627 F.2d 984 (9th Cir. 1980), 79-4143, Stoddard Lumber Co., Inc. v. Marshall

Docket Nº:79-4143.
Citation:627 F.2d 984
Party Name:In the Matter of Establishment Inspection of STODDARD LUMBER COMPANY, INC., 1/4 Mile South of City of Yellowstone Highway, St. Anthony, Idaho, Petitioner- Appellant, v. Ray MARSHALL, Secretary of Labor, U.S. Department of Labor, Respondent- Appellee.
Case Date:September 15, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 984

627 F.2d 984 (9th Cir. 1980)

In the Matter of Establishment Inspection of STODDARD LUMBER

COMPANY, INC., 1/4 Mile South of City of

Yellowstone Highway, St. Anthony, Idaho,

Petitioner- Appellant,


Ray MARSHALL, Secretary of Labor, U.S. Department of Labor,

Respondent- Appellee.

No. 79-4143.

United States Court of Appeals, Ninth Circuit

September 15, 1980

Argued and Submitted July 2, 1980.

Page 985

John L. Runft, Runft & Longeteig, Chartered, Boise, Idaho, on brief, for petitioner-appellant.

Charles Hadden, Carin A. Clauss, Benjamin W. Mintz, Allen H. Feldman and Thomas L. Holzman, Washington, D.C., on brief, for respondent-appellee.

Appeal from the United States District Court for the District of Idaho.

Before SNEED and NELSON, Circuit Judges, and GRAY [*], District Judge.

SNEED, Circuit Judge:

Appellant, Stoddard Lumber Company, appeals from an order of the district court holding the company in contempt of court for refusing, on November 29, 1978, to honor an Occupational Safety and Health Administration (OSHA) inspection warrant that was obtained ex parte on November 21, 1978. Stoddard challenges the district court's order on three grounds: (1) the district court erred in finding that the Secretary of Labor's inspection selection method was exempt from the notice and comment rulemaking procedures of the Administrative Procedure Act (APA) under 5 U.S.C. § 553; (2) the district court erred in finding that Stoddard fit within the standards outlined in the Secretary's inspection selection plan; and (3) the Secretary lacked the authority to apply ex parte for inspection warrants under 29 C.F.R. § 1903.4. We find no merit in appellant's challenges and affirm the contempt order.

Our jurisdiction rests on 28 U.S.C. §§ 1291 and 1294(1).



Stoddard Lumber Company is an Idaho corporation engaged in the business of producing lumber and other wood products for shipment to points both inside and outside the State of Idaho, and is thereby subject to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq., (hereinafter referred to as "the Act"). 1 Since July 1, 1974, OSHA's Boise Area Office has utilized a detailed procedure for identifying and selecting particular work establishments for inspection pursuant to section 8(a) of the Act. Under OSHA's General Schedule Inspection Selection Process, OSHA inspections are divided into two categories: (1) unscheduled inspections, which are conducted in response to the receipt of information of hazardous working conditions at a particular establishment; and (2) general schedule inspections, which are scheduled on the basis of objective selection criteria. 2

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Utilizing this inspection selection procedure, Richard Jackson, OSHA Area Director for the State of Idaho, selected Stoddard for a general schedule inspection, and assigned an OSHA compliance and safety officer to conduct it. However, on September 26, 1978, when compliance officer Garney Coffey attempted to inspect the Stoddard workplace, the company refused him entry. Thereupon, the Secretary of Labor filed an application for an ex parte inspection warrant in the United States District Court for the District of Idaho. Based on the Secretary's warrant application and accompanying documents, the district court found sufficient probable cause to issue a warrant authorizing a full inspection of the Stoddard premises.

On November 29, 1978, an OSHA compliance officer returned to the Stoddard workplace and attempted to execute the warrant, but the company, after consulting with its attorney, again refused to permit the inspection. The Secretary then applied to the district court for an order holding Stoddard in contempt. The district court issued an order directing Stoddard to show cause why it should not be held in contempt. After a hearing held on the show cause order, the court entered an order holding the company in contempt for its refusal to honor the OSHA inspection warrant. The court fined Stoddard $500 plus an additional $100 for each succeeding refusal to permit an inspection. 3

Stoddard contends that the warrant was invalid because it was issued pursuant to an OSHA regulation which was not promulgated in accordance with the APA notice and comment rulemaking procedures under 5 U.S.C. § 553. Alternatively, appellant argues that the warrant was invalid because it lacked an adequate showing of probable cause, and because it had been obtained ex parte.



The Act evidences a strong congressional policy that every worker in the United States should be afforded a safe working environment. 29 U.S.C. § 651(b). To that end, the Secretary of Labor is invested with limited authority to enter and inspect workplaces for occupational hazard "during regular working hours and at reasonable times . . . within reasonable limits and in a reasonable manner . . . ." 29 U.S.C. § 657(a)(2). The Secretary is also given authority to "prescribe such rules and regulations as he may deem necessary to carry out (his) responsibilities under this chapter, including rules and regulations dealing with the inspection of an employer's establishment." 29 U.S.C. § 657(g)(2).

Stoddard contends that the Secretary's General Schedule Inspection Selection Process is per se unreasonable because it is a "rule" 4 that has not been promulgated in

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accordance with the formal rulemaking procedures of 5 U.S.C. § 553. Section 553 requires publication of an agency's rules in the Federal Register at least thirty days before its effective date, and that persons subject to an agency's rules be given notice of and an opportunity to comment on proposed rules. However, by its own terms, the notice and comment requirements of 5 U.S.C. § 553 do not apply "to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice . . . ." 5 U.S.C. §...

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