[00:00:07] Speaker 01:
for the petitioner versus Secretary of Labor, U.S.

[00:00:10] Speaker 01:
Department of Labor.

[00:00:12] Speaker 01:
Mr. Gladman for the petitioner, Secretary of Labor.

[00:00:16] Speaker 01:
Mr. Zappert for the respondent, Hewitt-Powers as reference.

[00:00:46] Speaker 05:
May it please the Court, the Commission's decision should be reversed for two reasons.

[00:00:54] Speaker 05:
First, the Commission's decision is arbitrary and capricious because it departed from its previous precedent without a reasoned explanation.

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Second, the Secretary's interpretation that he could apply the quick drenching standard to construction employers without notice in common rulemaking is reasonable and entitled to chevron deference.

[00:01:16] Speaker 05:
Turning to my first reason, the Commission's decision should be reversed.

[00:01:21] Speaker 05:
That decision is arbitrary and capricious because it departed from its previous precedent without a reasoned explanation.

[00:01:27] Speaker 05:
For over 40 years, Commission precedent held that Section 6A standards were applicable in accordance with their terms to all employers and workplaces subject to the Occupational Safety and Health Act.

[00:01:41] Speaker 05:
The Commission departed from this precedent in ruling that Section 6A standards apply only to those industries already covered by the established federal source standards.

[00:01:52] Speaker 05:
The Commission failed to acknowledge, let alone explain, this departure from precedent.

[00:01:57] Speaker 05:
The Commission didn't even address its leeway case or discuss its holding in special case.

[00:02:02] Speaker 02:
It discussed the 10th Circuit's handling of leeway, right?

[00:02:05] Speaker 05:
Yes.

[00:02:07] Speaker 05:
But what we're arguing is that the Commission departed from its own precedent.

[00:02:11] Speaker 02:
And each of the cases you cite, the Commission distinguished those cases.

[00:02:15] Speaker 02:
They weren't cases involving extending Walsh Healy to new industries, right?

[00:02:23] Speaker 05:
No, we don't agree with that.

[00:02:24] Speaker 05:
But the main point here is that even if they were, the Commission precedent held that Section 6A standards were applicable to all employers in workplaces.

[00:02:35] Speaker 05:
That's really the point here.

[00:02:36] Speaker 05:
The Commission never really addressed those holdings in the Bechtel and leeway freight cases.

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And we also think that the Commission's attempted distinctions were not valid.

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In the leeway case, for instance, there was a different industry to which the standard was applied, and that was the transportation industry.

[00:02:56] Speaker 05:
The original source standard, the Welch-Heliak, covered only manufacturing and supply operations.

[00:03:03] Speaker 05:
And in the other case, the Bechtel case, which is a case under the Construction Safety Act standard, again, the 6A standard was applied to a different industry.

[00:03:13] Speaker 05:
That was construction management firm, which was different from construction, and the original SOAR standard did not even cover construction management.

[00:03:22] Speaker 05:
It only covered construction subcontractors and employees.

[00:03:26] Speaker 05:
So those distinctions were not even valid, but the point is,

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The precedent in these cases was not addressed by the Commission, even though it had stood for over 40 years.

[00:03:35] Speaker 04:
Can I ask another question?

[00:03:37] Speaker 04:
It sounds like there's a lot of regulations that could rise or fall with this decision.

[00:03:45] Speaker 04:
That's correct, you're right.

[00:03:48] Speaker 04:
Are there commission decisions?

[00:03:50] Speaker 04:
One, do you have a sense of how many other regulations would rise or fall?

[00:03:54] Speaker 04:
And two, are there commission decisions that upholding those other regulations as applied to industry generally that the commission would be unraveling in this decision here if it were applied?

[00:04:08] Speaker 05:
Well, it's very difficult to estimate the number.

[00:04:10] Speaker 05:
We think at least dozens, maybe more.

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And the reason is that there were some rule makings after the Section 6A standards were adopted.

[00:04:18] Speaker 05:
in some of the industries concerned.

[00:04:21] Speaker 05:
Now, as far as, I'm not quite clear on what you're asking in the second question, that there would be some unraveling.

[00:04:28] Speaker 04:
Well, I'm trying to, if the argument that's made, if it's adopted here, it sounds like there's a lot of other

[00:04:36] Speaker 04:
identically situated Walsh Healy regulations, they were going to fall as well.

[00:04:42] Speaker 05:
That's true, Your Honor.

[00:04:44] Speaker 04:
And if there were commission decisions upholding those other regulations as applied to industry generally, not confining them to the original sector of employment, then what they did here would seem to be

[00:04:59] Speaker 04:
in substantial tension with what they've done in those other cases.

[00:05:01] Speaker 04:
That's correct, Your Honor.

[00:05:03] Speaker 04:
But I hadn't seen any information about that in the briefs.

[00:05:07] Speaker 05:
Well, this case really has, this standard has not been challenged before, at least not as far as validity is concerned.

[00:05:16] Speaker 05:
And the precedent has basically stood for 40 years, 40 plus years, until this recent challenge and decision by the Commission in validating it.

[00:05:27] Speaker 04:
Q, it says that quick drenching is one of the most commonly cited violations in the construction area?

[00:05:34] Speaker 05:
Well, we don't have any information about that.

[00:05:37] Speaker 05:
There appear to have been numerous citations, but I can't tell you how the number of citations compares with those under other standards.

[00:05:47] Speaker 04:
Is it fair to say in the last 45 years or so there have been a lot?

[00:05:52] Speaker 05:
Yes.

[00:05:53] Speaker 04:
Have any of those been challenged and gone up to an ALJ or the Commission?

