International Union, United Auto., Aerospace & Agr. Implement Workers of America, UAW v. Occupational Safety & Health Admin., U.S. Dept. of Labor, s. 89-1559
Citation | 37 F.3d 665 |
Decision Date | 21 October 1994 |
Docket Number | 89-1657,Nos. 89-1559,90-1533 and 93-1361,s. 89-1559 |
Parties | , 63 USLW 2284, 16 O.S.H. Cas. (BNA) 2065, 1994 O.S.H.D. (CCH) P 30,555 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Petitioners, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, Respondent, The Dow Chemical Company, American Petroleum Institute, National Confections Association, Chocolate Manufacturers Association, Oil, Chemical & Atomic Workers International Union, Intervenors. |
Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Petitions for Review of an Order of the Occupational Safety & Health Administration.
W. Scott Railton, argued the cause for petitioner the Nat. Ass'n of Mfrs. With him on the briefs was Jan S. Amundson.
Bruce Justh, Associate Counsel, U.S. Dept. of Labor, argued the cause for respondent. With him on the brief was Barbara Werthmann, Counsel, U.S. Department of Labor. John Shortall, Cynthia L. Attwood and Joseph M. Woodward, entered an appearance.
On the brief for Intern. Union, United Auto., Aerospace & Agr. Implement Workers of America, UAW and Oil, Chemical & Atomic Workers Intern. Union (realigned as intervenors in support of OSHA), were David C. Vladeck, Jordan Rossen and Ralph Jones.
Toby A. Threet, entered an appearance for intervenor the Dow Chemical Co. G. William Frick, entered an appearance for intervenor American Petroleum Institute. David B. Robinson entered an appearance for intervenor Nat. Confections Ass'n and Chocolate Mfrs. Ass'n. William H. Crabtree and V. Mark Slywynski, entered an appearance for intervenor American Auto. Mfrs. Ass'n.
Before: WALD, WILLIAMS and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
In International Union, UAW v. OSHA, 938 F.2d 1310 (D.C.Cir.1991), we remanded a regulation to the Occupational Safety & Health Administration on the ground that, although we believed the controlling statute was susceptible of a construction narrow enough to satisfy the nondelegation doctrine, see A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), the agency had apparently not adopted such a construction. Finding that the interpretation OSHA has set forth on remand embodies an adequate constraint on its discretion, we now dismiss the petition for review.
* * *
In 1989 OSHA issued a regulation designed to protect workers who perform maintenance or servicing operations on powered industrial equipment from the hazard of energy unexpectedly released from that equipment. "Control of Hazardous Energy Sources (Lockout/Tagout)". 54 Fed.Reg. 36,644 (1989) ( ). Issued pursuant to the Occupational Safety and Health Act (the "OSH Act"), 29 U.S.C. Secs. 651 et seq. (1988), the standard essentially requires an employer to affix a "lock" to an energy isolating device connected to the equipment ("lockout"), or, if the employer can prove its equal efficacy (or the equipment is unlockable), to place a "tag" on the energy isolating device, warning employees not to operate the device or the equipment until the tag is removed ("tagout"). With limited exceptions, the standard applies to all powered industrial equipment in industrial workplaces.
The National Association of Manufacturers ("NAM") and the International Union, UAW, challenged the standard in this court. The union argued that Sec. 6(b)(5) of the OSH Act, 29 U.S.C. Sec. 655(b)(5), required OSHA to promulgate a stricter standard than it had, while NAM argued that that section was inapplicable to safety regulation and that, in the absence of an intelligible congressional guide, OSHA could not lawfully promulgate any safety regulation at all. The petitioners also alleged several defects in the standard and the procedures leading to its adoption.
We found that OSHA's authority in regulating safety hazards (i.e., hazards that produce immediately noticeable harm) was not governed by Sec. 6(b)(5), which applies only to health hazards, but by Sec. 3(8), 29 U.S.C. Sec. 652(8), which defines an "occupational safety and health standard" as a standard "reasonably necessary or appropriate" to the agency's overall goals of ensuring "safe or healthful employment and places of employment." International Union I, 938 F.2d at 1313-17. OSHA's then-stated interpretation of Sec. 3(8), however, appeared to assume in the agency an authority to choose freely among levels of stringency, from adopting no standard at all to adopting the most stringent standard feasible. Id. at 1317, 1321. Concluding that such free-wheeling authority might well violate the nondelegation doctrine, we remanded the case to the agency to give it the opportunity to adopt an interpretation of Sec. 3(8) that would be both "reasonable and consistent with the nondelegation doctrine." Id. at 1313. We also remanded for OSHA to reveal the reasoning behind a number of its choices about the structure of the rule. Id. at 1322, 1323-24.
