Petition for Writ of Certiorari — Associated Builders & Contractors, Inc. v. Occupational Safety & Health Administration

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Supreme Court, U.S,

FILED

DEC 28 1988

JOSEPH F. SPANIOL, JR.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

ASSOCIATED BUILDERS AND CONTRACTORS, INC., and the

CONSTRUCTION INDUSTRY TRADE ASSOCIATIONS.

Petitioners.

THE OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, UNITED STATES

DEPARTMENT OF LABOR, et ai.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MAURICE BASKIN *

VENABLE, BAETJER, HOWARD

& CIVILETTI

1301 Pennsylvania Avenue, N.W

Suite 1200

Washington, D.C. 20004

Telephone: (202) 662-4300

Attorneys for Petitioners

* Counsel of Record

Date: December 28, 1988 sd

Th etme te fae 2 SR ORAS EGER CARNES Me SON ees

WILSON - EPgs PRINTING Co., Inc. - 789-O0O96 - WASHINGTON. DC 20001

QUESTIONS PRESENTED

1. Whether the unprecedented, court-ordered curtail-

ment of statutorily mandated notice and comment

procedures, in connection with the promulgation of the

revised Hazard Communication Standard by the Occu-

pational Safety and Health Administration (OSHA), has

violated Section 6 of the Occupational Safety and Health

Act and Section 553 of the Administrative Procedure Act,

and has created a conflict within the circuits.

2. Whether the Court of Appeals’ failure to require

OSHA to find that the provisions of the revised Standard

are reasonably necessary and appropriate to reduce a

significant risk of harm to workers in the construction

industry~creates a conflict within the circuits and con-

flicts with Section 3(8) of the OSH Act and with deci-

sions of this Court. .

3. Whether the Court of Appeals’ failure to require

OSHA to demonstrate that the revised Standard is fea-

sible, in the unique circumstances of the construction

industry, conflicts with Section 6 of the OSH Act and

‘ decisions of this Court and creates a conflict within the

circuits.

4. Whether the Court of Appeals’ interference with

the Office of Management and Budget’s lawful disap-

proval of burdensome information collection requirements

contained in the revised Standard, creates a conflict

within the circuits and violates the Paperwork Reduction

Act, 44 U.S.C. § 3501.

(i)

LIST OF PARTIES

The present petitioners Associated Builders and Con-

tractors, Inc. (ABC) and the Construction Industry

Trade Associations (CITA)* were parties to two related

decisions of the United States Court of Appeals for the

Third Circuit from which certiorari is being sought in

this single petition.

In Associated Builders and Contractors v. Brock, C.A.

Nos. 88-3345, 88-3346, 88-3347, 88-3348 (Nov. 25, 1988),

ABC was a petitioner and CITA an intervenor. Other

parties below were co-petitioners Associated General Con-

tractors of America and the Associated General Contrac-

tors of Virginia, United Technologies Corporation, and

National Grain and Feed Association, Inc. and Inter-

venors National Paint and Coatings Association, Build-

ing and Construction Trades Dept., AFL-CIO, Public

Citizen, Inc. and the Connecticut Council on Occupational

Safety and Health.

In United Steelworkers of America v. Pendergrass, 855

F.2d 108 (3d Cir. 1988), reh. den. (Nov. 28, 1988), ABC

and CITA were both intervenors. Petitioners in that case

were United Steelworkers of America, Public Citizen,

Ine., and the states of New York, Illinois and Massachu-

setts. AGC, UTC and NGFA also intervened.

* Petitioner CITA consists of a coalition of the following con-

struction industry trade associations, representing over 200,000

member employers, who intervened in both cases: The National

Association of Home Builders, American Subcontractors Associ-

ation, American Fire Sprinkler Association, Associated Specialty

Contractors, Association of the Wall & Ceiling Industries-Inter-

national, Insulation Contractors Association of America, Mason Con-

tractors Association of America, Mechanical Contractors Association

of America, National Association of Cold Storage Contractors,

National Association of Plumbing, Heating and Cooling Contrac-

tors, National Electrical Contractors Association, National Glass

Association, National Insulation Contractors Association, National

Roofing Contractors Association, National Utility Contractors As-

sociation, Painting and Decorating Contractors of America, and the

Sheetmetal and Air Conditioning Contractors National Association.

TABLE OF CONTENTS

oe eg | | cee

iS Re

REASONS FOR GRANTING THE WRIT

II.

The Unprecedented, Court-Ordered Curtail-

ment Of Statutorily Mandated Notice And Com-

ment Procedures, In Connection With OSHA’s

Promulgation Of The Revised Hazard Commu-

nication Standard, Has Violated Section 6 Of

The Occupational Safety And Health Act And

Section 553 Of The Administrative Procedure

Act And Has Created A Conflict Within The

EEE SSS a De SNe ae ec

The Decision Of The Court Below Is Directly

In Conflict With Decisions Of This Court and

of Other Circuit Courts Holding That OSHA

Is Required by Section 3(8) of the Act To Make

A Finding That The Provisions Of A New Safety

Standard Are Reasonably Necessary And Ap-

propriate To Reduce A Significant Risk Of

Harm To Employees In The Affected Industry..

(iii)

TABLE OF CONTENTS—Continued

Page

III. The Court of Appeals’ Decision To Require

OSHA Merely To Show That the Revised HCS

Was Not Infeasible, Directly Conflicts With De-

cisions Of This Court and Other Circuit Courts

Requiring OSHA To Find That Any New

Safety Standard Is Feasible Based Upon Sub-

stantial Evidence In The Record As A Whole.... 16

IV. The Court of Appeals’ Decision Conflicts Di-

rectly With The Paperwork Reduction Act And

With A Decision In The D.C. Circuit In That It

Interferes With OMB’s Lawful Disapproval Of -

Burdensome Information Collection Require-

IIE... onéncicannessenbtsncsuniainianebesihiinineiiainiiaamaiteaeaeie 18

OI eaciecicncevnnesasencadennsnceennnesineiemeninnpenasannniatenstiasns 20

ROI © i cichsciaresssnssinncenstiiniimennanitiosmnapioiaciaiiennsdiabneininies A-la

TABLE OF AUTHORITIES

Cases Page

Action Alliance of Senior Citizens v. Bowen, 846

Woe eee Cae Kas Be thkk ded 18

American Federation of Labor v. Donovan, 757

ee ee Ge Sr Ie hnaidcttdieesnticctacddicniccs 11, 13

American Textile Manuf. Inst. v. Donovan, 452

ries Ge CD © alisttccacaisnchnmnsltghidagielbadaecaibaiiela libata 14, 16

Associated Builders and Contractors, Inc. v.

Brock,-C.A. Nos. 88-3345, 88-3346, 88-3347, 88-

RE EA BT ae RS ADEE passim

Chevron U.S.A., Inc. v. National Resources De-

fense Council, Inc., 467 U.S. 837 (1984) ............. 19

Chamber of Commerce of United States v. OSHA,

636 F.2d 464 (D.C. Cir. 1980) ............................. 11, 13

Ethyl Corp. v. E.P.A., 541 F.2d 1 (D.C. Cir.

SPTED : saiecsckccncmidciaiddadapiedidineicaeeh ee tae 11, 13

Fire Equipment Mfrs. Ass’n v. Marshall, 679 F.2d

679 (7th Cir. 1982), cert. den., 459 U.S. 1105

(III scciacatiscscatabaannisakittinhsnctihtetinteiedinidesasaaminalnd 6

Forging Industry Ass’n v. Secretary of Labor, 773

eB Re | RE een eee 17

Industrial Union Dept. AFL-CIO v. American

Petro. Inst., 448 U.S. 607 (1980) ..................... 14, 15, 16

Public Citizen Health Research Group, Ince. v.

Tyson, 786 F.2d 1479 (D.C. Cir. 1986) .............. 15

Texas Independent Growers Ass’n v. Marshall, 630

sf & Fi fe Se. | Seen eee 15

United Steelworkers of America v. Auchter (USWA

I), 768 F 2a Ta8 (34 Cir. 1966).............................. 1, 5, 12

United Steelworkers of America v. Marshall, 647

F.2d 1189 (D.C. Cir. 1979), cert. den., 453 U.S.

i SG. | PRC Ee Aan LCP TP 7, 15,17

United Steelworkers of America v. Pendergrass

(USWA II), 819 F.2d 1263 (3d Cir. 1987) ........ 1, 5,17

United Steelworkers of America v. Pendergrass

(USWA III), 855 F.2d 108 (3d Cir. 1988)........ passim

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519

CSIP GMED ccccntsincnnceibicscconihiedncietaicidaicseaadiiibadaseghteeeseele aan 13

TABLE OF AUTHORITIES—Continued

Statutes Page

Administrative Procedure Act, 5 U.S.C. § 553._...... 11

Construction safety Act, 40 U.S.C. § 333 _.............. 6

Occupational Safety and Health Act, 29 U.S.C.

OBR. CO: BOG scdiieciicthicnitentntingietnntieniiiindions 2

Pie Fe Tl | een oer en ences ...2, 14, 16

BD TE CD in ciccsatscnctacensttbitnicisnttiieanitasic 2,11

Paperwork Reduction act, 44 U.S.C. § 3501 et seq.

gS ETT ES ees tiles A 3

aie Be EE rncicetsencettiintivesijdeansesariieedanmaamnaina 3, 6, 19

ee IE ie insicsnivinsinindideccnteenitannatiameegininti 19

Federal Rules and Other Notices

ae i, PIE caine sikiaceeenacs iesicietianices atin tavatenunicedeiueensiies 15

47 Fed. Reg. 12101 (Mar. 19, 1982) .......................... 5, 12, 13

52 Fed. Reg. 31852 (Aug. 24, 1987) ........................---- 7,12

53 Fed. Reg. 20960 (June 7, 1988) ............-.-...-.--------. 18

H. Rep. No. 96-835, 96th Cong., 2d Sess. (Mar. 19,

EET <acsinssciocictisenteensbiasonenienaeneaeddeaahiandiaiadtie sini 19

S. Rep. No. 96-930, 90th Cong., 2d Sess., reprinted

in 1980 U.S. Code Cong. and Admin. News 6241.. 19

132 Cong. Rec. $16741 (Oct. 16, 1986) -...................... 19

IN THE

Supreme Curt of the United States

OCTOBER TERM, 1988

No.

ASSOCIATED BUILDERS AND CONTRACTORS, INC., and the

CONSTRUCTION INDUSTRY TRADE ASSOCIATIONS,

- Petitioners,

THE OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, UNITED STATES

DEPARTMENT OF LABOR, e¢ al.,

Respondents.

PETITION FOR WRIT OF CERTIOKARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

—

OPINIONS BELOW

Certiorari is being sought in connection with two

related cases recently decided by the United States Court

of Appeals for the Third Circuit. The decision of the

Court of Appeals in Associated Builders and Contractors,

Inc. et al., v. Brock, dated November 25, 1988, is not yet

reported. (A-1). The decision of the same court in

United Stee!workers of America v. Pendergrass (USWA

III), dated August 19, 1988, is reported at 855 F.2d 108.

(A-24a). The Court’s denial of rehearing en bane in the

latter case dated November 28, 1988 has not been re-

ported. (A-38a). Previous decisions of the same court in

the same matter (USWA I and USWA II) are reported

at 763 F.2d 728, and 819 F.2d 1263, respectively.

