# Amicus Curiae Brief — Associated General Contractors v. Occupational Safety & Health Administration

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1064

## Text

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Nos. 88-1070, 88-1075, 88-1385 and 88-1434 non 3! Me
* epaniOl, JR
oe = (CLERK
IN THE ann

Supreme Court of the United States

OCTOBER TERM, 1988

THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA,
AND THE ASSOCIATED GENERAL CONTRACTORS
OF VIRGINIA,

Petitioners,
V.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR, et al.,
Respondents.

[Captions Continued on Inside Cover]

On Petitions for Writs of Certiorari to the
United States Court of Appeals for the Third Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

MANUFACTURERS AS AMICUS CURIAE IN SUPPORT

OF PETITIONS FOR WRITS OF CERTIORARI

Of Counsel: RICHARD M. HALL *
JAN S. AMUNDSON CHRISTOPHER H. MARRARO
General Counsel LypbIA B. DUFF
QUENTIN RIEGEL SIVE, PAGET, & RIESEL, P.C.
Deputy General Counsel 1055 Thomas Jefferson Street, N.W.
NATIONAL ASSOCIATION OF Suite 501

MANUFACTURERS Washington, D.C. 20007
1331 Pennsylvania Ave.,N.W. Telephone: (202) 965-1500
Suite 1500 - North Lobby Attorneys for Amicus Curiae
Washington, D.C. 20004-1703 National Association of
Telephone: (202) 637-3058 Manufacturers

* Counsel of Record

Date: April 3, 1989

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

ASSOCIATED BUILDERS AND CONTRACTORS, INC., and the
CONSTRUCTION INDUSTRY TRADE ASSOCIATIONS,

- Petitioners,

THE OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, UNITED STATES
DEPARTMENT OF LABOR, et al.,
Respondents.

THE NATIONAL GRAIN & FEED ASSOCIATION, INC.,
and UNITED TECHNOLOGIES CoRrP.,

i. Petitioners,
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR,

Respondent.

ELIZABETH DOLE, SECRETARY OF LABOR, et al.,

Petitioners,
.

UNITED STEELWORKERS OF AMERICA, et al.,
Respondents.

TABLE OF CONTENTS

. Page
I UE EEE RU PUE BRMED c.s.cccssnsnsnnanncsesasseennssncncenses iii
INTEREST OF THE AMICUS CURIAE ........00..00........ 2
PRMAMMEAIUAE BLATIOMGNT ............2022.0c-ccsccsercorseceess 3
REASONS FOR GRANTING THE PETITION .......... 4

I. THE THIRD CIRCUIT HAS REDUCED THE
MINIMUM PROCEDURAL STANDARDS OF
THE ADMINISTRATIVE PROCEDURE ACT
BELOW THE PARAMETERS ESTABLISHED
BY CONGRESS AND THE SUPREME
COURT. THIS REDUCTION WORKS A SUB-
STANTIAL HARDSHIP ON INDIVIDUALS
AND ORGANIZATIONS THAT PARTICI-
PATE IN REGULATORY MATTERS AND
DIMINISHES THE QUALITY OF RULE-
ee a rieriisaseedsecscindéennintacsenceniicendas 4

A. This Court Should Resolve The Question of
What Degree of Change Between Proposed
and Final Rulemakings Triggers a Require-
ment For a New Proposal .............................. 5

B. The Practical Inability of the Public to Fol-
low the Enormous Range of Rulemaking
Activities Which May Potentially, But Not
Expressly, Affect Them Makes a Clear Stand-

ard For Notice and Comment Imperative...... 7
C. The Third Circuit Could Have Instead Im-
posed Detailed Time Deadlines on OSHA...... 9

II. COURTS SHOULD NOT INTERFERE WITH
AGENCY ACTIONS THAT ARE LAWFUL
AND REASONABLE. REVIEW IS NEEDED
IN ORDER TO MAKE CLEAR THE VITAL-
ITY OF THE DOCTRINES EXPRESSED BY
THE SUPREME COURT IN VERMONT
YANKEE AND CHEVRON

ii
TABLE OF CONTENTS—Continued

III. THE THIRD CIRCUIT’S DECISION CON-
FLICTS WITH A DECISION OF THE D.C.
CIRCUIT AND LIMITS IMPROPERLY THE
AUTHORITY OF OMB UNDER THE PAPER-
WORK REDUCTION ACT TO MINIMIZE
PAPERWORK BURDENS IMPOSED ON THE
PRE RID entre. ciancsnsai.ddssensichdnisaetinsntndnetnsesulidaablaneennianiatin

A. The Importance of the Paperwork Reduction
Act to the Hazard Communication Standard...

B. The Petition Should be Granted To Resolve
the Conflict Between the Third and D.C.
Circuits and to Reestablish the Director’s
Intended Role in Regulating the Paper-
work Burden Imposed by Administrative
Ee eR SL SOAR Del IW Ree aE

III seviecncss:serserpccssionnsacsmedimntinninnaopubsaseneeooenneiaungiorenla

Page

11

11

14

19

iii

TABLE OF AUTHORITIES

Cases Page
Action Alliance of Senior Citizens v. Bowen, 846
We BORD CURR. Ga BO cevcecencitecessises 15, 17, 18
AFL-CIO v. Donovan, 757 F.2d 330 (D.C. Cir.
IRS RRS anes evo aaR ST SOP ITER ae SoS NYE 4
American Iron & Steel Inst. v. EPA, 568 F.2d 284
sg 5 ee eh einer MEISE 5
American Textile Mfrs. Inst. v. Donovan, 452
oan: MU ONES i ee 4
Chamber of Commerce v. OSHA, 636 F.2d 464
tt ey | OR Neer were HT Res 4
Chevron U.S.A., Inc. v. Natural Resources De-
fense Council, Inc., 467 U.S. 837 (1984) -2.00002.... 10, 17

Environmental Defense Fund v. EPA, 852 F.2d

1316 (D.C. Cir. 1988), cert. denied, 57 U.S.L.W.

