American Tort Reform Ass'n v. Occupational Safety & Health Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 2013 Decided December 27, 2013

No. 12-1229

AMERICAN TORT REFORM ASSOCIATION,
PETITIONER

v.

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION AND
DEPARTMENT OF LABOR,
RESPONDENTS

UNITED STEEL WORKERS LOCAL UNION 4-227, ET AL.,
INTERVENORS

On Petition for Review of a Final Rule of the
Occupational Safety & Health Administration

Thomas J. Grever argued the cause for petitioner. With
him on the briefs was Mark A. Behrens.

Jacqueline M. Holmes, Harry M. Ng, Leslie A. Hulse,
Robin S. Conrad, Rachel L. Brand, and Quentin Riegel were on
the brief for amici curiae The Chamber of Commerce of the
United States of America, et al. in support of petitioner.

Heather R. Phillips, Counsel, U.S. Department of
Labor, argued the cause for respondents. With her on the brief
were Joseph M. Woodward, Associate Solicitor, and Edmund
 2

C. Baird and Anne R. Ryder, Attorneys.

David C. Vladeck argued the cause for intervenors Change
to Win, UAW, and USW. On the brief were Randy S.
Rabinowitz and Stephen A. Yokich.

Steven H. Wodka was on the brief for intervenors United
Steel Workers Local Union 4-227 in support of respondents.

Mary Alice McLarty and Andre M. Mura were on the brief
for amicus curiae American Association of Justice in support
of respondents.

Before: GRIFFITH and SRINIVASAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

EDWARDS, Senior Circuit Judge: The petition for review
in this case, filed by the American Tort Reform Association
(“ATRA”), challenges revisions made by the Occupational
Safety and Health Administration (“OSHA” or “the agency”)
to the wording of paragraph (a)(2) of OSHA’s hazard
communication (“HazCom”) standard, 29 C.F.R. § 1910.1200.
HazCom establishes labeling requirements for chemicals used
in the workplace. The disputed changes appear in an
introductory paragraph that describes the preemptive scope of
HazCom. Id. § 1910.1200(a)(2) (“Paragraph (a)(2)”). These
changes reflect the agency’s view that HazCom preempts state
legislative and regulatory requirements, but not state tort
claims. Id.

ATRA challenges these modifications on two grounds.
First, ATRA contests the substance of Paragraph (a)(2),
arguing that OSHA exceeded its authority under the
Occupational Safety and Health Act (“OSH Act”), 29 U.S.C.
§§ 651-678, by purporting to “limit the scope of preemption
from that established by Congress.” Br. of Pet’r at 40. Second,
ATRA contends that OSHA’s adoption of the modifications
 3

was procedurally flawed because the agency failed to follow
the requirements of notice and comment rulemaking pursuant
to the Administrative Procedures Act (“APA”), 5 U.S.C.
§ 553(b). We can find no merit in ATRA’s claims.

The parties agree that OSHA lacks legal authority to
determine the preemptive effect of the OSH Act. It is thus clear
that Paragraph (a)(2) is not a legislative rule, both because
OSHA has no authority to speak with the force of law on
preemption and, in addition, because the agency never meant
for the disputed paragraph to have this effect. Paragraph (a)(2)
is nothing more than an interpretative statement that “advise[s]
the public of the agency’s construction of the statute[] . . . it
administers.” Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87,
99 (1995) (quotations omitted). Because Paragraph (a)(2) is
merely interpretative, it is not subject to notice and comment
rulemaking under the APA, id., and it is not subject to judicial
review unless it is relied upon or applied to support an agency
action in a particular case, see EDWARDS, ELLIOTT, & LEVY,
FEDERAL STANDARDS OF REVIEW 161 (2d ed. 2013). In light of
the foregoing, ATRA’s challenge to Paragraph (a)(2) is unripe
for review. See Texas v. United States, 523 U.S. 296, 300
(1998) (“A claim is not ripe for adjudication if it rests upon
contingent future events that may not occur as anticipated, or
indeed may not occur at all.” (quotation and citation omitted)).

