“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 Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor (\”Secretary\”) under the Act and has noregulatory functions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).Phoenix Forging Company (\”Phoenix\”) has contested two citations allegingthat Phoenix committed 13 violations of occupational safety standardspromulgated pursuant to the Act. Before Administrative Law judge DavidG. Oringer the parties agreed to amend the citations in certain respectsand stipulated that these violations occurred as alleged in the amendedcitations. They expressly waived an evidentiary hearing. The issue onreview is whether Judge Oringer erred in denying a motion for summaryjudgement by Phoenix raising a number of objections to the warrantauthorizing the Secretary’s inspection. Phoenix contends that theevidence obtained pursuant to the warrant must be suppressed because thewarrant exceeded the probable cause basis for its issuance, wasoverbroad, and contained provisions contrary to the Act. Phoenix alsocontends that the warrant was invalid because the Secretary, had notpublished in the Federal Register the internal enforcement directive onwhich the Secretary based his application for the warrant. TheCommission concludes that the judge properly denied Phoenix’s motion.I.The Secretary’s application for the warrant was predicated on aninternal 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 tobe followed and the criteria to be applied in selecting workplaceestablishments 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, itrepresents a change from the Secretary’s prior procedure, expressed inearlier versions of the directive, [[2]] to spread inspection activitythroughout many different types of industries and employment’s. Thedirective states:This instruction replaces CPL 2.25A. Insofar as it applies to programmedsafety inspections in general industry, it changes OSHA’s previouspolicy of wide dispersion of inspection activity to one thatconcentrates resources in those industries with the highestlost workday injury rates (safety) and with the greatest potential forhealth problems.Section E.4.c.The basic framework of the directive provides that the OSHA \”NationalOffice\” will furnish each area off ice a \”Statewide Industry RankingReport,\” which lists industries having a \”high rate\” of injury.[[3]] A\”high rate\” industry is one \”which is higher than private sectorindustry in general in any one or more of the occupational injuryincidence rates published by BLS [Bureau of Labor Statistics].\” SectionE.3.a. Each area office is also given an \”establishment list,\” a list ofspecific employers within its geographical area belonging to each \”highrate\” industry. From this establishment list the area office will selectspecific employers for inspection.[[4]] In scheduling inspections thearea director is required to make additions to and deletions from theestablishment list as appropriate.[[5]] The area director also hasdiscretion to decide the number of establishments the area office willinspect for each fiscal year and the order in which specific workplaceswill be inspected. The directive recognizes that the number ofinspections actually performed may vary from the number originallyprojected but prescribes procedures by which the area director mayreschedule inspection activity. There is also a mechanism for adjustingthe inspection activity for certain employers in high rate industries.[[6]]Pursuant to the provisions of this directive, the Secretary selectedPhoenix for a programmed safety inspection. In his application for thewarrant the Secretary averred that probable cause existed for acomprehensive safety inspection of Phoenix’s worksite. The warrant asissued by a federal magistrate authorized the Secretary to inspect todetermine whether Phoenix’s workplace was free from recognized hazardsand whether Phoenix was complying with occupational safety and healthstandards and the \”rules, regulations and orders issued pursuant to theAct.\”[[7]] The warrant also allowed the Secretary to question employeesprivately on the premises during work hours and authorized the Secretaryto inspect three types of records: records of employee injuries andillnesses required to be kept by the Secretary’s regulations at 29C.F.R. Part 1904, employee medical and exposure records under 29 C.F.R.? 1910.20, and \”any other records related to employee safety andhealth.\” The inspector’s return of the warrant stated that he hadreviewed accident and illness records and had interviewed five employees. Phoenix does not dispute that the directive on which the Secretary basedhis warrant application satisfies the criteria set forth in Marshall v.Barlow’s, Inc., 436 U.S. 307, 321 (1978), in which the Court stated thatprobable cause for an inspection warrant could be based on \”a generaladministrative plan for the enforcement of the Act derived from neutralsources.