National Roofing Contractors Ass'n v. United States Department of Labor
639 F.3d 339
7th Cir.2011Background
- Administrative regulation 29 U.S.C. § 651 et seq. governs occupational safety and health standards.
- Directive STD XX-XX-XXX (2010) revoked the 1999 Directive and purportedly enforces § 1926.501(b)(13) differently.
- Petitioners challenge the 2010 Directive as an “occupational safety and health standard” reviewable by courts of appeals.
- Section 1926.501(b)(13) requires fall protection; regulation includes an exception for infeasibility or greater hazard.
- The 1999 Directive interpreted enforcement discretion; the 2010 Directive purportedly announces a new enforcement policy without changing the regulation.
- The court aligns with the Fourth Circuit that enforcement policies are not new standards and are not subject to rulemaking, dismissing the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2010 Directive constitutes a new OH&S standard | Petitioners contend it creates a new standard | Secretary argues it is enforcement policy, not a standard | Not a standard; review dismissed |
| Whether the 2010 Directive alters § 1926.501(b)(13) protections | Directive changes permissible fall-protection methods | Regulation remains unchanged; directive governs enforcement | Directive does not amend the regulation; remains enforcement policy |
| Whether the petition for review is timely and proper | Challenging 2010 Directive as new standard | Challenge to enforcement policy is timely under 29 U.S.C. § 655(f) | Petition for review dismissed; no new standard established |
| Whether courts may review agency enforcement discretion without rulemaking | Administrative discretion improperly exercised | Discretionary enforcement decisions are within agency powers | Enforcement discretion is not a standard; review not warranted as to standard |
| Whether Steel Erectors governs the case | Directive mirrors Steel Erectors conclusion | Steel Erectors is distinguishable but supportive | Agree with Steel Erectors that directive is not a standard; policy & regulation prevail |
Key Cases Cited
- Steel Erectors Ass'n of America, Inc. v. Occupational Safety and Health Admin., 636 F.3d 107 (4th Cir.2011) (enforcement policy not a standard; regulation remains law)
- Chamber of Commerce v. Department of Labor, 174 F.3d 206 (D.C.Cir.1999) (incentive-based directive not a new standard if it remains within regulations)
- Heckler v. Chaney, 470 U.S. 821 (Supreme Court 1985) (agency discretion limited judicial review of enforcement decisions)