Steel Erectors Ass'n of America, Inc. v. Occupational Safety & Health Administration

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

STEEL ERECTORS ASSOCIATION OF 
AMERICA, INCORPORATED,
Petitioner,
v.
 No. 09-2319
OCCUPATIONAL SAFETY & HEALTH
ADMINISTRATION; UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order of the
Occupational Safety & Health Administration.
(CPL 02-01-046; CPL 02-01-048)

Argued: December 9, 2010

Decided: February 17, 2011

Before TRAXLER, Chief Judge, and WILKINSON and
MOTZ, Circuit Judges.

Dismissed by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Motz joined.

COUNSEL

ARGUED: Kelly Culp Hoelzer, KOLLMAN & SAUCIER,
PA, Timonium, Maryland, for Petitioner. Heather R. Phillips,
2 STEEL ERECTORS ASSOCIATION v. OSHA
UNITED STATES DEPARTMENT OF LABOR, Washing-
ton, D.C., for Respondents. ON BRIEF: Frank L. Kollman,
KOLLMAN & SAUCIER, PA, Timonium, Maryland, for
Petitioner. M. Patricia Smith, Solicitor of Labor, Joseph M.
Woodward, Associate Solicitor for Occupational Safety and
Health, Julia Smith-Aman, UNITED STATES DEPART-
MENT OF LABOR, Washington, D.C., for Respondents.

OPINION

WILKINSON, Circuit Judge:

In 2001, the Occupational Safety and Health Administra-
tion ("OSHA") issued new safety standards applying to the
construction, alteration, and repair of steel buildings, bridges,
and other structures. See 29 C.F.R. §§ 1926.750-.761. Shortly
thereafter, OSHA issued a directive stating that violations of
certain standards would be considered de minimis — and
would therefore carry no penalty — if employers took differ-
ent precautionary measures. See OSHA Directive CPL 2-1.34
(Mar. 22, 2002) ("2002 Directive"); see also 29 C.F.R.
§§ 1926.754(b)(3) & (c)(1).

In April 2010, OSHA repealed that blanket rule, announc-
ing that it would instead use its statutory authority to deter-
mine on a case-by-case basis whether violations of those
standards were de minimis. See OSHA Directive CPL 02-01-
048 (Apr. 30, 2010) ("2010 Directive"); see also 29 U.S.C.
§ 658(a). The Steel Erectors Association of America
("SEAA"), a trade association, challenges the 2010 Directive,
arguing that it is an invalid "occupational safety and health
standard" under 29 U.S.C. § 652(8) because it was promul-
gated without notice and comment and was unsupported by
substantial record evidence.

We cannot address the merits of SEAA’s challenge because
we lack subject matter jurisdiction over this case. 29 U.S.C.
 STEEL ERECTORS ASSOCIATION v. OSHA 3
§ 655(f) — the jurisdictional provision allegedly authorizing
SEAA’s claim — only provides for judicial review of chal-
lenges to a "standard." So our ability to hear this case turns
on whether the 2010 Directive is actually a standard or is
instead some other form of agency action. Because we con-
clude that the 2010 Directive is more accurately viewed as a
description of the agency’s new enforcement policy, SEAA’s
challenge must be dismissed.

I.

A.

The 2010 Directive is the product of a complex statutory
scheme as well as a lengthy rulemaking process, and it is nec-
essary to set out both in some detail in order to properly
understand this case. In 1970, Congress enacted the Occupa-
tional Safety and Health Act ("OSH Act") to "assure so far as
possible every working man and woman in the Nation safe
and healthful working conditions." 29 U.S.C. § 651(b). To
that end, the OSH Act authorizes the Secretary of Labor to
promulgate and enforce mandatory occupational safety and
health standards. See 29 U.S.C. § 655. Under the Act, an "oc-
cupational safety and health standard" is defined as "a stan-
dard which requires conditions, or the adoption or use of one
or more practices, means, methods, operations, or processes,
reasonably necessary or appropriate to provide safe or health-
ful employment and places of employment." 29 U.S.C.
§ 652(8). The Secretary also has the authority to "prescribe
such rules and regulations as he may deem necessary to carry
out [his] responsibilities." 29 U.S.C. § 657(g)(2).

