Nabisco, Inc.

Plain-English summary

The Commission vacated its direction for review in Nabisco's case as required by an order from the Fifth Circuit. The attached administrative law judge's decision had dismissed the complaint concerning a compressed-air cleaning citation under 29 C.F.R. § 1910.242(b). The judge concluded that the underlying Walsh-Healey rule had been adopted without adequate notice and an opportunity for public comment, so it could not be carried into OSHA's rules through the abbreviated procedure for established federal standards. The judge vacated Item 9 and assessed no penalty. The Commission's operative action in this release was procedural: it ended Commission review under the court's order.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.242(b)
• Outcome: The Commission vacated its direction for review; the attached judge's order left Item 9 vacated with no penalty.
• Key point: The Commission ended review pursuant to a Fifth Circuit order, leaving the judge's dismissal of the compressed-air item in place.

Full text (OSHRC public release)


Document

UNITED STATES
OF
AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO.
12460

NABISCO, INC.

Respondent.

August 24, 1976

BY THE COMMISSION:

The Direction for Review entered on October 7, 1975 is hereby vacated pursuant to the Order entered by the U.S. Court of Appeals for the Fifth Circuit.

UNITED STATES
OF
AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO.
12460

NABISCO, INC.

Respondent.

August 13, 1975

ORDER GRANTING RESPONDENT’S MOTION TO DISMISS THE COMPLAINT

ON BRIEFS:

Jack Wallach, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia.

William S. Brown, Esquire, 425 Park Avenue, New York, New York.

LARKIN, JUDGE

On June 20, 1975, respondent’s motion to dismiss the complaint was denied on the grounds that the Commission did not have jurisdiction to rule on the validity of the Secretary’s promulgation of regulations or standards. On July 7, 1975, respondent filed motion for reconsideration and cited the case of
Secretary of Labor v. Tobacco River Lumber Company , Docket No. 1694 —— OSAHRC —— April 23, 1975, supporting respondent’s position. Respondent’s motion for reconsideration was granted.

In the
Tobacco River Lumber Company case, supra
the Commission stated:

‘The Commissioners’ views of the extent of their power to review rulemaking action of the Secretary of Labor are divided. In this case, the Chairman and Commissioner Van
Namee
hold that the Commission may review the question of whether the Secretary of Labor cited ultra vires in adopting the national consensus standard
involved, and
note the absence of any judicial decisions that would limit such power. Commissioner Cleary would hold that the Commission has no power to review the validity of a standard.’

On the basis of
the
Tobacco River Lumber
case, it is now concluded that the order denying respondent’s motion to dismiss the complaint was in error and that order is hereby rescinded.

In view of this reversal, perhaps further comment is justified for concluding that 29 CFR 1910.242(b) (Item 9 of the citation) was not promulgated in accordance with the requirements of section 6 of the Occupational Safety and Act (referred to as the Act).

According to research done by respondent 29 CFR 1910.242(b) had its or i gin as follows:

‘An examination of the public notices set forth in the Federal Register and the record of the hearing pursuant to such notices reveals that the standard regulating use of air pressure for cleaning purposes under the Walsh-Healey Act, 41
U.S.C. se ctions 835–45, was promulgated in the following manner:

‘On September 20, 1968, there was published in the Federal Register a proposal to revise the then existing safety and health standards under the Walsh-Healey Act. This notice proposed the issuance of a number of new standards, none of which bore any relationship to the use of compressed air for cleaning purposes or can in any sense be said to put interested persons on notice that that subject would be considered as a part of the proposal. The notice indicated that a hearing on the proposal was scheduled to begin on
November,
6, 1968.

‘The public hearing scheduled for November 6, 1968, was conducted on that and subsequent days. An examination of the record of this hearing, including the transcripts of all the oral sessions, indicates that the hearing was held on schedule on the proposed regulations contained in the September 20, 1968, notice. The record gives no indication that the subject of compressed air for cleaning purposes was discussed during this hearing.

On January 17, 1969, there was published in the Federal Register a final order promulgating health and safety standards under the Walsh-Healey Act which contained as Section 50–204.8 a regulation to the effect that:

‘Compressed air shall not be used for cleaning purposes except where reduced to less than 30
p.s.i . and then only with effective chip guarding and personal protective equipment.’

