Workplace Health & Safety Council v. Reich, No. 94-1413
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
| Writing for the Court | Before BUCKLEY, SENTELLE and ROGERS; SENTELLE |
| Citation | 56 F.3d 1465 |
| Parties | , 17 O.S.H. Cas. (BNA) 1272, 1995 O.S.H.D. (CCH) P 30,831 WORKPLACE HEALTH & SAFETY COUNCIL, Petitioner v. Robert B. REICH, Secretary of Labor, et al., Respondents. |
| Docket Number | No. 94-1413 |
| Decision Date | 20 June 1995 |
Page 1465
1995 O.S.H.D. (CCH) P 30,831
v.
Robert B. REICH, Secretary of Labor, et al., Respondents.
District of Columbia Circuit.
Decided June 20, 1995.
Francis E. Froelich, Washington, DC, argued the cause for petitioner. With him on the briefs was Anthony J. Thompson.
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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 time the incident is reported to any agent or employee of the employer.
(d) Each report required by this section shall relate the following information: Establishment name, location of incident, time of the incident, number of fatalities or hospitalized employees, contact person, phone number, and a brief description of the incident.
OSHA proposed the rule in order to amend a prior reporting provision which required an employer to notify the nearest OSHA area office of any workplace accident that resulted in the death of one or more employees or the hospitalization of five or more employees within 48 hours of the incident. See 29 C.F.R. Sec. 1904.8 (1971) (emphasis added).
In terse comments submitted during the APA notice and comment period, the Workplace Health and Safety Council, a trade association of both large and small employers, claimed that the proposed rule "raise[s] questions under the Fifth Amendment right of self-incrimination," because it "subject[s] employers to coercion in the form of civil fines for failure to provide information that could both lead to and be used as an element
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of a criminal prosecution." The Council also noted, in a footnote, that "OSHA may want to consider the Fourth Amendment implications of requiring employers to produce information...To continue reading
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National Min. Ass'n v. Department of Labor, No. 01-5278.
...that persons seeking such review would be directed by the APA to go to district court. See Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1467 In that regard, the Supreme Court's decision in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (19......
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National Min. Ass'n v. Chao, No. CIV. 00-3086(EGS).
...standard with the United States courts of appeals." (emphasis added). 29 U.S.C. § 655(f). In Workplace Health & Safety Council v. Reich, 56 F.3d 1465 (D.C.Cir. 1995), which involved a challenge to DOL rulemaking under the OSH Act, the Circuit held that since the challenged rule was a regula......
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United States v. Hite, No. 13–3066.
...observer to question whether the judge “would have difficulty putting [their] previous views and findings aside on remand,” Microsoft, 56 F.3d at 1465. Accordingly, Hite's request for reassignment is denied.VI. For the foregoing reasons, we vacate the judgment of conviction and remand the c......
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United States v. Hite, No. 13–3066.
...observer to question whether the judge “would have difficulty putting [their] previous views and findings aside on remand,” Microsoft, 56 F.3d at 1465. Accordingly, Hite's request for reassignment is For the foregoing reasons, we vacate the judgment of conviction and remand the case for a n......
-
National Min. Ass'n v. Chao, No. CIV. 00-3086(EGS).
...standard with the United States courts of appeals." (emphasis added). 29 U.S.C. § 655(f). In Workplace Health & Safety Council v. Reich, 56 F.3d 1465 (D.C.Cir. 1995), which involved a challenge to DOL rulemaking under the OSH Act, the Circuit held that since the challenged rule was a regula......
-
National Min. Ass'n v. Department of Labor, No. 01-5278.
...that persons seeking such review would be directed by the APA to go to district court. See Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1467 In that regard, the Supreme Court's decision in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (19......
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United States v. Hite, No. 13–3066.
...observer to question whether the judge “would have difficulty putting [their] previous views and findings aside on remand,” Microsoft, 56 F.3d at 1465. Accordingly, Hite's request for reassignment is denied.VI. For the foregoing reasons, we vacate the judgment of conviction and remand the c......
-
United States v. Hite, No. 13–3066.
...observer to question whether the judge “would have difficulty putting [their] previous views and findings aside on remand,” Microsoft, 56 F.3d at 1465. Accordingly, Hite's request for reassignment is For the foregoing reasons, we vacate the judgment of conviction and remand the case for a n......