In the immediate aftermath of the passage of the OSH Act,
the Secretary of Labor used his authority under 29 U.S.C.
§ 655 to adopt the construction safety standards passed under
the Construction Safety Act — a more targeted predecessor to
the OSH Act. See 36 Fed. Reg. 10,466, 10,466 (May 29,
1971); see also 63 Fed. Reg. 43,452, 43,452 (Aug. 13, 1998).
4 STEEL ERECTORS ASSOCIATION v. OSHA
Those standards, eventually codified in Subpart R of 29
C.F.R. § 1926, were designed to ensure the safety of construc-
tion workers at federal or federally assisted construction proj-
ects. See 63 Fed. Reg. at 43,452. Among other things, the
standards required employers engaging in the construction or
repair of multifloor steel buildings to build "tight and substan-
tial" temporary floors within two stories or 25 feet below any
floor "on which bolting, riveting, welding, or painting is being
done." 29 C.F.R. § 1926.750(b)(2) (1972); see 39 Fed. Reg.
24,360, 24,360 (July 2, 1974). To the extent that constructing
such floors proved impractical, employers could install
"safety nets" at similar intervals. 29 C.F.R.
§ 1926.750(b)(1)(ii) (1972); see 39 Fed. Reg. at 24,360.
Either way, the upshot of the standards was to force employ-
ers to take measures to protect their workers from injurious
and potentially deadly falls.

OSHA slightly amended these standards in 1974, changing
the distance requirement for temporary flooring from 25 feet
to 30 feet, see 39 Fed. Reg. at 24,361, but nevertheless contin-
ued to receive requests for clarification of the fall protection
provisions. See 63 Fed. Reg. at 43,452. Accordingly, in 1988,
OSHA announced that it would devise a new set of steel erec-
tion safety standards. See 53 Fed. Reg. 2048 (Jan. 26, 1988).
Four years later, OSHA formed the Steel Erection Negotiated
Rulemaking Advisory Committee ("SENRAC") — a commit-
tee comprised of representatives from industry, labor, and
government — to develop those standards. See 59 Fed. Reg.
24,389 (May 11, 1994).

The committee worked for eighteen months and met eleven
times. In July 1997, SENRAC reached consensus around a set
of standards, signed a binding consensus agreement, and then
submitted its proposed regulatory text to OSHA. The next
year, OSHA issued a Notice of Proposed Rulemaking, intend-
ing to codify SENRAC’s text as the new Subpart R of 29
C.F.R. § 1926. See 63 Fed. Reg. at 43,452. As pertinent here,
the proposed standards preserved the requirement of flooring
 STEEL ERECTORS ASSOCIATION v. OSHA 5
every two stories or thirty feet below ongoing steel erection
work, but permitted employers to substitute safety nets with-
out any showing that flooring was impracticable. See 63 Fed.
Reg. at 43,466. The proposed standards also contained a new
provision prohibiting the installation of shear connectors —
which are steel bars and studs fastened to steel beams that
allow concrete to be poured between the beams — until after
the employer constructed a separate walking and working sur-
face. See 63 Fed. Reg. at 43,466-67. This measure was
designed to minimize the risk of workers tripping on the shear
connectors.

Between August 13, 1998 and November 12, 1998, OSHA
solicited public comments on the standards. Afterwards,
OSHA held an informal public hearing on the proposed
scheme. While OSHA received over 300 responses (in the
form of comments, testimony, and documentary evidence),
the temporary flooring requirement did not generate any con-
troversy — indeed, it generated no comments at all. See 66
Fed. Reg. 5196, 5197, 5213 (Jan. 18, 2001) (summarizing his-
tory of the safety standards at issue). The shear connector
rule, by contrast, had its opponents; they argued that requiring
workers to attach shear connectors in the field would increase
the risk of back injuries and falls as well as the costs of con-
struction. Id. at 5213. Despite these objections, OSHA con-
cluded that the use of preinstalled shear connectors would
pose a "significant safety hazard" and decided not to make
any substantive changes to the proposed rule. Id. at 5213-14.
Thus, with respect to these two provisions, OSHA’s final pro-
posal reflected SENRAC’s consensus.

