SECRETARY OF LABOR,
Complainant,

v.

PHOENIX FORGING COMPANY,
Respondent.

OSHRC Docket No. 82-0398

DECISION

Before:  BUCKLEY, Chairman; and CLEARY, Commissioner.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor ("Secretary") under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. § 659(c).

Phoenix Forging Company ("Phoenix") has contested two citations alleging that Phoenix committed 13 violations of occupational safety standards promulgated pursuant to the Act. Before Administrative Law judge David G. Oringer the parties agreed to amend the citations in certain respects and stipulated that these violations occurred as alleged in the amended citations. They expressly waived an evidentiary hearing. The issue on review is whether Judge Oringer erred in denying a motion for summary judgement by Phoenix raising a number of objections to the warrant authorizing the Secretary's inspection. Phoenix contends that the evidence obtained pursuant to the warrant must be suppressed because the warrant exceeded the probable cause basis for its issuance, was overbroad, and contained provisions contrary to the Act. Phoenix also contends that the warrant was invalid because the Secretary, had not published in the Federal Register the internal enforcement directive on which the Secretary based his application for the warrant. The Commission concludes that the judge properly denied Phoenix's motion.

I.

The Secretary's application for the warrant was predicated on an internal compliance instruction designated as CPL 2.25B, entitled "Scheduling System for Programmed Inspections," effective October 1, 1981. The stated purpose of this directive is to describe "the steps to be followed and the criteria to be applied in selecting workplace establishments for programmed inspection" (section A, Purpose). [[1]] The directive provides that programmed inspections be conducted in "'high rate' sectors of employment" (section E.3). As such, it represents a change from the Secretary's prior procedure, expressed in earlier versions of the directive, [[2]] to spread inspection activity throughout many different types of industries and employment's. The directive states:

This instruction replaces CPL 2.25A. Insofar as it applies to programmed safety inspections in general industry, it changes OSHA's previous policy of wide dispersion of inspection activity to one that concentrates resources in those industries with the highest
lost workday injury rates (safety) and with the greatest potential for health problems.

Section E.4.c.

The basic framework of the directive provides that the OSHA "National Office" will furnish each area off ice a "Statewide Industry Ranking Report," which lists industries having a "high rate" of injury.[[3]] A "high rate" industry is one "which is higher than private sector industry in general in any one or more of the occupational injury incidence rates published by BLS [Bureau of Labor Statistics]." Section E.3.a. Each area office is also given an "establishment list," a list of specific employers within its geographical area belonging to each "high rate" industry. From this establishment list the area office will select specific employers for inspection.[[4]] In scheduling inspections the area director is required to make additions to and deletions from the establishment list as appropriate.[[5]] The area director also has discretion to decide the number of establishments the area office will inspect for each fiscal year and the order in which specific workplaces will be inspected. The directive recognizes that the number of inspections actually performed may vary from the number originally projected but prescribes procedures by which the area director may reschedule inspection activity. There is also a mechanism for adjusting the inspection activity for certain employers in high rate industries.[[6]]

Pursuant to the provisions of this directive, the Secretary selected Phoenix for a programmed safety inspection. In his application for the warrant the Secretary averred that probable cause existed for a comprehensive safety inspection of Phoenix's worksite. The warrant as issued by a federal magistrate authorized the Secretary to inspect to determine whether Phoenix's workplace was free from recognized hazards and whether Phoenix was complying with occupational safety and health standards and the "rules, regulations and orders issued pursuant to the Act."[[7]] The warrant also allowed the Secretary to question employees privately on the premises during work hours and authorized the Secretary to inspect three types of records: records of employee injuries and illnesses required to be kept by the Secretary's regulations at 29 C.F.R. Part 1904, employee medical and exposure records under 29 C.F.R. § 1910.20, and "any other records related to employee safety and health." The inspector's return of the warrant stated that he had reviewed accident and illness records and had interviewed five employees. 