SI IIE D seein caienpncisectacaencianbisiaidseeaesbiednciaacaieanes 9
Eli Lilly & Co. v. Costle, 444 U.S. 1096 (1980) .... 5
Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976),

cert. denied, 426 U.S. 941 (1976) ............000020000.... 4
Federal Power Comm’n v. Transcontinental Gas

Pipe Line Corp., 423 U.S. 326 (1976) ................. 10 —
Industrial Union Dep't v. Am. Petroleum Inst.,

SR Men I I cies ccccsdaaangceeascthiosdeculechdcanses 4
International Harvester Co. v. Ruckelshaus, 478

I ie i, MIP TIED ciisienicnkn cceniensidenktxernaneces 5
National Tour Brokers Assoc. v. United States,

ee BS | ere 7,9
Natural Resources Defense Council, Inc. v. EPA,

EE FO BG CUE Car, BGI si vceticenncsnnccecicencnccave 5, 7

Portland Cement Assoc. v. Ruckelshaus, 486 F.2d

375 (D.C. Cir. 1973), cert. denied, 417 U.S. 921

(1). pO Ree ie gece eae Aneto te per a a ARR 8
SEC v. Chenery Corp., 332 U.S. 194 (1947)........ 10
United Steelworkers of Am. v. Marshall, 647 F.2d

1189 (D.C. Cir. 1980), cert. denied, 455 U.S. 913

5 aa care Me As A NAS Oe = 5
United Steelworkers of Am. v. Auchter, 763 F.2
2 _ RR arR A Dane eae CTE I 9

iv

TABLE OF AUTHORITIES—Continued

Page
United Steelworkers of Am. v. Pendergrass, 819
Re Be TE SE |. Se nnn 9
United Steelworkers of Am. v. Pendergrass, 855
SUE COE SGEE, BODO) ccccccccsenseccnccencrasssercosseseseee 3, 17, 19
Vermont Yankee Nuclear Power Corp. v. NRDC,
eS a ne 10, 11
Statutes
Administrative Procedure Act, 5 U.S.C. §§ 551-
ns sa ddeennnnnesasnnhensess 3, 4, 5, 10
Federal Reports Act of 1975, 42 U.S.C. 3501 et
rs aaetiemapbaednceniscnniensSneases 11, 15
Occupational Safety and Health Act, 29 U.S.C.
§§ 651-678 (1982 & Supp. V 1987) ................... 3, 4, 5, 10
Paperwork Reduction Act of 1980, 44 U.S.C.
BE BOGRSOLO (1DBZ) ...........0cccscccccesnssecnsaee esromade a, oe 2?
Pub. L. No. 94-78 § 4, 89 Stat. 411 (1975) ............ 18
Federal Rules and Other Notices
es BI CR DOED ncccccccccccnsncacacscccnsasesecssacsoncs 8
eR ES REE 0 DUE Dos occ ccccnncccnacvanceseccscssconenecsss 6
52 Fed. Reg. 31,873 (1987) ......... oui cars mecencenaee 6
EF OL) 13
Mies TE I 0 LISD ovvccnccccncacccsececesccsscsccesccencceccese 16
Be Si ais & ROEULLEOO CLOGS) .....0....2ccncccccccccccsccccessccese 13, 14
Other Authorities
K. Davis, Administrative Law Treatise (2d ed.
Cac Atte subiesinensabaeaeussatessosesion 11
126 Cong. Rec. 14,689 (daily ed., Nov. 19, 1980)... 13
Final Summary Report of The Commission on
Federal Paperwork 5 (1977) ..0.......cccccceeceeceeeeeeeee 12

Letter from Wendy Gramm, Administrator for
Information and Regulatory Affairs, Office of
Management and Budget, to the Honorable
Thomas C. Komarek, Assistant Secretary for
Administration and Management, Department
NaS ip a Ta Re I OD 13

Vv

TABLE OF AUTHORITIES—Continued

Letter from James C. Miller III, Director, Office
of Management and Budget, to President
Ronald Reagan transmitting the Administra-
tion’s Information Collection Budget for Fiscal
WORE Tih B iccseitececceseac a

Office of Management and Budget, Executive Of-
fice of the President, Regulatory Programs of
the United States Government, April 1, 1987-
SS BE; TO sitter ee

Otfice of Management and Budget, Transcript of
hearings on the Paperwork Requirements of
the Occupational Safety and Health Adminis-
tration Hazard Communication Standard, April
2, 1987 and October 16, 1987) ...............................

S. Rep. No. 96-930, 96th Cong., 2d Sess., reprinted
in 1980 U.S. Code Cong. & Admin. News 6241...

S. Rep. No. 98-576, 98th Cong., 2d Sess. (1984)...

Scalia, Vermont Yankeé: The APA, The D.C. Cir-
cuit, and The Supreme Court, 1978 Sup. Ct.
MOE Sscroeteetsteiniamiadelidn er):

Comments of the Associated General Contractors
of America, Oct. 23, 1987, attached as Appendix
5 to the Petition for Review of a Final Rule of
the Occupational Safety and Health Administra-
tion, Associated Gen. Contractors v. OSHA,
(3d Cir.) (No. 88-1070) ooo... occ ccc cceccccceeecee

Page

12

7, 12 -

14, 18

11, 16
16

11

IN THE
Supreme Court of the Wnited States
OCTOBER TERM, 1988

No. 88-1070

THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA,
AND THE ASSOCIATED GENERAL CONTRACTORS
OF VIRGINIA,
Petitioners,
V.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR, et al.,
Respondents.