The final step in the approval process was a public meeting
with SENRAC to "obtain comments and feedback . . . on
OSHA’s proposed revisions" to SENRAC’s work. Id. at 5197.
The meeting was not a renegotiation, as SENRAC’s members
had already bound themselves to a written consensus agree-
ment back in July 1997. At the meeting, none of the SENRAC
members discussed abandoning the floor construction or shear
6 STEEL ERECTORS ASSOCIATION v. OSHA
connector requirements; everyone agreed that those standards
should be adopted as applied. However, shortly after the
meeting, C. Rockwell Turner — a member of SENRAC who
is also a member of SEAA — wrote a letter to OSHA request-
ing clarification of whether the use of personal fall protection
systems (harnesses designed to prevent workers from suffer-
ing deadly falls) would be an adequate substitute for the floor-
ing requirements. OSHA replied with a letter indicating that
it would consider the failure to set up floors or nets to be a
de minimis violation under 29 U.S.C. § 658(a) so long as the
employer installed personal fall protection systems as a sub-
stitute. But OSHA did not indicate that the underlying stan-
dard requiring such floors and nets had changed in any way.
Moreover, Turner’s letter did not address the shear connector
standard at all.

In January 2001, OSHA promulgated the current version of
the safety standards (the "2001 Standards"). See 66 Fed. Reg.
at 5196. The standards codified the flooring and netting
requirements at 29 C.F.R. § 1926.754(b)(3) and codified the
shear connector policy at 29 C.F.R. § 1926.754(c)(1). But the
standards themselves did not contain any provision declaring
that an employer could install fall protection systems as a sub-
stitute for either requirement, or that the use of such systems
would render a violation of the standards de minimis.

B.

One year after promulgating the final standards, OSHA
issued Directive CPL 2-1.34 (Mar. 22, 2002) ("2002 Direc-
tive"). As relevant here, the 2002 Directive contained a series
of "questions and answers" designed to clarify the recently
adopted standards. Question and Answer 23 stated that
"[w]here an employer establishes, communicates and enforces
a requirement to be protected by fall arrest equipment at all
times above 15 feet (or less), the failure to comply with
§ 1926.754(b)(3) is considered a de minimis violation and will
not be cited." In other words, the 2002 Directive established
 STEEL ERECTORS ASSOCIATION v. OSHA 7
that violations of the temporary flooring requirements would
not be met with penalties if the employer installed fall arrest
equipment such as harnesses to protect workers. In the same
vein, Question and Answer 25 set forth a similar enforcement
policy with respect to the shear connector prohibition, stating
that "[i]f an employer requires that all workers, including
those engaged in connecting and in decking . . . be protected
from falls by conventional fall protection, then the failure to
meet the requirements of § 1926.754(c)(1) would be consid-
ered de minimis and no citation would be issued."

In 2010, however, OSHA issued Directive CPL 02-01-048
(Apr. 30, 2010) ("2010 Directive"). According to OSHA, the
2010 Directive sought to "clarify OSHA’s enforcement pol-
icy" with respect to the flooring and netting requirements, see
29 C.F.R. § 1926.754(b)(3), and the shear connector prohibi-
tion, see 29 C.F.R. § 1926.754(c)(1). Noting that the provi-
sions were both designed to prevent or at least minimize
injuries from falls, and that "[f]alls continue to be the leading
cause of fatalities among construction workers, including
workers engaged in steel erection," OSHA concluded that "it
is ordinarily inappropriate to consider the violation of these
provisions to be de minimis on the basis that personal protec-
tive systems are in use." Accordingly, OSHA revised and
rescinded Questions and Answers 23 and 25 in the 2002
Directive. In their place, OSHA reaffirmed that "compliance
staff retain their normal discretion to determine, on a case by
case basis, that violations are de minimis where there is no
direct or immediate relationship to safety or health, and the
employer’s use of personal fall protection systems at all times
may be a factor in such a determination."

That provision is what gives rise to this litigation. SEAA
challenges the 2010 Directive, arguing that it is a "standard"
subject to immediate judicial review under 29 U.S.C.
§ 655(f).* On SEAA’s theory, the 2010 Directive is a stan-

*SEAA’s original petition for review actually challenged OSHA Direc-
tive CPL 02-01-046 (Sept. 30, 2009) ("2009 Directive"), which was, for
8 STEEL ERECTORS ASSOCIATION v. OSHA
dard either because it directly modifies 29 C.F.R.
§§ 1926.754(b)(3) & (c)(1) or because it rescinds the 2002
Directive, which was itself a standard. According to SEAA,
this means that the 2010 Directive must be vacated because
it did not comply with the notice-and-comment requirement
of 29 U.S.C. § 655(b) and because it is not justified by sub-
stantial record evidence. OSHA, by contrast, argues that we
lack jurisdiction over this challenge because the 2010 Direc-
tive is not a standard. In OSHA’s view, the Directive is
instead a general statement of enforcement policy and thus
constitutes a "regulation[ ]" under 29 U.S.C. § 657(g)(2).