[00:05:58] Speaker 05:
None have been challenged as far as validity is concerned.

[00:06:02] Speaker 05:
There have been one or two that have been contested as far as the violation was concerned.

[00:06:08] Speaker 03:
Can I ask you if between 1971 and 1979, does the record show any citations for the quick-brinching

[00:06:17] Speaker 03:
provision.

[00:06:21] Speaker 05:
I can't say off the top of my head whether there were any during that period.

[00:06:28] Speaker 05:
This question was addressed by one of the amicus briefs, Building Trades Union brief, the number of citations of the standard, but there were very, very

[00:06:42] Speaker 05:
few actual ALJ cases, I think maybe two, but that brief addresses that issue.

[00:06:51] Speaker 05:
The second reason that I gave is that the secretary's interpretation that he could apply the quick drenching standard to construction employers without notice and comment rulemaking is reasonable and entitled to Chevron deference.

[00:07:04] Speaker 05:
The secretary's interpretation is consistent with Section A, which first expressly waived the notice and comment requirement

[00:07:12] Speaker 05:
and also adopted and extended established federal standards as OSHA standards to every employer, employee, and employment covered by the Occupational Safety and Health Act.

[00:07:25] Speaker 05:
The Secretary's interpretation is supported by a contemporaneous regulation, 29 CFR 1910.11a, which adopted and extended established federal standards

[00:07:40] Speaker 05:
to every employer, employee, and employment covered by the Act.

[00:07:45] Speaker 02:
The fact that that regulation was adopted at the same time saying almost exactly the same thing bolstered... Under the Secretary's interpretation of 6A, can you give me an example of a regulation that would be unreasonable?

[00:08:01] Speaker 02:
What's the limit on the Secretary's interpretation of 6A?

[00:08:08] Speaker 05:
Well, what the Secretary cannot do is add more protective qualities to the standard, protective requirements to the standard in question.

[00:08:21] Speaker 05:
He can extend the number of employers and employees to which these... Wait, wait, wait a second.

[00:08:28] Speaker 02:
Isn't that the argument that that's precisely what's happening here?

[00:08:32] Speaker 00:
No.

[00:08:32] Speaker 02:
That he's extending a type of protection that was crafted for one industry

[00:08:41] Speaker 02:
but it doesn't really apply well to the new industry and therefore it's in fact providing more protection than was originally planned.

[00:08:53] Speaker 05:
Is that precisely the argument?

[00:08:55] Speaker 05:
No, I'm making a different point.

[00:08:57] Speaker 05:
What I'm saying is under this standard employees are protected from exposure to injurious corrosive materials.

[00:09:07] Speaker 05:
The nature of that protection is that the employer is required to provide a quick drenching facility that's within reasonable distance that can be used in emergencies.

[00:09:19] Speaker 05:
Now, we can extend that requirement to industries to which it does not apply right now.

[00:09:27] Speaker 05:
What we cannot do, however, is to add additional protective requirements such as

[00:09:32] Speaker 05:
the employees must also be provided with eye guards, which are not contemplated by the original standard.

[00:09:38] Speaker 05:
But there's no bar, in our view, to the number of employees who can actually be covered by the existing standard, as long as these are industries that are covered by the Occupational Safety and Health Act.

[00:09:52] Speaker 04:
Well, as long as it doesn't decrease safety in the process.

[00:09:56] Speaker 04:
That's correct.

[00:09:56] Speaker 04:
That's in this text of the statute itself.

[00:09:57] Speaker 05:
Yes, that's an explicit statutory requirement.

[00:10:01] Speaker 03:
And can I ask you, that's what you've just said is supported by the language in C2, according to its terms.

[00:10:10] Speaker 05:
Yes.

[00:10:11] Speaker 03:
Right?

[00:10:11] Speaker 05:
Yes.

[00:10:11] Speaker 05:
OK.

[00:10:14] Speaker 05:
So the secretary's interpretation also advances Congress's goal of immediately expanding protections of established federal standards to as many employees as possible.

[00:10:28] Speaker 04:
Can I ask you one thing?

[00:10:28] Speaker 04:
What the commission said here is that

[00:10:32] Speaker 04:
They didn't explain a change.

[00:10:36] Speaker 04:
I think it's invalid because the Secretary didn't explain the change in that short period of the summer of 71 to September of 71.

[00:10:46] Speaker 04:
But the Secretary acknowledged that a change was being made in September of 71, cited the authority for the change.

[00:10:57] Speaker 05:
That's right.

[00:10:58] Speaker 04:
Said why it was making the change.

[00:11:01] Speaker 04:
We were consistent with the purpose of the statute in expanding the coverage of employees.

[00:11:05] Speaker 04:
That's correct.

[00:11:07] Speaker 04:
So is that a sufficient explanation, assuming that an explanation for the change was necessary?

[00:11:17] Speaker 05:
Well, we think it was sufficient, but we also think that the explanation was not at least

[00:11:25] Speaker 05:
in terms of a formal explanation offered through notice and comment rulemaking was not required for this change because of the two-year period that the statute waived the requirement of notice and comment rulemaking.

[00:11:41] Speaker 05:
But I think it's important to keep in mind here the circumstances under which this change was made.

[00:11:47] Speaker 05:
The revocation, and that's what it actually was, of standard 1910.5E or regulation 1910.5E was a correction and not a substantive change in interpretation as indicated by the circumstances.

[00:12:01] Speaker 05:
First, 1910.5E facially conflicted with the contemporaneous regulation 1910.11A, which I just cited.

[00:12:09] Speaker 05:
That's the one that's language is almost identical to that of the Secretary's interpretation of the Section 6A.