ASSOCIATED BUILDERS AND CONTRACTORS, INC., and the
CONSTRUCTION INDUSTRY TRADE ASSOCIATIONS,
Pe titione rs,
Va
THE OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, UNITED STATES
DEPARTMENT OF LABOR, et a/.,

Respondents.

THE NATIONAL GRAIN & FEED ASSOCIATION, INC.,
and UNITED TECHNOLOGIES CORP..,
Petitioners,
Va
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR,
Respondent,

2

No. 88-1434

ELIZABETH DOLE, SECRETARY OF LABOR, et al.,
Petitioners,
V.
UNITED STEELWORKERS OF AMERICA, et al.,
Respondents.
On Petitions for Writs of Certiorari to the
United States Court of Appeals for the Third Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF
MANUFACTURERS AS AMICUS CURIAE IN SUPPORT
OF PETITIONS FOR WRITS OF CERTIORARI

——.-

INTEREST OF THE AMICUS CURIAE

The National Association of Manufacturers of the
United States of America (“NAM”) is an association of
approximately 13,500 companies and subsidiaries that to-
gether employ eighty-five percent of all manufacturing
workers in the United States and produce more than
eighty percent of this nation’s manufactured goods. NAM
is associated with 158,000 additional businesses through
its Associations Council and the National Industrial
Council.

Most of the NAM member companies are heavily reg-
ulated in many areas of their activities, at substantial
expense to the member companies and to the consumers
of their manufactured products. A significant portion
of the expense is associated with a broad array of fed-
eral requirements to create, disseminate and keep rec-
ords. Most of the regulation and recordkeeping require-
ments are not directly imposed on NAM members by
statute; they are imposed principally by agency rules.

3 has

The members of NAM have been covered by a Hazard
Communication Standard (“HCS’”) since 1983, and are
not directly affected by the adoption of an HCS for non-
manufacturers. However, the members of NAM are vi-
tally affected by the Third Circuit’s decisions undermin-
ing the procedural safeguards contained in the require-
ments of the Administrative Procedure Act (‘“APA’’)
and the Occupational Safety and Health Act (“SOSH Act’’)
that agency rules only be adopted after notice and oppor-
tunity to comment. Likewise, NAM’s members are ad-
versely affected by the Third Circuit’s restrictive inter-
pretation of the Paperwork Reduction Act of 1980, a law
which has benefited the productivity of American manu-
facturers by ameliorating the burdens of federally spon-
sored paperwork.

NAM therefore submits this brief as amicus curiae,
with the consent of all parties, in support of the Peti-
tions for Writs of Certiorari in order to assist the Court
in evaluating the importance of the issues presented.

PRELIMINARY STATEMENT

These cases bring before the Court two major issues
affecting the functioning of all federal administrative
agencies. The first issue is whether the notice and oppor-
tunity to comment on a proposed HCS for manufacturers
was sufficient under the APA and the OSH Act for the
adoption of a final HCS for non-manufacturers. The sec-
ond issue is the scope of the authority of the Office of
Management and Budget (“OMB”) under the Paperwork
Reduction Act of 1980 to reduce paperwork requirements
imposed by the Occupational Health and Safety Admin-
istration (“OSHA’’). Petitioners seeks writs of certiorari
in connection with two cases decided by the Third Cir-
cuit. Associated Builders and Contractors, Inc. v. Brook,
No. 88-1075 (3d Cir., Nov. 25, 1988) (a consolidation of
four petitions for review of administrative action), and
United Steelworkers of Am. v. Pendergrass (USWA
III), 855 F.2d 108 (3d Cir. 1988).

4
REASONS FOR GRANTING THE PETITION

I. THE THIRD CIRCUIT HAS REDUCED THE MINI-
MUM PROCEDURAL STANDARDS OF THE AD-
_MINISTRATIVE PROCEDURE ACT BELOW THE
PARAMETERS ESTABLISHED BY CONGRESS
AND THE SUPREME COURT. THIS REDUCTION
WORKS A SUBSTANTIAL HARDSHIP ON INDI-
VIDUALS AND ORGANIZATIONS THAT PARTICI-
PATE IN REGULATORY MATTERS AND DIMIN-
ISHES THE QUALITY OF RULEMAKING.

The United States Court of Appeals for the Third Cir-
cuit violated the APA and the OSH Act in adopting an
HCS for non-manufacturers without permitting OSHA
to provide non-manufacturers with notice and an cppor-
tunity for comment beyond that afforded by the original
notice applying an HCS to manufacturers in 1982. 42
Fed. Reg. 12,092 (1982). Insofar as that court’s action
is seen as allowing rulemaking without notice and com-
ment, the decision is a novel departure from settled law’,
is at odds with other Circuits -, works a substantial hard-
ship on individuals and organizations who participate in
regulatory matters, disserves the government agency
seeking the views of the affected public, and is deserving
of reversal by this Court.

1 See American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 536-
40 (1981) (OSHA must show each specific provision of safety
standard contributed to increased safety); Industrial Union Dept.
v. American Petroleum Inst., 448 U.S. 607, 667 (1980) (plurality
invalidated OSHA’s benzene standard because of failure to explain
how rule would benefit workers).

