ELR Citation: ELR 20598
No(s). 87-5096 (D.C. Cir. Jan 17, 1988)

The court holds that a report jointly issued by the National Institute for Occupational Safety and Health (NIOSH) and the Environmental Protection Agency (EPA) recommending that "supplied air" respirators be used for asbestos exposure is nonbinding and purely informational, and its publication does nor constitute agency action that is subject to judicial review or a due process challenge. As a matter of public policy, the report recommends against the use of 11 respirators that may lawfully be used under EPA and Occupational Safety and Health Administration guidelines. The court first holds that the report does not constitute a sanction subject to review under the Administrative Procedure Act (APA), since there is no evidence that the report was false or intended to penalize producers or consumers of the lawful respirators. The court next holds that the report is not an agency rule reviewable under the APA. The report only makes recommendations, and does not change any law or official policy presently in effect; there is no repeal of EPA's or NIOSH's current obligation to approve for use all of the respirators that are lawful under the regulations. The report emphasizes throughout that it is purely advisory, and clearly underscores the distinction between legal requirements and the information underlying the report's recommendations. Moreover, the report was not published in the Federal Register or the Code of Federal Regulations. That the report may have a substantial impact on manufacturers of the disfavored respirators is insufficient to transform it into a rule.

The court also holds that the report does not effect a deprivation of property interests sufficient to support a due process violation. While appellant industry groups possess cognizable property interests in their respirator certifications, the publication of NIOSH and EPA's report left intact the existing minimum certification standards as well as the validity of all presently possessed certificates. The court notes that appellants do not allege that the information in the report is false.

Counsel for Appellants
Paul A. Koches
Wickens, Koches & Cale
Suite 1100, 818 Connecticut Ave. NW, Washington DC 20006
(202) 775-2400

Counsel for Appellees
M. Alice Thurston
Appellate Section
Land and Natural Resources Division
Main Justice Bldg., Room 2335, Washington DC 20530
(202) 633-2772

Before: WALD, Chief Judge, SENTELLE, Circuit Judge, and GIBSON,^[*] Senior Circuit Judge.