[00:12:18] Speaker 05:
And 1910-11A extended the scope of established federal standards to all industries covered by the Act.

[00:12:26] Speaker 05:
And the original version of this said the opposite.

[00:12:32] Speaker 05:
It limited the extent of its application just to the industries covered by the original source standard.

[00:12:41] Speaker 05:
And that was a mistake.

[00:12:43] Speaker 05:
And the fact that we corrected that

[00:12:46] Speaker 05:
mistake within three months is a strong indication that this was not a substantive change.

[00:12:52] Speaker 05:
It was just an attempt to make our regulations consistent.

[00:12:58] Speaker 05:
And the stated purpose of the revocation, as Your Honor pointed out, was to remove the limitation to the application of the standards that they may apply to every employment and place of employment

[00:13:08] Speaker 05:
exposed to the hazards covered by the standards, which again is the very purpose of Section 6A as we see it.

[00:13:17] Speaker 05:
And given that the Secretary continued to apply the corrected regulation for the next 49 years, the revocation was reasonable.

[00:13:26] Speaker 05:
This was not a case of the Secretary changing his mind, but of simply bringing his regulations into consistency.

[00:13:34] Speaker 05:
And as such, that revocation was reasonable.

[00:13:37] Speaker 04:
If I could ask one more time just to be clear, do you have any sense of how many other regulations are in this exact same position?

[00:13:47] Speaker 05:
I can't quantify the number, but I think it's fair to say many.

[00:13:51] Speaker 04:
So is many a dozen, is many 20, is many 100?

[00:13:54] Speaker 05:
Probably at least two dozen.

[00:13:56] Speaker 05:
A dozen, okay.

[00:13:57] Speaker 05:
Quite possibly more than that.

[00:14:00] Speaker 05:
The Secretary also reasonably interpreted

[00:14:04] Speaker 05:
The legislative history is intending that he develop new construction standards in Section 6A.

[00:14:12] Speaker 05:
I'm sorry, that he implement existing standards in Section 6A.

[00:14:17] Speaker 05:
But the new standards to which opposing counsel refers and claims should have been adopted in accordance with notice and comment rulemaking are really the problems of Section B, which does have that notice and comment rulemaking requirement.

[00:14:31] Speaker 05:
What we were doing in Section 60A was simply trying to implement as many of the existing established federal standards as possible to concur or to comply with Congress's mandate to provide a minimum floor of safety for employees, all employees covered by the AASH Act and all industries covered by the AASH Act as quickly as possible.

[00:15:00] Speaker 02:
Don't the regulations, in the regulations, isn't there a suitability requirement that the Walsh Heliac, as applied to the construction industry or any industry, has to be suitable?

[00:15:15] Speaker 02:
Am I right about that?

[00:15:16] Speaker 02:
Is that a requirement of the regulations?

[00:15:18] Speaker 02:
That the, I'm sorry, that the industry has to be suitable?

[00:15:21] Speaker 02:
Yeah, suited to the industry.

[00:15:25] Speaker 05:
I'm not sure exactly what you're asking that the wording of the standard be suitable to the industry.

[00:15:32] Speaker 02:
Isn't it a requirement that the standard that's going to be applied to the industry has to be suitable to the industry, or am I wrong about that?

[00:15:41] Speaker 05:
Well, I'm not sure exactly what you're asking, but it's certainly true that the standard has to apply according to its terms.

[00:15:49] Speaker 05:
to the industry or the particular circumstances in question.

[00:15:56] Speaker 05:
And in this case, that application would be determined by whether the employees may be exposed to the hazard of exposure to injurious corrosive materials.

[00:16:09] Speaker 05:
So that would definitely be a requirement.

[00:16:11] Speaker 05:
There has to be that hazard for the standard to apply.

[00:16:16] Speaker 02:
I guess what I'm getting at is under the Secretary's view, is it required of the Secretary to adapt

[00:16:25] Speaker 02:
that particular standard to the particular circumstances of the industry.

[00:16:30] Speaker 02:
For example, in manufacturing and supply industry, you're going to, most of it's going to be indoors, right?

[00:16:36] Speaker 02:
You're going to have plumbing.

[00:16:38] Speaker 02:
You're going to have ready access to water.

[00:16:40] Speaker 02:
Construction industry is very different, right?

[00:16:42] Speaker 02:
You're going to be out of doors.

[00:16:43] Speaker 02:
You're not going to have easy access to water.

[00:16:45] Speaker 02:
Is there anything in the regulations or statute that requires the secretary to take account of those differences when applying

[00:16:54] Speaker 02:
the standards to it?

[00:16:56] Speaker 05:
I don't think there's a formal requirement, but the Secretary does that sort of thing.

[00:17:01] Speaker 05:
In particular, it's important to note that in this case, the Secretary determined practically 50 years ago that the quick drenching standard was one that applied at wide application and certainly applied to the construction industry.

[00:17:16] Speaker 05:
And the secretary informed construction employers throughout this period that this was one of the standards that was originally considered a general industry standard, but later was adopted as a construction standard that applied to them.

[00:17:31] Speaker 05:
And the secretary did this

[00:17:34] Speaker 05:
among other things by publishing a Federal Register notice back in 1979 called Identification, which specifically identified the quick drenching standard as one that would apply to construction employers.

[00:17:47] Speaker 05:
So if your question?

[00:17:51] Speaker 04:
I thought there was a process variance or something where if an employer can't comply for whatever reasons by the nature of its operations, it can

[00:18:02] Speaker 04:
seek an exemption or something like that?

[00:18:05] Speaker 04:
That's right.

[00:18:05] Speaker 05:
Or other means of providing comparable or equivalent protection.

[00:18:09] Speaker 05:
That's right.