2 See, e.g., AFL-CIO v. Donovan, 757 F.2d 330, 337-40 (D.C. Cir.
1985); Chamber of Commerce of United States v. OSHA, 636 F.2d
464 (D.C. Cir. 1980); Ethyl Corp. v. EPA, 541 F.2d 1, 48 (D.C.
Cir. 1976), cert. denied, 426 U.S. 941 (1976).

5
A. This Court Should Resolve The Question of What
Degree of Change Between Proposed and Final

Rulemakings Triggers a Requirement For a New
Proposal.

Both the APA and the OSH Act require OSHA to pro-
vide notice and opportunity for comment on proposed
regulations before they become final. 5 U.S.C. § 553(b)
(1982) and 29 U.S.C. § 655(b) (1982). Under order of
the Third Circuit, OSHA published no proposed regula-
tions on the application of an HCS to the non-manufac-
turer employers.

The Third Circuit justified its order prohibiting fur-
ther notice by relying on its earlier decision in American
Iron & Steel Inst. v. EPA, 568 F.2d 284, 293 (3d Cir.
1977) and similar decisions in the United States Court
of Appeals for the District of Columbia. See United
Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1221
(D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981);
International Harvester Co. v. Ruckelshaus, 478 F.2d
615, 632 n.51 (D.C. Cir. 1973). Those lower court deci-
sions established that a final rule may differ from the
proposed rule where the change is a “logical outgrowth”
of the rulemaking proceeding. 647 F.2d at 1221: NRDC
v. EPA, 824 F.2d 1258, 1283 (1st Cir. 1987) (stating
that substantial changes can be made “as long as the
final changes are in ‘character with the original scheme’
and ‘a log'cal outgrowth’ of the notice and comment.’’)

The pre_er scope of this “logical outgrowth” concept is

an issue of great importance, which cannot help but
become greater as time goes on and more and more
administrative proceedings are conducted either di-
rectly under the Administrative Procedure Act, 5
U.S.C. $553, or similar provisions in new Acts of
Congress for review of agency action.

Eli Lilly & Co. v. Costle, 444 U.S. 1096, 1096 (1980)

(Rehnquist, J. dissenting on denial of petition for writ
of certiorari). Chief Justice Rehnquist’s statement is

6

prophetic: the issue has continued to grow in impor-
tance, lacking needed guidance from the Supreme Court.
The Court should review this case to resolve the critical
question of how much change in a proposed rule is per-
missible without a reproposal begore final promulgation.

The application of a standard to an entirely new group
of industries cannot be deemed a “logical outgrowth” of a
proposed rule which did not previously affect those indus-
tries. The impacts of an HCS on the construction and ag-
ricultural communities differ significantly from the im-
pacts on the manufacturing community initially covered.*
In addition to qualitative differences between the affected
communities, the quantitative change effected by extend-
ing the HCS from manufacturers to non-manufacturers
eliminates any logic in the growth of the standard with-
out additional notice and opportunity to comment.‘

3 The 230% average turnover rate in the construction industry
and the outdoor nature of construction work contrast with the
“prototypical manufacturing workplace, which is generally a sta-
tionary worksite with a relatively stable workforce.” Comments of
the Associated General Contractors of America, Oct. 23, 1987,
attached as Appendix 5 to the Petition for Review of a Final Rule
of the Occupational Safety and Health Administration, Associated
Gen. Contractors v. OSHA (3d Cir.) (No. 88-1070), at 13a.

4The August 24, 1987 expanded rule applied an HCS, without
notice and opportunity to comment other than that afforded in 1982,
to 4,503,879 theretofore uncovered establishments with a total em-
ployment of 58,890,236, of which an estimated 18,391,096 employees
are exposed in the workplace to hazardous chemicals. 52 Fed. Reg.
31,852, 31,871. OSHA estimated the cost of the application to non-
manufacturing employers to be $687.2 million in the first year, with
substantial additional costs each year thereafter. Jd. at 31,873. In-
deed, without the benefit of a notice of proposed rulemaking, OSHA
may have seriously underestimated both coverage and cost impact
of its new rule. For example, the Association of General Contractors
testified before OMB that compliance in the construction industry
would require 58 million man hours in the first year with costs for
retraining at 38 million man hours for subsequent years. In con-
trast, OSHA estimated the costs at 34 million and 8 million respec-
tively for all industries.

7

The final rulemaking extending the HCS to non-
manufacturers is not a logical outgrowth of the initial
standard and should have triggered a new proposal to
allow comment since the non-manufacturers did not have
“a fair opportunity to present their views on the con-
tents of the final plan.” 824 F.2d at 1283. The error
of the Third Circuit in bypassing the APA and OSH
Act notice and comment requirements for the entire non-
manufacturing sector of the nation’s industry provides
an important opportunity for the Supreme Court to
clarify the standards for re-proposal of proposed regu-
lations.

B. The Practical Inability of the Public to Follow the
Enormous Range of Rulemaking Activities Which
May Potentially, But Not Expressly, Affect Them
Makes a Clear Standard For Notice and Comment
Imperative.

In addition to the unfairness to the non-manufacturers
here, the practical consequences of the Third Circuit’s
decision for all future rulemakings are worrisome.
“Agencies could in the future publish vague, ambiguous
notices in the Federal Register, adverting obliquely to
certain issues or proceedings, and then, months or years
later, promulgate final rules and claim that constructive
notice had been given.” National Tour Brokers Assoc. v.
United States, 591 F.2d 896, 899 (D.C. Cir. 1978).