II.

In order to consider SEAA’s arguments, we must examine
the difference between a standard, see 29 U.S.C. § 652(8),
and a "rule[ ]" or "regulation[ ]" under the OSH Act, 29
U.S.C. § 657(g)(2). After all, our jurisdiction turns on pre-
cisely that distinction. That is because standards are subject to
immediate judicial review in the courts of appeals on petition
of "[a]ny person who may be adversely affected by" them. 29
U.S.C. § 655(f); see Workplace Health & Safety Council v.
Reich, 56 F.3d 1465, 1467 (D.C. Cir. 1995); La. Chem. Ass’n
v. Bingham, 657 F.2d 777, 785 (5th Cir. Unit A Sept. 1981).
By contrast, rules and regulations under 29 U.S.C. § 657(g)(2)
are not subject to immediate appellate review. See Reich, 56
F.3d at 1467; Bingham, 657 F.2d at 784-85 (same), see also
Ne. Erectors Ass’n of the BTEA v. Sec’y of Labor, 62 F.3d 37,
39 (1st Cir. 1995) (challenges to OSHA enforcement actions
must be raised in the first instance in administrative proceed-
ings, not in the federal courts).

the most part, similar to the 2010 Directive. However, on April 30, 2010,
OSHA cancelled the 2009 Directive and replaced it with the 2010 Direc-
tive. The parties subsequently agreed to treat SEAA’s petition as challeng-
ing the 2010 Directive.
 STEEL ERECTORS ASSOCIATION v. OSHA 9
The OSH Act, however, provides only modest clarification
of the distinction between "standards" and "rules and regula-
tions." While the Act declares that standards "require[ ] condi-
tions, or the adoption or use of one or more practices, means,
methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employment and
places of employment," 29 U.S.C. § 652(8), it says compara-
bly little about what constitutes a "rule[ ] or regulation[ ]," 29
U.S.C. § 657(g)(2). Indeed, with respect to the latter category,
the Act merely states that the Secretary "shall . . . prescribe
such rules and regulations as he may deem necessary to carry
out [his] responsibilities under [the Act], including rules and
regulations dealing with the inspection of an employer’s
establishment." Id. Likewise, while the Act sets forth proce-
dures for both the promulgation of standards, see 29 U.S.C.
§ 655(b) (imposing, among other things, a notice and com-
ment requirement), and judicial review of them once enacted,
see 29 U.S.C. § 655(f) (standards must be "supported by sub-
stantial evidence in the record considered as a whole"), it says
very little about how rules and regulations are created or
reviewed.

Other courts have helped to illuminate the differences
between the two categories. The Fifth Circuit’s opinion in
Louisiana Chemical Ass’n v. Bingham sets forth the generally
accepted "basic function" test for determining if an agency
pronouncement is a standard or is instead a rule or regulation.
Bingham, 657 F.2d at 781. If the basic function of the pro-
nouncement is to "address[ ] . . . a specific and already identi-
fied hazard," rather than to serve as a "purely administrative
effort designed to uncover violations of the act and discover
unknown dangers," it is a standard. Id. at 782; see also Cham-
ber of Commerce of the U.S. v. U.S. Dep’t of Labor, 174 F.3d
206, 209 (D.C. Cir. 1999); Reich, 56 F.3d at 1468.

For example, in Chamber of Commerce, the D.C. Circuit
concluded that an OSHA Directive requiring workplaces to
choose between acceding to "comprehensive inspection[s]"
10 STEEL ERECTORS ASSOCIATION v. OSHA
and participating in a "Cooperative Compliance Program"
imposing numerous safety requirements over and above exist-
ing statutory and regulatory requirements was a standard. 174
F.3d at 208-09. As the court reasoned, the directive "effec-
tively obligate[d] employers, under penalty of certain inspec-
tion," to adopt a comprehensive safety and health program
and thus "impose[d] on employers new safety standards more
demanding than those required by the Act or by any pre-
existing regulation implementing the Act." Id. at 211.

By contrast, if the agency action "is merely an enforcement
or detection procedure designed to further the goals of the Act
generally," it is a rule or "regulation." Bingham, 657 F.2d at
782; see Chamber of Commerce, 174 F.3d at 209; Reich, 56
F.3d at 1468. Thus, a "Records Access rule" requiring
employers to make existing chemical exposure records avail-
able to employees, employee representatives, and OSHA
authorities constitutes a rule or regulation under 29 U.S.C.
§ 657(g)(2), see Bingham, 657 F.2d at 778-79, 782-84, as
does a requirement that employers report to OSHA informa-
tion regarding accidents causing the death or hospitalization
of three or more employees, see Reich, 56 F.3d at 1466.