\” Phoenix contends, however, that because the Secretary in hisapplication asserted probable cause only to conduct a safety inspection,the warrant improperly authorized an inspection for health hazards andfor violations of health standards. Similarly, Phoenix asserts that thedirective did not establish probable cause for that portion of thewarrant authorizing private interviews with employees on the premisesduring working hours and that the Act does not permit employeeinterviews to be conducted in this manner. Phoenix also contends thatthe directive does not set forth probable cause for the examination ofrecords related to safety and health or for the inspection forviolations of \”rules, regulations, and orders\” under the Act and thatthese provisions of the warrant are overbroad because there is no limiton the types of records or \”orders\” referred to. Phoenix also assertsthat the Act does not permit the examination of an employer’s recordsduring a physical inspection and that the Secretary may only examinesuch records by subpoena.For different reasons, the two Commission members agree that the judgeproperly rejected these contentions.[[8]] In Chairman Buckley’s view,the Commission as an agency within the executive branch has no authorityto review the actions of a judicial officer of a court created underArticle III of the Constitution. Thermal Reduction Corp., No. 81-2135(April 17, 1985) (concurring opinion); Brooks Woolen Co., Nos 79-45 and79-128 (April 10, 1985) (view of Chairman Buckley); Beauty Craft Tile ofthe Southwest, Inc., 84 OSAHRC __\/__, 12 BNA OSHC 1082, 1984-85 CCH OSHD? 27,091 (No. 80-471, 1984) (lead opinion). Since Phoenix’s argumentsthat provisions of the warrant were not supported by probable cause andwere 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 evidencebased on grounds that do not require it to sit in review of a judicialofficer’s determination to issue a warrant of a particular scope.Pursuant to its supervisory authority over the Act’s enforcement, theCommission can impose appropriate sanctions on the Secretary forviolations of law, and thus can entertain motions to suppress based onarguments that the Secretary acted in violation of law in obtaining orexecuting the warrant or in gathering evidence during an inspection.Brooks Woolen Co., supra. Accordingly, the Commission is empowered toconsider Phoenix’s contentions that the Act does not permit theSecretary to conduct private interviews with employees on the employer’spremises during working hours and that there is no authority in the Actfor the Secretary to examine records during an inspection.Section 8(a) of the Act, 29 U.S.C. ? 658(a), which sets forth theSecretary’s inspection authority, expressly authorizes the Secretary toconduct inspections of workplaces \”during regular working hours and atother reasonable times, and within reasonable limits and in a reasonablemanner\” and to \”question privately any . . . employer, owner, operator,agent, or employee.\” The courts have consistently interpreted thisprovision to allow the Secretary to conduct private interviews withemployees on the employer’s premises and during working hours, subjectonly to the limitation that the interviews be conducted at reasonabletimes and in a reasonable manner. Donovan v. Wollaston Alloys, Inc., 695F.2d 1, 9 (1st Cir. 1982), (citing Marshall v. Wollaston Alloys, Inc.,479 F. Supp. 1102 (D. Mass. 1979)); In re Establishment Inspection ofKeokuk Steel Castings, 638 F.2d 24, 26 (8th Cir. 1981); Urick FoundryCo. v. Donovan, 542 F. Supp. 82 (W.D. Pa. 1982); Donovan v. Metal Bankof America, 516 F. Supp. 674, 680-81 (E.D. Pa. 1981).There is nothing in the limited record before us to suggest that theSecretary failed to conduct his interviews of Phoenix’s employees inaccordance with the statutory requirements. The parties’ stipulation isdevoid of any description of the manner, duration, timing, location orextent of the employee interviews. Phoenix argues that the citationshere are invalid or that evidence should be suppressed because, withoutlimits in the warrant on the number and duration of employee interviewsand the number of inspectors who could question employees, the warrantallowed the Secretary to substantially interfere with, and even closedown, Phoenix’s operations for an extended period of time. There is noevidence to even suggest that the Secretary conducted interviews in thisfashion and neither suppression nor the more strict sanction ofdismissal is warranted given only a theoretical possibility of improperconduct.Finally, Chairman Buckley notes