In each of the past five years, more than 3,000 pro-
posed rules and 4,500 final rules have appeared in the
Federal Register. Office of Management and Budget,
Executive Office of the President, Regulatory Programs
of the United States Government, April 1, 1987 to
March 81, 1988 636.

Given this large number of federal rulemakings, those
who are regulated and their associations, such as NAM,
must limit the proposed rules that receive close attention.

8

When an agency announces, as OSHA did here,’ that it
will not adopt a standard for a class of the regulated
community, members of that class typically pass on to
other issues. Under the Third Circuit’s rule, those ex-
cluded from regulation will nevertheless hve to. partici-
pate in rulemakings in which there is any shadow of an
implication in the preamble that they might be included.
This will lead to added expense and complexity for pri-
vate and government parties.

The result for the courts is also worrisome. When an
agency promulgates a final rule that excludes a sector of
the regulated community and a review petition is filed,
the seemingly excluded persons will have no choice but
to intervene in the litigation to protect their interests.
This will lead to unnecessary court interventions and will
make such cases even more complex and burdensome.

Furthermore, the appropriateness, clarity, and efficacy
of regulations which have not had the benefit of com-
ments from all those potentially affected will be signifi-
cantly diminished. ‘It is not consonant with the purpose
of a rulemaking proceeding to promulgate rules on the
basis of inadequate data.” Portland Cement Assoc. v.
Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973), cert.
denied, 417 U.S. 921 (1974). OSHA itself recognized the
need for notice and comment so that the final regulation
could accurately reflect the differences amnong the groups
covered. OSHA stated that the HCS as developed “fo-
cused on existing practices and desirable implementa-
tion methods in manufacturing industries,” and urged
the Third Circuit to permit reproposing the regulations
before applying them to non-manufacturers. Petition for
Rehearing and Suggestion for Rehearing En Bane of the
Secretary of Labor (No. 83-3554) at 9. The need for a
reproposal is evident from the record before OMB. Con-
fusion over issues of coverage, scope and practicality
raised by participants at the OMB hearings easily could

547 Fed. Reg. 12,092, 12,101-12,102 (1982).

9

have been addressed and clarified through a rulemaking
proposal. The Third Circuit decision deprived the
agency of the opportunity “to benefit from the expertise
and input of the parties who file comments with regard
to the proposed rule... .” National Tour Brokers Assoc.
v. United States, 591 F.2d 896, 902 (D.C. Cir. 1978).

C. The Third Circuit Could Have Instead Imposed De-
tailed Time Deadlines on OSHA.

Whatever the frustrations of the labor organization
petitioners with the pace of achieving their goal, the
Third Circuit should not have meddled in agency proce-
dure to speed up agency action.’ The court could have
imposed a reasonable time limit instead. The ability of
courts to fashion remedies that achieve results without
interfering with the agency’s attempt to assure adequate
notice and comment is amply demonstrated by the re-
mand issued in EDF v. EPA, 852 F.2d 1316, 1331 (D.C.
Cir. 1988) (ordering EPA to adhere to a schedule for
fulfilling its statutory obligations).

6 For example, The National Druggist Association raised legiti-
mate questions as to whether capsules which contain powders or
liquids were exempt from the rule noting that if they were not, an
additional $3,400,320 in compliance costs would be incurred by drug-
gists. October 16, 1987 hearing before OMB at 174. Similarly, the
Small Business Administration testified that OSHA had underesti-
mated the first vear cost impact by over one billion dollars. State-
ment of Charles A. Cadwell, U.S. Small Business Administration
before the Office of Management and Budget, Oct. 16, 1987.

7™The Third Circuit’s repeated references to the time intervals
between agency actions and court proceedings indicates that the
Third Circuit may also have shared in this frustration. See United
Steelworkers of Am. v. Auchter, 763 F.2d 728, 732 (3d Cir. 1985),
and United Steelworkers of Am. v. Pendergrass, 819 F.2d 1263, 1265,
1266, 1269 (3d Cir. 1987).

10

Il. COURTS SHOULD NOT INTERFERE WITH
AGENCY ACTIONS THAT ARE LAWFUL AND
REASONABLE. REVIEW IS NEEDED IN ORDER
TO MAKE CLEAR THE VITALITY OF THE DOC-
TRINES EXPRESSED BY THE SUPREME COURT
IN VERMONT YANKEE AND CHEVRON.

The Third Circuit ignored the principles of judicial re-
straint enunciated in Chevron U.S.A., Inc. v. NRDC, 467
U.S. 837 (1984) and Vermont Yankee Nuclear Power
Corp. v. NRDC, 435 U.S. 519 (1978). Vermont Yankee
limited the courts’ ability to interfere in the procedural
actions of agencies. 435 U.S. at 555. The Third Circuit
violated this precept in a novel context that needs review
by the Supreme Court. Vermont Yankee restrained the
judiciary from imposing procedural requirements on fed-
eral agencies in excess of those required by Congress. In
the present case, the Third Circuit interfered with the
agency’s chosen procedure by imposing procedural re-
quirements less than those required by Congress and se-
lected by the agency.

By compelling OSHA to skip over the procedures re-
quired by the APA and the OSH Act, the Third Circuit
violated the Vermont Yankee principle that courts should
not interfere with agency actions permissible under stat-
ute. Even assuming arguendo that the notice afforded
non-manufacturing employers in the 1982 rulemaking
was in theory legally sufficient to allow OSHA to go di-
rectly to a final rule, under Vermont Yankee the Third
Circuit should not have ordered the agency to abandon
its choice to collect more information and undertake a
notice and comment rulemaking. Indeed the force of the
Vermont Yankee rule is all the greater when, as here,
the agency seeks to give more procedural safeguards and
thereby avoid statutory and even constitutional questions
of fairness. See Federal Power Comm’n v. Transconti-
nental Gas Pipe Line Corp., 423 U.S. 326, 333 (1976) ;
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).