I. BACKGROUND

The OSH Act vests OSHA with authority to promulgate
“Occupational Safety and Health Standards,” 29 U.S.C. § 655,
which are conditions “reasonably necessary or appropriate to
provide for safe or healthful places of employment,” id.
§ 652(8). The OSH Act is not to be “construed to supersede or
in any manner affect any workmen’s compensation law or . . .
the common law or statutory rights, duties or liabilities of
employers and employees . . . with respect to injuries, diseases,
or death of employees arising out of, or in the course of
 4

employment.” Id. § 653(b)(4). The Act also allows states to
establish their own workplace regulation in place of OSHA
regulations. To do so, states must submit for OSHA’s approval
a plan demonstrating, among other requirements, that the state
will establish safety standards at least as effective as OSHA’s,
and designate an enforcement agency to administer these rules.
Id. § 667.

In 1983, OSHA observed that states and localities were
adopting an increasing number of “different and potentially
conflicting regulations” pertaining to the labeling of hazardous
chemicals. 48 Fed. Reg. 53,280, 53,283 (Nov. 25, 1983)
(emphasis added). OSHA explained that by promulgating a
federal standard, it was “in a position to reduce the regulatory
burden posed by multiple State laws.” Id. at 53,284 (emphasis
added). Accordingly, the original Paragraph (a)(2) provided
that the HazCom standard “is intended . . . to preempt any state
law pertaining to this subject.” Id. at 53,340. In 1987, OSHA
amended Paragraph (a)(2) to provide that the HazCom
standard preempts local, as well as state, laws pertaining to
hazard communication. 52 Fed. Reg. 31,852, 31,877 (Aug. 24,
1987). In 1994, OSHA amended the substantive requirements
of the HazCom standard, and its accompanying discussion
states that “product liability concerns separate and apart from
any regulatory requirements” will motivate product
manufacturers to make certain information available to users.
59 Fed. Reg. 6126, 6161 (Feb. 9, 1994).

In three letters between 1992 and 2007, OSHA voiced the
position that its standards do not supersede state tort law.
Letter from Dorothy L. Strunk, Acting Assistant Secretary of
OSHA, to Senator J. Bennett Johnston (June 9, 1992) (“If an
employer has his/her employees exposed to a hazard, then that
employer is responsible for their safety under the OSH Act
(liability in tort is a matter of state law).”); 1 Letter from Joseph
A. Dear, Assistant Secretary of OSHA, to Congressman Cass
Ballenger (Oct. 23, 1996) (“As a matter of federal law,
 5

therefore, nothing in health or safety standards issued by
OSHA under Section 6 of the Act . . . determines the tort
remedies available to injured workers. That matter is
determined by the laws of the individual states. It is not our
role at OSHA either to foster or to foil the efforts of plaintiffs’
lawyers in state court proceedings.”); 2 Letter from Richard E.
Fairfax, Director of Enforcement Programs at OSHA, to
Robert M. Sklar (May 14, 2007) (“OSHA cannot determine
liability under state workers’ compensation law.”). 3

In December 2008, OSHA issued a letter stating that
“OSHA believes that the principles of conflict preemption
preclude state courts from finding OSHA-required . . .
respirators are defective when such respirators comply with
[OSHA’s certification] requirements.” Letter from Thomas M.
Stohler, Acting Assistant Secretary of OSHA, to Daniel K.
Shipp at 3 (Dec. 31, 2008), reprinted in Reply Br. of Pet’r Add.
1. However, in February 2010, OSHA issued another letter
rescinding the opinion put forth in the December 2008 letter
because “it is not consistent with sound principles of
preemption law.” Letter from Deborah Greenfield, Acting
Deputy Solicitor of OSHA, to Les Weisbrod (Feb. 3, 2010)
(“February 2010 Letter”). 4 This letter concluded that “neither
the OSH Act nor the respirator regulations themselves
expressly preempt state tort actions. Nor do they indicate
Congressional or agency intent to preempt such actions.” Id.

In October 2011, responding to an inquiry about the effect
of the HazCom standard on state tort law, OSHA referred to
the February 2010 letter to explain that “as a general matter the
HazCom standard does not preempt state tort failure to warn
suits.” Letter from Patricia Smith, Solicitor of Labor, to Steven
H. Wodka, Esq. (Oct. 18, 2011) (“October 2011 Letter”) at 1,
reprinted in Br. for OSHA and the Dep’t of Labor App’x.