OSHA issued a Supplemental Statement of Reasons on March 30, 1993. 58 Fed.Reg. 16,612. Arguing that this Statement failed to cure the defects we identified in the first round, NAM again asks that we vacate the standard. Because we find that OSHA's current interpretation of its statutory authority to issue safety standards is consistent with the nondelegation doctrine and that its explanations of the other disputed decisions are adequate, we uphold the regulation.
* * *
The Supplemental Statement of Reasons delineates OSHA's view of the statutory bounds of its authority to issue safety standards. The agency points primarily to several principles--most of them not derived from Sec. 3(8) itself but from other sections, including some not directly applicable, such as Sec. 6(b)(5)--that constrain its discretion in choosing a safety standard. The agency must find that (1) "the standard will substantially reduce a significant risk of material harm", cf. Industrial Union Dep't v. American Petroleum Institute ("Benzene"), 448 U.S. 607, 639-59, 100 S.Ct. 2844, 2862-73, 65 L.Ed.2d 1010 (1980); (2) & (3) compliance will be economically and technologically feasible, cf. American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 513 n. 31, 101 S.Ct. 2478, 2493 n. 31, 69 L.Ed.2d 185 (1981); and (4) the standard "employs the most cost-effective protective measures". In addition, it must (5) for any standard differing from an existing national consensus standard, publish its reasons why its standard would better effectuate the purposes of the Act; and (6) support its choice of standard with evidence in the rulemaking record and explain any inconsistency with prior agency practice. 58 Fed.Reg. at 16,614/2-3.
OSHA's items (1), (2), and (3) together are the same criteria we rejected in the previous round as insufficiently cabining the agency's discretion in adopting safety standards. See International Union I, 938 F.2d at 1317. Item (4) narrows that discretion somewhat more, forcing the agency at a minimum to adopt the cheapest standard that will achieve the desired level of safety, or to adopt a more protective standard over an equally costly but less effective alternative. It does very little, however, to narrow the agency's discretion to choose among levels of safety.
Items (5) and (6) also fail to channel agency discretion in the substantive manner demanded by the nondelegation doctrine. The requirement of justifying a deviation from national consensus standards, imposed by Sec. 6(b)(8), 29 U.S.C. Sec. 655(b)(8), presupposes guiding principles from some other source, "the purposes of this chapter", id., as the norm against which a standard's deviation from a national consensus standard is to be measured. The requirements of evidence in the rulemaking record and of an explanation for any inconsistency with prior agency practice also assume the existence of an intelligible legislative mandate; indeed, both exist at least in part as devices to assure agency compliance with such a mandate. The required explanation of any change in policy is a component of the more general requirement of reasoned decisionmaking, Greater Boston Television Corp. v. FCC, 444 F.2d 841, 850-52 (D.C.Cir.1970), which itself is necessary for the reviewing court "to satisfy itself that [the agency's reasons for acting] do not deviate from or ignore the ascertainable legislative intent." Id. at 850. The requirement of supportive evidence operates to assure a link between the agency's substantive mandate and the real-world circumstances in which the agency operates. If an agency could claim to be applying a statutory constraint merely by asserting the existence of some fact, or without connecting the facts to the congressionally specified standards in a reasoned decision, it would be free to defeat the underlying purpose of the constitutional limits on delegation: to make sure that the regulatory principles as actually applied have their origin in a judgment of the legislature. See Panama Refining Co. v. Ryan, 293 U.S. 388, 415, 430, 55 S.Ct. 241, 252-53, 79 L.Ed. 446 (1935); see also A.L.A. Schechter Poultry Corp., 295 U.S. at 551, 553, 55 S.Ct. at 852, 853 (1935) () (Cardozo, J., concurring).
Were the six itemized criteria the full statement of OSHA's interpretation of its statutory mandate, we might have to vacate the rule, because the agency might still have too much freedom to "roam between the rigor of Sec. 6(b)(5) standards and the laxity of unidentified alternatives". International Union I, 938 F.2d at 1317. But OSHA has gone on to infer from various...
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