that the Commission recently held thatthe injury and illness records required to be kept under the Secretary’sregulations at 29 C.F.R. Part 1904 may be examined during an inspectionpursuant to a warrant. The Act does not require the Secretary to obtaina subpoena in order to examine this type of employer record. ThermalReduction Corp., No. 81-2135 (April 17, 1985) (lead and concurringopinions). The return of the warrant indicates that the inspector viewedonly Phoenix’s accident and illness records, and there is no evidence toshow, nor does Phoenix contend, that the Secretary examined or sought toexamine any other type of record. Chairman Buckley therefore concludesthat the Secretary acted in accordance with the requirements of the Act.[[9]]In Commissioner Cleary’s view, the Commission has authority to considerPhoenix’s contentions that the warrant was overbroad and was notsupported by a showing of probable cause. Employers moving to suppressevidence on the basis that their Fourth Amendment rights were violatedmust exhaust their administrative remedies before the Commission as aprerequisite to having their arguments considered in federal court. SeeBeauty Craft Tile of the Southwest, supra, 12 BNA OSHC at 1083, 1984 CCHOSHD at p. 34,929, and cases cited therein. In ruling on a suppressionmotion, the Commission is statutorily competent to determine whether aninspection conformed to the Fourth Amendment. Babcock & Wilcox Co. v.Marshall, 610 F.2d 1128 (3d Cir. 1979), Sarasota Concrete Co., 81 OSAHRC48\/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 meritsof Phoenix’s objections to those portions of the warrant authorizing theSecretary to inspect for various types of violations and to examinerecords related to safety and health. In Commissioner Cleary’s view,even assuming these provisions of the warrant were overbroad and notsupported by probable cause as Phoenix argues, they may be severed fromthe warrant and the remainder of the warrant preserved. Phoenix wascited only for violations of occupational safety standards. TheSecretary did not allege that Phoenix had violated any occupationalhealth standards or any rules, regulations, or orders, nor did theSecretary allege that Phoenix had exposed its employees to anyrecognized hazards contrary to section 5(a)(1) of the Act. Accordingly,there is no evidence arising from the provisions of the warrantauthorizing the Secretary to inspect for matters relating tooccupational health as opposed to safety and for violations of \”rules,regulations, and orders\” to be suppressed even if these provisions ofthe warrant were defective as Phoenix contends. The same conclusionapplies with respect to that provision of the warrant allowing theSecretary to inspect records generally related to safety and health.Since the record before us shows only that the Secretary examined theinjury and illness records Phoenix is required to keep under 29 C.F.R.Part 1904, there is no evidence attributable to that portion of thewarrant that allowed the Secretary to examine other types of employerrecords. Accordingly, Commissioner Cleary would apply the principle of\”redaction\” as Judge Oringer did below and would uphold those portionsof the warrant authorizing the Secretary to examine Phoenix’s injury andillness records[[10]] and authorizing the Secretary to inspect Phoenixfor 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 (7thCir. 1982)[[11]]Finally, Commissioner Cleary rejects Phoenix’s contention that theSecretary did not have probable cause for that portion of the warrantauthorizing private employee interviews to be conducted on the premisesduring work hours. As Chairman Buckley properly observes, the Act allowssuch interviews so long as they are conducted reasonably. Since the Actspecifically provides for such interviews, Commissioner Cleary concludesthat the Secretary in applying for a warrant is not required toestablish an independent probable cause to question employees privatelyduring the inspection. See Thermal Reduction Corp., No. 81-2135 (April17, 1985), slip op. at 6-7. Commissioner Cleary agrees with ChairmanBuckley that on the record here, it is appropriate to conclude that theSecretary’s interviews with Phoenix’s employees were conducted in areasonable manner and therefore complied with the Act.II.Phoenix’s major contention is that the warrant is invalid because theSecretary’s directive on which he based his application for the warrant,CPL 2.25B, was not issued in compliance with the AdministrativeProcedure Act (\”APA\”). Phoenix contends that because the purpose of thedirective is to establish probable cause for an inspection, it comeswithin the classes of documents covered by section 3 of the APA, 5U.S.C. ? 