The notice containing the order recited that it was based on the September 20, 1968 proposal, on the November 6–8 hearing and upon data submitted by interested persons. The preamble to the order did not mention the Compressed air standard or in any way suggest that it
had been newly added to the proposed regulations. The notice stated that all the new regulations would become effective in 30 days. It gave no opportunity for interested persons to comment on or object to the newly added provision on the use of air pressure for cleaning purposes.

‘On February 14, 1969, there was published a notice in the Federal Register stating, without explanation, that the regulations promulgated on January 17, 1969, would not become effective until May 17, 1969.

‘On May 20, 1969, there was published in the Federal Register a further document referring to the stayed regulations which explained the postponement of the effective date as follows:

‘The purpose of the postponement was to permit a careful review of the rules by the present Secretary of Labor. Further notice and general public participation were found unnecessary in view of the previous opportunities afforded, although an advisory committee with a broad representation of labor management, and public groups interested in occupational safety and health was appointed to assist in the review and to make recommendations concerning the rules.

Consideration has now been given to the rules and to the data, views, and argument which had been submitted orally and in writing in response to the proposals published in the Federal Register on September 20,
1968
. . . and also to the recommendations of the advisory committee . . .’

Based on the foregoing, the January 17, 1969, regulations were promulgated with a few minor changes, none of which affected the standard for compressed air.’

The Walsh-Healey Act, relating to the promulgation of health and safety standards, does not contain specific procedural requirements for the promulgation of standards. Rather, section 10 of the Act (41 U.S.C. section 42(a)) makes the provisions of the Administrative Procedure Act applicable to the administration of the Walsh-Healey Act.

Section 4(a) of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) requires that rules not become effective unless the promulgating agency has published a notice of the proposed rulemaking in order to provide interested parties notice and an opportunity to comment . Chicago B & Q R.R. v. United States , 242
F.Supp . 414 (N.D. Ill. 1965)
aff’d. per
curiam , Chicago & N.W. Ry. v. Chicago B & Q.R.R ., 382 U.S. 422 (1966).
Wagner Electric Corp. v. Volpe
(CA 3, 1972) 466 F.2d 1013.

Based on the foregoing, the procedure leading to the promulgation of the air pressure standard, which ultimately became 29 C.F.R. section 1910.242(b), was inadequate under the requirements of the Administrative Procedure Act, and the standard was not properly promulgated under the Walsh-Healey Act.

Section 6(a) of the Occupational Safety and Health Act provides that the Secretary may promulgate as occupational safety and health standards any national consensus standard or any ‘established Federal standard.’ Pursuant to this provision and based on the existing Walsh-Healey standard described above, the OSHA air pressure standard was promulgated by
by
the Secretary on May 29, 1971, (36 Fed. Reg. 10466, 10653).

The legislative history of the Occupational Safety and Health Act makes clear, that the reason that consensus standards and established Federal Standards could be promulgated under the abbreviated procedure in section 6(a) in lieu of the elaborate procedures of section 6(b) was because interested and affected persons already had been afforded an opportunity to comment on such standards and to participate in the rulemaking proceedings leading to their adoption.
Thus
the Senate Report states:

‘The bill also provides for the issuance in similar fashion of those standards which have been issued under other Federal statutes and which under this Act may be made applicable to additional employees who are not under the protection of such other Federal laws.
Such standards have already been subjected to the procedural scrutiny mandated by the law under which they were issued ; such standards, moreover, in large part, represent the incorporation of voluntary industrial standards.’ S. Rep. No. 91–1282, 91st Cong., 2d Sess. 6 (1970). (Emphasis supplied).

It clearly was the intent of Congress that section 6(a) only be applied to those existing Federal standards which were promulgated under proper administrative procedures including adequate notice. The application of section 6(a) to a standard whose original promulgation lacked ‘the procedural scrutiny mandated by the law’ cannot be justified, and the invalidity of any standard so promulgated is clear.

Wherefore it is ORDERED:

Respondent’s motion to dismiss the complaint is granted. Item 9 of the citation issued on January 27, 1975, is vacated and no penalty is assessed.

Dated this 13th day of
August,
1975.

JOHN J. LARKIN

Judge OSAHRC

"