[00:18:10] Speaker 04:
In addition... Has Kiwet ever sought... Not to our knowledge.

[00:18:15] Speaker 04:
Certainly not in this case.

[00:18:17] Speaker 04:
Construction companies that you're aware of?

[00:18:20] Speaker 04:
generally sought or said they're not able to comply with the quick drenching standard?

[00:18:24] Speaker 05:
Again, not to my knowledge.

[00:18:25] Speaker 05:
This is an issue that is addressed, again, in one of the amicus briefs, the Building Trades Union brief, which points out that in addition to seeking a variant, an employer can also petition the secretary for either revocation, amendment,

[00:18:44] Speaker 05:
I'm talking separate from that.

[00:18:50] Speaker 04:
A company could say, I don't know what other construction companies are doing, but because of where we do what we do or how we do it or whatever, there's just not

[00:18:59] Speaker 04:
we can't provide this type of protection.

[00:19:04] Speaker 05:
Yes, the company does have that right.

[00:19:06] Speaker 05:
It was not exercised here.

[00:19:08] Speaker 02:
What I'm getting at is does compliance with the quick drenching standards look different in the construction industry than it does in the manufacturing industry?

[00:19:20] Speaker 05:
There could be adaptations made depending on the nature of the industry.

[00:19:27] Speaker 05:
But as I was saying, I think construction doesn't count as one of those cases because not only because of... So that wasn't done here.

[00:19:36] Speaker 02:
What you're saying, the standard that was established for manufacturing is the same one

[00:19:44] Speaker 02:
that's established now for the construction industry.

[00:19:47] Speaker 02:
No tailoring, no adaptation for the different natures of the workplace environment.

[00:19:55] Speaker 05:
There could be tailoring.

[00:19:57] Speaker 02:
But has there been?

[00:19:58] Speaker 05:
I believe the wording of the construction quick trenching standard is identical to that of the general industry quick trenching standard.

[00:20:05] Speaker 05:
So there wasn't such a modification.

[00:20:07] Speaker 05:
But as I pointed out, this is an area where OSHA has found repeatedly that the quick drenching standard applies to construction, that there is a need for it, that the employees have great exposure to injurious corrosive materials.

[00:20:23] Speaker 02:
I get that.

[00:20:23] Speaker 02:
I'm just asking if the application of it, the enforcement, is the same in both places.

[00:20:29] Speaker 02:
You have the same amount of water, the same distance from the workers, everything's the same.

[00:20:36] Speaker 05:
Well, remember, we're just talking about the bare bones wording of the standard here.

[00:20:40] Speaker 05:
And the standard basically says that where the employees may be exposed to injurious corrosive materials, the employer shall provide quick drenching facilities that can be accessed very easily in emergency situations.

[00:20:54] Speaker 05:
That's not to say that adaptations cannot be made, but as far as this particular application is concerned, the wording is the same.

[00:21:07] Speaker 05:
Now, Your Honors, I requested three minutes for rebuttal.

[00:21:10] Speaker 05:
I hope that's been reserved.

[00:21:12] Speaker 03:
If there are no more questions, go ahead.

[00:21:15] Speaker 03:
Thank you.

[00:21:18] Speaker 03:
Mr. Sapper.

[00:21:25] Speaker 06:
Good morning, and may it please the Court, Your Honor.

[00:21:29] Speaker 06:
Arthur Sapper for Keywood.

[00:21:31] Speaker 06:
Notice and comment rulemaking is a pale substitute for lawmaking by democratically elected representatives.

[00:21:39] Speaker 06:
Exceptions to it should therefore be rare, narrowly construed, and substantially justified.

[00:21:46] Speaker 06:
We don't have that here.

[00:21:48] Speaker 06:
We have an end run resting on nothing.

[00:21:51] Speaker 04:
Would your company and business

[00:21:54] Speaker 04:
September 1971 when this was adopted?

[00:21:57] Speaker 06:
Kiwet Power Constructors was not in business at that time.

[00:22:01] Speaker 04:
Kiwet's been around since the late 1970s.

[00:22:03] Speaker 06:
Right, the parent company, Peter Kiwet, has been around for a long time.

[00:22:07] Speaker 04:
In construction?

[00:22:08] Speaker 06:
In construction, yes.

[00:22:10] Speaker 04:
Were they around in 1979?

[00:22:11] Speaker 06:
I'm sure Peter Kiwet was.

[00:22:15] Speaker 06:
I'm not sure about

[00:22:17] Speaker 06:
power constructions, Your Honor.

[00:22:20] Speaker 06:
I think it was formed in the eighties, actually.

[00:22:22] Speaker 04:
Do you have any case where Congress has itself expressly said notice and comment rulemaking does not apply for the two-year period here?

[00:22:32] Speaker 04:
I don't know any other.

[00:22:33] Speaker 04:
Where courts have then said, we're going to construe that narrative.

[00:22:36] Speaker 04:
We're not going to take Congress at its word.

[00:22:38] Speaker 04:
We disagree.

[00:22:40] Speaker 04:
We think there's a presumption against avoiding notice and comment rulemaking.

[00:22:44] Speaker 04:
You started out with this whole

[00:22:47] Speaker 04:
argument is in favor of construing things narrowly, but I'm not sure.

[00:22:53] Speaker 04:
I think it applies when you've got ambiguous language as opposed to when Congress has been as explicit as it was here.

[00:22:59] Speaker 06:
Well, the problem with that, Your Honor, is that 6A authorized OSHA, the Secretary, to adopt only established federal standards and then apply them

[00:23:11] Speaker 06:
not just to manufacturers with federal contracts, but to manufacturers in interstate commerce.