JURISDICTION

The United States Court of Appeals for the Third

Circuit entered related judgments in this case on Novem-

ber 25, 1988 and November 28, 1988. Jurisdiction to

hear this case is conferred on this Court by 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS

The following provisions are pertinent to this case:

Section 3(8) of the Occupational Safety and Health

Act of 1970, 29 U.S.C. § 652(8) provides:

The term “occupational safety and health stand-

ard” means a standard which requires conditions, or

the adoption or use of one or more practices, means,

methods, operations, or processes, reasonably neces-

sary or appropriate to provide safe or healthful em-

ployment and places of employment.

Section 6(b) (2) of the Act, 29 U.S.C. § 655(b) (2)

provides:

The Secretary shall publish a proposed rule prom-

ulgating, modifying, or revoking an occupational

safety or health standard in the Federal Register

and shall afford interested persons a period of thirty

days after publication to submit written data or

comments. Where an advisory committee is ap-

pointed and the Secretary determines that a rule

should be issued, he shall publish the proposed rule

within sixty days after the submission of the advis-

ory committee’s recommendations or the expiration

of the period prescribed by the Secretary for such

submission.

Section 6(b) (5) of the Act, 29 U.S.C. § 655(b) (5)

provides: -

The Secretary, in promulgating standards dealing

with toxic material or harmful physical agents un-

der this subsection, shall set the standard which most

adequately assures, to the extent feasible, on the

basis of the best available evidence, that no employee

will suffer material impairment of health or func-

tional capacity even if such employee has regular

exposure to the hazard dealt with by such standard

for the period of his working life.

The Paperwork Reduction Act, 44 U.S.C. § 3502

provides:

(4) The term “collection of information” means

the obtaining or soliciting of facts or opinions by an

agency through the use of written report forms, ap-

plication forms, schedules, questionnaires, reports or

recordkeeping requirements, or other similar meth-

ods calling for either—

(A) answers to identical questions-posed to,

or identical reporting or recordkeeping require-

ments imposed on, ten or more persons, other

than agencies, instrumentalities, or employees

of the United States; or

(B) answers to questions posed to agencies,

instrumentalities, or employees of the United

States which are to be used for general statis-

tical purposes;

* * * *

(11) the term “information collection request”

means a written report form, application form,

schedule, questionnaire, reporting or recordkeeping

requirement, collection of information requirement,

or other similar method calling for the collection of

information ;

Section 3504 (c) provides:

(ec) The information collection request clearance

and other paperwork control functions of the Di-

rector shall include—

(1) reviewing and approving information

collection requests proposed by agencies;

(2) determining whether the collection of in-

formation by an agency is necessary for the

proper performance of the functions of the

agency, including whether the information will

be of practical utility for the agency ;

STATEMENT OF THE CASE

This petition for writ of certiorari seeks plenary re-

view of the Third Circuit’s decisions in Associated Build-

ers and Contractors v. Brock, Nos. 88-3345, 88-3346, 88-

3347, 88-3348 (Nov. 25, 1988) and United Steelworkers

of America v. Pendergrass (USWA III), 855 F.2d 108

(3rd Cir. 1988). In Associated Builders and Contractors

v. Brock (A-1la), the Third Circuit denied petitions for

review of the Occupational Safety and Health Adminis-

tration’s (OSHA’s) revised Hazard Communication Stand-

ard, as applied to all non-manufacturing industries, and

vacated a stay of the Standard earlier granted by a panel

of that court with regard to the construction industry.

In USWA II (A-24a), the Third Circuit further held

that the federal Office of Management and Budget

(“OMB”) had incorrectly disapproved portions of OSHA’s

revised HCS under the Paperwork Reduction Act and

purported to deny a motion for stay pending judicial

review.

The revised Hazard Communication Standard, issued

in August 1987, requires all employees to provide their

employees with information concerning chemicals in the

workplace. The standard mandates, inter alia, that all

employers develop written hazard communication pro-

grams for each of their workplaces, that containers of

hazardous chemicals in the workplace be labeled, that a

Material Safety Data Sheet (MSDS) on each hazardous

chemical be maintained at each workplace, and that em-

ployees receive hazard training at the inception of their

job assignment and whenever a new hazard is introduced.

The revised HCS was issued without regard to statu-

torily mandated rulemaking procedures, pursuant to an

extraordinary series of orders by the Court of Appeals

for the Third Circuit. As a result of the Third Circuit’s

orders and OSHA’s attempt to comply therewith, millions

of employers have been deprived of any meaningful op-

portunity to comment on the revised HCS, and a new

Standard has been promulgated which imposes tremen-

dous burdens on small businesses without any improve-

ment in workplace safety.

The original Hazard Communication Standard, issued

by OSHA in 1983, covered only the manufacturing sec-

tor of the economy and was tailored for the manufactur-

ing workplace. OSHA intended to use the original stand-

ard as a prototype to determine whether a hazard com-

munication standard would be beneficial in other indus-

tries, and intended to determine later what form those

standards should take. 47 Fed. Reg. 12101-02 (March

19, 1982) .?

In United Steelworkers of America v. Auchter, 736

F.2d 728 (3d Cir. 1985) (USWA I), the Court of Ap-

peals ordered OSHA either to reconsider whether the

standard should apply to non-manufacturing industries,

or to explain to the court why such application would

not be feasible. As OSHA was preparing to conduct

rulemaking to evaluate whether to extend the stand-

ard to other industries, however, the court again inter-

vened in order to expedite the process. The court ordered

OSHA to issue a non-manufacturing standard within 60

days, without further rulemaking, or to explain as to

each category of excluded workers why such a standard

would be “infeasible.” United Steelworkers of America

1In proposing the manufacturing standard, OSHA invited com-

ments on the “appropriateness of the industry scope selected” but

flatly stated that “non-manufacturing employers are not covered by

the proposal.” 47 Fed. Reg. at 12101-02. OSHA further stated it

intended to evaluate the effectiveness of the manufacturing

standard before determining “at a later date” whether to extend

or modify a hazard communication standard for other non-

manufacturing industries like construction. Jd.

6 as

v. Pendergrass, 819 F.2d 1263, 1270 (3rd Cir. 1987)

(USWA II).

None of the affected non-manufacturing industries

were represented before the Court of Appeals in either of

its proceedings.2 The court was not asked to consider

whether OSHA had found a hazard communication stand-

ard to be reasonably necessary and appropriate to reduce

significant risks in the construction industry, or other

non-manufacturing industries, as required by Section

3(8) of the Act. Nor did the court address how OSHA

should comply with its other statutory rulemaking respon-

sibilities within the assigned 60-day period, such as those

dictated by the Construction Safety Act or the Paper-

work Reduction Act.’ w

OSHA itself resisted the court’s order, pointing out in

a petition for rehearing that compliance with the order

would likely violate the Act. OSHA’s Petition for Re-

hearing-_stated in part that, “the record developed for the

HCS did not reflect conditions in non-manufacturing in-

dustries because it focused on existing practices and de-

sirable implementation methods in manufacturing indus-

tries.”’ Id. at 8. OSHA further asserted that the court

had “erred in a fundamental way by ordering promulga-

tion of a standard whose limited evidentiary underpin-

nings create a substantial risk of invalidation in the

2 Insofar as the non-manufacturing sector was not adversely af-

fected by OSHA’s original manufacturing-only HCS, its representa-

tives had no right to petition a court for review of that Standard.

See Fire Equipment Mfrs. Ass’n v. Marshall, 679 F.2d 679 (7th Cir.

1982) cert. den., 459 U.S. 1105 (1983).

3 Under the Construction Safety Act, 40 U.S.C. § 333 and OSHA’s

own regulations, OSHA is required to submit all proposed construc-

tion standards to the Advisory Committee on Construction Safety

and Health prior to publication. Under the Paperwork Reduction

Act, 44 U.S.C. § 3504(h)(1), OSHA is required to submit all pro-

posed information collection requirements to the Office of Manage-

ment and Budget (OMB) for its approval, prior to publication.

event of subsequent attack.” Jd. at 10. After the court

denied OSHA’s rehearing petition, however, OSHA chose

to extend the manufacturing standard, -with some sig-

nificant revisions, to non-manufacturing industries, with

an effective date of May 28, 1988. 52 Fed. Reg. 31852

(August 24, 1987).

The construction industry and others petitioned for

review of the revised Standard in several different cir-

cuits. The petitioners 4sserted that, since OSHA had

never published a proposed standard applicable to non-

manufacturing employers prior to issuing the final re-

vised HCS, as required by Section 6 of the Act, such

employers had been unlawfully deprived of the oppor-

tunity to comment on the revised standard prior to its

publication. Also, the petitioners noted that OSHA had

failed to find that the revised standard was reasonably

necessary and appropriate to reduce any significant risks

in the construction industry, contrary to Section 3(8) of

the Act. Finally, the Petitioners argued that OSHA had

failed to address the unique characteristics of the con-

struction workplace which make it infeasible to impose a

standard designed for implementation in a manufactur-

ing workplace.*

Meanwhile, on October 28, 1987, pursuant to its au-

thority under the Paperwork Reduction Act, 44 U.S.C.

§ 3501, the Office of Management and Budget (OMB) in-

dependently disapproved three provisions of the revised

Standard. See 52 Fed. Reg. 46075 (Dec. 4, 1987). These

provisions included (1) the requirement that employers

exchange material safety data sheets at multi-employer

work sites; (2) an exemption from the requirements of

the Standard limited to consumer products used in the

*The construction industry has previously been recognized by

both OSHA and the courts as requiring unique regulatory treatment

due to the unique circumstances of the construction industry work-

place. See United Steelworkers of America v. Marshall, 647 F.2d

1189, 1310 (D.C. Cir. 1980).

same manner and quantities as intended for consumer

use; and (3) an exemption for drugs limited to those in

tablet or pill form regulated by the Food and Drug Ad-

ministration. :

The revised Standard was scheduled to go into effect,

except for the provisions disapproved by OMB, on May

23, 1988. However, on May 20, 1988, the United States

Court of Appeals for the District of Columbia Circuit

stayed enforcement of the Standard pursuant to a Motion

filed by Petitioners ABC and CITA, while at the same

time the court transferred the case to the Court of Ap-

peals for the Third Circuit. On June 24, 1988, a panel

of the Third Circuit further stayed the revised Standard,

at least with regard to its effects on the construction in-

dustry, pending the outcome of the court’s ultimate rul-

ing on the merits of the Standard.

Subsequently, pursuant to a Motion for Further Relief

filed by the original petitioners in USWA I and II, the

Court of Appeals in USWA III held that the regulations

disapproved by OMB did not involve the “collection of

information” within the meaning of the Paperwork Re-

duction Act. (A-24a). The court ordered that the pro-

visions disapproved by OMB should be enforced as “log-

ical outgrowths” of the rulemaking record previously re-

viewed by the court. The court also purported to deny

ABC’s Motion for Stay of the Revised Standard, though

that Motion had already been ruled on by another panel

of the Third Circuit and was no longer before the court.

(A-36a). Following the court’s order, both the Depart-

ment of Justice and United Technologies Corporation

filed Petitions for Rehearing en banc, which were denied

by the Court of Appeals on November 28, 1988.

