In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1340
N ATIONAL R OOFING C ONTRACTORS A SSOCIATION, et al.,
Petitioners,
v.
U NITED S TATES D EPARTMENT OF L ABOR, et al.,
Respondents.
Petition for Review of a Safety Standard
Issued by the Secretary of Labor
S UBMITTED M ARCH 4, 2011—D ECIDED A PRIL 7, 2011
Before E ASTERBROOK, Chief Judge, and C OFFEY and
R OVNER, Circuit Judges.
E ASTERBROOK, Chief Judge. Any “occupational safety
and health standard” issued by the Secretary of Labor
to carry out the Occupational Safety and Health Act of
1970, 29 U.S.C. §§ 651–78, is reviewable in a court of
appeals. 29 U.S.C. §655(f). The National Roofing Con-
tractors Association, together with other persons and
groups in the residential construction industry, has filed
2 No. 11-1340
a petition asking us to set aside Directive STD 03-11-
002, which the Secretary issued on December 16, 2010.
Petitioners want us to stay the Directive, which takes
effect in June, while litigation proceeds. Although
lengthy, the Directive’s material contents boil down to
two propositions: (1) Directive STD 03-00-001, which was
issued in June 1999, is revoked, and (2) 29 C.F.R.
§1926.501(b)(13) will be enforced as written. In addition
to opposing the motion for a stay, the Secretary con-
tends that Directive STD 03-11-002 (“the 2010 Directive”)
is not an “occupational safety and health standard” and
asks us to dismiss the petition for review.
Section 1926.501(b)(13) provides:
Each employee engaged in residential construction
activities 6 feet (1.8 m) or more above lower
levels shall be protected by guardrail systems,
safety net system, or personal fall arrest system
unless another provision in paragraph (b) of this
section provides for an alternative fall protection
measure. Exception: When the employer can
demonstrate that it is infeasible or creates a
greater hazard to use these systems, the employer
shall develop and implement a fall protection
plan which meets the requirements of paragraph
(k) of §1926.502.
Note: There is a presumption that it is feasible
and will not create a greater hazard to implement
at least one of the above-listed fall protection
systems. Accordingly, the employer has the
burden of establishing that it is appropriate to
No. 11-1340 3
implement a fall protection plan which complies
with §1926.502(k) for a particular workplace situa-
tion, in lieu of implementing any of those systems.
During the rulemaking that preceded this regulation’s
adoption in 1994, many comments contended that using
guardrails, nets, or “personal fall arrest systems” could
increase rather than reduce the hazards encountered by
workers in residential construction. This led to the ex-
ception in the regulation’s first paragraph, an exception
on which (per the second paragraph) the employer
bears the burden of production and persuasion should
the Secretary commence a formal proceeding.
The 1994 regulation was not wholly satisfactory to
either the building industry or employee groups, and in
1999 the Secretary issued Directive STD 3-0.1A, later
renumbered as STD 03-00-001 (“the 1999 Directive”). This
document told officials of the Occupational Safety and
Health Administration not to commence enforcement
proceedings under §1926.501(b)(13) if the employer used
slide guards or other fall-protection systems that were
described in the 1999 Directive. In other words, the 1999
Directive constituted an exercise of prosecutorial discre-
tion: instead of requiring employers to establish, case
by case, that slide guards (and the other methods men-
tioned in the 1999 Directive but not the regulation) are
safer than the three methods named in §1926.501(b)(13),
the Department of Labor would treat slide guards (etc.)
as safe enough. Accompanying the 1999 Directive was
an advance notice of proposed rulemaking, which sought
comments on whether (and, if so, how) §1926.501(b)(13)
should be amended. 64 Fed. Reg. 38,078 (July 14, 1999).
4 No. 11-1340
Rulemaking took more than a decade—and in the end
the Secretary decided that §1926.501(b)(13) is fine as it
stands, because the exception established by the second
sentence allows enough flexibility when an employer
believes that the three preferred kinds of safety systems
are hazardous. The rulemaking was closed without any
change to the regulation, coupled with the rescission of
the 1999 Directive and its replacement by the 2010 Direc-
tive, which authorizes administrative proceedings that
may require employers to show, one building site at a
time, why they have used a fall-protection system
other than a kind specified by the regulation. It is this
2010 Directive that petitioners say is a new “occupational
safety and health standard”.