Phoenix does not dispute that the directive on which the Secretary based his warrant application satisfies the criteria set forth in Marshall v. Barlow's, Inc., 436 U.S. 307, 321 (1978), in which the Court stated that probable cause for an inspection warrant could be based on "a general administrative plan for the enforcement of the Act derived from neutral sources." Phoenix contends, however, that because the Secretary in his application asserted probable cause only to conduct a safety inspection, the warrant improperly authorized an inspection for health hazards and for violations of health standards. Similarly, Phoenix asserts that the directive did not establish probable cause for that portion of the warrant authorizing private interviews with employees on the premises during working hours and that the Act does not permit employee interviews to be conducted in this manner. Phoenix also contends that the directive does not set forth probable cause for the examination of records related to safety and health or for the inspection for violations of "rules, regulations, and orders" under the Act and that these provisions of the warrant are overbroad because there is no limit on the types of records or "orders" referred to. Phoenix also asserts that the Act does not permit the examination of an employer's records during a physical inspection and that the Secretary may only examine such records by subpoena.

For different reasons, the two Commission members agree that the judge properly rejected these contentions.[[8]] In Chairman Buckley's view, the Commission as an agency within the executive branch has no authority to review the actions of a judicial officer of a court created under Article III of the Constitution. Thermal Reduction Corp., No. 81-2135 (April 17, 1985) (concurring opinion); Brooks Woolen Co., Nos 79-45 and 79-128 (April 10, 1985) (view of Chairman Buckley); Beauty Craft Tile of the Southwest, Inc., 84 OSAHRC __/__, 12 BNA OSHC 1082, 1984-85 CCH OSHD ¶ 27,091 (No. 80-471, 1984) (lead opinion). Since Phoenix's arguments that provisions of the warrant were not supported by probable cause and were overbroad relate to the magistrate's decision to issue the warrant, the Commission cannot consider these arguments. Id.

The Commission can, however, consider a motion to suppress evidence based on grounds that do not require it to sit in review of a judicial officer's determination to issue a warrant of a particular scope. Pursuant to its supervisory authority over the Act's enforcement, the Commission can impose appropriate sanctions on the Secretary for violations of law, and thus can entertain motions to suppress based on arguments that the Secretary acted in violation of law in obtaining or executing the warrant or in gathering evidence during an inspection. Brooks Woolen Co., supra. Accordingly, the Commission is empowered to consider Phoenix's contentions that the Act does not permit the Secretary to conduct private interviews with employees on the employer's premises during working hours and that there is no authority in the Act for the Secretary to examine records during an inspection.

Section 8(a) of the Act, 29 U.S.C. § 658(a), which sets forth the Secretary's inspection authority, expressly authorizes the Secretary to conduct inspections of workplaces "during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner" and to "question privately any . . . employer, owner, operator, agent, or employee." The courts have consistently interpreted this provision to allow the Secretary to conduct private interviews with employees on the employer's premises and during working hours, subject only to the limitation that the interviews be conducted at reasonable times and in a reasonable manner. Donovan v. Wollaston Alloys, Inc., 695 F.2d 1, 9 (1st Cir. 1982), (citing Marshall v. Wollaston Alloys, Inc., 479 F. Supp. 1102 (D. Mass. 1979)); In re Establishment Inspection of Keokuk Steel Castings, 638 F.2d 24, 26 (8th Cir. 1981); Urick Foundry Co. v. Donovan, 542 F. Supp. 82 (W.D. Pa. 1982); Donovan v. Metal Bank of America, 516 F. Supp. 674, 680-81 (E.D. Pa. 1981).

There is nothing in the limited record before us to suggest that the Secretary failed to conduct his interviews of Phoenix's employees in accordance with the statutory requirements. The parties' stipulation is devoid of any description of the manner, duration, timing, location or extent of the employee interviews. Phoenix argues that the citations here are invalid or that evidence should be suppressed because, without limits in the warrant on the number and duration of employee interviews and the number of inspectors who could question employees, the warrant allowed the Secretary to substantially interfere with, and even close down, Phoenix's operations for an extended period of time. There is no evidence to even suggest that the Secretary conducted interviews in this fashion and neither suppression nor the more strict sanction of dismissal is warranted given only a theoretical possibility of improper conduct.