Finally, the Court of Appeals received briefs and heard

oral argument on the Petitions for Review filed by ABC

and other parties, which challenged enforcement of the

revised Hazard Communication Standard. The Court of

Appeals denied the Petitions for Review on November

25, 1988. The court held that notices published by OSHA

concerning the possible scope of the original manufagtur-

ing Hazard Communication Standard were sufficient to

alert all employers of the opportunity to submit com-

ments as to coverage of their industry. (A-lla). The

court did not address Petitioners’ contention that Section

6 of the Occupational Safety and Health Act further re-

quired publication of a proposed rule applicable to their

industries prior to promulgation of a final Standard.

With regard to the required “significant risk” finding,

the court held that the agency had made such a finding,

applicable to all workers who would be exposed to hazard-

ous chemicals, in connection with the promulgation of the

original, manufacturing hazard communication standard.

(A-12a). The court further held, without citation of

authority, that for what it characterized as a “perform-

ance-oriented information disclosure Standard”, “the sig-

nificant risk requirement must of necessity be satisfied

by a general finding concerning all potentially covered

industries.”. (A-13a). The court did not address Peti-

tioners’ further contention that, regardless of whether

significant risk had been found to exist, OSHA had failed

to find that the provisions of the revised Hazard Com-

munication Standard were reasonably necessary and ap-

propriate to reduce such alleged risks in the construction

industry, as required by Section 3(8) of the Act.

Finally, with regard to the feasibility issue, the Court

of Appeals found only that OSHA had “concluded that

the [original manufacturing rulemaking record] con-

tained no credible evidence that the Standard would be

technologically or economically infeasible for any indus-

trial sector.” (A-14a). The court made no finding that

the revised Hazard Communication Standard was in fact

feasible, based upon substantial evidence in the record

as a whole.

REASONS FOR GRANTING THE WRIT

This case involves the promulgation by OSHA of a

safety standard imposing new regulatory burdens on ev-

ery non-manufacturing employer in the United States,

including hundreds of thousands of small employers in

the construction industry, without in any way increasing

workplace safety. The issues presented are of extraor-

dinary importance not only because of the unnecessary

burdens which the new standard will unlawfully impose,

but also because of the Court of Appeals’ unprecedented

abrogation of statutorily mandated administrative pro-

cedures prior to promulgation of the Standard and its

usurpation of the proper authority of OSHA and OMB.

The court’s holdings threaten the rights of all interested

parties to participate fairly in administrative rulemak-

ings and to be protected against burdensome and infeas-

ible regulations.

The decision of the Court below squarely conflicts with

numerous decisions of this Court and other circuits and

with the plain language of several statutory provisions

governing OSHA’s rulemaking process. It is therefore

imperative that the Court accept review in order to re-

establish the validity of its own holdings and to reaffirm

what had been thought to be settled administrative pro-

cedures. Absent the Court’s intervention, the precedent

set by this case will deprive interested parties generally

of the opportunity to comment on proposed rules and will

result in the promulgation of unnecessary and infeasible

OSHA standards that fail to increase workplace safety.

Thus, as is further elaborated below, the Court should

accept review in order to redress clear violations of the

rights of numerous employers presently affected by the

revised HCS and to prevent unwarranted disruption of

statutorily mandated administrative procedures.

SE LE SII or oe

I. The Unprecedented, Court-Ordered Curtailment Of

Statutorily Mandated Notice And Comment Proce-

dures, In Connection With OSHA’s Promulgation Of

The Revised Hazard Communication Standard, Has

Violated Section 6 Of The Occupational Safety And

Health Act And Section 553 Of The Administrative

Procedure Act And Has Created A Conflict Within

The Circuits.

The Occupational Safety and Health Act of 1970 pro-

vides the Secretary of Labor with the authority to prom-

ulgate occupational safety and health standards. The Act

sets forth the procedure for promulgation of standards

at 29 U.S.C. § 655(b). Section 655(b) (2) provides in

pertinent part that

The Secretary shall publish a proposed rule prom-

ulgating, modifying, or revoking an occupational

safety or health standard in the Federal Register

and shall afford interested persons a period of thirty

days after publication to submit written data or

comments. (Emphasis added).

The Administrative Procedure Act, 5 U.S.C. § 553(b)

also requires that notice of a proposed rule be published.

Under that Act, the Court of Appeals of the District of

Columbia Circuit has held that notice “should be suffi-

ciently descriptive of the ‘subjects and issues involved’

so that interested parties may offer informed criticisms

and comments.” Ethyl Corp. vi E.P.A., 541 F.2d 1, 48

(D.C. Cir. 1976). See also Chamber of Commerce of

United States v. OSHA, 636 F.2d 464, 470 (D.C. Cir.

1980); American Federation of Labor v. Donovan, 757

F.2d 330, 337-340 (D.C. Cir. 1985).

In the present case, pursuant to the orders of the Court

of Appeals, OSHA never published a proposed rule on

hazard communication for non-manufacturing employers

prior to issuing the revised Standard in final form. Is-

suance of the non-manufacturing standard thus violated

the plain language.of OSHA’s governing statute.

aati es |

The only proposed hazard communication standard ever

published was one which was expressly limited to manu-

facturing industries. As OSHA itself stated in the pre-

amble to that rulemaking: “non-manufacturing employ-

ers are not covered by this proposal.” 47 Fed. Reg. at

12101-02. Following the Court of Appeals’ initial ruling

in USWA I, OSHA issued an Advance Notice of Pro-

posed Rulemaking on November 25, 1985, 50 Fed. Reg.

48794, which merely posed a series of questions as to how

an expanded hazard communication standard might work

in non-manufacturing industries. The ANPR did not con- |

tain a proposed non-manufacturing standard, however,

and OSHA did not subsequently issue a proposed rule for

non-manufacturers as required by statute and its own |

regulations, because the Court of Appeals did not allow

time for it, prior to publication of the final HCS. In ad-

dition, the final non-manufacturing HCS contained sig-

nificant provisions nowhere mentioned in the manufac-

turing HCS, including the special treatment of multi-

employer worksites. See 52 Fed. Reg. 31860-31867.

By issuing a final rule without first issuing a proposed

rule applicable to non-manufacturers, OSHA deprived in-

terested parties of their right to comment on specific

proposals applicable to them. The Court of Appeals mis-

understood and failed properly to address this critical

issue. The court’s sole discussion of the notice and

comment problem consists of its assertion that non-

manufacturing employers somehow were placed on notice

that they should file comments concerning the original

manufacturing standard. (A-lla). However, the al-

_ leged opportunity of non-manufacturing employers to

comment on a standard applicable solely to manufac-

turers does nothing to satisfy the statutory requirement

that employers have a chance to comment on a proposed

rule applicable to themselves.

In any event, the court below was also wrong in find-

ing that non-manufacturers were placed on notice that

they should comment on the substance of the manufac-

turing HCS. OSHA repeatedly made clear its position

that the Standard would not apply beyond the manufac-

turing sector. See 47 Fed. Reg. 12101-02. The agency’s

references to possible expansion of the standard to the

non-manufacturing sector never stated or implied that

such a drastic event would occur without prior notice of

a specific, proposed rule. Thus, the Court of Appeals’

holding was clearly erroneous and is in direct conflict

with numerous cases in other circuits dealing with notice

and comment procedures. See Chamber of Commerce of

United States v. OSHA, 636 F.2d 464 (D.C. Cir. 1980) ;

American Federation of Labor v. Donovan, 757 F.2d 330,

337-40 (D.C. Cir. 1985); Ethyl Corp. v. EPA, 514 F.2d

1, 48 (D.C. Cir. 1976) .5

It is beyond the resources of industry groups to com-

ment on every rule which OSHA proposes, no matter how

attenuated its effects on their interests. The Court of

Appeals’ decision would compel parties to file comments

on every proposed standard, however, for fear that they

will otherwise waive their right to comment when the

standard is applied to them at a later date. Moreover,

OSHA could easily circumvent statutory notice and com-

ment procedures under the lower court’s holding merely

by routinely requesting comments on the possible scope

of all proposed standards.

Such a result will lead to the filing of time consuming

“protective” comments by unaffected parties in every

OSHA proceeding, thereby weighing down the agency with

unnecessary paper and further taxing its already strained

5 The actions of the court below also conflicted with this Court’s

holding in Vermont Yankee Nuclear Power Corp. v. Natural Re-

sources Defense Council, Inc., 435 U.S. 519, 550 (1978), in which

the Court expressly prohibited the courts of appeals from “stray-

[ing] beyond the judicial province to explore the procedural format

or to impose on the agency [their] own notion of which procedures

are ‘best’ or most likely to further some vague, undefined public

good.”

resources. Alternatively, future interested parties, like

the present petitioners, will find themselves subjected to a

burdensome and perhaps needless standard without hav-

ing any meaningful opportunity to comment thereon, be-

cause of an inadequate OSHA rulemaking record. Neither

result is contemplated by the statute. Therefore, the

Court of Appeals’ decision must be reversed by this Court

in order to prevent the statute’s plain language from

being violated.

II. The Decision Of The Court Below Is Directly In Con-

flict With Decisions Of This Court And Of Other Cir-

cuit Courts Holding That OSHA Is Required By Section

3(8) Of The Act To Make A Finding That The Provi-

sions Of A New Safety Standard Are Reasonably

Necessary And Appropriate To Reduce A Significant

Risk Of Harm To Employees In The Affected Industry.

Under previously settled law, OSHA cannot impose new

and burdensome standards without first finding, based

on substantial evidence in the record, that each provision

of the new standard is “reasonably necessary and appro-

priate” to reduce a “significant” risk to employees. See

Section 3(8) of the Act, 29 U.S.C. § 652(8). In Ameri-

can Textile Manuf. Inst. v. Donovan, 452 U.S. 490, 536-

40 (1981), this Court struck down a portion of OSHA’s

cotton dust standard because OSHA failed-to show that

each specific provision contributed to increased safety in

the textile industry. Similarly, in Industrial Union Dept.

AFL-CIO v. American Petro. Inst., 448 U.S. 607 (1980),

a plurality of this Court invalidated OSHA’s benzene

standard because of the agency’s inadequate explanation

as to how the rule would reduce or eliminate a significant

risk to employees.

In the present instance, the Third Circuit held without

citation to authority that because the HCS is a

performance-oriented information disclosure stand-

ard covering thousands of chemical substances used

in numerous industries . . . the significant risk re-

quirement must of necessity be satisfied by a general

finding concerning all potentially covered industries

(A-13a). (Emphasis added). This holding clearly con-

tradicts Supreme Court precedent. It also conflicts di-

rectly with the decision of the Court of Appeals for the

Fifth Circuit in Texas Independent Growers Ass’n v.

Marshall, 630 F.2d 398 (5th Cir. 1980). There, the Fifth

Circuit partially struck down OSHA’s cotton dust stand-

ard because the agency improperly relied on risk data

concerning cotton dust’s effects in manufacturing indus-

tries when it extended the standard to the entirely sep-

arate ginning industry. In United Steelworkers of Amer-

ica v. Marshall, 647 F.2d 1189, 1309-10 (D-C. Cir. 1980),

on the other hand, the Court of Appeals for the D.C.

Circuit upheld the construction industry’s exemption from

OSHA’s lead exposure standard due to the unique work

practices and lower degree of exposures among construc-

tion’s transient, open-air workforce.