More recently, the D.C. Circuit has further clarified that in
order for an agency directive to be a standard, it must be
"new." Edison Elec. Inst. v. OSHA, 411 F.3d 272, 277 (D.C.
Cir. 2005) ("EEI"). Put differently, an agency directive
merely reiterating the requirements of an existing standard for
enforcement purposes constitutes a rule or regulation. See id.
at 282. In EEI, the court confronted a directive rejecting EEI’s
proposed construction of the underlying standard at issue and
affirming OSHA’s prior interpretation of how the standard
should be enforced. Id. at 274-76. The court concluded that
the directive was a rule or regulation because it "is not a new
standard, but rather ‘merely restate[s] in an abstract set-
ting—for the umteenth time-[OSHA’s] longstanding interpre-
tation’ of" the underlying standard. Id. at 282 (quoting Indep.
 STEEL ERECTORS ASSOCIATION v. OSHA 11
Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 427 (D.C. Cir.
2004)).

This approach makes good sense. As the EEI court pointed
out, "it would be a stretch to say that a rule that merely
restates an existing standard ‘requires conditions, or the adop-
tion or use of one or more practices,’" insofar as "it is the
existing standard, not the reiteration, that compels employer
practices." Id. at 277 (quoting 29 U.S.C. § 652(8)). After all,
such a rule would not "promulgate[ ]" a standard, 29 U.S.C.
§ 655(f), but would instead merely restate it, meaning it
should fall outside the jurisdictional scope of 29 U.S.C.
§ 655(f). What is more, labeling as a standard a rule that
merely restates an existing standard would allow parties to
circumvent 29 U.S.C. § 655(f)’s 60-day review period limita-
tion by giving them a second bite at the apple. See EEI, 411
F.3d at 277.

EEI, Chamber of Commerce, Reich, and Bingham are thus
helpful in explaining the difference between standards and
regulations. But they also help shed light on a broader princi-
ple: why the line between the two categories is a jurisdictional
one. As the above examples show, the difference is roughly
between substance and procedure. For the most part, stan-
dards impose substantive legal obligations on all regulated
entities that often give rise to hefty compliance costs. Rules
and regulations, by contrast, tend to cover such matters as
enforcement and inspection — matters that do not change
employers’ actual legal obligations so much as the enforce-
ment of them.

Thus, while it may be true that standards, in the mine run,
are more likely to engender substantial expense, the test for
determining whether a directive constitutes a standard or a
rule is not based ultimately on cost. Rather, the statutory defi-
nition of standards as "requir[ing] conditions, or the adoption
or use of one or more practices, means, methods, operations,
or processes," 29 U.S.C. § 652(8), simply posits a distinction
12 STEEL ERECTORS ASSOCIATION v. OSHA
between new legal obligations and enforcement of obligations
that have long been in place.

Viewed in this light, it makes sense to allow immediate
appellate review of standards but not of rules or regulations.
Direct appellate review may provide more clarity more
quickly, which is a boon in the context of challenges to new,
industry-wide requirements demanding prompt compliance.
By contrast, the normal method for challenging OSHA
enforcement policies is to raise any such claims in administra-
tive proceedings after a citation has been issued. See Ne.
Erectors, 62 F.3d at 38-39 (jurisdiction over challenge to
change in OSHA enforcement policy lies in the first instance
in the agency’s "extensive administrative process").

With these principles in mind, we turn to assessing whether
the 2010 Directive is a standard or is instead a rule or regula-
tion.

III.

Some aspects of this case are undisputed. Both parties
agree that the 2001 Standards are "standards" within the
meaning of 29 U.S.C. § 652(8). By their very terms, the
requirement to build temporary floors or nets at ongoing steel
erection sites, see 29 C.F.R. § 1926.754(b)(3), and the
requirement to build separate working areas before installing
shear connectors, see 29 C.F.R. § 1926.754(c)(1), "require[ ]
conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably neces-
sary or appropriate to provide safe or healthful employment
and places of employment," 29 U.S.C. § 652(8). Moreover,
both parties acknowledge that under the OSH Act, the Secre-
tary has discretion to "prescribe procedures for the issuance of
a notice in lieu of a citation with respect to de minimis viola-
tions" of these standards. See 29 U.S.C. § 658(a).

