U.S. Court of Appeals for the D.C. Circuit

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D.C. Circuit concludes OSHA has no authority to issue rules regarding the preemptive effect of OSH Act; however, preemption interpretation not ripe for APA review

December 27, 2013

The D.C. Circuit concluded that OSHA has no authority to issue rules carrying the force of law with respect to the preemptive effect of the OSH Act. Therefore, OSHA's statement on preemption is “at most” an interpretative statement. Because the preemption statement is only an interpretative rule, the Court concluded that it was not reviewable in this case.

U.S. Chamber files amicus brief

March 15, 2013

The U.S. Chamber urged the U.S. Court of Appeals for the D.C. Circuit to vacate the Occupational Safety and Health Administration (OSHA)'s amendments to the Hazard Communication Standard (HCS). The amendments to HCS, which OSHA promulgated in 2012, imposed far stricter and more specific hazard communication requirements on manufacturers and employers than had previously been required. OSHA also pronounced, with no notice or opportunity to comment, that HCS would no longer preempt state tort claims. The Chamber argued in its amicus brief that OSHA's pronouncement that HCS would no longer preempt state tort claims is procedurally defective because the agency failed to provide the notice and opportunity to comment that required by both the OSH Act and the Administrative Procedure Act. Additionally, the Chamber argued that these amendments contradict established conflict preemption principles and subject manufacturers to varying state standards for hazard communications. The Chamber also pointed out that Congress did not delegate authority to OSHA to limit the preemptive force of the OSH Act or its regulations and absent such delegation, federal courts should not defer to an agency's ultimate conclusions on preemption.

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