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Calling a Rule Directive Does Not Eliminate Rulemaking Procedure Requirements
Description Appeals court upheld challenge to a "Directive" issued by OSHA without rulemaking notice or comment. Such a distinction is a ruse to evade proper rulemaking.
Topic Administrative Law
Key Words Rulemaking, Prior Notice, Comment: OSHA, Directives
C A S E   S U M M A R Y
Facts OSHA issued a Directive establishing a "Cooperative Compliance Program" directed at workplaces with worse-than-average safety records. Companies that "volunteer" to comply with the mandates of the Directive will be removed from the "primary inspection list" and have a much lower chance of inspection. The Chamber of Commerce petitioned for review, contending that OSHA should have conducted a comment rulemaking proceeding prior to issuing the Directive.
Decision The Chamber's petition is granted. OSHA contends that its directive is not a standard or a rule under the terms of the statute that grants OSHA authority. Rules are subject to rulemaking procedure of prior notice and a comment period before enactment by the agency. Saying that compliance with the Directive is voluntary is not sensible. "The Directive is ... the practical equivalent of a rule that obliges an employer to comply or to suffer the consequences; the voluntary form of the rule is but a veil for the threat is obscures."
Citation Chamber of Commerce v. Dept. of Labor, - F.3d - (1999 WL 193386, D.C. Cir.)
174F.3d 206 (D.C. Cir., 1999)

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