SECRETARY OF LABOR,
PHOENIX FORGING COMPANY,
OSHRC Docket No. 82-0398
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.
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). [] 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, [] 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.
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.[] 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.[] In scheduling inspections the area director is required to make additions to and deletions from the establishment list as appropriate.[] 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.[]
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."[] 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.[] 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. []
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[] 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)[]
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.
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."[] 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." [] 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).[]
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.[] 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.
DATED: APR 26, 1985
[] CPL 2.25B was subsequently superceded by a revision, CPL 2.25C, effective October 1, 1982. The Secretary has since made additional revisions; the most recent programmed inspection directive is CPL 2.25E, effective September 10, 1984. All references to sections in the text refer to CPL 2.25B unless otherwise noted.
[] CPL 2.25A states that it continues the policies contained in CPL 2.25 but simplifies the scheduling procedures. CPL 2.25 purports to codify aspects of the inspection process "found only implicitly in OSHA manuals and directives."
[[] OSHA delegates its field enforcement operations to regional offices and to area offices under the control of each regional office. Businesses are coded according to a four-digit Standard Industrial Classification (SIC) number.
[] Since there is no dispute that Phoenix is an employer in general industry, as opposed to the maritime or construction industries, and the only citations before us are for violations of safety standards, our discussion will focus on that part of the directive dealing with programmed safety inspections of general industry employers. The provisions of the directive governing health inspections and inspections of maritime and construction places of employment are essentially similar. For a description of the health inspection provisions of the directive, see United States Department of Labor v. Kast Metals Corp., 744 F.2d 1145, 1147-48 n.1 (5th Cir. 1984).
] Thus, the area director must add any establishment "believed to be" within a SIC appearing on the Statewide Industry Ranking Report but not appearing on the establishment list. Similarly, the area director is to remove misclassified establishments which do not belong to high rate industries and is also to remove establishments that within the past year have had "substantially complete" safety inspections with no serious violations cited. Finally, the area director has discretion to remove an establishment for any reason if he requests and receives approval to do so from the regional administration.
[] Section I.1.c.(3) of the directive states that the number of actual inspections "will depend upon such factors as the results of establishment injury record reviews, staffing, unprogrammed inspection activity and special programs." Each fiscal year is divided into two inspection cycles. Establishments not inspected during the cycle for which they were originally scheduled may under certain conditions be inspected during the next fiscal year. However, any cycle not commenced during the fiscal year is disregarded. The directive estimates that as many as 50 percent of the establishments scheduled for inspection may not be inspected. Section I.1.b.(1) As the directive indicates, every inspection includes an examination of the establishment's injury records. Although it is the intent of the directive that worksites in high rate industries will be inspected, any establishment having a lost workday injury rate less than the national average for manufacturing industries will not receive a comprehensive safety inspection regardless of the injury rate for the specific industry in which the establishment is classified. Such establishments, however, are subject to a partial safety inspection, at the discretion of the area director. To determine whether to conduct a limited inspection the area director is permitted to consider such circumstances as the inspector's observation of a "serious hazard or an imminent danger"; the occurrence of an "unusual number of types of injuries" in one time period, area, or operation; and a safety complaint filed by employees. CPL 2.25B, Appendix D.
[] Section 5(a) of the Act, 29 U.S.C. § 654(a), provides as follows:
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this Act.
[] As established by the Act, the Commission is composed of three members. Section 12(a) of the Act, 29 U.S.C § 661(a). Presently, the Commission has two members as a result of a vacancy.
[] Chairman Buckley also notes that because the existence of the
violations in this case was stipulated, there is no evidence arising from the employee
interviews or the examination of records to be suppressed even in the event Chairman
Buckley were to decide that the Secretary improperly interviewed Phoenix's employees or
improperly examined its records.
[] Commissioner Cleary agrees with Chairman Buckley that the Act allows the Secretary to examine these records during an inspection pursuant to a warrant. Thermal Reduction Corp., No. 81-2135 (April 17, 1985) (lead opinion).
[] Phoenix contends that Judge Oringer erred in upholding the warrant in part. Phoenix argues that the warrant's provisions are not set forth in individual clauses with sufficient specificity to allow the invalid portions of the warrant to be severed from the remainder of the warrant. Commissioner Cleary would reject this contention. A warrant can be redacted if it contains "severable phrases and clauses." United States v. Christine, 687 F.2d 749, 754 (3d Cir. 1982). Whether the warrant is sufficiently specific is determined by evaluating the warrant in a realistic and practical rather than in an overly technical manner. Christine, supra; United States v. Johnson, 541 F.2d 1311 (8th Cir. 1976). Applying this criterion, Commissioner Cleary concludes that the authorizations given the Secretary in the warrant are stated in individual phrases and clauses sufficient to allow the warrant to be severed.
