11-1340 National Roofing Contractors Ass’n. v. DOL

Listen to this article

Labor
Regulations

Enforcement of a long ignored regulation is not adoption of a new occupational safety and health standard.

“Recently another circuit reached the same conclusion in functionally identical circumstances. See Steel Erectors Association of America, Inc. v. Occupational Safety and Health Administration, 2011 U.S. App. LEXIS 3137 (4th Cir. Feb. 17, 2011). In 2001 OSHA promulgated a regulation establishing safety standards for the construction and repair of bridges and similar steel structures. The next year it issued a directive stating that certain violations of this regulation would not lead to enforcement proceedings, if employers took different precautions. In 2010 it rescinded this directive and announced that it would address the propriety of these extra-regulatory precautions one case at a time when deciding whether a violation is too insignificant to justify the commencement of formal proceedings. Steel Erectors Association holds that the policy adopted in 2010 is not an ‘occupational safety and health standard’ subject to judicial review. It is instead an enforcement policy; the ‘standard’ is the 2001 regulation. We agree with Steel Erectors Association.”

Petition Dismissed.

11-1340 National Roofing Contractors Ass’n. v. DOL

Petition for Review of a Safety Standard Issued by the Secretary of Labor, Easterbrook, J.

Full Text