ELR Citation: ELR 20447
No(s). 88-1434 (U.S. Feb 21, 1990)

The Court rules that the Paperwork Reduction Act does not authorize the Office of Management and Budget (OMB) to review and countermand provisions of the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard mandating employers to directly disclose to their employees potential chemical workplace hazards. The Standard required manufacturers to label hazardous chemical containers, conduct employee training, and make available safety data sheets listing chemical hazards. Interested groups challenged the Standard's narrow applicability to the manufacturing sector alone, and the circuit court twice directed OSHA either to apply it to all workplaces or explain why a broader scope would be infeasible. OSHA ultimately issued a revised Standard that applied to all workplace sectors and submitted it to OMB for review under the Act. OMB disapproved three of the Standard's provisions on the ground that their requirements were not necessary to protect employees, and OSHA subsequently withdrew the provisions. Respondents sought further relief, and the circuit court ordered OSHA to reinstate the disapproved provisions. OSHA then sought review in the U.S. Supreme Court.

The Court holds that OMB's authority under the Paperwork Reduction Act does not reach agency rules mandating disclosure by regulated entities to third parties. The Act's language indicates that the terms "collection of information" and "reporting or recordkeeping requirements" refer solely to the collection of information by, and for the use of, a federal agency; they do not cover third-party disclosure rules that are not intended to function as information-gathering tools for agency use. Safety data sheets consisting of advisory material on health and safety do not fall within the normal meaning of "records," and a government-imposed reporting requirement customarily requires reports to be made to the government, not training and labels to be given to someone else altogether. The traditional canon of construction requiring that words grouped in a list be given a related meaning demonstrates that the phrase "reporting and recordkeeping requirement," when understood as analogous to the examples surrounding it in the definition of "information collection requests," comprises only rules requiring information to be sent or made available to a federal agency, not disclosure rules. Moreover, disclosure rules present none of the problems Congress sought to solve, and none of the enumerated purposes would be served by subjecting such rules to the Act's provisions. Congress expressed concern only for the burden imposed by requirements to provide information to a federal agency, and not for any burden imposed by requirements to provide information to a third party. Minimizing the federal government's cost of handling information also would not be advanced by review of disclosure rules because such rules do not impose any information processing costs on the federal government. Nor is the federal government the consumer of information requested by a disclosure rule or an intermediary in its dissemination.

That Congress did not intend the Act to encompass disclosure rules is further revealed by the language of other provisions. Federal agencies must take internal preliminary steps before adopting an information collection request, but no provision requires agencies to ensure that a paperwork requirement is effective or that its burden on one party is not disproportionate to the benefit afforded a third party. OMB's review is limited to determining whether the collection of information by an agency is necessary for the proper performance of the agency's functions. Thus, in reviewing the Standard's disclosure rules, OMB was unable to consider what OSHA planned to do with information regarding hazardous chemicals in the workplace because OSHA was not to be the recipient of this information. Instead, OMB disapproved of the three OSHA rules on the ground that the mandated disclosures would be of little benefit to the employees OSHA sought to protect. The Act nowhere indicates that OMB is authorized to determine the usefulness of agency-adopted warning requirements to those being warned. Finally, the Act protects the public from paperwork regulations not issued in compliance with the Act only when those regulations dictate that a person maintain information for an agency or provide information to an agency. Thus, by its very terms, the statute's enforcement mechanism does not apply to rules that require disclosure to a third party rather than to a federal agency.

[The circuit court's decision is published at 18 ELR 21294. A related case in this litigation is published at 15 ELR 20545.]

Counsel for Petitioners
Jeffrey P. Minear, Ass't to Solicitor General; Leonard Schaitman, Marleigh D. Dover
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-4063

Counsel for Respondents
Laurence Gold, David C. Vladeck
Public Citizen Litigation Group
2000 P St. NW, Washington DC 20036
(202) 785-3704