Finally, Chairman Buckley notes that the Commission recently held that the injury and illness records required to be kept under the Secretary's regulations at 29 C.F.R. Part 1904 may be examined during an inspection pursuant to a warrant. The Act does not require the Secretary to obtain a subpoena in order to examine this type of employer record. Thermal Reduction Corp., No. 81-2135 (April 17, 1985) (lead and concurring opinions). The return of the warrant indicates that the inspector viewed only Phoenix's accident and illness records, and there is no evidence to show, nor does Phoenix contend, that the Secretary examined or sought to examine any other type of record. Chairman Buckley therefore concludes that the Secretary acted in accordance with the requirements of the Act. [[9]]

In Commissioner Cleary's view, the Commission has authority to consider Phoenix's contentions that the warrant was overbroad and was not supported by a showing of probable cause. Employers moving to suppress evidence on the basis that their Fourth Amendment rights were violated must exhaust their administrative remedies before the Commission as a prerequisite to having their arguments considered in federal court. See Beauty Craft Tile of the Southwest, supra, 12 BNA OSHC at 1083, 1984 CCH OSHD at p. 34,929, and cases cited therein. In ruling on a suppression motion, the Commission is statutorily competent to determine whether an inspection conformed to the Fourth Amendment. Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d Cir. 1979), Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360 (No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982).

In this case, however, the Commission does not have to decide the merits of Phoenix's objections to those portions of the warrant authorizing the Secretary to inspect for various types of violations and to examine records related to safety and health. In Commissioner Cleary's view, even assuming these provisions of the warrant were overbroad and not supported by probable cause as Phoenix argues, they may be severed from the warrant and the remainder of the warrant preserved. Phoenix was cited only for violations of occupational safety standards. The Secretary did not allege that Phoenix had violated any occupational health standards or any rules, regulations, or orders, nor did the Secretary allege that Phoenix had exposed its employees to any recognized hazards contrary to section 5(a)(1) of the Act. Accordingly, there is no evidence arising from the provisions of the warrant authorizing the Secretary to inspect for matters relating to occupational health as opposed to safety and for violations of "rules, regulations, and orders" to be suppressed even if these provisions of the warrant were defective as Phoenix contends. The same conclusion applies with respect to that provision of the warrant allowing the Secretary to inspect records generally related to safety and health. Since the record before us shows only that the Secretary examined the injury and illness records Phoenix is required to keep under 29 C.F.R. Part 1904, there is no evidence attributable to that portion of the warrant that allowed the Secretary to examine other types of employer records. Accordingly, Commissioner Cleary would apply the principle of "redaction" as Judge Oringer did below and would uphold those portions of the warrant authorizing the Secretary to examine Phoenix's injury and illness records[[10]] and authorizing the Secretary to inspect Phoenix for violation of occupational safety standards. Wollaston Alloys, supra, 695 F.2d at 8; United States v. Christine, 687 F.2d 749, 758 (3d Cir. 1982. See Rockford Drop Forge Co. v. Donovan, 672 F.2d 626, 631 (7th Cir. 1982)[[11]]

Finally, Commissioner Cleary rejects Phoenix's contention that the Secretary did not have probable cause for that portion of the warrant authorizing private employee interviews to be conducted on the premises during work hours. As Chairman Buckley properly observes, the Act allows such interviews so long as they are conducted reasonably. Since the Act specifically provides for such interviews, Commissioner Cleary concludes that the Secretary in applying for a warrant is not required to establish an independent probable cause to question employees privately during the inspection. See Thermal Reduction Corp., No. 81-2135 (April 17, 1985), slip op. at 6-7. Commissioner Cleary agrees with Chairman Buckley that on the record here, it is appropriate to conclude that the Secretary's interviews with Phoenix's employees were conducted in a reasonable manner and therefore complied with the Act.

II.

Phoenix's major contention is that the warrant is invalid because the Secretary's directive on which he based his application for the warrant, CPL 2.25B, was not issued in compliance with the Administrative Procedure Act ("APA"). Phoenix contends that because the purpose of the directive is to establish probable cause for an inspection, it comes within the classes of documents covered by section 3 of the APA, 5 U.S.C. § 552(a)(1), which requires publication in the Federal Register of five specified types of documents, including "(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency." Phoenix asserts that the directive is either a substantive rule of general applicability or an agency policy statement of general applicability and thus must be published in accordance with section 552(a)(1).