552(a)(1), which requires publication in the Federal Registerof five specified types of documents, including \”(D) substantive rulesof general applicability adopted as authorized by law, and statements ofgeneral policy or interpretations of general applicability formulatedand adopted by the agency.\” Phoenix asserts that the directive is eithera substantive rule of general applicability or an agency policystatement of general applicability and thus must be published inaccordance with section 552(a)(1).Phoenix also contends that the directive must also be published underthe provisions of section 4 of the APA, 5 U.S.C. ? 553, which requiresthe publication in the Federal Register of a notice of proposedrulemaking or actual notice thereof with an opportunity for comment fromthose affected by a proposed rule before it is finally adopted. WhilePhoenix does not specifically argue that the Secretary should haveafforded an opportunity for public comment before issuing the directive,it asserts that the requirements of section 553 are relevant becausesections 552 and 553 contemplate publication of agency documents in theFederal Register. After this case came before us on review theCommission permitted Trinity Industries, Inc. (\”Trinity\”) to file anamious curiae brief arguing that the procedures prescribed in section553 for rulemaking by advance notice and comment are directly applicableto CPL 2.25B.The Freedom of Information Act (\”FOIA\”), 5 U.S.C. ? 552, does not by itsplain terms require that all agency documents be published in theFederal Register. Hogg v. United States, 428 F.2d 274 (6th Cir. 1970),cert. denied, 401 U.S. 910 (1971). Rather, Federal Register publicationis but one of two methods set forth for implementing the FOIA’s purposeto provide generally for the public disclosure of agency documents. SeeNLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975); 2 Davis,Administrative Law Treatise ? 5:11 (2d ed. 1979). Thus, Federal Registerpublication is required only for five categories of documents expresslydescribed in section 552 (a)(1), on which Phoenix relies. Other types ofdocuments are simply to be made \”available for public inspection andcopying\” under section 552(a)(2), including \”(A) final opinions . . . inthe adjudication of cases; (B) those statements of policy andinterpretations which have been adopted by the agency and are notpublished in the Federal Register; and (C) administrative staff manualsand instructions to staff that affect a member of the public . . . . \”(emphasis added). The Commission recognizes that the categories ofdocuments subject to the publication requirement are broadly describedand are not capable of precise definition. See Davis, supra, ??5:10-5:11. Nevertheless, the general nature of the documents thepublication requirement is intended to include may be discerned fromother provisions of section 552.According to the FOIA, publication is required \”for the guidance of thepublic.\”[[12]] Section 552(a)(1) further states that \”[e]xcept to theextent 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 adverselyaffected by, a matter required to be published in the Federal Registerand not so published.\” [[13]] Consistent with these provisions, thecourts have repeatedly held that an agency need not comply with thenotice requirements of section 552 if the documents do not imposeobligations or contain matters to which persons must refer informulating 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. MotorFreight Lines, Inc. v. United States, 186 F. Supp. 777, 786 (S.D. Tex.1960) (three-judge court), aff’d per curiam sub nom. HerrinTransportation Co. v. United States, 366 U.S. 419 (1961). Therefore, ifknowledge of the content of the document would not alter the legalobligation of a private party to conduct its actions in accordance withthe law, the agency need not publish or otherwise give notice of thedocument under section 552. United States v. Fitch Oil Co., 676 F.2d673, 678 (Temp. Emer. Ct. App. 1982); United States v. Goodman, 605 F.2d870, 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 section552(a)(1) because it is not a document to which Phoenix is required toresort to determine its legal obligations or which has an adverse effecton Phoenix within the meaning of that section. See Donovan v. WollastonAlloys, Inc., 695 F.2d 1 (1st Cir. 1982) (inspection directive istypical of an agency staff manual, publication of which is not requiredunder section 552(a)(2)). Phoenix’s contention to the contrarymisinterprets the purpose and effect of the directive. The directivedoes 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 inspectionunder the Act. Phoenix’s obligation to comply with the Act is notaltered by the taking or possibility of an inspection. A similarconclusion was reached by the court in Wollaston Alloys, supra, 695 F.2dat 9, concerning a directive pertaining to programmed inspections whichpredated CPL 2.25B. The court concluded that an employer is notadversely affected by the lack of publication of such a directivebecause \”[t]here is no alternative course of action that [the employer]might have taken had the program been published, and the company wouldhave been selected for inspection in any event.