SEAA argues that the 2010 Directive is also a standard
because it modifies these baseline requirements. The chief
 STEEL ERECTORS ASSOCIATION v. OSHA 13
difficulty with SEAA’s argument, however, is that the 2010
Directive does no such thing. To the contrary: the Directive
merely reaffirms the standards already on the books. By its
very terms, the 2010 Directive declares that the failure to con-
struct temporary flooring and netting below ongoing work
sites constitutes a violation of the Act — which is exactly
what the 2001 Standards say. See 29 C.F.R. § 1926.754(b)(3).
The 2010 Directive further establishes that employers cannot
install shear connectors before constructing an alternative
work space — which is likewise just what the 2001 Standards
require. See 29 C.F.R. § 1926.754(c)(1). Finally, the 2010
Directive states that compliance staff will "retain their normal
discretion to determine, on a case by case basis, that viola-
tions are de minimis" — which is precisely the type of discre-
tion 29 U.S.C. § 658(a) affords. In other words, far from
imposing new "conditions," "practices, means, methods, oper-
ations, or processes," 29 U.S.C. § 652(8), the 2010 Directive
reiterates the scheme adopted by the Secretary in 2001. While
SEAA calls the 2010 Directive a new standard, it "is in fact
a near-verbatim recitation of" the already-existing regulatory
regime, confirming that it is actually a rule or regulation
under 29 U.S.C. § 657(g)(2). EEI, 411 F.3d at 279.

To be sure, this case is different from EEI in one way:
unlike in EEI, OSHA’s stated enforcement policies actually
have changed between the time the 2001 Standards were
announced and the time the 2010 Directive was issued.
Between 2002 and 2009, OSHA adopted a blanket policy of
treating violations of 29 C.F.R. §§ 1926.754(b)(3) & (c)(1) as
de minimis when employers installed personal fall arrest sys-
tems; today, by contrast, OSHA has reclaimed its traditional
discretion over whether or not to impose sanctions in such cir-
cumstances. But this sole ground of distinction is not enough
to turn the 2010 Directive into a standard.

National Ass’n of Manufacturers v. OSHA, 485 F.3d 1201
(D.C. Cir. 2007), helps explain why. In that case, the D.C.
Circuit confronted a standard imposing disclosure obligations
14 STEEL ERECTORS ASSOCIATION v. OSHA
on the chemical industry "based on the ‘latest edition’ of a list
of dangerous chemicals." Nat’l Ass’n of Mfrs., 485 F.3d at
1202. Industry groups argued that an amendment to the under-
lying list of chemicals "effectively amended the standard
without notice and comment," permitting them to challenge
the revisions under 29 U.S.C. § 655(f). Id. (emphasis added).
But the court dismissed their petition as untimely because the
change to the list "did not modify" the standard itself, which
had "remained unchanged in relevant aspects for approxi-
mately twenty years." Id. at 1205 (emphasis added). This case
is analogous: while OSHA’s enforcement policy has changed,
the underlying standards have not been altered at all.

At its core, this case boils down to a simple reality: a per-
son who opened Volume 29 of the Code of Federal Regula-
tions in 2001 would find the exact same requirements in 29
C.F.R. §§ 1926.754(b)(3) & (c)(1) that are on the books
today. The fact that the 2010 Directive indicates that OSHA
will enforce those standards differently than before bespeaks
little more than an exercise of enforcement discretion, and
certainly does not reflect the imposition of any new "prac-
tices, means, methods, operations, or processes, reasonably
necessary or appropriate to provide safe or healthful employ-
ment and places of employment," 29 U.S.C. § 652(8). At bot-
tom, SEAA’s quarrel is not really with the 2010 Directive, but
with the 2001 Standards themselves. But the time for such
court challenges has long passed. See 29 U.S.C. § 655(f).

IV.

SEAA, however, advances a welter of arguments for why
the 2010 Directive is indeed a standard. We shall address
them in turn.

A.

First, SEAA argues that the 2010 Directive is a standard
because it "purports to correct a particular ‘significant risk’"
 STEEL ERECTORS ASSOCIATION v. OSHA 15
and is "aim[ed] toward correction rather than mere inquiry
into possible hazards." Bingham, 657 F.2d at 782. As SEAA
points out, "[u]nquestionably, the rescission of the [blanket]
de minimis rule is designed to ameliorate what the Agency has
determined [is a] significant risk of falls in the steel erection
process." Br. of Appellants at 21.