Phoenix also contends that the directive must also be published under the provisions of section 4 of the APA, 5 U.S.C. § 553, which requires the publication in the Federal Register of a notice of proposed rulemaking or actual notice thereof with an opportunity for comment from those affected by a proposed rule before it is finally adopted. While Phoenix does not specifically argue that the Secretary should have afforded an opportunity for public comment before issuing the directive, it asserts that the requirements of section 553 are relevant because sections 552 and 553 contemplate publication of agency documents in the Federal Register. After this case came before us on review the Commission permitted Trinity Industries, Inc. ("Trinity") to file an amious curiae brief arguing that the procedures prescribed in section 553 for rulemaking by advance notice and comment are directly applicable to CPL 2.25B.

The Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, does not by its plain terms require that all agency documents be published in the Federal Register. Hogg v. United States, 428 F.2d 274 (6th Cir. 1970), cert. denied, 401 U.S. 910 (1971). Rather, Federal Register publication is but one of two methods set forth for implementing the FOIA's purpose to provide generally for the public disclosure of agency documents. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975); 2 Davis, Administrative Law Treatise § 5:11 (2d ed. 1979). Thus, Federal Register publication is required only for five categories of documents expressly described in section 552 (a)(1), on which Phoenix relies. Other types of documents are simply to be made "available for public inspection and copying" under section 552(a)(2), including "(A) final opinions . . . in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and (C) administrative staff manuals and instructions to staff that affect a member of the public . . . . " (emphasis added). The Commission recognizes that the categories of documents subject to the publication requirement are broadly described and are not capable of precise definition. See Davis, supra, §§ 5:10-5:11. Nevertheless, the general nature of the documents the publication requirement is intended to include may be discerned from other provisions of section 552.

According to the FOIA, publication is required "for the guidance of the public."[[12]] Section 552(a)(1) further states that "[e]xcept to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published." [[13]]  Consistent with these provisions, the courts have repeatedly held that an agency need not comply with the notice requirements of section 552 if the documents do not impose obligations or contain matters to which persons must refer in formulating their conduct. E.g., Hogg, supra; United States v. Hayes, 325 F.2d 307 (4th Cir. 1963); Airport Commission of Forsyth County, North Carolina v. CAB, 300 F.2d 185 (4th Cir. 1962); T.S.C. Motor Freight Lines, Inc. v. United States, 186 F. Supp. 777, 786 (S.D. Tex. 1960) (three-judge court), aff'd per curiam sub nom. Herrin Transportation Co. v. United States, 366 U.S. 419 (1961). Therefore, if knowledge of the content of the document would not alter the legal obligation of a private party to conduct its actions in accordance with the law, the agency need not publish or otherwise give notice of the document under section 552. United States v. Fitch Oil Co., 676 F.2d 673, 678 (Temp. Emer. Ct. App. 1982); United States v. Goodman, 605 F.2d 870, 887-88 (5th Cir. 1979); Chevron Oil Co. v. Andrus, 588 F.2d 1383, 1388, n.8 (5th Cir. 1979), cert. denied, 444 U.S. 879 (1979).

We conclude that CPL 2.25B does not have to be published under section 552(a)(1) because it is not a document to which Phoenix is required to resort to determine its legal obligations or which has an adverse effect on Phoenix within the meaning of that section. See Donovan v. Wollaston Alloys, Inc., 695 F.2d 1 (1st Cir. 1982) (inspection directive is typical of an agency staff manual, publication of which is not required under section 552(a)(2)). Phoenix's contention to the contrary misinterprets the purpose and effect of the directive. The directive does not in any way alter the employer's duty to comply with the Act, nor does it exclude any employer or group of employers from inspection under the Act. Phoenix's obligation to comply with the Act is not altered by the taking or possibility of an inspection. A similar conclusion was reached by the court in Wollaston Alloys, supra, 695 F.2d at 9, concerning a directive pertaining to programmed inspections which predated CPL 2.25B. The court concluded that an employer is not adversely affected by the lack of publication of such a directive because "[t]here is no alternative course of action that [the employer] might have taken had the program been published, and the company would have been selected for inspection in any event."