The court below also created a direct conflict between

the circuits and with the statute by focusing exclusively

on the question of whether a “significant risk” had been

shown, without making any determination that the stand-

ard is “reasonably necessary and appropriate” to reduce

that risk. See Public Citizen Health Research Group v.

Tyson, 796 F.2d 1479, 1485 (D.C. Cir. 1986). Construc-

tion industry employers, unlike other industries, are al-

ready required by OSHA to provide hazard communica-

tion training to their employees. 29 C.F.R. 1926.21.

There has been no showing that the additional burdens

imposed by the revised HCS will reduce any alleged risk

of harm among construction employees. Thus, on this

ground as well, the Court of Appeals’ decision was plainly

wrong and must be reversed.*®

* Again, the court addressed the existing training requirements

solely in the context of whether a significant risk existed. The

court failed to address how the new provisions of the HCS con-

No authority exists to create a distinction between a

“performance-oriented,” informational standard as op-

posed to any other type of standards. A plurality of this

Court has held that Section 3(8) of the Act requires

OSHA to find that all standards are reasonably neces-

sary and appropriate to reduce significant risk. Jndus-

trial Union Dept. AFL-CIO v. American Petroleum Inst.,

448 U.S. 607, 639 (1980). Therefore, the Court should

grant certiorari in order to review the lower court’s ap-

parent, blatant departure from the Court’s prior holdings

and to resolve the conflict in the circuits on this issue.

Ill. The Court Of Appeals’ Decision To Require OSHA

Merely To Show That The Revised HCS Was Not

Infeasible, Directly Conflicts With Decisions Of This

Court And Other Circuit Courts Requiring OSHA To

Find That Any New Safety Standard Is Feasible Based

Upon Substantial Evidence In The Record A. A Whole.

The Third Circuit has further erred in shifting OSHA’s

burden of proving the technological and economic feas-

ibility of the proposed standards for each industry to one

in which petitioners must prove infeasibility in order to

void the standard. The court found that because OSHA

had established that employee training and maintenance

of labels and material safety data sheets is feasible in the

manufacturing sector it need not do so. for the non-

manufacturing sector. (A-14a).

The holding of the court below fails to take into ac-

count the unique circumstances of the construction in-

dustry and conflicts sharply with this Court’s decision in

American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490

(1981). The Court there squarely held that OSHA’s

standards can only be upheld if they are shown to be

tributed anything over and above the existing requirement to in-

creased worker safety, and the record contains no evidence whatso-

ever of risk reduction resulting from the revised HCS in the con-

struction industry.

feasible, based upon substantial evidence in the record as

a whole. The Court of Appeals’ decision also conflicts

directly with the D.C. Circuit’s decision in United Steel-

workers of America v. Marshall, 647 F.2d 1189 (D.C.

Cir. 1979), cert. denied, 453 U.S. 913 (1981) and the

Fourth Circuit’s decision in Forging Industry Ass’n v.

Secretary of Labor, 773 F.2d 1486, 1452 (4th Cir. 1985)

(en bane). In these decisions, the courts held that the

feasibility of an OSHA standard must be proved by the

agency for each affected industry.

In the present case, the record was totally inadequate

for OSHA to make findings of feasibility in the con-

struction industry, as OSHA itself admitted in its peti-

tion for rehearing following USWA II. Construction

employers, unlike manufacturers, are frequently con-

fronted with transient and mobile workforces, multiple

worksites at remote locations, nonexistent administrative

facilities and small profit margins with which to absorb

the high costs imposed by the revised Standard.? None

of these factors have been taken into account, either by

OSHA or the court below.

Thus, Supreme Court intervention is necessary to re-

solve an important conflict in the circuits as to the bur-

den OSHA must sustain in establishing the feasibility

of standards which affect numerous and different sectors

of the economy. Resolution of this issue is particularly

important insomuch as OSHA is now developing a

“generic” standard applicable to the entire economy, ad-

The most recent estimates of the likely costs of compliance with

the revised HCS, for a typical construction contractor employing

10 employees, are that the company will have to spend an additional

$15,000 in the first year alone, followed by substantial additional

costs in subsequent years. Based on the average net profits of

typical construction employers, it has further been estimated that

compliance with the revised HCS as written will wipe out the profits

of a substantial percentage of industry employers. See Comments

filed with OSHA by the Construction Industry Hazard Communica-

tion Coalition, Docket No. H-022D, Oct. 28, 1988.

dressing exposure limits for several hundred toxic sub-

stances. See 53 Fed. Reg. 20960 (June 7, 1988).

IV. The Court Of Appeals’ Decision Conflicts Directly

With The Paperwork Reduction Act And With A De-

cision In The D.C. Circuit In That It Interferes With

OMB’s Lawful Disapproval Of Burdensome Informa-

tion Collection Requirements.

As noted above, certiorari is also being sought herein

with regard to the Court of Appeals’ decision in USWA

III, because in that decision the Third Circuit has utterly

misconstrued the scope and purpose of the Paperwork

Reduction Act.

OMB’s disapproval of part of the revised HCS, in and

of itself, lends credence to petitioners’ claims that the

standard was defective and unlawful. The court’s arbi-

trary attempt to invalidate OMB’s disapproval removes

an important safeguard against regulatory abuse and

must not be permitted by this Court, and creates a eon-

flict among the circuits.

The language of the Paperwork Reduction Act applies

to the collection of all information required by a fed-

eral agency for any regulatory pyrpose. This interpreta-

tion has been upheld previously in Action Alliance of

Senior Citizens v. Bowen, 846 F.2d 1449 (D.C. Cir.

1988). In that case, the D.C. Circuit rejected the argu-

ment that the Act applied only to documents required to

be furnished to an agency, noting that Congress was not

“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.”

846 F.2d at 1453. The Third Circuit’s decision conflicts

with that of the D.C. Circuit and effectively eviscerates

the Act, leaving employers with no protection from bur-

densome and unnecessary paperwork regulations.

Contrary to the effect of the Third Circuit’s decision,

nothing in the Act exempts federally-sponsored informa-

—

tion disclosures from coverage. The legislative history

of the Act emphasizes a specific congressional intent to

cover such disclosures as well. See H.Rep. No. 96-835,

96th Cong., 2d Sess. at 23 (March 19, 1980); S.Rep. No.

96-930, 90th Cong., 2d Sess. at 39-40, reprinted in 1980

U.S. Code Cong. & Admin. News 6241, 6279-80; 132

Cong. Rec. $16741 (Oct. 16, 1986). The Act grants the

OMB independent authority over agency regulation to

determine “whether the collection of information by an

agency is necessary for the proper performance of the

functions of the agency, including whether the informa-

tion will have practical utility for the agency.” 44 U.S.C.

§§ 3504(c) (2), 3518.

However, the Third Circuit construed Section 3518 (e)

to deny the Director the authority to determine whether

a particular paperwork requirement is necessary or use-

ful to accomplish a particular substantive policy. This

erroneous interpretation removes the Director’s authority

under section 3504(c) (2) to review the “necessity” and

“practical utility” of paperwork requirements. The only

‘interpretation which preserves both the agency’s substan-

tive mission and the Act’s purposes is that the agency

makes the policy and OMB determines whether a pro-

posed paperwork requirement is necessary or useful in

achieving that policy. As the government itself has

argued to the lower court, the Third Circuit’s holding

contradicts the plain language of the Act, creates a con-

flict within the circuits and further violates this Court’s

holding in Chevron U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837, 842-45 (1984). The

Supreme Court should accept review in order to resolve

these conflicts and reinstate OMB’s intended role in reg-

ulating the paperwork burden imposed by administrative

agencies.

CONCLUSION

For these reasons, and upon the entire record herein,

Petitioners respectfully ask this Court to issue a writ of

certiorari to review the judgment and opinion of the

United States Court of Appeals for the Third Circuit.

Respectfully submitted,

MAURICE BASKIN *

VENABLE, BAETJER, HOWARD

& CIVILETTI

1301 Pennsylvania Avenue, N.W.

Suite 1200

Washington, D.C. 20004

Telephone: (202) 662-4300

Attorneys for Petitioners

* Counsel of Record

Date: December 28, 1988

—— 2

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APPENDIX

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APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 88-3345

ASSOCIATED BUILDERS AND CONTRACTORS, INC.,

> Petitioner

WILLIAM E. Brock, Secretary of Labor,

and

JOHN A. PENDERGRASS, Assistant Secretary for

Occupational Safety and Health,

and

THE OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondents

National Association of Home Builders, American

Subcontractors Association, American Fire Sprinkler

Association, Associated Specialty Contractors,

Association of the Wall and Ceiling Industries-

International, Insulation Contractors of America,

Mason Contractors Association of America,

Mechanical Contractors Association of America,

National Association of Cold Storage Contractors,

National Association of Plumbing, Heating and

Cooling Contractors, National Electrical Contractors

Association, National Glass Association, National

Insulation Contractors Association, National Roofing

Contractors Association, National Utility Contractors

Association, Painting and Decorating Contractors of

America, and the Sheet Metal and Air Conditioning

Contractors National Association (all of the above

herein referred to as the Construction Industry

Trade Associations)

United Technologies Corporation, Associated General

Contractors of Virginia and the Associated General

Contractors of America, Building and Construction

Trades Department, AFL-CIO, United Steelworkers of

America, AFL-CIO-CLC, National Paint and Coatings

Association, National Grain and

Feed Association, Inc.,

Intervenors

No. 83-3346

THE NATIONAL GRAIN & FEED ASSOCIATION, INC.,

e Petitioner

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

. Respondent

National Paint and Coatings Association,

Public Citizen, Inc., and the

Connecticut Council on Occupational

Safety and Health (“ConnCOSH”’),

Intervenors

No. 88-3347

THE ASSOCIATED GENERAL CONTRACTORS

OF VIRGINIA

and

THE ASSOCIATED GENERAL CONTRACTORS

OF AMERICA,

o Petitioners

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondent

United Technologies Corporation, United

Steelworkers of America, AFL-CIO, CLC, The National

Grain and Feed Association, Inc., Building and

Construction Trades Department, AFL-CIO,

Intervenors

No. 88-3348

UNITED TECHNOLOGIES CORPORATION,

~ Petitioner

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondent

ON PETITION FOR REVIEW OF AN ORDER OF

THE UNITED STATES DEPARTMENT OF LABOR

Argued: September 16, 1988

Before: GIBBONS, Chief Judge, HUTCHINSON and

SCIRICA, Circuit Judges

(Opinion Filed: November 25, 1988)

BENJAMIN R. CIVILETTI, ESQ.

ROBERT G. AMES, ESQ.

MAURICE BASKIN, ESQ. (Argued)

VENABLE, BAETJER, HOWARD &

CIVILETTI

1301 Pennsylvania Avenue, N.W.

Suite 1200

Washington, D.C. 20004

Attorneys for Petitioner, Associated Builders and

Contractors and Construction Industry Intervenors

MARC L. FLEISCHAKER, ESQ. (Argued)

GINA M. ZAWITOSKI, ESQ.

V. DANIEL PALUMBO, ESQ.

ARENT, FOX, KINTNER, PLOTKIN

& KAHN

Washington Square

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5339

Attorneys for Petitioner, The National Grain & Feed

Association, Inc.

STEPHEN C. YOHAY, ESQ. (Argued)

ANN ELIZABETH REESMAN, ESQ.