[00:23:19] Speaker 06:
So, right, what OSHA did here at first was just- Congress didn't say manufacturers.

[00:23:25] Speaker 04:
That's one of the questions in this case, is whether Congress meant for it to stay within the same sector or to employers generally.

[00:23:35] Speaker 06:
Yes, Your Honor.

[00:23:36] Speaker 06:
And as this Court said in Simplex,

[00:23:40] Speaker 06:
The secretary was not permitted to make substantive changes when he adopted the established federal standards.

[00:23:48] Speaker 06:
But that's what the secretary did here.

[00:23:50] Speaker 06:
When you change the applicability of a standard from manufacturing to construction, even by the secretary's own admissions and other rule-makings, you're making a substantive change.

[00:24:01] Speaker 04:
Is changing it from contractors to non-contractors a substantive change?

[00:24:05] Speaker 06:
No, it is not, because it is the exact same industry.

[00:24:08] Speaker 06:
It's manufacturing.

[00:24:10] Speaker 06:
Manufacturing with a federal contract is no different than manufacturing without a federal contract.

[00:24:17] Speaker 06:
And the secretary has never said the contrary, and the secretary can't.

[00:24:22] Speaker 06:
Because the legislative history, as shown in the Senate report, and the House report too, by the way, shows that Congress saw exactly that.

[00:24:37] Speaker 06:
that if you have manufacturing with a federal contract, it's not different than manufacturing without one.

[00:24:43] Speaker 04:
So the safety concerns and everything are going to be the same.

[00:24:45] Speaker 04:
Exactly.

[00:24:46] Speaker 04:
The operations are going to be the same.

[00:24:48] Speaker 06:
Exactly.

[00:24:48] Speaker 06:
But if you change from manufacturing to construction, that is a substantive change within the meaning of this court's precedent and simplex time recorder.

[00:24:57] Speaker 04:
But then in Section 6A, so given that you've said moving from contracting to non-contracting doesn't change,

[00:25:04] Speaker 04:
anything.

[00:25:05] Speaker 04:
Safety concerns are going to be the same.

[00:25:06] Speaker 04:
Operations are going to be the same.

[00:25:08] Speaker 04:
It's not going to... It's just going to be a very smooth transition.

[00:25:12] Speaker 04:
Well, Copper said in 6A that they should establish federal standards as health and safety standards unless the Secretary determines that the promulgation would not result in improved safety or health.

[00:25:27] Speaker 04:
Now, how, if all they were allowed to do was stay in the same sector

[00:25:31] Speaker 04:
where you've said everything is the same, would there ever be a situation where the Secretary would determine that extending it from within that exact same industry would not improve health or safety?

[00:25:44] Speaker 06:
You might have a very poorly written standard.

[00:25:47] Speaker 04:
Excuse me, I don't understand what you're talking about.

[00:25:50] Speaker 04:
You just said that what Congress allowed the Secretary to do was to take a standard, here we'll talk about one that applied to contractors,

[00:26:01] Speaker 04:
And it could extend it to people who are in the same industries, manufacturing, even if they weren't covered by the original standard.

[00:26:10] Speaker 04:
And it could do that because the problems are going to be the same, the operations of industry are going to be the same, the need for safety is going to be the same.

[00:26:17] Speaker 04:
But Congress was quite explicit that when it said the Secretary will adopt these federal standards as national health and safety standards,

[00:26:28] Speaker 04:
But there are going to be situations where, in doing so, it would not increase safety or health.

[00:26:36] Speaker 04:
And that couldn't be if they stay in the same industry, given what you've just told me.

[00:26:40] Speaker 04:
It had to be that they were crossing some sort of more significant line.

[00:26:45] Speaker 06:
Two points on that, Your Honor, if I may please.

[00:26:47] Speaker 06:
First of all, 6A covers also national consensus standards.

[00:26:52] Speaker 06:
And although it's not in the record, it is stated everywhere in law review articles from 1971 onward.

[00:26:59] Speaker 06:
National consensus standards were very poorly written.

[00:27:02] Speaker 06:
And a lot of them, shall we say, should never have been adopted.

[00:27:06] Speaker 06:
Point number two, that clause authorizes OSHA only to not adopt a provision.

[00:27:14] Speaker 06:
It does not authorize OSHA to change it.

[00:27:17] Speaker 04:
I'm not talking about that.

[00:27:18] Speaker 04:
I'm just talking about what Congress would have, why it would have thought, if it thought all it was going to do was keep everything in the same sector, why it would have thought there'd be concerns.

[00:27:29] Speaker 04:
that that movement, that's, I think in your mind, sort of a smaller, more moderate movement, would ever have a situation where it wouldn't increase health or safety to do that.

[00:27:40] Speaker 04:
Had to think that they were going more broadly.

[00:27:42] Speaker 06:
I think it's pretty clear that what Congress had in mind there was the national consensus standards.

[00:27:46] Speaker 04:
You think it's clear that's just your understanding of the language?

[00:27:53] Speaker 06:
The established federal standards went through notice and comment rulemaking for application to their industry.

[00:27:59] Speaker 06:
The national consensus standards were written by private persons, safety experts mostly, who were not expert at drafting anything.

[00:28:09] Speaker 06:
They were old Joes who just drafted up private standards.

[00:28:13] Speaker 06:
And they were filled with provisions that later turned out to be nightmares.

[00:28:19] Speaker 04:
I'm just talking about the text of it.

[00:28:20] Speaker 04:
I get that.

[00:28:20] Speaker 04:
That's important background.

[00:28:21] Speaker 04:
And that is probably what Congress was thinking of.

[00:28:24] Speaker 06:
Claim text of the statute, though.

