Steel Erectors Ass'n of America, Inc. v. Occupational Safety & Health Administration
636 F.3d 107
4th Cir.2011Background
- OSHA issued 2001 steel erection safety standards codified at 29 C.F.R. § 1926.754(b)(3) and (c)(1).
- 2002 Directive stated de minimis treatment for certain violations where fall protection was used.
- OSHA repealed the blanket 2002 de minimis rule in 2010 Directive, stating case-by-case enforcement discretion.
- SEAA challenged the 2010 Directive as an improper new standard requiring notice and comment, asserting jurisdiction under 29 U.S.C. § 655(f).
- Court held the 2010 Directive is enforcement policy, not a new standard, and dismissed SEAA’s petition for lack of jurisdiction.
- OSHA’s enforcement policy changes between 2002 and 2010 did not alter underlying standards, which remained the same.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2010 Directive is a standard or enforcement policy. | SEAA: 2010 Directive creates a standard requiring new notice/comment. | OSHA: 2010 Directive is a regulation enforcing discretion, not a new standard. | 2010 Directive is not a standard; it is enforcement policy. |
| Whether SEAA may seek immediate review under § 655(f). | SEAA: Directive is a standard reviewable immediately. | OSHA: review must await agency proceedings; no immediate review for enforcement rules. | No immediate review; petition dismissed for lack of jurisdiction. |
| Did the 2010 Directive modify the 2001 Standards or merely reiterate them? | SEAA: Directive amounts to a modification of the standards. | OSHA: Directive reiterates existing standards and changes only enforcement discretion. | Directive reiterates standards; does not modify them. |
| Does change in enforcement policy between 2002 and 2010 alter jurisdictional classification? | SEAA: Changed policy shows a new standard. | OSHA: Enforcement policy changes do not create a new standard. | Policy change does not convert to a standard; jurisdiction remains limited. |
Key Cases Cited
- Louisiana Chemical Ass'n v. Bingham, 657 F.2d 781 (5th Cir. 1981) (basic function test standard vs. rule/regulation)
- Chamber of Commerce of the U.S. v. U.S. Dep't of Labor, 174 F.3d 206 (D.C. Cir. 1999) (standard vs. enforcement directive distinction)
- Reich v. United States, 56 F.3d 1465 (D.C. Cir. 1995) (enforcement actions review in administrative processes)
- Edison Elec. Inst. v. OSHA, 411 F.3d 272 (D.C. Cir. 2005) (directive restating existing standard is a regulation)
- National Ass'n of Manufacturers v. OSHA, 485 F.3d 1201 (D.C. Cir. 2007) (changes to underlying list not modifying standard; review timing)