McGUINESS & WILLIAMS

1015 15th Street, N.W.

Suite 1200

Washington, D.C. 20005

ROBERT E. WILLIAMS, ESQ.

Of Counsel -

Attorneys for Petitioners, The Associated General

Contractors of Virginia and The Associated General

Contractors of America

W. SCOTT RAILTON, ESQ. (Argued)

DIANE F. KILLIOIN, ESQ.

SUSAN A. KUNST, ESQ.

REED SMITH SHAW & McCLAY

1150 Connecticut Avenue, N.W.

Suite 900

Washington, D.C. 20036-4192

Attorneys for Petitioner,

United Technologies Corporation

GEORGE R. SALEM

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor for Special Appellate

and Supreme Court Litigation

STEVEN J. MANDEL

Counsel for Appellate Litigation

NATHANIEL I. SPILLER (Argued)

EDWARD D. SIEGER

Attorneys

U.S. Department of Labor

Room N2700

Washington, D.C. 20210

Attorneys for the Secretary of Labor

GEORGE H. COHEN, ESQ.

JEREMIAH A. COLLINS, ESQ.

MICHAEL H. GOTTESMAN, ESQ.

JOHN ROTHCHILD, ESQ.

BREDHOFF & KAISER

1000 Connecticut Avenue, N.W.

Suite 1300

Washington, D.C. 20036

MARY-WIN O’BRIEN, ESQ.

United Steelworkers of America

Five Gateway Center

Pittsburgh, PA 15222

LAURENCE GOLD, ESQ. (Argued)

815 16th Street, N.W.

Washington, D.C. 20006

Attorneys for Intervenor,

United Steelworkers of America, AFL-CIO, CLC

eel

ELIHU I. LEIFER, ESQ.

VICTORIA L. BOR, ESQ.

CHRISTOPHER S. RICHARDSON, ESQ.

SHERMAN, DUNN, COHEN, LEIFER

& COUNTS

1125 Fifteenth Street, N.W.

Suite 801

Washington, D.C. 20005

Attorneys for Intervenor,

Building and Construction Trades

Department, AFL-CIO

BRUCE H. HAMILL, ESQ.

1500 Rhode Island Avenue, N.W.

Washington, D.C.

TIMOTHY J. WATERS, ESQ.

McDERMOTT, WILL & EMERY

1850 K Street, N.W., Suite 500

Washington, D.C. 20006-2296

Attorneys for Intervenor,

National Paint & Coatings Association

DAVID C. VLADECK, ESQ.

Public Citizen Litigation Group

2000 P Street, N.W.

Washington, D.C. 20036

Attorney for Intervenor, Public Citizen, Inc. and

the Connecticut Council on Occupational

Safety and Health

PETER L. dela CRUZ, ESQ.

MARY CHAMBERS GRANDY, ESQ.

KELLER AND HECKMAN

1150 - 17th Street, N.W.

Suite 1000

Washington, D.C. 20036

Attorneys for Amicus, The Styrene

Information and Research Center

iia nee

OPINION OF THE COURT

GIBBONS, Chief Judge:

Before the court are four petitions for ieview of the

reviged hazard communication standard promulgation by

the Sécretary of Labor pursuant to Section 6(b) of the

Occupational Safety and Health Act of 1970, 29 U.S.C.

§ 655(b) (OSH Act). The petitioners are the Associated

Builders and Contractors, Inc. (ABC), the National Grain

& Feed Association, Inc. (NGFA), the Associated Gen-

eral Contractors of Virginia, et al. (AGC), and United

Technologies Corporation (UTC). These petitions were

initially filed in the District of Columbia Circuit, the

Second Circuit, and the Fourth Circuit. Since the filing

in the District of Columbia Circuit was earliest, the other

petitions were transferred and consolidated there. There-

after, the Building and Construction Trades Depart-

ment, AFL-CIO intervened, and on the motion of the

intervenors the petitions were transferred to this court.

The transfer order was made because the hazard review

standard was before this court on three prior occasions.

United Steelworkers of America v. Auchter, 763 F.2d

728 (3d Cir. 1985) (USWA I); United Steelworkers of

America v. Pendergrass, 819 F.2d 1263 (3d Cir. 1987)

(USWA II); United Steelworkers of America v. Pender-

grass, 855 F.2d 108 (3d Cir. 1988) (USWA III). Be-

cause those prior decisions are controlling, we will deny

the petition for review.

In USWA I this court ordered the Occupational Safety

and Health Administration (OSHA) to apply its recently

promulgated hazard communication standard not only

to the manufacturing sector, but to the non-manufactur-

ing sector as well, unless the agency could “state reasons

why such application would not be feasible.” 763 F.2d

at 739. Except for a part of its treatment of trade

secrets, the hazard communications standard was other-

wise upheld. 763 F.2d at 743.

In USWA II, the petitioners in USWA I returned to

the court seeking to enforce the judgment in that case.

OSHA, following the USWA I judgment, had issued a

notice of proposed rulemaking, claiming that the record

was insufficient to determine the issue of feasibility of

the standard outside the manufacturing sector. This

court held that OSHA was not in compliance with the

USWA I judgment, which did not contemplate notice

and comment. It ordered OSHA to promulgate, within

60 days, a hazard communications standard applicable to

all workers covered by the OSH Act, or state reasons

separately, as to each category of excluded workers, why,

on the basis of the present administrative record, a

hazard communication standard is not feasible. 819 F.2d

at 1270.

In USWA III the original petitioners moved for fur-

ther relief in enforcement of the USWA I judgment. By

then OSHA had on August 24, 1987, published an ex-

panded hazard communication standard applicable to all

industries. 52 Fed. Reg. 31852 et seq. (codified at 29

C.F.R. § 1910.1200). This revised standard was to go

into effect on May 23, 1988. 29 C.F.R. § 1019.1200(j).

On September 10, 1987, however, OSHA submitted it to

the Office of Information and Regulatory Affairs in the

Office of Management and Budget (OMB) ). OMB, osten-

sibly in compliance with the Paperwork Reduction Act

of 1980, Pub. L. No. 96-511, 94 Stat. 2812, 44 U.S.C.

§ 3501 et seq. (Supp. 1988), sought public notice and

comment “on the recordkeeping, notifications, and other

paperwork requirements of the revised standard.” 52

Fed. Reg. 36652. Following a public hearing OMB pur-

ported to disapprove three provisions which the revised

standard adopted. These three new provisions were: (1)

a requirement that at multi-employee worksites employers

exchange Material Safety Data Sheets obtained from

chemical manufacturers, 29 C.F.R. § 1910.1200(e) (2);

(2) an exemption from the labeling requirements of the

standard for consumer products used in the same man-

ner and quantities as intended for consumer use, 29

C.F.R. § 1900.1200(b) (6) (vii); and (3) an exemption

from labeling of drugs in tablet or pill form regulated by

the Federal Drug Administration. 29 C.F.R. § 1910.1200

(b) (6) (viii). This court held that the regulations dis-

approved by OMB did not involve the collection of in-

formation within the meaning of the Paperwork Re

duction Act. 855 F.2d at 113. Summarizing the prior

history of the case, we noted:

In USWA I we directed OSHA to reconsider the

application of the hazard communication standard to

employees in sectors of the economy other than manu-

facturing unless the Secretary could state reasons

why such application would not be feasible. 763 F.2d

at 739 (citing 29 U.S.C. § 655(b) (5)). In USWA

II we made it clear that our first judgment required

that feasibility be determined for each category of

worker on the basis of the administrative record

already compiled. 819 F.2d at 1270. Thus, our prior

orders represent our considered view that OSHA

must cease abdicating its responsibility with respect

to employees outside the manufacturing sector, by

deciding whether or not they should be covered on

the basis of the record. The August 24, 1987 prom-

ulgation of a hazard communication standard ap-

plicable to all employees was a good faith compliance

with those orders. The slight changes that were

made in the standard were a logicai outgrowth of

the rulemaking record which we previously reviewed.

Cf. Action Alliance, at 1455 (new round of rule-

making not required for a revision that is the

“logical outgrowth” of the rulemaking record).

Withdrawal of the provisions disapproved by OMB

was accordingly inconsistent with those orders. Re-

10a

lief by motion is appropriate. 28 U.S.C. § 1651 (a)

(1982); 5 U.S.C. § 706(1) (1982); United States v.

New York Telephone Co., 484 U.S. 159, 172 (1977) ;

USWA II, 819 F.2d at 1270.

855 F.2d at 113-14.

The present petitioners, unlike those who were the

moving parties in USWA I, II, and III, seek to prevent

enforcement of the hazard communication standard.

Their objections include both procedural and substantive

challenges to the promulgated standard.

Sufficiency of Notice of Rulemaking

The four petitioners contend that OSHA violated sec-

tion 6(b) of the OSH Act, 29 U.S.C. § 655(b), by failing

to provide adequate notice of proposed rulemaking affect-

ing their industries. That contention is foreclosed by

USWA II, which exhaustively detailed the fact that the

scope of industry coverage had been an important issue

for public comment throughout the entire regulatory pro-

ceeding. The court wrote:

On June 28, 1977 the Secretary published an ad-

vance notice of proposed rulemaking on hazardous

materials labeling. See 42 Fed. Reg. 5,872 (1977).

In that advance notice, the Secretary requested

“public comment as to whether a standard requiring

employers to label hazardous—materials should be

developed and what should be contained in such

standard to assure that employees are apprised of

the hazards to which they are exposed.” Jd. All

“interested persons” were “invited to submit written

data, views, and arguments concerning a standard

on hazardous material labeling.” Jd. at 5,373.

Among the topics on which comments were requested

was “[s]upported cost data of the estimated costs of

CCL A PDI LE Bt 6 OES en

lla

coming into compliance with the recommendations of

the advisory committee.” Jd. At this stage in 1977,

the notice, like the Advisory Committee Report’s

recommendation, was addressed to all employers, not

only to employers in the manufacturing sector.

819 F.2d at 1265. In the same opinion, this court recog-

nized that the 1982 notice was at least as explicit. That

notice invited comment on the appropriateness of the

industry scope to be selected, and whether or not indus-

tries outside the manufacturing sector should be included.

Id. at 1266. Thus this court’s holding that the Secretary

provided adequate notice to all employers was clearly

stated.

The four petitioners urge that since they were not

parties to the initial petition for review, they are not

bound by the prior panel decision. OSHA, on the other

hand, contends that the discussion of the notice of rule-

making in USWA II is law of the case. We need not

resolve that difference, however, because in any event

the facts with respect to the 1981 and 1982 notices have

not changed, and a prior panel has applied the law to

those facts. Thus USWA II is a binding precedent of the

court which this panel could not disregard even if it had

a mind to do so. Internal Operating Procedures of the

United States Court of Appeals for the Third Circuit,

8C. Nor are we of such a mind. The notice was sufficient

to alert all employers of the opportunity to submit com-

ments as to coverage of their industry. Thus the peti-

tioners’ objections to the adequacy of notice of proposed

rulemaking are rejected.

The Significant Risk Finding

Several of the petitioners contend that the hazard

communication standard is invalid because it was prom-

ulgated without a significant risk determination. Under

12a

Sections 3(8) and 6(b) (5) of the OSH Act, 29 U.S.C.