\”The Fourth Amendment’s guarantee of freedom from unreasonable searchesis obviously an important constitutional right. The Secretary’sdirective does not confer or limit this right, however. Rather, thedirective merely sets forth the Secretary’s procedures for implementingthe right through the selection of employers for inspection in a mannerconsistent with the Fourth Amendment. The directive has no bearingwhatever on the magistrates’ independent review of the sufficiency ofthe Secretary’s probable cause showing on the facts of any particular case.For essentially the same reasons, Chairman Buckley and CommissionerCleary reject Phoenix’s contention that the provisions of section 553impose a requirement for publication and similarly disagree with Trinitythat the further requirements of section 553 regarding advance noticeand an opportunity for comment are applicable to CPL 2.25B.Although section 553 does not specifically identify the types of agencydocuments to which the requirement for notice and comment rulemakingapplies, it exempts from that requirement \”interpretative rules, generalstatements of policy, or rules of agency organization, procedure, orpractice.\” Section 553(b)(A). In interpreting the scope of section 553,the Supreme Court has distinguished between these exempted documents andsubstantive rules. In order to assure procedural fairness to thoseaffected by substantive rules of law, not only must such persons havenotice of the terms of substantive rules under section 552, but theyalso must have an opportunity to comment on the provisions ofsubstantive 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), agencydocuments other than substantive rules of law may be subject to thenotice and comment procedure if they have a significant impact on thosepersons regulated by the agency and in particular if the impact resultsfrom a change in prior agency practice. E.g., Brown Express, Inc. v.United States, 607 F.2d 695, 701-02 (5th Cir. 1979); IndependentBroker-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. BothPhoenix and Trinity contend that the procedures by which an employer isselected for random inspection necessarily have a substantial impact onemployers and that this impact, together with the change in inspectionpolicy initiated by the directive, requires that the directive bepromulgated in accordance with section 553.We reject the argument that the impact of the directive is substantialand requires notice and comment publication procedures. Just such anargument was rejected in United States v. Kast Metals Corp., 744 F.2d1145, 1155 (5th Cir. 1984). In Kast Metals the court observed that \”CPL2.25B has no cognizable impact, substantial or otherwise, on any rightor interest of respondent.\” Id. at 1154. The asserted right to be freefrom unreasonable inspections is not a right to be free from anyinspections. In that case, as well as this, the argument of the employerseems to be that some other form of directive would not have subjectedit to an inspection at all or until some future time. That is not acognizable impact requiring application of notice and comment proceduressince adherence to OSHA regulations does \”not turn on the agency’sability to play watchdog.\” Id. at 1155.[[15]] Nor are the FourthAmendment interests of the employer affected since the government muststill satisfy a federal magistrate or court \”‘that the inspection isreasonable under the Constitution, is authorized by statute, and ispursuant to an administrative plan containing specific neutralcriteria’.\” 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 (9thCir. 1980) (applying same rationale to an earlier version of CPL 2.25Bin holding that notice and comment procedures inapplicable). We concludethat CPL 2.25B did not substantially affect respondent’s rights and isnot subject to the notice and comment procedures of the APA.Accordingly, Chairman Buckley and Commissioner Cleary conclude that CPL2.25B is not subject to the procedural requirements of the APA set forthin 5 U.S.C. ?? 552(a)(1) and 553. For this reason and for the reasonsstated in their separate views rejecting Phoenix’s other contentions,Chairman Buckley and Commissioner Cleary affirm the judge’s decision.