11

The Court should review this case to assert the vitality
of Vermont Yankee. Surely it cannot be true, as one
commentator has stated, that Vermont Yankee is “largely
one of those rare opinions in which a unanimous Supreme
Court speaks with little or no authority.” 1 K. Davis,
Administrative Law Treatise 616 (2d ed. 1978), quoted
and discussed in, Scalia Vermont Yankee: The APA,
The D.C. Circuit, and The Supreme Court, 1978 Sup. Ct.
Rev. 345, 371 (1978). It is time for the Court to explain
the authority and authoritativeness of Vermont Yankee.
The Court should review this case to emphasize “that the
formulation of procedures was basically to be left within
the discretion of the agencies to which Congress had
confided the responsibility for substantive judgments.”
Vermont Yankee, 435 U.S. at 524.

III. THE THIRD CIRCUIT’S DECISION CONFLICTS
WITH A DECISION OF THE D.C. CIRCUIT AND
LIMITS IMPROPERLY THE AUTHORITY OF OMB
UNDER THE PAPERWORK REDUCTION ACT TO
MINIMIZE PAPERWORK BURDENS IMPOSED ON
THE PUBLIC.

A. The Importance of the Paperwork Reduction Act
to the Hazard Communication Standard.

The Paperwork Reduction Act of 1980 (“PRA”) is the
culmination of longstanding efforts by Congress* to
“minimize the Federal paperwork burden for individuals,
small businesses, state and local governments and other
persons.” 44 U.S.C. § 3501(a) (1). The critical need for
this law was established by the Commission on Federal
Paperwork, which concluded in its final report that fed-
eral paperwork requirements imposed annual costs of 25

8’ The Paperwork Reduction Act was a “rewrite” of the Federal
Reports Act of 1942, and was intended to “strengthen the clearance
process” established under the prior law. S. Rep. No. 96-930, 96th
Cong., 2d Sess. 13, reprinted in 1980 U..S Code Cong. & Admin.
News 6241, 6253.

12

to 35 billion dollars on private industry, and 8.7 billion
dollars on individuals.’ To minimize this formidable bur-
den, Congress directed OMB to review all information re-
quests proposed by agencies to determine whether such
collection of information “is necessary for the proper per-
formance of the functions of the agency,” as well as
whether the information “will have practical utility.” 44
U.S.C. § 3504(e) (3) (1982). The effectiveness of the PRA
in ameliorating the burden on the public has been great.
Between 1981 and 1986, agencies subject to PRA review
have reduced the paperwork burden imposed on the pub-
lic by over 560 million hours annually or 44 percent
of the burden that existed in 1980.'' The Administra-
tion estimated that the paperwork burden on the public
in fiscal year 1988 would decrease by 66.1 million hours,
representing the seventh year of reduction by the fed-
eral government since 1981.”

OMB adhered closely to its lawful authority in review-
ing OSHA’s final HCS and, based on an extensive record
and detailed consultation with the agency, disapproved
three limited provisions in the rule.'"* OMB’s disapproval

9 Final Summary Report of The Commission on Federal Paper-
work 5 (1977).

10 March 10, 1988 Letter from James C. Miller III, Director, Office
of Management and Budget, to President Ronald Reagan transmit-
ting the Administration’s Information Collection Budget for Fiscal
Year 1988, 1.

11 Executive Office of the President, Office of Management and
Budget, Regulatory Programs of the United States Government,
April 1, 1987-March 31, 1988, 1-11.

12 See March 10, 1988 letter from James C. Miller III, 1. Accord-
ing to the letter a net increase of approximately 140 million hours
resulted from three federal statutes enacted in 1987.

13 The Third Circuit, in ordering the Secretary to proceed directly
to a final rule without the benefit of a notice of proposed rulemaking
prevented OSHA from complying with 44 U.S.C. § 3504(h). That

13

of the requirement that material safety data sheets
(“MSDSs”) be exchanged by each employer at multi-
employer worksites was based solely on the determination
that such requirement “does not appear to be the least
burdensome necessary for the efficient transmittal of haz-
ard information in multi-employer workplaces.” '* OMB
also disapproved the overly narrow scope of the exemp-
tion for consumer products, stating, “the record indicates
that this exemption would continue to place under the
HCS large number of consumers for which MSDSs would
have little practical utility, and for which the burden of
compliance would be substantial.” ™

section requires an agency to notify OMB not later than publication
of notice, of any proposal rule which includes a collection of infor-
mation requirement. This important procedural requirement, spon-
sored by Senator Kennedy as Amendment 1177 of the Senate Judi-
ciary Committee, is intended to coordinate Executive review of
collection of information requirements in agency rulemakings with
regulatory oversight by the Executive Office of the President by
providing the agency an opportunity to respond to OMB comments.
See Remarks of Senator Edward Kennedy, 126 Cong. Rec. 14,689
(daily ed. Nov. 19, 1980). Thus, the Court’s short-circuiting of the
APA also thwarted the critical interagency deliberative process re-
quired by the Kennedy Amendment.