The Fourth Amendment's guarantee of freedom from unreasonable searches is obviously an important constitutional right. The Secretary's directive does not confer or limit this right, however. Rather, the directive merely sets forth the Secretary's procedures for implementing the right through the selection of employers for inspection in a manner consistent with the Fourth Amendment. The directive has no bearing whatever on the magistrates' independent review of the sufficiency of the Secretary's probable cause showing on the facts of any particular case.

For essentially the same reasons, Chairman Buckley and Commissioner Cleary reject Phoenix's contention that the provisions of section 553 impose a requirement for publication and similarly disagree with Trinity that the further requirements of section 553 regarding advance notice and an opportunity for comment are applicable to CPL 2.25B.

Although section 553 does not specifically identify the types of agency documents to which the requirement for notice and comment rulemaking applies, it exempts from that requirement "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." Section 553(b)(A). In interpreting the scope of section 553, the Supreme Court has distinguished between these exempted documents and substantive rules. In order to assure procedural fairness to those affected by substantive rules of law, not only must such persons have notice of the terms of substantive rules under section 552, but they also must have an opportunity to comment on the provisions of substantive rules before the rules are made effective. Chrysler Corp. v. Brown, 441 U.S. 281, 301-03, 313-14 (1979).[[14]]

Notwithstanding the exemption prescribed in section 553(b)(A), agency documents other than substantive rules of law may be subject to the notice and comment procedure if they have a significant impact on those persons regulated by the agency and in particular if the impact results from a change in prior agency practice. E.g., Brown Express, Inc. v. United States, 607 F.2d 695, 701-02 (5th Cir. 1979); Independent Broker-Dealers Trade Ass'n v. SEC, 442 F.2d 132, 144 (D.C. Cir. 1971), cert. denied, 404 U.S. 828 (1971); Aiken v. Obledo, 442 F. Supp. 628, 649-50 (E.D. Cal. 1977) (citing cases). See 2 Davis, supra, § 7.16. Both Phoenix and Trinity contend that the procedures by which an employer is selected for random inspection necessarily have a substantial impact on employers and that this impact, together with the change in inspection policy initiated by the directive, requires that the directive be promulgated in accordance with section 553.

We reject the argument that the impact of the directive is substantial and requires notice and comment publication procedures. Just such an argument was rejected in United States v. Kast Metals Corp., 744 F.2d 1145, 1155 (5th Cir. 1984). In Kast Metals the court observed that "CPL 2.25B has no cognizable impact, substantial or otherwise, on any right or interest of respondent." Id. at 1154. The asserted right to be free from unreasonable inspections is not a right to be free from any inspections. In that case, as well as this, the argument of the employer seems to be that some other form of directive would not have subjected it to an inspection at all or until some future time. That is not a cognizable impact requiring application of notice and comment procedures since adherence to OSHA regulations does "not turn on the agency's ability to play watchdog." Id. at 1155.[[15]] Nor are the Fourth Amendment interests of the employer affected since the government must still satisfy a federal magistrate or court "'that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria'." Id. quoting Marshall v. Barlow's, Inc., 436 U.S. 307, 323 (1981). See also Stoddard Lumber Co. v. Marshall, 627 F.2d 984, 988 (9th Cir. 1980) (applying same rationale to an earlier version of CPL 2.25B in holding that notice and comment procedures inapplicable). We conclude that CPL 2.25B did not substantially affect respondent's rights and is not subject to the notice and comment procedures of the APA.

Accordingly, Chairman Buckley and Commissioner Cleary conclude that CPL 2.25B is not subject to the procedural requirements of the APA set forth in 5 U.S.C. §§ 552(a)(1) and 553. For this reason and for the reasons stated in their separate views rejecting Phoenix's other contentions, Chairman Buckley and Commissioner Cleary affirm the judge's decision.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: APR 26, 1985