An “occupational safety and health standard” is “a
standard 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 healthful employment and places of
employment.” 29 U.S.C. §652(8). Section 1926.501(b)(13)
meets this definition; the 2010 Directive does not. The
regulation, not the Directive, is what requires “the adop-
tion or use of one or more practices, means, methods,
operations, or processes” to increase workers’ safety. And
the time to challenge the 1994 regulation has expired;
§655(f) allows only 60 days.
Petitioners contend that the 2010 Directive must be a
new standard, because it subjects employers to require-
ments that they have not had to meet since mid-1999 (and
perhaps earlier; a directive issued in December 1995
No. 11-1340 5
presaged the 1999 Directive). A contractor that uses a
slide guard rather than one of the regulation’s methods
now faces administrative litigation and may be found
in violation if a defense based on the exception fails,
when for the previous 10 years a slide guard was a sure
way to avoid liability. Note how we put this: a slide
guard would “avoid liability,” not “comply with the
regulation.” The 1999 Directive did not alter the regula-
tion; it just exercised the prosecutorial discretion that
agencies possess. See Heckler v. Chaney, 470 U.S. 821 (1985);
FTC v. Universal-Rundle Corp., 387 U.S. 244 (1967). The
Secretary committed to paper the criteria for allowing
regulatory violations to exist without redress, a step
essential to control her many subordinates. This does
not make the exercise less discretionary. Administrative
discretion may be exercised by formal policies as well
as one case at a time. See Lopez v. Davis, 531 U.S. 230 (2001).
Discretionary decisions by one Secretary of Labor may
be altered by another without any change in the statute
or regulation. It has been a long time since the Assistant
Attorney General for the Antitrust Division has filed
a suit under the Robinson-Patman Act, but if the incum-
bent should change that policy and commence a price-
discrimination action, that step would not be equivalent
to enacting a new statute (it assuredly would not
require the assent of both Houses of Congress plus the
President’s signature) or even promulgating a new reg-
ulation. Likewise the merger guidelines issued by one
Assistant Attorney General may be revised by another,
because all the guidelines do is inform businesses what
considerations will lead the Justice Department to sue.
6 No. 11-1340
Just so here: the 2010 Directive tells the construction
industry what will lead the Secretary to launch admin-
istrative proceedings. Those proceedings, once under
way, are governed entirely by the regulation; the 2010
Directive does not modify the rules. By deciding to
enforce a 1994 regulation as written, the Secretary has not
adopted a new “occupational safety and health standard”.
Recently another circuit reached the same conclusion
in functionally identical circumstances. See Steel Erectors
Association of America, Inc. v. Occupational Safety and
Health Administration, 2011 U.S. App. L EXIS 3137 (4th
Cir. Feb. 17, 2011). In 2001 OSHA promulgated a regula-
tion establishing safety standards for the construction
and repair of bridges and similar steel structures. The
next year it issued a directive stating that certain viola-
tions of this regulation would not lead to enforcement
proceedings, if employers took different precautions. In
2010 it rescinded this directive and announced that it
would address the propriety of these extra-regulatory
precautions one case at a time when deciding whether
a violation is too insignificant to justify the commence-
ment of formal proceedings. Steel Erectors Association
holds that the policy adopted in 2010 is not an “occupa-
tional safety and health standard” subject to judicial
review. It is instead an enforcement policy; the “stan-
dard” is the 2001 regulation. We agree with Steel Erectors
Association.
Petitioners insist that Steel Erectors Association is dif-
ferent because the directive at issue there was a real
exercise of prosecutorial discretion, while the 2010 Direc-
No. 11-1340 7
tive “specifically and expressly prohibits the use of . . .
alternative means of fall protection”. If the 2010 Direc-
tive does that, then it modifies §1926.501(b)(13) by elimi-
nating the regulation’s exception. That would make
the 2010 Directive an “occupational safety and health
standard”—and an invalid one, because regulations
cannot be amended without new rulemaking. The 2010
Directive was not adopted using notice-and-comment
procedures. Yet petitioners’ assertion that the 2010 Direc-
tive “specifically and expressly prohibits the use of . . .
alternative means of fall protection” is not accompanied
by either a quotation or a citation. We have read the 2010
Directive and cannot find any such “specific” or “express”
prohibition, or even an implied one. The 2010 Direc-
tive says that certain fall-prevention methods other
than the three specified in the regulation are no longer
safe harbors; employers will have to justify their use
under the regulation’s standards, but this is a far cry
from a prohibition of alternative methods.
