56 F.3d 1465 (D.C. Cir. 1995), 94-1413, Workplace Health & Safety Council v. Reich

Docket Nº:94-1413.
Citation:56 F.3d 1465
Party Name:WORKPLACE HEALTH & SAFETY COUNCIL, Petitioner v. Robert B. REICH, Secretary of Labor, et al., Respondents.
Case Date:June 20, 1995
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1465

56 F.3d 1465 (D.C. Cir. 1995)

WORKPLACE HEALTH & SAFETY COUNCIL, Petitioner

v.

Robert B. REICH, Secretary of Labor, et al., Respondents.

No. 94-1413.

United States Court of Appeals, District of Columbia Circuit

June 20, 1995

Argued May 16, 1995.

Francis E. Froelich, Washington, DC, argued the cause for petitioner. With him on the briefs was Anthony J. Thompson.

Page 1466

Bruce Justh, Asst. Counsel, U.S. Dept. of Labor, Washington, DC, argued the cause for respondents. With him on the briefs were Joseph M. Woodward, Associate Sol., and Barbara U. Werthmann, Counsel.

Before BUCKLEY, SENTELLE and ROGERS, Circuit Judges.

SENTELLE, Circuit Judge:

In a pre-enforcement proceeding, petitioner Workplace Health and Safety Council (the "Council") challenges a Department of Labor ("DOL") rulemaking under the Occupational Safety and Health Act ("OSH Act"), 29 U.S.C. Sec. 651 et seq. (1988), claiming that the DOL failed to address a variety of claims allegedly raised in petitioner's comments to the proposed rule and that the rule itself is unconstitutional. Because we conclude that the challenged OSH rule is a regulation, rather than an OSH "standard," as defined in 29 U.S.C. Sec. 652(8), we dismiss this petition for lack of jurisdiction and transfer it to the District Court for APA review under 5 U.S.C. Sec. 703 (1988).

I.

The Secretary of Labor, acting through the Occupational Safety and Health Administration ("OSHA"), has authority under the OSH Act to issue health and safety "standards" and "regulations" through rulemaking pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 551 et seq. (1988). See 29 U.S.C. Secs. 655, 657(c), (g) (1988). Pursuant to the Secretary's statutory authority to promulgate regulations "necessary or appropriate for the enforcement of [the OSH Act] or for developing information regarding the causes and prevention of occupational accidents and illnesses," 29 U.S.C. Sec. 657(c)(1), and his authority to "prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses," id. at Sec. 657(c)(2), OSHA promulgated a rule entitled, "Reporting of Fatality or Multiple Hospitalization Incidents," 59 Fed.Reg. 15,594 (April 1, 1994), codified at 29 C.F.R. Sec. 1904.8 (1994). That rule, deemed a "regulation" by OSHA in the preamble to section 1904, 29 C.F.R. Sec. 1904.8, provides in its entirety:

(a) Within 8 hours after the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident, the employer of any employees so affected shall orally report the fatality/multiple hospitalization by telephone or in person to the Area Office of the Occupational Safety and Health Administration (OSHA), U.S. Department of Labor, that is nearest to the site of the incident or by using the OSHA toll-free central telephone number.

(b) This requirement applies to each such fatality or hospitalization of three or more employees which occurs within thirty (30) days of an incident.

(c) Exception: If the employer does not learn of a reportable incident at the time it occurs and the incident would otherwise be reportable under paragraphs (a) and (b) of this section, the employer shall make the report within 8 hours of the...

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