It is true that the 2010 Directive seeks to decrease the risk
of falls at worksites. But SEAA’s conclusion — that the
Directive is a standard — does not follow from this premise.
That is because the 2010 Directive is functionally identical to
the 2001 Standards themselves. Both were motivated by the
same purpose: minimizing the number of injurious and poten-
tially fatal falls at worksites. Both adopt the same means:
imposing sanctions if appropriate upon employers who
neglect to construct temporary floors or nets under ongoing
steel erection work or to construct separate walking and work-
ing surfaces before installing shear connectors. And both seek
to bring about the same outcome: reducing the number of
injuries and falls by encouraging employers to take protective
steps.

In other words, there is nothing new about the ways in
which the 2010 Directive addresses a "significant risk"; it
uses the exact same means as the 2001 Standards. Viewed in
that light, it makes little sense to view the 2010 Directive as
a new standard subject to judicial review. See Nat’l Ass’n of
Mfrs., 485 F.3d at 1205. If we were to adopt such an
approach, every agency statement restating — let alone clari-
fying — existing standards would constitute a new standard
subject to immediate challenge. At best, this would lead to
duplicative litigation over the merits of enforcement
approaches OSHA decided upon years or even decades ago.
At worst, it could cause OSHA to decline to clarify its stan-
dards in order to insulate them from repetitive judicial review.
SEAA’s view, in short, could deprive the system of even
modest flexibility and deny it the ability to adapt enforcement
proceedings to the lessons of experience. This approach is
16 STEEL ERECTORS ASSOCIATION v. OSHA
untenable. It is plainly "silly to permit parties to challenge an
established regulatory interpretation each time it is repeated.
Such a regime would quickly muzzle any informal communi-
cations between agencies and their regulated communities -
communications that are vital to the smooth operation of both
government and business." Indep. Equip. Dealers, 372 F.3d at
428.

B.

Next, SEAA argues that the 2010 Directive is a standard
because it modifies the 2001 Standards themselves. SEAA’s
argument proceeds as follows: while the text of the 2001
Standards did not incorporate or even mention a de minimis
policy for employers who install personal fall arrest systems,
a member of SENRAC (Turner) sent a letter to OSHA asking
if such violations would be treated as de minimis. In response,
OSHA confirmed that enforcement policy, effectively incor-
porating it into the standards themselves. Thus, argues SEAA,
the rescission of that policy must be a standard as well.

To recite this argument is almost enough to refute it. SEN-
RAC negotiated for several months before coming up with the
final standards, and its members agreed to bind themselves to
the outcome of those negotiations. In such circumstances, an
ex parte communication between one member of SENRAC
and OSHA simply cannot trump the text of regulations passed
after an opportunity for notice and comment. While SEAA
argues that OSHA’s response letter constitutes an alteration of
the standards, the fact remains that such alterations cannot be
found anywhere in the text of the ultimately enacted regula-
tions. Indeed, nothing in the 2001 Standards states that viola-
tions of 29 C.F.R. §§ 1926.754(b)(3) & (c)(1) are
automatically de minimis when an employer installs personal
fall arrest systems. Moreover, if such a policy had been pres-
ent or even implied in the 2001 Standards, there would have
been no need for the 2002 Directive to announce that de
minimis policy again. In short, accepting SEAA’s argument
 STEEL ERECTORS ASSOCIATION v. OSHA 17
would require us to turn many of the foundational principles
underlying modern administrative law on their head.

C.

SEAA’s next argument is that the 2010 Directive is a stan-
dard because companies will have to expend money and effort
in order to come into compliance. SEAA rejects OSHA’s
argument that the Directive "is nothing more than the Secre-
tary’s announcement of how she intends to exercise her dis-
cretion in viewing violations of §§ 1926.754(b)(3) & (c)."
Reply Br. of Appellants at 10. Instead, SEAA contends that
the 2010 Directive has "real-world impact, requiring employ-
ers to immediately assemble decking/planking or netting,
regardless of any personal fall protection systems used." Id. at
12. Further, SEAA argues that the fact that inspectors might
declare violations de minimis is irrelevant, insofar as no
employer will want to risk being declared noncompliant.