Chamber of Commerce v. Department of Labor, 174 F.3d
206 (D.C. Cir. 1999), on which petitioners heavily rely,
does not support their position. The agency issued a
directive that established a nominally voluntary program
of inspections designed “to foster safety policies more
stringent than any required by the Act or by regula-
tions implementing the Act”. Id. at 210. It did this by
prescribing, as a penalty, an inspection not otherwise
required by regulation. Id. at 211. The court concluded
that the set of incentives established by the directive
amounted to a health and safety standard because it
went beyond established regulations. But the 2010 Direc-
8 No. 11-1340
tive does not go beyond any regulation; petitioners’
complaint is precisely that the 2010 Directive proclaims
a policy of enforcing an existing regulation, which had
not been fully enforced in recent years. Nothing in
Chamber of Commerce suggests that a policy of enforcing
a regulation is itself a new safety standard.
As far as we can see, nary an appellate decision
supports the proposition that agencies must use
rulemaking to adopt, modify, or rescind directives (or
equivalent documents) that inform the public how prose-
cutorial discretion will be exercised. When all duties
rest on a statute or valid regulation—as they do
here—agencies are free to be lenient in enforcement
without committing themselves to use rulemaking in
order to become more strict. The 1999 Directive reflects
a policy of lenience, and the 2010 Directive a policy
of strict enforcement, but neither policy is an “occupa-
tional safety and health standard.” The “standard” is
§1926.501(b)(13), which has been unchanged since 1994.
Petitioners don’t want the 2010 Directive annulled so
much as they want the 1999 Directive reinstated. Yet if the
2010 Directive is an “occupational health and safety
standard”, so is the 1999 Directive—and if the 2010 Di-
rective is invalid because not adopted by rulemaking,
the 1999 Directive is equally invalid. We could not
order the agency to reinstate a directive that is vulner-
able to the very objection used to set aside its replacement.
But neither directive is invalid. The judiciary is
not authorized to tell agencies how they must use pros-
ecutorial discretion when implementing valid rules,
No. 11-1340 9
such as the 1994 regulation. Functional as well as
formal (separation-of-powers) concerns support leaving
prosecutorial decisions to prosecutors. “Courts cannot
intelligently supervise [an agency’s] allocation of its
staff’s time, because although judges see clearly the
claim the [agency] has declined to redress, they do not
see at all the tasks the staff may accomplish with the
time released. Agencies must compare the value of pur-
suing one case against the value of pursuing another;
declining a particular case hardly means that the
[agency’s] lawyers and economists will go twiddle their
thumbs; case-versus-case is the daily tradeoff. Judges
compare the case at hand against a rule of law or
an abstract standard of diligence and do not see the op-
portunity costs of reallocations within the agency. That
fundamental difference in the perspectives of the two
bodies is why agencies (and other prosecutors) rather
than courts must make the decisions on pursuing or
dropping claims. Resource allocation is not a task
governed by ‘law’. It is governed by budgets and oppor-
tunities. Agencies ‘take Care that the Laws be faithfully
executed’ (Art. II, §3) by doing the best they can with
the resources Congress allows them. Judges could make
allocative decisions only by taking over the job of
planning the agency’s entire agenda, something neither
authorized by statute nor part of their constitutional
role.” Chicago Board of Trade v. SEC, 883 F.2d 525, 531 (7th
Cir. 1989). The Secretary of Labor is entitled to enforce
§1926.501(b)(13) by bringing those proceedings that, in
the Secretary’s view, best promote workplace safety, and
by declining to bring others that would have lesser
10 No. 11-1340
payoffs. The decision belongs to the Secretary, not to the
court.
If, as petitioners contend, alternative fall-protection
methods are safer than the three named in the 1994 reg-
ulation, then employers will prevail in any administra-
tive proceedings that the Secretary commences. If the
record demonstrates that employers have used a safer
method, and an administrative law judge nonetheless
rules otherwise, then the employer will prevail on
judicial review. It would be inappropriate to block the
Secretary from commencing an enforcement proceeding,
just because employers predict that the regulation’s
exception will not be applied correctly.
The petition for review is dismissed.
4-7-11