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 26, 1985————————————————————————FOOTNOTES:[[1]] CPL 2.25B was subsequently superceded by a revision, CPL 2.25C,effective October 1, 1982. The Secretary has since made additionalrevisions; the most recent programmed inspection directive is CPL 2.25E,effective September 10, 1984. All references to sections in the textrefer to CPL 2.25B unless otherwise noted.[[2]] CPL 2.25A states that it continues the policies contained in CPL2.25 but simplifies the scheduling procedures. CPL 2.25 purports tocodify aspects of the inspection process \”found only implicitly in OSHAmanuals and directives.\”[[[3]] OSHA delegates its field enforcement operations to regionaloffices and to area offices under the control of each regional office.Businesses are coded according to a four-digit Standard IndustrialClassification (SIC) number.[[4]] Since there is no dispute that Phoenix is an employer in generalindustry, as opposed to the maritime or construction industries, and theonly citations before us are for violations of safety standards, ourdiscussion will focus on that part of the directive dealing withprogrammed safety inspections of general industry employers. Theprovisions of the directive governing health inspections and inspectionsof maritime and construction places of employment are essentiallysimilar. For a description of the health inspection provisions of thedirective, see United States Department of Labor v. Kast Metals Corp.,744 F.2d 1145, 1147-48 n.1 (5th Cir. 1984).[5]] Thus, the area director must add any establishment \”believed to be\”within a SIC appearing on the Statewide Industry Ranking Report but notappearing on the establishment list. Similarly, the area director is toremove misclassified establishments which do not belong to high rateindustries and is also to remove establishments that within the pastyear have had \”substantially complete\” safety inspections with noserious violations cited. Finally, the area director has discretion toremove an establishment for any reason if he requests and receivesapproval to do so from the regional administration.[[6]] Section I.1.c.(3) of the directive states that the number ofactual inspections \”will depend upon such factors as the results ofestablishment injury record reviews, staffing, unprogrammed inspectionactivity and special programs.\” Each fiscal year is divided into twoinspection cycles. Establishments not inspected during the cycle forwhich they were originally scheduled may under certain conditions beinspected during the next fiscal year. However, any cycle not commencedduring the fiscal year is disregarded. The directive estimates that asmany as 50 percent of the establishments scheduled for inspection maynot be inspected. Section I.1.b.(1) As the directive indicates, everyinspection includes an examination of the establishment’s injuryrecords. Although it is the intent of the directive that worksites inhigh rate industries will be inspected, any establishment having a lostworkday injury rate less than the national average for manufacturingindustries will not receive a comprehensive safety inspection regardlessof the injury rate for the specific industry in which the establishmentis classified. Such establishments, however, are subject to a partialsafety inspection, at the discretion of the area director. To determinewhether to conduct a limited inspection the area director is permittedto consider such circumstances as the inspector’s observation of a\”serious hazard or an imminent danger\”; the occurrence of an \”unusualnumber of types of injuries\” in one time period, area, or operation; anda safety complaint filed by employees. CPL 2.25B, Appendix D.[[7]] Section 5(a) of the Act, 29 U.S.C. ? 654(a), provides as follows:Each employer-(1) shall furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees;(2) shall comply with occupational safety and health standardspromulgated under this Act.[[8]] As established by the Act, the Commission is composed of threemembers. Section 12(a) of the Act, 29 U.S.C ? 661(a). Presently, theCommission has two members as a result of a vacancy.[[9]] Chairman Buckley also notes that because the existence of theviolations in this case was stipulated, there is no evidence arisingfrom the employee interviews or the examination of records to besuppressed even in the event Chairman Buckley were to decide that theSecretary improperly interviewed Phoenix’s employees or improperlyexamined its records.[[10]] Commissioner Cleary agrees with Chairman Buckley that the Actallows the Secretary to examine these records during an inspectionpursuant to a warrant. Thermal Reduction Corp., No. 81-2135 (April 17,1985) (lead opinion).