Under the Administrative Procedure Act, 5 U.S.C.S. § 553, an agency seeking to promulgate a rule must first provide the public with notice of, and an opportunity to comment upon, a proposed version of it.
Petitioner chamber of commerce challenged a directive issued by the Occupational Safety and Health Administration (OSHA). Under the directive, each employer in selected industries would be inspected unless it adopted a comprehensive safety and health program (CSHP) designed to meet standards exceeding those required by law.
Was OSHA required by the APA to conduct a notice and comment rulemaking proceeding before issuing a directive that is a standard within the meaning of 29 U.S.C. § 655(f)?
The court vacated the directive because it was issued in violation of the Administrative Procedure Act (APA). The court held that the directive was a standard under 29 U.S.C.S. § 655(f), and the court had jurisdiction to review the chamber's petition. Because the directive was neither a procedural rule nor a policy statement, the court held that OSHA was required by the APA, 5 U.S.C.S. § 553, to conduct a notice and comment rulemaking proceeding before issuing it. The directive was not a procedural rule because its substantive component placed the burden of inspection on employers that failed to adopt a CSHP and it had a substantial impact on all employers in its purview. It was not a policy statement because every employer that did not participate in the compliance program would be searched and its effect was to inform employers of a decision already made.