[00:28:26] Speaker 06:
Exactly, but the statute authorized OSHA, commanded OSHA, in fact, to adopt not just established federal standards like the Wall Street standards, but also national consensus standards like, for example, ANSI standards or National Fire Protection Association standards, which were not well drafted and everyone knew it.

[00:28:50] Speaker 02:
I don't see anywhere in the statute that it makes clear the argument that you're making, which is that the Secretary cannot apply any established federal standard to a new sector.

[00:29:08] Speaker 02:
And as I understand the burden of your argument right now, you have to show

[00:29:13] Speaker 02:
that it's unreasonable for the secretary to have the view that he has.

[00:29:18] Speaker 02:
Not just that you have the better reading of the statute, right?

[00:29:21] Speaker 02:
We're in Chevron Step 2 land.

[00:29:23] Speaker 02:
And you have to show that the secretary was somehow unreasonable to not read into the statute the language you're reading into it.

[00:29:30] Speaker 02:
Now, how do we get there?

[00:29:32] Speaker 02:
Because the language you're giving us is not in the statute.

[00:29:35] Speaker 02:
It's not there.

[00:29:37] Speaker 06:
Because it's not the standard.

[00:29:40] Speaker 06:
It's not the established federal standard.

[00:29:42] Speaker 06:
The established federal standards apply to manufacturing.

[00:29:46] Speaker 02:
It doesn't say that, though.

[00:29:48] Speaker 02:
Let's just start here.

[00:29:49] Speaker 02:
It doesn't say any established federal standard for that sector.

[00:29:53] Speaker 02:
It doesn't say that.

[00:29:54] Speaker 06:
Section 3.8 of the Act, which is quoted in our brief and is relied on quite expressly on this exact point.

[00:30:01] Speaker 06:
Section 3.8, which the Supreme Court has held must be applied in these kinds of cases.

[00:30:07] Speaker 02:
This is the definition of occupational safety.

[00:30:09] Speaker 02:
Correct.

[00:30:10] Speaker 06:
It says that a standard is a standard that's reasonably necessary or appropriate in employment and places of employment.

[00:30:20] Speaker 06:
Now the only employment and the only places of employment that the established federal standards were adopted for, in the case of Osheli, was manufacturing.

[00:30:31] Speaker 04:
No, for contracting and manufacturing.

[00:30:35] Speaker 04:
For contractor manufacturing.

[00:30:38] Speaker 06:
For contracted manufacturing.

[00:30:39] Speaker 06:
But OSHA has never said, and the entire premise of the legislative history, and I would encourage your honors to read the Senate committee report on this point,

[00:30:47] Speaker 06:
The entire point was that Congress thought that there was no substantive difference between manufacturing with and without a federal contract.

[00:30:55] Speaker 06:
So the established federal standard.

[00:30:58] Speaker 04:
I think you would agree that under the standard.

[00:30:59] Speaker 04:
I think Judge Griffith was talking about the plain statutory language.

[00:31:02] Speaker 04:
And at least under this plain statutory language, if we haven't yet looked at the legislative history, it doesn't have that narrow reading.

[00:31:09] Speaker 04:
I get that you have an argument about legislative history

[00:31:13] Speaker 04:
But I'm just asking about the statute itself.

[00:31:16] Speaker 04:
It's not clear.

[00:31:17] Speaker 04:
It says it's places of employment, but it's also healthful employment, which is not so here.

[00:31:26] Speaker 06:
Yes, but it's talking about employment and places of employment.

[00:31:29] Speaker 06:
And the employment and places of employment here are different from manufacturing or federally contracted manufacturing, if Your Honor will.

[00:31:39] Speaker 04:
But construction is still employment.

[00:31:41] Speaker 06:
What?

[00:31:42] Speaker 06:
I'm sorry?

[00:31:42] Speaker 04:
Construction is a form of employment.

[00:31:44] Speaker 06:
Oh, but it's not the same employment.

[00:31:45] Speaker 06:
That's the point.

[00:31:47] Speaker 04:
Where does it say same?

[00:31:49] Speaker 04:
In the statute?

[00:31:50] Speaker 02:
Well, that's the problem.

[00:31:52] Speaker 02:
It doesn't say it in the statute, and you have to convince us that it's unreasonable to reject that.

[00:32:01] Speaker 06:
If the word employment means any place, then it has no function in this provision.

[00:32:08] Speaker 06:
Then you're making it into something that's meaningless.

[00:32:11] Speaker 02:
No, it's not any place of employment.

[00:32:13] Speaker 06:
I mean, all these standards apply to places of employment of some sort or another, but they were not judged to be, quote, reasonably necessary or appropriate in every place of employment.

[00:32:25] Speaker 06:
That's the problem for OSHA here.

[00:32:28] Speaker 06:
If you look at the words of the statute, for example, as this court said in the steelworkers case, it judged the construction lead, I'm sorry, it judged the lead standard appropriate for certain employments, not for other employments, which happened to be construction, by the way.

[00:32:49] Speaker 06:
So if OSHA is allowed to draw a distinction between employments, the same distinction applies under Section 38.

[00:32:56] Speaker 06:
In fact, it is the same distinction.

[00:32:58] Speaker 06:
That's what OSHA applies when it decides, as it did in the lead standard case decided by Your Honors, that a standard is appropriate in one kind of employment, but not in another.

[00:33:10] Speaker 06:
And that's what OSHA has been doing literally for decades when it applied, for example, the lockout standard.

[00:33:17] Speaker 06:
to manufacturing.

[00:33:20] Speaker 04:
So you said OSHA made those decisions to apply it in one place versus another?

[00:33:25] Speaker 04:
Yes, all the time.