It is undoubtedly true that the new enforcement regime will
impose some costs on employers. But that provides no basis
for concluding that the 2010 Directive is a standard. Com-
plaints like SEAA’s are commonplace whenever an agency
decides to increase the frequency or level of scrutiny of its
enforcement actions. To be sure, these complaints are often
understandable; stepped up enforcement efforts often do
engender costly behavioral changes. But those costs do not
alone convert an enforcement policy into a standard. Such
costs have always been legally required by 29 C.F.R.
§§ 1926.754(b)(3) & (c)(1). Though OSHA decided not to
force their imposition between 2002 and 2009, it did so purely
as a matter of its enforcement discretion. And while the new
enforcement policy may be onerous, the fact remains that
Congress has only provided for standards to be immediately
appealable in this court. See 29 U.S.C. § 655(f). If Congress
struck that balance wrong, it is for Congress to correct it. And
if the regulatory regime for fall protection in multi-story con-
struction projects is too burdensome, there is nothing to pre-
18 STEEL ERECTORS ASSOCIATION v. OSHA
vent SEAA from persuading the legislative and executive
branches to change it.

D.

SEAA makes one final argument. It suggests that the 2002
Directive, which announced the blanket de minimis policy for
violations of the temporary flooring, temporary netting, and
shear connector requirements, was itself a standard insofar as
it "modified the Final Rule[s]" — that is, the 2001 Standards.
Br. of Appellants at 4. As a result, SEAA contends, the 2010
Directive, which rescinds the 2002 Directive, must also be a
standard. To the extent SEAA presses this argument, it is
unavailing.

For starters, nothing about the 2002 Directive suggests that
it was a standard. It imposed no new requirements or condi-
tions. See EEI, 411 F.3d at 277. If anything, it softened the
existing requirements in practice, allowing employers to uti-
lize an arguably less expensive alternative to the mandates of
29 C.F.R. §§ 1926.754(b)(3) & (c)(1). What is more, the 2002
Directive did not go through notice and comment as required
of a standard by 29 U.S.C. § 655(b); instead, it consisted of
a series of questions and answers designed to illustrate how
the statute operated.

Finally, and perhaps most importantly, the 2002 Directive,
like the 2010 Directive, treated failure to comply with 29
C.F.R. §§ 1926.754(b)(3) & (c)(1) as a violation of the 2001
Standards — a result that would be anomalous if the 2002
Directive had altered the standards themselves. The 2002
Directive established that "the failure to comply with
§ 1926.754(b)(3) is considered a de minimis violation and will
not be cited" and that "the failure to meet the requirements of
§ 1926.754(c)(1) would be considered de minimis and no cita-
tion would be issued" when an employer installed personal
fall arrest systems. But the critical words here are "violation"
and "failure to meet the requirements." These phrases make
 STEEL ERECTORS ASSOCIATION v. OSHA 19
clear that the 2002 Directive only changed OSHA’s enforce-
ment policy towards violations without actually changing the
underlying standards themselves. The 2010 Directive thus did
not become a standard merely by repealing the 2002 Direc-
tive, as the 2002 Directive was not a standard.

V.

At every point between 2001 and today, employers who
wished to comply with the regulations on the books had to
build temporary floors or nets under ongoing steel erection
worksites and forbear from installing shear connectors until
after they constructed separate working surfaces. At every
point, employers who utilized fall protection systems as a sub-
stitute for the measures required by the regulations were tech-
nically out of compliance. And at every point, under the plain
text of the standards, those employers could have been cited
and fined for their conduct. That OSHA may have elected not
to prosecute such violations for a number of years does not
mean that violations did not occur. Therefore, because the
2010 Directive does little more than reiterate the requirements
of the 2001 Standards and announce the agency’s enforce-
ment policy on a foregoing basis, it is not a "standard" under
the OSH Act and it is not reviewable under 29 U.S.C.
§ 655(f).

This new enforcement policy may impose some hardship
on SEAA’s members, and if that is the case, those members
have several options to remedy the difficulties they foresee.
If an enforcement action is filed against them, they can con-
test that action before the Occupational Safety and Health
Review Commission and, ultimately, before a court of
appeals. See 29 U.S.C. §§ 659(c), 660; Ne. Erectors, 62 F.3d
at 39. Alternatively, SEAA can try to persuade the Secretary
to reinstate the 2002 Directive, or attempt to have Congress
change the judicial review provisions of the OSH Act.

What SEAA cannot do, however, is obtain immediate
review of the 2010 Directive in this court. To hear SEAA’s
20 STEEL ERECTORS ASSOCIATION v. OSHA
claim, we would have to ignore the clear limits Congress has
placed on our jurisdiction. We decline to do so. SEAA’s peti-
tion for review of the 2010 Directive is hereby dismissed.

DISMISSED