[] The legal significance of publication is stated in the Federal Register Act, 44 U.S.C. § 1507, which provides that filing a document for publication "is sufficient to give notice of the contents of the document to a person subject to or affected by it," and that obligation creates a rebuttable presumption that the document, among other things, "was duly issued, prescribed, or promulgated."
[] As the Secretary contends, CPL 2.25B has been reprinted by private reporting services, and Phoenix does not dispute that it therefore had access to the directive. However, the FOIA by its plain terms clearly distinguishes between access to an agency document through its availability to the public and notice of the content of the document sufficient to charge a person with the obligation to comply with the terms of the document. Under express wording of the FOIA and the Federal Register Act, notice in law of the content of an agency document is provided only by Federal Register publication in the absence of actual notice. The Secretary therefore errs in his contention that reprinting of the directive by private reporting services is equivalent to publication in the Federal Register.
[] Trinity does not expressly assert that the directive is subject to section 553 as a substantive rule of law. In its brief, Phoenix does characterize CPL 2.25B as a substantive rule. The differences among the various categories of rules referred to in 5 U.S.C. § 553 are indistinct and difficult to apply in a consistent manner. See Batterton v. Marshall, 648 F.2d 694, 702-03 (D.C. Cir. 1980); Chamber of Commerce of the United States v. OSHA, 636 F.2d 464, 471 (D.C. Cir. 1980) (Bazelon, Judge, concurring). Because we conclude that the effect of the directive on employers is not sufficient to justify the notice and comment procedure, there is no need to consider whether the directive comes within any of the categories of documents governed by section 553(b)(A). And while notice and comment rulemaking is required for any substantive rule of law, it is clear that the directive does not implement a substantive rule. Such a rule is one which effectuates individual rights or imposes obligations. A substantive rule is issued pursuant to specific statutory authority to regulate the matter in issue and as such constitutes the source of the law which both the agency and reviewing courts must enforce. Chrysler Corp. v. Brown, 441 U.S. 281, 302-03 & n.31 (1979), citing Morton v. Ruiz, 415 U.S. 199, 232-36 (1974); American Trucking Ass'n, Inc. v. United States, 688 F.2d 1137, 1141 (11th Cir.1982), rev'd on other grounds sub nom. ICC v. American Trucking Ass'ns, Inc., 104 S.Ct 2458 (1984); Northwest Airlines, Inc., 80 OSAHRC 87/B5, 8 BNA OSHC 1982, 1989, 1980 CCH OSHD ¶ 24,751 at p. 30,488 (No. 13649, 1980). Since the directive does not create the law which the Secretary enforces and does not confer any legal rights on employers, it cannot be considered a substantive rule of law under the APA.
[] As a corollary argument, Phoenix contends that CPL 2.25B must be
published because it changes and thus amends the Secretary's published inspection
regulations at 29 C.F.R. Part 1903. Specifically, Phoenix asserts that the directive in
effect modifies the provision of 29 C.F.R. § 1903.7(a) which allows inspections "at
such times and in such places of employment as the Area Director or The Compliance Safety
and Health Officer may direct." The directive, however, clearly does not alter the
right of the Secretary's field personnel to select employers for inspection but rather
merely specifies how they are to select employers for inspection. Furthermore, the
regulations to which Phoenix refers simply reiterate the Secretary's statutory duty to
inspect workplaces subject to the Act. Thus, § 1903.7(a) additionally states that it is
subject to the requirements of § 1903.3(a). The latter regulation, regulation, contrary
to Phoenix's contention, does not authorize a comprehensive inspection of every worksite
but rather states that inspectors are authorized "to enter without delay and at
reasonable times any...workplace [and] to inspect and investigate...in a reasonable
manner, any such place of employment..." This regulation simply paraphrases the
language of section 8(a) of the Act which grants the Secretary the authority to inspect
all workplaces. A Document such as CPL 2.25B which is intended to establish a framework
for directing agency resources simply provides a mechanism for conducting authorized
inspections in a manner consisting of any impermissible change in the substance of the
Secretary's inspection regulations.