[[11]] Phoenix contends that Judge Oringer erred in upholding thewarrant in part. Phoenix argues that the warrant’s provisions are notset forth in individual clauses with sufficient specificity to allow theinvalid portions of the warrant to be severed from the remainder of thewarrant. Commissioner Cleary would reject this contention. A warrant canbe redacted if it contains \”severable phrases and clauses.\” UnitedStates v. Christine, 687 F.2d 749, 754 (3d Cir. 1982). Whether thewarrant is sufficiently specific is determined by evaluating the warrantin 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 theauthorizations given the Secretary in the warrant are stated inindividual phrases and clauses sufficient to allow the warrant to besevered.[[12]] The legal significance of publication is stated in the FederalRegister Act, 44 U.S.C. ? 1507, which provides that filing a documentfor publication \”is sufficient to give notice of the contents of thedocument to a person subject to or affected by it,\” and that obligationcreates a rebuttable presumption that the document, among other things,\”was duly issued, prescribed, or promulgated.\”[[13]] As the Secretary contends, CPL 2.25B has been reprinted byprivate reporting services, and Phoenix does not dispute that ittherefore had access to the directive. However, the FOIA by its plainterms clearly distinguishes between access to an agency document throughits availability to the public and notice of the content of the documentsufficient to charge a person with the obligation to comply with theterms of the document. Under express wording of the FOIA and the FederalRegister Act, notice in law of the content of an agency document isprovided only by Federal Register publication in the absence of actualnotice. The Secretary therefore errs in his contention that reprintingof the directive by private reporting services is equivalent topublication in the Federal Register.[[14]] Trinity does not expressly assert that the directive is subjectto section 553 as a substantive rule of law. In its brief, Phoenix doescharacterize CPL 2.25B as a substantive rule. The differences among thevarious categories of rules referred to in 5 U.S.C. ? 553 are indistinctand difficult to apply in a consistent manner. See Batterton v.Marshall, 648 F.2d 694, 702-03 (D.C. Cir. 1980); Chamber of Commerce ofthe United States v. OSHA, 636 F.2d 464, 471 (D.C. Cir. 1980) (Bazelon,Judge, concurring). Because we conclude that the effect of the directiveon employers is not sufficient to justify the notice and commentprocedure, there is no need to consider whether the directive comeswithin any of the categories of documents governed by section 553(b)(A).And while notice and comment rulemaking is required for any substantiverule of law, it is clear that the directive does not implement asubstantive rule. Such a rule is one which effectuates individual rightsor imposes obligations. A substantive rule is issued pursuant tospecific statutory authority to regulate the matter in issue and as suchconstitutes the source of the law which both the agency and reviewingcourts 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. AmericanTrucking 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 lawwhich the Secretary enforces and does not confer any legal rights onemployers, it cannot be considered a substantive rule of law under the APA.[[15]] As a corollary argument, Phoenix contends that CPL 2.25B must bepublished because it changes and thus amends the Secretary’s publishedinspection regulations at 29 C.F.R. Part 1903. Specifically, Phoenixasserts 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 placesof employment as the Area Director or The Compliance Safety and HealthOfficer may direct.\” The directive, however, clearly does not alter theright of the Secretary’s field personnel to select employers forinspection but rather merely specifies how they are to select employersfor inspection. Furthermore, the regulations to which Phoenix referssimply reiterate the Secretary’s statutory duty to inspect workplacessubject to the Act. Thus, ? 1903.7(a) additionally states that it issubject to the requirements of ? 1903.3(a). The latter regulation,regulation, contrary to Phoenix’s contention, does not authorize acomprehensive inspection of every worksite but rather states thatinspectors are authorized \”to enter without delay and at reasonabletimes any…workplace [and] to inspect and investigate…in a reasonablemanner, any such place of employment…\” This regulation simplyparaphrases the language of section 8(a) of the Act which grants theSecretary the authority to inspect all workplaces. A Document such asCPL 2.25B which is intended to establish a framework for directingagency resources simply provides a mechanism for conducting authorizedinspections in a manner consisting of any impermissible change in thesubstance of the Secretary’s inspection regulations.”