§§ 652(8), 655(b) (5), the Secretary must determine that

there exists a significant risk of harm to employees and

that a standard is reasonably necesary or appropriate to

reduce that risk. Industrial Union Dept. v. American

Petroleum Inst., 448 U.S. 607, 614-15, 639 (1980) (plu-

rality opinion).

The agency record on this issue was reviewed by this

court in USWA I. The court upheld-OSHA’s finding

that a section 6(b) (5) standard is required to address a

significant risk to workers. 763 F.2d at 73&. The sig-

nificant risk finding applied to all workers who would be

exposed to hazardous chemicals. Jd. at 738. Indeed, the

court noted the incongrity of protecting spray painters,

for example, in the manufacturing sector, but not in

construction. Jd. at 737.

The agency record on this issue was reviewed once

again in USWA II. In that case we ordered OSHA, on

remand, to consider solely the feasibility of the standard

outside the manufacturing sector, not to reestablish its

nened. 819 F.2d at 1270. As with the treatment of the

notice issue in USWA I and USWA II, the-record on the

significant risk issue is unchanged, and this panel is not

free to disregard the holdings in those prior opinions of

the court.

Petitioners, ABC, AGC, and NGFA, contend that those

opinions did not address their specific contention, that

OSHA must make a significant risk determination sepa-

rately for each industry: in this case, construction and

grain processing or storage. We do not interpret the

opinions so narrowly. The standard was approved for

the manufacturing sector, which has twenty major Stand-

ard Classification (SIC) Code subdivisions. There is no

more obvious need for industry specific significant risk

determinations for the construction and grain industries

than for subdivisions of the manufacturing sector. The

13a

holdings in USWA I and USWA II sustained a general

significant risk finding. Assuming, however, that those

opinions were construed as leaving open the significant

risk issue, as presently presented, the outcome would be

no different. This rulemaking proceeding produced a

performance-oriented information disclosure standard

covering thousands of chemical substances used in nu-

merous industries. For such a standard the significant

risk requirement must of necessity be satisfied by a gen-

eral finding concerning all potentially covered industries.

A requirement that the Secretary assess risk to workers

and need for disclosure with respect to each substance in

each industry would effectively cripple OSHA’s perform-

ance of the duty imposed on it by 29 U.S.C. § 655(b) (5) ;

a duty to protect all employees, to the maximum extent

feasible. We reject, as well, the contention by ABC and

AGC that because the construction industry already pro-

vides training in hazardous materials handling, there is

no significant risk in that industry. At best that argu-

ment establishes the existence of risks, and the require-

ment for maintenance on the jobsite of information on

those risks can only make the existing training more

effective. As to risks posed by grain dust, the propensity

of grain elevators to blow up has been well documented.

The Feasibility Determination

Several petitioners contend that the Secretary’s feasi-

bility determination, made after the remand in USWA

II, is not supported by the rulemaking record. Unlike

the notice of rulemaking and significant risk issues, the

feasibility determination, outside the manufacturing sec-

tor, has not previously been addressed by this court.

Our review of that determination asks whether “the Sec-

retary carried out [her] essentially legislative task in a

manner reasonable under the state of the record before

[her.]” Synthetic Organic Chemical Mfrs. Ass’n v. Bren-

l4a

nan, 503 F.2d 1155, 1158 (8d Cir. 1974), cert. denied,

420 U.S. 973 (1975) (quoting Florida Peach Growers

Ass’n v. United States Dep’t of Labor, 489 F.2d 120, 129

(5th Cir. 1974) ).

When OSHA adopts standards relating to activities on

the frontiers of scientific knowledge, feasibility issues

may be difficult. Here, however, the main components of

the hazard communication standard, except for chemical

manufacturers, are training of workers and the mainte-

nance of labels and material safety data sheets furnished

by chemical manufacturers. These obligations hardly

approach the limits of feasibility. The Secretary had,

prior to our remand in USWA I, already established that

the employee training and the maintenance of labels and

material safety data sheets is feasible in the manufac-

turing sector, encompassing a spectrum of SIC Code sub-

divisions with employers of all sizes. As this court’s

remand required, the Secretary examined the same rule-

making record, and concluded that it contained no credible

evidence that the standard would be technologically or

economically infeasible for any industrial sector. That

conclusion is on the agency record completely supportable,

and we are not permitted to substitute our legislative

judgment for that of OSHA. If there are deficiencies in

that record they may not be laid at OSHA’s door, for as

we hold in Part II A above, the affected employers re-

ceived notice of the rulemaking proceedings.

The Unlawful Delegation Contention

One final substantive challenge to the hazard com-

munication standard is advanced on behalf of NGFA,

which contends that OSHA unlawfully delegated its rule-

making authority to the American Conference of Gov-

ernmental Industrial Hygienists (ACGIH) when OSHA

incorporated in the standard that organization’s Thresh-

old Limit Values for Chemical Substances and Physical

15a

Agents in the Work Environment. ACGIH is an im-

partial scientific organization which identifies safe ex-

posure levels for various substances.

This court in USWA I decided the delegation question

when it held, over the objections of the Petitioner Public

Citizens, and the State of New Jersey as amicus, that

OSHA need not itself evaluate specific chemical hazards,

but could rely on information developed by chemical

manufacturers. 763 F.2d at 739. The reliance on ACGIH

is an a fortiori case, and USWA I controls. Even if it

did net control, we would in any event reject the unlaw-

ful delegation contention. It was appropriate to adopt

ACGIH’s list as a floor, while imposing on chemical man-

ufacturers the requirement that they research and assess

hazards independently. 20 C.F.R. § 1910.1200(d) (3).

That action was fully consistent with section 6(b) (5) of

the OSH Act, which directs OSHA to set toxic substance

standards based on “the best available evidence” with due

consideration to “the latest available scientific data.”

III

None of the substantive or procedural challenges to the

application of the hazard communication standard to the

construction or grain processing and storage industries

have merit. The petitions for review of ABC, AGC, and

NGFA will therefore be denied. The stay of those stand-

ards granted by a panel of this court on June 24, 1988,

shall be vacated.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

16a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 88-3345

ASSOCIATED BUILDERS AND CONTRACTORS, INC.,

Petitioner

WILLIAM E. Brock, Secretary of Labor,

and

JOHN A. PENDERGRASS, Assistant Secretary for

Occupational Safety and Health,

and

THE OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondents

National Association of Home Builders, American

Subcontractors Association, American Fire Sprinkler

Association, Associated Specialty Contractors,

Association of the Wall and Ceiling Industries-

International, Insulation Contractors of America,

Mason Contractors Association of America,

Mechanical Contractors Association of America,

National Association of Cold Storage Contractors,

National Association of Plumbing, Heating and

17a

Cooling Contractors, National Electrical Contractors

Association, National Glass Association, National

Insulation Contractors Association, National Roofing

Contractors Association, National Utility Contractors

Association, Painting and Decorating Contractors of

America, and the Sheet Metal and Air Conditioning

Contractors National Association (all of the above

herein referred to as the Construction Industry

Trade Associations)

United Technologies Corporation, Associated General

Contractors of Virginia and the Associated General

Contractors of America, Building and Construction

Trades Department, AFL-CIO, United Steelworkers of

America, AFL-CIO-CLC, National Paint and Coatings

Association, National Grain and

Feed Association, Inc.,

Intervenors

No. 88-3346

THE NATIONAL GRAIN & FEED ASSOCIATION, INC.,

Petitioner

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondent

National Paint and Coatings Association, Public

Citizen, Inc., and the Connecticut Council on

Occupational Safety and Health (““ConnCOSH”’),

Intervenors

18a

No. 88-3347

THE ASSOCIATED GENERAL CONTRACTORS

OF VIRGINIA

and

THE ASSOCIATED GENERAL CONTRACTORS

OF AMERICA,

Petitioners

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondent

United Technologies Corporation, United

Steelworkers of America, AFL-CIO, CLC, The National

Grain and Feed Association, Inc., Building and

Construction Trades Department, AFL-CIO

Intervenors

No. 88-3348

UNITED TECHNOLOGIES CORPORATION,

Petitioner

Vv.

THE OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondent

19a

ORDER AMENDING OPINION

The slip opinion in the above matter, filed November

25, 1988, is hereby amended as follows. The penultimate

sentence of section III on page 16 should read: “The

petition for review of ABC, AGC, NGFA, and UTC

will therefore be denied.”

/s/ John J. Gibbons

Chief Judge

Dated: December 5, 1988

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

20a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 88-3345

ASSOCIATED BUILDERS AND CONTRACTORS, INC.,

Petitioner

WILLIAM E. Brock, Secretary of Labor,

and

JOHN A. PENDERGRASS, Assistant Secretary for

Occupational Safety and Health,

and

THE OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondents

National Association of Home Builders, American

Subcontractors Association, American Fire Sprinkler

Association, Associated Specialty Contractors,

Association of the Wall and Ceiling Industries-

International, Insulation Contractors of America,

Mason Contractors Association of America,

Mechanical Contractors Association of America,

National Association of Cold Storage Contractors,

National Association of Plumbing, Heating and

Cooling Contractors, National Electrical Contractors

Association, National Glass Association, National

Insulation Contractors Association, National Roofing

Contractors Association, National Utility Contractors

Association, Painting and Decorating Contractors of

America, and the Sheet Metal and Air Conditioning

Contractors National Association (all of the above

herein referred to as the Construction Industry

Trade Associations)

2la

United Technologies Corporation, Associated General

Contractors of Virginia and the Associated General

Contractors of America, Building and Construction

Trades Department, AFL-CIO, United Steelworkers of

America, AFL-CIO-CLC, National Paint and Coatings

Association, National Grain and

Feed Association, Inc.,

Intervenors

No. 88-3346

THE NATIONAL GRAIN & FEED ASSOCIATION, INC.,

7 Petitioner

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondent

National Paint and Coatings Association,

Public Citizen, Inc., and the

Connecticut Council on Occupational

Safety and Health (“ConnCOSH”),

Intervenors

No. 88-3347

THE ASSOCIATED GENERAL CONTRACTORS

OF VIRGINIA

and

THE ASSOCIATED GENERAL CONTRACTORS

OF AMERICA,

. Petitioners

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondent

22a

United Technologies Corporation,

United Steelworkers of America, AFL-CIO, CLC,

The National Grain and Feed Association, Inc.,

Building and Construction Trades Department,

7 AFL-CIO,

Intervenors

No. 88-3348

UNITED TECHNOLOGIES CORPORATION,

Petitioner

THE OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondent

= ON PETITION FOR REVIEW OF THE REVISED

HAZARD COMMUNICATION STANDARD

PROMULGATED BY THE OCCUPATIONAL

SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR

Present: GIBBONS, Chief Judge, HUTCHINSON and

SCIRICA, Circuit Judges

JUDGMENT

These causes came on to be heard on the record from

the Occupational Safety and Health Administration,

United States Department of Labor and were argued by

counsel September 16, 1988.

ie Serial, sete tat tes Sei Ms tt 90 ME A EO

23a

On consideration whereof, it is now here ordered and

adjudged by this Court that the petitions for review of

the revised hazard communication standard promulgated

by the said Administration and published at 52 Fed. Reg.

31852, et seq. (August 24, 1987), be, and the same are

hereby denied. It is further ordered that the stay of the

said standard granted by a panel of this Court on June

24, 1988 is vacated. Costs taxed against the petitioners.