14 October 28, 1987 letter from Wendy L. Gramm, Administrator
for Information and Regulatory Affairs, Office of Management and
Budget, to the Honorable Thomas C. Komarek Assistant Secretary
for Administration and Management, Department of Labor, disap-
proving the collection of information requests in the final HCS. The
record is replete with examples where trade groups demonstrated in
testimony before OMB that this provision of the HCS had no prac-
tical utility. These same groups provided numerous alternatives
which would accomplish the same objective of workplace hazard
communication without the full paperwork burden imposed by the
rule. Jd. at 7-9. See also October 28, 1988. “Comments and Request
for Hearing by the Construction Industry Hazard Communication
Coalition Proposed Revisions to OSHA Hazard Communication
Standard” (53 Fed. Reg. 29,821), submitted to OSHA Docket Officer
at 17-19.

5 Letter of Gramm to Komarek at 8. The OMB record illustrated
how OSHA’s limited consumer product exemption (29 C.F.R.

—————

14

OMB disapproved a third provision of the final HCS
that would have exempted FDA regulated drugs to the
extent that they are in “solid, final form for direct ad-
ministration to patients.” 29 C.F.R. $$ 1910.1200(b) (6)
(viii) (1988). The OSHA exemption did not exclude drug
capsules containing liquids or particles. The narrow
scope of the exemption resulted in drug wholesalers init-
ially having to distribute 4.8 million MSDSs despite the
fact that a professional package insert of comprehensive
hazard information is already included in “every single
package of a prescription drug in this country.” *°

B. The Petition Should be Granted To Resolve the
Conflict Between the Third and D.C. Circuits and
to Reestablish the Director’s Intended Role in Reg-
ulating the Paperwork Burden Imposed by Admin-
istrative Agencies.

The Third Circuit erred in ruling that the HCS re-
quirement to collect and distribute MSDSs does not come
within the reach of the PRA and that, because the rec-
ordkeeping requirement had a regulatory purpose under
the OSH Act, it was exempt from PRA review. These
two rulings misinterpret the law and undermine the im-
portant powers given to OMB. The Court should take
this case so that OMB can fulfill its congressional man-

§ 1910.1200(b)(6)(vii)) lacks practical utility. Under the OSHA
exemption employers could not discern when the exemption would
apply. Witnesses before OMB testified that this flaw would lead to
exaggerated overcompliance causing a substantial paperwork bur-
den involving the maintenance of MSDSs. Moreover, hazard infor-
mation on consumer products was duplicative of that required by
the Consumer Product Safety Commission. Transcript of OMB
hearings on the Paperwork Requirements of the Occupational Safety
and Health Administration Hazard Communications Standard, Oct.
16, 1987, at 90, 148-52.

16 Testimony before OMB of the National Wholesale Druggists
Association. Paperwork Requirements of the Occupational Safety
and Health Administration Hazard Communication Standard, supra
note 15, at 168-79

15

date to limit paperwork requirements imposed on mem-
bers of NAM without significant public benefit.

The D.C. Circuit has interpreted the PRA’s predeces-
sor, the Federal Reports Act of 1942 (codified at 44
U.S.C. § 3501-3520 (1976) ), to apply to the collection of
all information required by a federal agency for any reg-
ulatory purpose, whether or not the information is fur-
nished directly to the agency. Action Alliance of Senior
Citizens v. Bowen, 846 F.2d 1449 (D.C. Cir. 1988). The
D.C. Circuit Court rejected arguments that the Federal
Reports Act applied only to documents furnished to an’
agency. Interpreting the PRA, the court wrote that “un-
der the Paperwork Act ... OMB holds the same substan-
tive power as it did under the [Federal] Reports Act.
Where it determines that collection of information is un-
necessary, the Agency may not proceed with the collec-
tion.” Jd. at 1453. The Court continued “Ta|pellants
cannot seriously believe . . . Congress was concerned
solely or primarily with private parties’ costs of mailing
data to Washington; it is the record-keeping and data-
gathering that constitute the burden.” Jd.

The attempt by the Third Circuit to distinguish Ac-
tion Alliance and thus avoid the conflict is unsuccessful.
The D.C. Cireuit quoted the paperwork requirement that
OMB lawfully disapproved: a “ ‘written self-evaluation
of [the federal fund recipients’] compliance under the
[Age Discrimination] Act’... fand a] self evaluation
available on request to the agency and to the public.” Id.
at 1452 (emphasis added, citations omitted). This re-
quirement is littie different from the HCS requirement
that the MSDSs be made available to employees and
“upon request, to... the Assistant Secretary [of La-
bor] ....” 29 C.F.R. § 1910.1200/g) (11) (1988).

The Third Cireuit’s decision is also inconsistent with
the PRA’s legislative history '? and, without so much as

7 The Senate Report includes within the coverage of the PRA
information collected for purposes of disclosure to the public. The

———————e

16

a mention, rejects the OMB interpretation of the PRA.
OMB’s regulations, which were promulgated on March
31, 1983, define the “collection of information” as:

the obtaining or soliciting of information by an
agency from ten or more persons by means of iden-
tical questions, whether such collection of informa-
tion is mandatory, voluntary, or required to obtain
a benefit. For purposes of this definition, the ‘‘ob-
taining or soliciting of information” includes any
requirement or request for persons to obtain, main-
tain, retain, report, or publicly disclose information.
= CFR. § 1320.7(c) (1988) (emphasis added). Subsec-
tion (2) of Section 1320.7(c) further provides, in part,
that:

Requirements by an agency, a person to obtain or to
compile information for purpose of disclosure to
members of the public at large, through posting,
notification, labeling, or similar disclosure require-
ments, constitute the “collection of information”
whenever the same requirement to obtain or compile
information would be a “collection of information” if
the information were directly provided to the agency.

