Associated Indus. of NYS, Inc. v. United States Dept. of L.

• Decision Date: 04 October 1973
• Docket Number: No. 221,Docket 73-1978.,221
• Citation: 487 F.2d 342
• Parties: ASSOCIATED INDUSTRIES OF NEW YORK STATE, INC., Petitioner, v. The UNITED STATES DEPARTMENT OF LABOR et al., Respondents.
• Court: U.S. Court of Appeals — Second Circuit

487 F.2d 342 (1973)

ASSOCIATED INDUSTRIES OF NEW YORK STATE, INC., Petitioner, v. The UNITED STATES DEPARTMENT OF LABOR et al., Respondents.

No. 221, Docket 73-1978.

United States Court of Appeals, Second Circuit.

Argued September 14, 1973.

Decided October 4, 1973.

COPYRIGHT MATERIAL OMITTED

Charles E. Cooney, Jr., Syracuse, N. Y. (George R. Fearon, and Costello, Cooney & Fearon, Syracuse, N. Y., of counsel), for petitioner.

Donald Etra, Dept. of Justice, Washington, D. C. (Irving Jaffe, Acting Asst. Atty. Gen., Michael A. Levin, and Marc Hillson, Dept. of Labor, of counsel), for respondents.

John F. McElvenny, Philadelphia, Pa., for Pennsylvania Manufacturers' Assn., amicus curiae.

Leon L. Lemaire, Hartford, Conn., for Connecticut Business & Industry Assn., Inc., amicus curiae.

Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

This petition to review so much of an order of the Department of Labor, 38 F.R. 10930, 10933 (1973), as set minimum numbers of lavatories in industrial establishments is an early illustration of the new tasks imposed on the federal courts of appeals by legislation enacted during the past decade which subjects to their review a wide variety of determinations, by agencies within the executive branch or newly created commissions,¹ many of which are legislative in character and result from informal rulemaking. The difficulty of discharging the responsibilities Congress has created for us is exacerbated by the absence of statutory harmony with respect to the nature and scope of review.²

I. The Statutory Scheme

We are here concerned with the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., already yclept OSHA. Section 5 of the Act, 29 U.S.C. § 654, requires every employer engaged in a business affecting commerce to furnish each employee "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm" and to "comply with occupational safety and health standards promulgated under this chapter." The Secretary of Labor is given authority to promulgate such standards by a two-step process. For a two year period, the Secretary, without regard to the Administrative Procedure Act, could promulgate "any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees," 29 U.S.C. § 655(a). "National consensus standard" was defined, 29 U.S.C. § 652(9), to mean a standard which

(1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies.

After the end of this stop-gap period, standards were to be promulgated, modified or revoked by a rulemaking procedure specified in 29 U.S.C. § 655(b). Petitioner does not dispute that, broadly speaking, this is to be "notice and comment" rulemaking of the sort provided in § 4 of the APA, now 5 U.S.C. § 553. The proposed standard is to be published in the Federal Register, and interested persons are to be given thirty days to submit written data or comments. During the same period any interested person may file written objections and request a public hearing thereon. Within another thirty days the Secretary shall publish in the Federal Register a notice specifying the standard to which objections have been filed and setting a hearing. Within sixty days after the period for filing comments or, if objection and request for hearing have been timely filed, within sixty days after the hearing, the Secretary shall take action. Any standard, accompanied by a statement of the reasons for it, shall be published in the Federal Register, 29 U.S.C. § 655(e). The Secretary has fleshed out this provision by a regulation, 29 C.F.R. § 1911.18(b), as amended, 37 F.R. 8665 (1972):

Any rule or standard adopted under paragraph (a) of this section shall incorporate a concise general statement of its basis and purpose. The statement is not required to include specific and detailed findings and conclusions of the kind customarily associated with formal proceedings. However, the statement will show the significant issues which have been faced, and will articulate the rationale for their solution.

The judicial review provision, 29 U.S.C. § 655(f), is as follows:

Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay of the standard. The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.

II. The Proceedings in the Department of Labor

In May 1971, the Secretary, acting under § 655(a), promulgated a general sanitation standard, avowedly as a national consensus standard, which included the subject of lavatories that is here at issue. 36 F.R. 10593, 10594. This standard, 29 C.F.R. § 1910.141, was based on a 1968 American National Standards Institute (ANSI) general sanitation standard and required that in all places of employment whether industrial or nonindustrial

At least one lavatory * * * shall be provided for every 10 employees * * * or portion thereof, up to 100 persons; and over 100 persons one lavatory for each additional 15 persons or portion thereof.

Although petitioner now questions whether the ANSI standard met the statutory requirement for a national consensus standard, neither it nor, so far as appears, anyone else challenged this within the 60 days allowed by § 655(f).

On July 15, 1972, the Secretary issued, under § 655(b), a notice of rulemaking, 37 F.R. 13996, which proposed a substantial revision of the standards previously adopted. With respect to lavatories it was proposed to reduce the requirements for "offices" in a manner not here material but to retain those previously provided for "all other". Id. at 13998. The reason for the change was explained as follows:

Not all office workers need or do wash at the end of the working day. The number of lavatories required in the present standard and ANSI Z4.1 is based more on industrial occupancies, where the load on washing facilities is likely to be heavier, and concentrated at specific periods of the working day.

Id. at 13996. Comments and requests for a hearing having been received, the Secretary published a notice of informal hearing, 37 F.R. 20571. Such a hearing, the bulk of which was devoted to proposals other than that here at issue,³ was held on November 8-10, 1972.

Thereafter the Secretary promulgated, 38 F.R. 10930, 10933 (1973), a revision of 29 C.F.R. § 1910.141. This set up the following requirements for lavatories:

TABLE J-2

                ---------------------------------------------------------------------
                                                     Number of      Minimum number
                        Type of employment           employees       of lavatories
                ---------------------------------------------------------------------
                  Nonindustrial—office buildings,     1-15____  1
                   public buildings, and             16-35____  2
                   similar establishments.           36-60____  3
                                                     61-90____  4
                                                     91-125___  5
                                                     Over 125_  1 additional fixture
                                                                  for each additional
                                                                  45 employees.
                  Industrial&factories, warehouses,  1-100____  1 fixture for each
                   loft buildings, and                            10 employees.
                   similar establishments.           Over 100_  1 fixture for each
                                                                  additional 15
                                                                  employees.
                

No mention was made of the objections that had been proffered to the minima-proposed for industrial establishments or of the reasons for rejecting them.

This petition for review of the portion of the standard concerning lavatories in industrial establishments followed. Another panel stayed enforcement of the standard pending argument of an expedited appeal; we continued the stay.

III. The Standard of Review

The respondents ask us to apply a standard of review less severe than the substantial evidence test. They point to what they consider an anomaly in subjecting notice and comment rulemaking, which has here produced a regulation essentially legislative in nature, to the substantial evidence test, which under the APA, 5 U.S.C. § 706(2)(E), applies only to determinations resulting from adjudication, 5 U.S.C. § 554, and rules "required by statute to be determined on the record after opportunity for an agency hearing," 5 U.S.C. § 553(c). It is argued in support of this that the final sentence of § 655(f) says only that the Secretary's "determinations" must be supported by substantial evidence, not that the regulation as a whole must be so supported; respondents' clear implication is that § 655(f) imposes the substantial evidence test only upon such findings of fact as the Secretary announces when promulgating a rule.

Admittedly, the...