[00:33:27] Speaker 04:
And they were reasonable judgments there to make those distinctions?

[00:33:31] Speaker 06:
I don't know if they were reasonable, but they were lawful.

[00:33:33] Speaker 06:
In other words, they were drawing distinctions between construction and non-construction, between maritime and non-maritime.

[00:33:42] Speaker 06:
They were deciding that the lockout standards should not apply to construction.

[00:33:46] Speaker 06:
The confined space standards should not apply.

[00:33:48] Speaker 04:
So you think the statute forbids them from ever deciding that some standard actually applies just as well to construction as to non-construction?

[00:33:56] Speaker 06:
They can do that if they make the findings.

[00:33:59] Speaker 06:
They have to find that it's feasible.

[00:34:01] Speaker 06:
They have to find it's reasonably necessary or appropriate.

[00:34:04] Speaker 06:
They have to find that there's a significant risk in all the industries.

[00:34:08] Speaker 06:
They have to find it's feasible in all the industries.

[00:34:11] Speaker 04:
Do you have to do that in the first two years as well under the statute?

[00:34:13] Speaker 04:
That's your view?

[00:34:14] Speaker 06:
They weren't required to, Your Honor, because Congress believed that if you apply a construction standard, for example, under the Construction Safety Act from

[00:34:26] Speaker 06:
construction with a federal contract to construction without, you're not making a substantive change.

[00:34:33] Speaker 06:
That was the whole point.

[00:34:34] Speaker 06:
That was why Congress authorized this in the first place.

[00:34:40] Speaker 04:
I just want to clarify one thing too.

[00:34:41] Speaker 04:
So your argument is, are you making an argument that under Chevron step one, that the statute itself didn't allow the secretary to extend the quick drenching rule beyond

[00:34:56] Speaker 04:
the manufacturing and service industries that were covered in the contracting contracts under Walsh Healy Act?

[00:35:03] Speaker 04:
Or are you making an argument that, you're right, the statutory language isn't crystal clear, but their decision was unreasonable?

[00:35:11] Speaker 04:
I just want to, because it was a little, it seemed back and forth sometimes in your brief.

[00:35:14] Speaker 04:
I want to make sure I understand exactly what your position is.

[00:35:16] Speaker 06:
Number one, step one Chevron applies here.

[00:35:20] Speaker 06:
The Secretary's actions were contrary to the definition of an AASH standard in section 38.

[00:35:26] Speaker 06:
Number two, if there's any ambiguity, the ambiguity is dispelled as the commission found by the legislative history, which is crystal clear.

[00:35:37] Speaker 06:
I might also argue that Chevron does not apply here.

[00:35:42] Speaker 06:
because under Encino Motor Car, the change was never explained.

[00:35:47] Speaker 06:
Now, it is true that the secretary said, well, gee, we'd like to expand the applicability of it, but they never explained why.

[00:35:53] Speaker 04:
Hang on, hang on.

[00:35:55] Speaker 04:
So Encino Motor Car is pretty clear.

[00:35:58] Speaker 04:
First of all, it's contextual how much explanation is necessary.

[00:36:02] Speaker 04:
So in this case, you had they acknowledged the change.

[00:36:06] Speaker 04:
They acknowledged the change, they cited the source of authority for making the change, and said why they were making the change, because this is more protective and consistent with congressional intent.

[00:36:16] Speaker 04:
Why in the context in that first two-year period, where it's supposed to go fast, in that context, particularly where there's no reliance interest, because the old standard had only been in effect for two weeks when they made the change,

[00:36:32] Speaker 04:
Why is that not sufficient under Encino model?

[00:36:35] Speaker 04:
Or do you have, what's your best case that that is not a sufficient explanation for the change?

[00:36:40] Speaker 06:
Well, I don't know if there's a post Encino case that would be closest to this.

[00:36:44] Speaker 00:
Even a pre Encino one.

[00:36:45] Speaker 06:
But they never explained the change.

[00:36:48] Speaker 06:
They explained what they were trying to accomplish, but they never explained why they made the change, why they changed their mind.

[00:36:56] Speaker 06:
Several months before, they thought that all these Walsh Healey manufacturing standards had to apply only to manufacturing.

[00:37:03] Speaker 06:
Three months later, they said, oh no, they can apply to the world.

[00:37:07] Speaker 06:
Construction, underwater construction, I had a case involving underwater construction.

[00:37:12] Speaker 06:
And the crane standard there was strange.

[00:37:15] Speaker 06:
It applied to underwater construction, according to OSHA, but I found out it was originally a Walsh Healey standard.

[00:37:22] Speaker 06:
Very strange.

[00:37:23] Speaker 06:
So they never explained why they made that change.

[00:37:27] Speaker 06:
Yes, they explained what they were trying to accomplish, apply it to the universe, but they never explained why they changed their mind.

[00:37:33] Speaker 06:
And that's what Encino Motorcar requires.

[00:37:35] Speaker 06:
If I may, also on Chevron, Your Honor, this doesn't even meet Mead.

[00:37:42] Speaker 06:
Mead requires some formality of some sort before you make a substantive change to a regulation.

[00:37:50] Speaker 06:
They didn't have any formality.

[00:37:52] Speaker 04:
This was like fiat.

[00:37:53] Speaker 04:
Your position is need applied during what?

[00:37:56] Speaker 04:
I know this case wasn't around then, but the principle in Meade applies to what the secretary did in that first two year period?

[00:38:03] Speaker 06:
Yes, because we're talking about whether or not today court should give Chevron deference to something that applied then.

[00:38:10] Speaker 06:
If you're going to look then, you should apply the standards to see if you should defer under Chevron.