All of the above in accordance with the opinion of this

Court.

ATTEST:

/s/ M. Elizabeth Ferguson

Chief Deputy Clerk

November 25, 1988

24a

UNITED STATES COURT OF APPEALS

THIRD CIRCUIT

Nos. 83-3554, 83-3561, 83-3565, 84-3066,

84-3093 and 84-3128

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

Petitioner

JOHN A. PENDERGRASS, ASSISTANT SECRETARY OF LABOR,

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondent,

and

THE STATE OF NEW YORK, the STATE OF NEW JERSEY,

the STATE OF CONNECTICUT and NATIONAL PAINT &

COATINGS ASSOCIATION, Intervenors

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

Petitioner,

¥.

JOHN A. PENDERGRASS, ASSISTANT SECRETARY OF LABOR,

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondent,

- and

THE STATE OF NEW JERSEY, CHEMICAL MANUFACTURERS

ASSOCIATION, AMERICAN PETROLEUM INSTITUTE & AT-

LANTIC RICHFIELD COMPANY, and NATIONAL PAINT &

COATINGS ASSOCIATION, Tobiveniaie

So a oe ae as

a eee ee Oe ae ee) ae Soe eee

25a

PUBLIC CITIZEN, INC., et al.,

Petitioners,

Vv.

JOHN A. PENDERGRASS, ASSISTANT SECRETARY OF LABOR,

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondent,

and

THE STATE OF NEW JERSEY, CHEMICAL MANUFACTURERS

ASSOCIATION, NATIONAL PAINT & COATINGS ASSOCIA-

TION, AMERICAN PETROLEUM INSTITUTE & ATLANTIC

RICHFIELD COMPANY,

Intervenors.

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

Vv.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

SECRETARY OF LABOR, UNITED SATES DEPARTMENT OF

LABOR,

Respondent.

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

UNITED STATES DEPARTMENT OF LABOR, and RAYMOND

DONOVAN, SECRETARY OF UNITED STATES DEPARTMENT

OF LABOR,

Respondents.

26a

THE STATE OF NEW YORK,

Petitioner,

JOHN A. PENDERGRASS, ASSISTANT SECRETARY OF LABOR,

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR,

Respondent.

Submitted Under Third Circuit Rule 12(6)

Aug. 5, 1988

Decided Aug. 19, 1988

David C. Vladek, Public Citizen Litigation Group,

Washington, D.C., for petitioner Public Citizen, Inc.

George H. Cohen, Michael H. Gottesman, John Roth-

child, Bredhoff & Kaiser, Washington, D.C., Mary-Win

O’Brien, United Steelworkers of America, Pittsburgh,

Pa., Laurence Gold, Washington, D.C., for petitioner

United Steelworkers of America, AFL-CIO-CLC.

John R. Bolton, Asst. Atty. Gen., Stephen C. Yohay,

Ann Elizabeth Reesman, McGuiness & Williams, Wash-

ington, D.C., for intervenor Associated General Contrac-

tors of America.

George R. Salem, Sol. of Labor, Allen H. Feldman,

Associate Sol. for Special Appellate and Supreme Court

Litigation, Leonard Schaitman, Marleigh D. Dover, At-

torneys, Appellate Staff, Civ. Div., Dept. of Justice,

Washington, D.C., Steven J. Mandel, for Appellate Liti-

gation.

Nathaniel I. Spiller, U.S. Dept. of Labor, Washington,

D.C., Robert G. Damus, Acting Gen. Counsel, Steven D.

Aitken, Office of Management and Budget, Washington,

D.C., for respondent.

(27a

W. Scott Railton, Washington, D.C., for intervenor

United Technologies Corp.

Before GIBBONS, Chief Judge, and FISHER,* and

KELLY,** District Judges.

OPINION OF THE COURT

GIBBONS, Chief Judge.

Once again United Steelworkers of America and Pub-

lie Citizen, Ine. et al., (petitioners) come before this court

on a motion seeking further relief in the enforcement of

our judgment in United Steelworkers of America v.

Auchter, 763 F.2d 728 (8d Cir.1985) (USWA I), issued

on May 24, 1985. In USWA I we directed the Secretary

of Labor to reconsider the application of the hazard

communication standard promulgated pursuant to section

6 of the Occupational Safety and Health Act of 1970

(OSH Act), Pub.L. No. 91-596, 84 Stat. 1590 (codified

as amended at 29 U.S.C. §§ 651-678 (1982), to employ-

ees in sectors of the economy other than manufacturing.

763 F.2d at 743. The Secretary took the position that

this judgment permitted the commencement of an en-

tirely new rulemaking proceeding. The petitioners, con-

tending that the Secretary was not in good faith com-

plying with our judgment, moved for further relief. In

United Steelworkers of America v. Pendergrass, 819 F.2d

1263 (3d Cir.1987) (USWA II) we held that by com-

mencing a new rulemaking proceeding the Secretary was

not complying with our previous judgment. We directed

that the Secretary should,

* Hon. Clarkson S. Fisher, United States District Court Judge

for the District of New Jersey, sitting by designation.

** Hon. James M. Kelly, United States District Court Judge

for the Eastern District of Pennsylvania, sitting by designation.

28a

within sixty days of the date of our order, publish

in the Federal Register a hazard communication

standard applicable to all workers covered by the

OSH Act, including those which have not been cov-

ered by the hazard communication standard as pres-

ently written, or a statement of reasons why, on the

basis of the present administrative record, a hazard

communication standard is not feasible. Such state-

ment of reasons will be supplied separately as to

each category of excluded workers.

819 F.2d at 1270. (Footnote omitted). On August 7,

1987 this court denied the Secretary’s petition for re-

hearing and motion for a stay.

On August 24, 1987 the Occupational Safety and

Health Administration (OSHA or the Secretary) pub-

lished an expanded hazard communication standard ap-

plicable to all industries. 52 Fed.Reg. 31852, et seq.

(codified at 29 C.F.R. § 1910.1200). This August 24,

1987 promulgation includes an OSHA finding that the

rulemaking record on the whole supported a determina-

tion that the hazard communication standard is feasible

in all industries. 52 Fed.Reg. at 31857. It applies the

hazard communication standard to employers in all eco-

nomic sectors, including the labeling requirements, as

-well as the requirement that covered employers make

available for employee inspection Material Safety Data

Sheets (MSDS) furnished by the manufacturers of haz-

ardous chemicals used in the workplace, and the require-

ment that employees be provided with information and

training on hazardous chemicals used in their work area.

The August 24, 1987 promulgation also includes three

provisions not contained in the original hazard communi-

cation standard applicable in the manufacturing sector

alone. These are: (1) a requirement that at multi-

employer worksites employers exchange their MSDSs, ei-

ther individually or through a central location, 29 U.S.C.

§ 1910.1200(e) (2); (2) an exemption from the labeling

—

She ghteTiee Wn en Arar’ +

29a

requirement for consumer products used in the same

manner and quantities as intended for consumer use, 29

C.F.R. § 1910.1200(b) (6) (vii); and (3) an exemption

from labeling of drugs in tablet or pill form regulated by

the Federal Drug Administration. 29 C.F.R. § 1910.1200

(b) (6) (viii). OSHA explained that these modifications

were made “to ensure that [the] provisions [of the

standard] are practical and effective in communicating

hazards to all workers” and in recognition of “the unique

characteristics of some businesses [that] render certain

provisions of the [previous] standard unnecessary or in-

effective in communicating the hazards of chemicals to

workers.” 52 Fed. Reg. at 31858.

This revised hazard communication standard was to go

into effect on May 23, 1988. 29 C.F.R. § 1910.1200(j).

On September 10, 1987, however, OSHA submitted it to

the Office of Information and Regulatory Affairs in the

Office of Management and Budget (OMB), ostensibly in

compliance with the Paperwork Reduction Act of 1980,

Pub.L. 96-511, 94 Stat. 2812, 44 U.S.C. § 3501 et seg.

(Supp.1988). On September 30, 1987, OMB undertook

public notice and comment “on the recordkeeping, notifi-

cation and other paperwork requirements” of the revised

standard. 52 Fed.Reg. 36652. Following a public hear-

ing, OMB purported to disapprove the three new provi-

sions referred to in the preceding paragraph. OMB also

conditioned its approval of the entire standard on the

undertaking by OSHA of further rulemaking to consider

OMB’s objections. OMB letter of October 23, 1987. Fur-

ther negotiations between OSHA and OMB followed, and

on April 13, 1988 OMB announced that it would permit

the revised standard, but without the “disapproved” por-

tions, to go into effect on May 23, 1988 as scheduled.

Meanwhile, two court proceedings regarding the re-

vised standard were initiated. First, Associated Builders

& Contractors, Inc. petitioner to review the revised haz-

ard communication standard in the United States Court

30a

of Appeals for the District of Columbia, and moved for

a stay of its enforcement in the construction industry.

Associated Builders & Contractors, Inc. v. McLaughlin,

(D.C.Cir. No. 87-1582). This court, on motion of the

petitioners, transferred the Associated Builders & Con-

tractors, Inc. petition to this court, but granted an ad-

ministrative stay “until such time as the third circuit

rules on the emergency motion for stay.” Order of May

20, 1988. This panel has by a separate order denied that

emergency motion.

Second, on April 6, 1988 the petitioners moved in this

court for further relief. The effect of the April 13 OMB

change of position, allowing the bulk of the hazard com-

munication standard to go into effect, is that the peti-

tioners’ charge of non-compliance is now narrowed to the

three provisions which OSHA has in effect withdrawn,

in compliance with the OMB disapproval.

Both Associated General Contractors of America, and

United Technologies Corporation moved in this court to

intervene for the purpose of opposing the petitioners’

motion for further relief.

In this matter of first impression we are called upon

to consider the extent to which the Paperwork Reduction

Act of 1980 authorizes the OMB to substitute its judg-

ment for that of OSHA with respect to the appropriate

communication of hazards in the workplace necessary for

compliance with section 6 of the OSH Act. Housed in

Chapter 35 of Title 44 of the United States Code, which

deals generally with “Public Printing and Documents,”

the Paperwork Reduction Act is the successor to the

Federal Reports Act of 1942, previously codified in that

Chapter. To generalize, the purpose of the Federal Re-

ports Act was to coordinate the information collection

activities of federal agencies, thereby reducing the cost

of those activities to the government and to businesses

ao nai tile

3la

and individuals required to file reports. The Paperwork

Reduction Act of 1980 moved that function from the

Director of the Bureau of the Budget to a new Office of

Information and Regulatory Affairs in the Office of Man-

agement and Budget.

The Paperwork Reduction Act authorizes OMB to:

(1) review[] and approv[e] information collection

requests proposed by agencies; (2) determin([e]

whether the collection of information by an agency

is necessary for the proper performance of the func-

tions of the agency, including whether the informa-

tion will have practical utility for the agency; ...

