain of unsafe practices and circumstances without fear of reprisal. An adequate CSHP should also, however, address specific substantive problems associated with "ergonomics, materials handling, bloodborne pathogens, confined space, [and] hazard communication." Although many aspects of a CSHP are, not surprisingly, directed toward the prevention or correction of violations of the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678, the Directive makes clear that compliance with the Act is not in itself sufficient for participation in the new CCP: "An effective [CSHP] looks beyond specific requirements of law to address all hazards. It will seek to prevent injuries and illnesses,

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whether or not compliance is at issue." Further to this point, an acceptable CSHP also obligates the employer to be generally in compliance with applicable "voluntary standards," "industry practices," and even "suppliers' safety recommendations."

II. Analysis

The Chamber of Commerce petitions for review of the Directive first on the ground that the agency should have conducted a notice and comment rulemaking proceeding prior to issuing it. Before considering the Chamber's argument, however, we must consider the agency's objection that the case is not within the jurisdiction of this court.

  1. Jurisdiction

    Under the OSH Act, 29 U.S.C. § 655(f), this court has jurisdiction to review a "standard" issued by the OSHA. An OSHA "regulation," however, is subject to review in the district court, pursuant to the Administrative Procedure Act, 5 U.S.C. § 703. See Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1467 (D.C.Cir.1995). The OSH Act does not define the term...

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