[00:38:15] Speaker 06:
It doesn't meet Meade.

[00:38:17] Speaker 04:
So to be clear then, your position would be there'd be no Chevron deference for anything that was adopted in those first two years when they didn't go through

[00:38:26] Speaker 04:
formal notice and comment under what you just said, because all of those will have the need issue, as I understand, unless there's something different here.

[00:38:34] Speaker 06:
I would say the answer to your question is that's correct, but your honors don't need to go that far here.

[00:38:39] Speaker 04:
Well, you have to have a reason for making a distinction.

[00:38:42] Speaker 04:
Do you have a reason for making a distinction?

[00:38:43] Speaker 06:
Because all your honors have here is just a fiat, just presto, they now apply, beyond what we originally said they apply.

[00:38:53] Speaker 06:
That is much different from what OSHA did when OSHA adopted substantive scope provisions in May 1971.

[00:38:59] Speaker 06:
Now they abolished a scope provision, a substantive scope provision.

[00:39:07] Speaker 06:
That's very different.

[00:39:09] Speaker 06:
There are other reasons why Chevron doesn't apply here.

[00:39:12] Speaker 06:
Chevron does not apply when you're limiting the APA.

[00:39:16] Speaker 06:
Well, you're limiting the APA in this kind of a case.

[00:39:22] Speaker 06:
This is not a Chevron case, Your Honor.

[00:39:24] Speaker 06:
This is a case where OSHA needs to show its authority to do what it did.

[00:39:28] Speaker 06:
And the one thing it cannot show is that it had any authority to change something.

[00:39:33] Speaker 06:
By the way, this court said in Simplex Time Recorder that OSHA had to not make substantive changes.

[00:39:41] Speaker 06:
That's the principle that applies here.

[00:39:43] Speaker 06:
OSHA cannot credibly say it didn't make a substantive change.

[00:39:47] Speaker 06:
Its own rulemaking documents

[00:39:50] Speaker 06:
in other rule-makings say that this is a substantive change.

[00:39:55] Speaker 06:
So therefore, it's illegal.

[00:39:59] Speaker 03:
Do you have any more questions?

[00:40:04] Speaker 03:
Your time is up.

[00:40:07] Speaker 06:
My time is up.

[00:40:08] Speaker 06:
Thank you, Your Honors.

[00:40:10] Speaker 03:
All right.

[00:40:14] Speaker 03:
Does Mr. Gladman have any more time?

[00:40:16] Speaker 03:
All right, why don't you take two minutes?

[00:40:26] Speaker 05:
I'd like to start by addressing a question that Judge Griffith asked in my first statement.

[00:40:34] Speaker 05:
And he asked me whether any requirement was necessary for suitability of a standard.

[00:40:39] Speaker 05:
And I want to point out here that the Review Commission provides in every case for the possibility of an affirmative defense of infeasibility.

[00:40:50] Speaker 05:
And if the employer thinks that the standard is not

[00:40:54] Speaker 05:
suitable for his industry or his particular company, he always has the option of making that defense.

[00:41:02] Speaker 05:
In addition, as I pointed out in my first argument, you can petition the secretary for modification, revision, or revocation of the standard in addition to having the right to requesting a variance.

[00:41:15] Speaker 05:
You have some other requirement to satisfy the standard.

[00:41:21] Speaker 03:
Can he do that before the citation?

[00:41:24] Speaker 03:
or is it an affirmative defense once he's cited?

[00:41:27] Speaker 05:
The infeasibility is an affirmative defense.

[00:41:30] Speaker 05:
But the variant has to be requested before the citation.

[00:41:36] Speaker 05:
Now, my opposing counsel made the argument that the secretary is not permitted to make a substantive change.

[00:41:43] Speaker 05:
That really begs the question of what a substantive change is.

[00:41:46] Speaker 05:
And as I explained

[00:41:48] Speaker 05:
in my earlier argument, what the Secretary is allowed to do is to extend the nature of the protection of the standard, I mean, extend the application of the standard, but he cannot impose a greater compliance obligation.

[00:42:06] Speaker 05:
And as I explained in my first argument, that means, for instance, with the quick wrenching standard, the Secretary could not add, for instance,

[00:42:16] Speaker 05:
a requirement of wearing eye guards that wasn't found in the original source standard.

[00:42:20] Speaker 05:
But what he can do is to extend the application of that standard to industries that weren't covered before.

[00:42:26] Speaker 05:
Opposing counsel also makes the argument that

[00:42:32] Speaker 05:
formality, administrative formality is required under the Mead case.

[00:42:37] Speaker 05:
I'd like to point out that that's not an accurate description of the case.

[00:42:42] Speaker 05:
Mead does not make administrative formality, namely notice and comment rulemaking an absolute prerequisite of Chevron deference.

[00:42:49] Speaker 05:
And that's pointed out in the Mead case at 533 U.S.

[00:42:52] Speaker 05:
and 230 to 31.

[00:42:54] Speaker 05:
If the revocation in our case was merely a clarification

[00:43:01] Speaker 05:
or correction of an existing position and not a substantive change, as we argue, that no administrative formality was required and Chevron deference would not be barred.

[00:43:13] Speaker 05:
Finally, we don't agree with opposing counsel's interpretation of simplex time recorder.

[00:43:19] Speaker 05:
That case did not bar the type of change we made here, but only prohibited a change in the actual protection of the source standard.

[00:43:28] Speaker 05:
And that is not at all inconsistent with what our interpretation here says.

[00:43:34] Speaker 05:
For these reasons, we ask the Court to reverse the Commission's decision, to reinstate the citation, and to remand the case to the Commission for decision of the merits of the citation.