(Emphasis added). Thus, the Third Circuit, without ex-
planation, rejected a “permissible construction” of the

Senate Report addreses public disclosures required by the Securi-
ties and Exchange Commission stating, “In this connection, fed-
erally mandated disclosures to the public by issuers and certain
owners of securities are_central to carrying out the purpose of the
Federal Securities Laws.” S. Rep. No. 96-930, 96th Cong., 2d Sess.
39, reprinted in 1980 U.S. Code Cong. & Admin. News 6241, 6279.
This view was reiterated by Sen. Chiles, the Sponsor when Congress
considered amendments to the PRA in 1984. He explained:

[tlhe notion that the law was dedicated primarily to forms,
questionnaires and surveys ‘and not to other instruments such
as reporting, recordkeeping, and disclosure requirements which
are means to carry out federally sponsored collections of infor-
mation’ is a fundamental misreading of what the law states
fand] what Congress in 1980 intended... .

S, Rep. No. 576, 98th Cong., 2d Sess. at 43.

17

statute by the administering agency, contrary to Chevron
U.S.A., Inc. v. NRDC, 467 U.S. 837, 866 (1984).

The Third Circuit also mistakenly and substantially
narrowed the scope of the PRA by ruling that 44 U.S.C.
§ 3518(e) (1982) prevents OMB from performing its
statutory function with respect to paperwork require-
ments when the rulemaking ‘embodies substantive policy
decision-making entrusted to the other [non-OMB]
agency.” United Steelworkers of Am. v. Pendergrass,
855 F.2d 108, 112 (3d Cir. 1988). This determination
also conflicts with the D.C. Circuit. Action Alliance, 846
F.2d at 1454-55. While there may on occasion be tension
between OMB duties with respect to paperwork require-
ments under the PRA and another agency’s duties under
another law, the Third Circuit’s meat ax approach—
OMB always looses—“carve[s] so large a slice from OMB
authority” that it calls for review and adjustment by the
Supreme Court. Action Alliance, 846 F.2d at 1455.

The plain language of the PRA shows that Congress
vested sole authority in OMB to determine whether a
proposed paperwork requirement imposed by a federal
agency is necessary or useful in achieving a substantive
policy. Under the goal of ensuring that rules of federal
agencies minimize the information burden on the public,
Congress ordered federal agencies “not to conduct or
sponsor the collection of information unless, ... (8) the
Director has approved the proposed information collec-
tion request ....” 44 U.S.C. § 3507(a) (1982). Con-
gress then directed that the function of the Director to
clear information collection requests shall include a deter-
mination of whether a collection of information request
“is necessary for the proper performance of the func-
tions of the agency,” as well as whether the information
“will have practical utility ....” 44 U.S.C. § 3504(c) (2)
(1982). There is nothing in the PRA that terminates
this authority merely because the agency or anyone else
claims that the information collection request also has a

18

direct regulatory function. Action Alliance, 846 F.2d at
1455."°

OMB acted on a well-developed record and after detailed
consultation with OSHA. OMB carefully focused its ac-
tivities only on requirements for the collection of infor-
mation and restricted its disapproval to such require-
ments, leaving intact the underlying regulatory approach
of OSHA. The disapproved provisions involve the collec-
tion and maintenance for purposes of public disclosure
and recordkeeping of hundreds, thousands, and in some
cases millions of pages of material safety data sheets,”
precisely the area of concern at which the PRA is aimed.
The Court should grant the petitions to assure OMB’s
ability to control such excessive and costly paperwork re-
quirements affecting NAM and all members of the public.

18 The Third Circuit paid little attention to relevant legislative
history when it construed § 3518(e) to deny the Director of OMB
the authority to review agency rules. Prior to and during considera-
tion of the PRA, Congress understood the Executive already to have
the authority to intervene on substantive points of other agency
rulemakings. See Pub. L. No. 94-78, § 4 (August 9, 1975) amend-
ing The Council on Wage and Price Stability Act, Pub. L. No. 93-387
(August 24, 1974).

19 See OMB Docket 1218-0072 including written submissions ac-
companying April 2, 1987 and October 16, 1987 transcript of public
hearings. For example the Small Business Administration esti-
mated that a typical plumber must maintain 500 MSDSs compared
with OSHA’s estimate of 12. Ex. 2-21 (October 16, 1987). One
contractor from Minnesota estimated that 55 file cabinets to main-
tain MSDSs may be required at a typical construction high rise site.
Oct. 16, 1987, Transcript at 109.

19

CONCLUSION

For these reasons, and upon the entire record, the peti-
tions for writs of certiorari should be granted in both
Associated Builders and Contractors, Inc. v. Brock and
United Steelworkers of Am. v. Pendergrass (USWA III).

Of Counsel:

JAN S. AMUNDSON

General Counsel

QUENTIN RIEGEL

Deputy General Counsel

NATIONAL ASSOCIATION OF
MANUFACTURERS

1331 Pennsylvania Ave., N.W.

Suite 1500 - North Lobby
Washington, D.C. 20004-1703
Telephone: (202) 637-3058

Date: April 3, 1989

Respectfully submitted,

RICHARD M. HALL *

CHRISTOPHER H. MARRARO

LYDIA B. DUFF

SIVE, PAGET, & RIESEL, P.C.

1055 Thomas Jefferson Street, N.W.

Suite 501

Washington, D.C. 20007

Telephone: (202) 965-1500

Attorneys for Amicus Curiae
National Association of
Manufacturers

* Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0656%3A4. Public record. Not legal advice.