44 U.S.C. § 3504(c) (1) and (2). The “information col-

lection requests” referred to in section 3504(c) (1) are

defined in section 3502(11) as “written report form(s],

application form[s], schedule[s], questionnaire[s], re-

porting or recordkeeping requirement|s], collection of in-

formation requirement[s], or similar method[s] calling

for the collection of information.” The “collection of in-

formation” referred to in section 3504(c) (2) is defined

in section 3502(4) as:

the obtaining or soliciting of facts or opinions by

an agency through the use of written report forms,

application forms, schedules, questionnaires, report-

ing or recordkeeping requirements, or other similar

methods calling for either—

(A) answers to identical questions posed to, or

identical reporting or recordkeeping requirements

imposed on, ten or more persons, other than agencies,

instrumentalities, or employees of the United States;

(B) answers to questions posed to agencies, in-

strumentalities, or employees of the United States

which are to be used for general statistical purposes;

32a

44 U.S.C. §3502(4)(A) and (B). Assuming that the

information in issue falls within the Paperwork Reduc-

tion Act of 1980, OMB’s regulatory authority over it is

specifically limited by two provisions of that Act. First,

OMB’s authority “shall be exercised consistent with ap-

plicable law.” 44 U.S.C. § 3504(a). Second, the Act

provides:

Nothing in this chapter shall be interpreted as

increasing or decreasing the authority of the Presi-

dent, the Office of Management and Budget or the

Director thereof, under the laws of the United

States, with respect to the substantive policies and

programs of departments, agencies and offices, in-

cluding the substantive authority of any federal

agency to enforce the civil rights laws.

44 U.S.C. § 3518(e). Thus any rulemaking activity by

any other federal agency falls outside the authority of

OMB under the Paperwork Reduction Act of 1980 if it

either, (1) does not require the “collection of informa-

tion,” or (2) embodies substantive policy decision mak-

_ ing entrusted to the other agency. We hold that the

three provisions in the hazard communication standard

which OMB disapproved are insulated from OMB au-

thority on both grounds.

As we noted above, OMB disapproved of three provi-

sions of the revised hazard communication standard, each

of which was a departure from the standard which

OSHA first imposed on employers in the manufacturing

sector. Two of those departures are exemptions from the

labeling requirements of the hazard communications

standard. Thus, the revised standard exempts from its

coverage (1) consumer products subject to labeling re-

quirements under the Consumer Product Safety Act, 15

U.S.C. § 2051 et seg., and the Federal Hazardous Sub-

stances Act, 15 U.S.C. § 1261 et seg., and (2) drugs

33a

subject to the labeling requirements of the Federal Food,

Drug, and Cosmetic Act, 21 U.S.C. § 301 et seg. 29

C.F.R. § 1010.1200(b) (6) (vii) and (viii).

Whatever else the terms “collection of information” or

“information collection requests” may refer to, they can-

not possibly refer to these exemptions from labeling re-

quirements which would otherwise have been duplicative

of the labeling requirements imposed in the interest of

health and safety by other federal regulatory agencies.

What is left for consideration is the requirement that

employers on multi-employer worksites exchange MSDSs,

imposed for the first time in the August 24, 1987 prom-

ulgation. 29 C.F.R. § 1910.1200(e) (2). We note initially

that we are not presented with the question whether the

Paperwork Reduction Act of 1980 applies when the fed-

eral government requires from non-governmental parties,

for its own purposes, compilation but not transmission

of information. See Action Alliance of Senior Citizens

of Greater Philadelphia v. Bowen, 846 F.2d 1449 (D.C.

Cir.1988). The multi-employer MSDS exchange provi-

sion requires employers, not to compile, but simply to

transmit information to covered employees. The sole

question it presents is whether that requirement can be

said te involve either the “collection of information” or

an “information collection request” within the meaning

of the Paperwork Reduction Act.

In USWA I we discussed in detail the development

by OSHA of the hazard communication standard. We

noted that it imposed on chemical manufacturers the ob-

ligation to label containers and to furnish to downstream

users MSDSs containing chemical common names of each

hazardous ingredient, and information necessary for safe

use of the product. 763 F.2d at 732. Although the issue

was not raised in USWA I, implicit in OSHA’s standard,

and in this court’s approval of it, is the holding that

imposing this obligation on chemical manufacturers is an

appropriate safeguard for workers in the workplace, as

34a

required by section 6 of tne OSH Act. The same must

be said for the obligation imposed on downstream em-

ployers to make MSDSs available to their employees.

Id. at 733. In one sense the standard requires chemical

manufacturers to collect and transmit information, and

employers to collect and maintain information. It would

be a far-fetched interpretation of the Paperwork Reduc-

tion Act of 1980, however, to hold that these activities

fell within its coverage. The Act, historically, is a suc-

cessor to the Federal Reports Act, and like the latter,

it is aimed at reducing the burden of paperwork re-

quired by the federal government for its own regulatory

or statistical purposes. The preparation and preserva-

tion of MSDSs in the workplace have entirely different

purposes. The object of these information disclosure re-

quirements, in accordance with the OSH Act is to in-

crease workplace awareness of hazards, thereby enabling

workers to avoid injury, illness or death. Nothing in the

Paperwork Reduction Act suggests a congressional inten-

tion to allow OMB, in the guise of regulating collection

of information, the authority to second guess other fed-

eral agencies with respect to the kinds of disclosure

needed to accomplish substantive policies entrusted to

such agencies.

OMB did not go so far as to disapprove the require-

ment that chemical manufacturers prepare and transmit

MSDSs or the requirement that employers who purchase

the chemicals make them available to their employees.

It merely disapproved the requirement that on multi-

employer worksites the employers exchange the MSDSs.

In USWA I we questioned the basis of the Secretary’s

failure to include the construction industry in the hazard

communication standard. 763 F.2d at 738. That indus-

try is now included, and the problem of multi-employer

worksites is endemic to it. OSHA reasonably concluded

that the protection of one trade from hazardous sub-

stances used by another on the same jobsite required the

35a

exchange of the hazard information. The exchange re-

quirement no more constitutes the collection of informa-

tion within the meaning of the Paperwork Reduction

Act of 1980 than do the requirements for preparation of

MSDSs by chemical manufacturers or the requirement

of preservation of MSDSs by single employers.

Our conclusion that the regulations disapproved by

OMB do not involve the collection of information is rein-

forced by the statutory language which in two places

disaffirms the intention to grant substantive lawmaking

authority to OMB. 44 U.S.C. §§ 3504(a); 3518(e).

Clearly, OMB cannot in the guise of reducing paperwork

substitute its judgment for that of the agency having

substantive rulemaking responsibility for such matters as

drug or food labeling, drug package inserts, proxy state-

ment disclosures, or the contents of registration state-

ments. No substantive distinction between such disclosure

requirements and the OSHA disclosure requirements dis-

approved by OMB in this instance is readily apparent.

III

OSHA and United Technologies, as intervenor, contend

that we should nevertheless deny the petitioners’ motion

for additional relief. They contends that the petition

should be construed as a challenge to OMB agency action

under the Paperwork Reduction Act of 1980, cognizable

only in a suits in a federal district court pursuant to the

Administrative Procedure Act. 5 U.S.C. § 703. Alter-

natively they contend that because the three provisions

which OMB disapproved were added to the hazard com-

munication standard they do not involve our prior man-

date, and can only be reviewed in a new challenge to

OSHA rulemaking. We reject both contentions.

In USWA I we directed OSHA to reconsider the appli-

cation of the hazard communication standard to employ-

36a

ees in sectors of the economy other than manufacturing

unless the Secretary could state reasons why such

application would not be feasible. 763 F.2d at 739 (citing

29 U.S.C. § 655(b) (5)). In USWA I we made it clear

that our first judgment required that feasibility be deter-

mined for each category of worker on the basis of the

administrative record already compiled. 819 F.2d at

1270. Thus, our prior orders represent our considered

view that OSHA must cease abdicating its responsibility

with respect to employees outside the manufacturing sec-

tor, by deciding whether or not they should be covered

on the basis of the record. The August 24, 1987 promul-

gation of a hazard communication standard applicable to

all employees was a good faith compliance with those

orders. The slight changes that were made in the stand-

ard were a logical outgrowth of the rulemaking record

which we previously reviewed. Cf. Action Alliance, at

1455 (new round of rulemaking not required for a re-

vision that is the “logical outgrowth” of the rulemaking

record). Withdrawal of the provisions disapproved by

OMB was accordingly inconsistent with those orders.

Relief by motion in inappropriate. 28 U.S.C. § 1651(a)

(1982); 5 U.S.C. § 706(1) (1982) ; United States v. New

York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364,

372, 54 L.Ed.2d 376 (1977); USWA II, 819 F.2d at

1270.

This panel has denied the motion by Associated Build-

ers & Contractors, Inc. for a stay of the hazard communi-

cation standard. That motion was made in connection

with a petition for review filed in the Court of Appeals

for the District of Columbia, and transferred here. This

petition appears to be an attempt to relitigate issues

settled in our decisions in USWA I and USWALII. Since,

however, briefing on that petition has not been completed

we will not rule finally on it at this time. The clerk will

be directed to issue a briefing schedule, and, when brief-

37a

ing is complete, to assign the petition to a panel for dis-

position.

The Secretary shall forthwith publish in the Federal

hazard communication standard which were disapproved

by OMB are now effective. Because the instant dispute

arose as the result of another federal agency’s attempt

to exceed its statutory authority, we will deny at this

time the petitioners’ motion to hold the respondent offi-

cials of the Department of Labor in contempt.

38a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 83-3554, 83-3562 & 83-3565

84-3066, 84-3093 & 84-3128

UNITED STEELWORKERS OF AMERICA,

Petitioner

JOHN A. PENDERGRASS, ASSISTANT SECRETARY

OF LABOR, ETC.,

Respondent

PUBLIC CITIZEN, INC., et al.,

Respondent

JOHN A. PENDERGRASS, ASSISTANT SECRETARY

OF LABOR, ETC.,

Petitioner

SUR PETITION FOR REHEARING

Present: GIBBONS, Chief Judge, STAPLETON, MANS-

MANN, GREENBERG, HUTCHINSON, SCIRICA, and

COWEN, Circuit Judges, FISHER and KELLY, District

Judges * “

The petition for rehearing filed by the respondent in

the above entitled case having been submitted to the

judges who participated in the decision of this court and

* As to panel rehearing only.

39a

to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in

the decision having asked for rehearing, and a majority

of the circuit judges of the circuit in regular active

service not having voted for rehearing by the court in

bance, the petition for rehearing is denied.

/s/ John J. Gibbons

Chief Judge

Dated: November 28, 1988

40a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 83-3554, 88-3562 & 83-3565

84-3066, 84-3093 & 84-3128

UNITED STEELWORKERS OF AMERICA,

Petitioner

JOHN A. PENDERGRASS, ASSISTANT SECRETARY

OF LABOR, ETC.,

Respendent

PUBLIC CITIZEN, INC., et al.,

Petitioner

JOHN A. PENDERGRASS, ASSISTANT SECRETARY

OF LABOR, ETC.,

Respondent

SUR PETITION FOR REHEARING ~

Present: GIBBONS, Chief Judge, STAPLETON, MANS-

MANN, GREENBERG, HUTCHINSON, SCIRICA, and

COWEN, Circuit Judges, FISHER and KELLY, District

Judges.*

The petition for rehearing filed by the intervenor,

United Technologies Corporation, in the above entitled

case having been submitted to the judges who partici-

* As to panel rehearing only.

4la

pated in the decision of this court and to all the other

available circuit judges of the circuit in regular active

service, and no judge who concurred in the decision hav-

ing asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in bance, the petition for

rehearing is denied.

/s/ John J. Gibbons

Chief Judge

Dated: November 28, 1988

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.