# Petition for Writ of Certiorari — Associated Builders & Contractors, Inc. v. Occupational Safety & Health Administration > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0659%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 494 U.S. 1003 ## Text 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) il 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 I. 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) 10 11 iv 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 Vv 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 vi 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 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) 2a 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 8a 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 4a 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 5a 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 6a 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 Ta 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. I. 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 8a 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 9a 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. II 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. A. 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. B. 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. C. 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. D 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 Ws 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 V. 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 V. 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 V. 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) Ee 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 V. 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 v. 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, v. UNITED STATES DEPARTMENT OF LABOR, and RAYMOND DONOVAN, SECRETARY OF UNITED STATES DEPARTMENT OF LABOR, Respondents. 26a THE STATE OF NEW YORK, Petitioner, i 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. I 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’ + ee 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. II 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; or (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. IV 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. V The Secretary shall forthwith publish in the Federal Register a notice that those parts of the August 24, 1987 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 We JOHN A. PENDERGRASS, ASSISTANT SECRETARY OF LABOR, ETC., Respondent PUBLIC CITIZEN, INC., et al., Respondent v. 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 V. JOHN A. PENDERGRASS, ASSISTANT SECRETARY OF LABOR, ETC., Respendent PUBLIC CITIZEN, INC., et al., Petitioner V. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0659%3A1. Public record. Not legal advice.