On March 26, 2012, OSHA issued a final rule which
amended the substantive requirements of the HazCom
 6

standard. During the notice and comment period for this
rulemaking, several commentators urged OSHA to modify
Paragraph (a)(2) to say that HazCom preempts state tort
actions based on inadequate labeling. In the commentary
accompanying the final rule OSHA stated that it “declin[ed]
these invitations” because, as explained in its October 2011
letter, HazCom “does not preempt state tort failure to warn
lawsuits.” Thus, OSHA made it clear that, in its view, the OSH
Act “explicitly preserves, rather than preempts state tort law.”
77 Fed. Reg. 17,574, 17,694 (March 26, 2012) (citing 29
U.S.C. § 653(b)(4); Lindsey v. Caterpillar, Inc., 480 F.3d 202,
209 (3d Cir. 2007); Pedraza v. Shell Oil Co., 942 F.2d 48,
53-54 (1st Cir. 1991)).

Along with the final rule amending the HazCom standard,
OSHA modified Paragraph (a)(2), as follows:

This occupational safety and health standard is
intended to address comprehensively the issue of
classifying the potential hazards of chemicals, and
communicating information concerning hazards and
appropriate protective measures to employees, and to
preempt any legal requirements legislative or regulatory
enactments of a state, or political subdivision of a state,
pertaining to this subject. . . . Under section 18 of the Act,
no state or political subdivision of a state may adopt or
enforce, through any court or agency, any requirement
relating to the issue addressed by this Federal standard,
except pursuant to a Federally-approved state plan.

Id. at 17,786.

ATRA filed this petition for review to challenge OSHA’s
modifications of Paragraph (a)(2). In support of its petition,
ATRA advances two claims: First, the disputed modifications
exceed OSHA’s delegated authority under the OSH Act.
Second, no modifications can be made to Paragraph (a)(2)
 7

without notice and comment rulemaking under the APA.

II. ANALYSIS

As noted at the outset of this opinion, there are several
problems with ATRA’s petition. First, both sides acknowledge
that OSHA lacks legal authority to determine the preemptive
effect of the OSH Act. Therefore, Paragraph (a)(2) surely does
not carry the force of law on preemption. Indeed, OSHA
concedes that it never meant to suggest otherwise when it
modified Paragraph (a)(2). The petition for review is thus
much ado about nothing.

Second, given that OSHA has no authority to issue
authoritative statements on the preemptive effect of the OSH
Act, Paragraph (a)(2) is, at most, an interpretative statement
that advises the public of the agency’s interpretation of the
statute. Because Paragraph (a)(2) is nothing more than an
interpretative statement, it is not subject to notice and comment
rulemaking under the APA; and it is not subject to judicial
review unless OSHA relies on the paragraph or purports to
apply it in support of an agency action in a particular case.

Finally, it follows from the foregoing that ATRA’s
challenge to Paragraph (a)(2) is unripe for review.

We will address these considerations in turn.

A. OSHA Has No Authority to Issue Rules Carrying the
Force of Law With Respect to the Preemptive Effect of
the OSH Act

When an agency issues an interpretative rule or statement,
an interpretative guideline, or a policy statement with respect
to a matter that it is not empowered to decide, the interpretative
rule, statement, guideline, or policy statement merely informs
the public of the agency’s views on the subject. Nat’l Park
 8

Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 809
(2003). It does not, however, create “adverse effects of a
strictly legal kind” because it cannot “command anyone to do
anything or to refrain from doing anything.” Id. As a result,
controversies over such interpretative rules, statements,
guidelines, and policy statements typically cannot result in
justiciable disputes. Id.

This case differs from National Park Hospitality
Association in that OSHA administers the statute being
interpreted. Nonetheless, the reasoning of National Park
Hospitality Association applies because Paragraph (a)(2)
pertains to a matter that OSHA has no legal authority to decide
under the OSH Act. Furthermore, it does not matter that
OSHA’s statement in Paragraph (a)(2) is an interpretative rule,
whereas the matter at issue in National Park Hospitality
Association was a “statement of policy.” The reasoning of
National Park Hospitality Association still applies. “Not much
turns on the distinction between policy statements and
interpretative rules. The more important question is whether
the disputed statement is merely informative or interpretative,
or whether it is substantive and thus establishes a binding legal
norm that is subject to judicial review.” EDWARDS, ELLIOTT, &
LEVY, FEDERAL STANDARDS OF REVIEW 162 (2d ed. 2013).
Paragraph (a)(2) is not substantive because it pertains to a
matter that OSHA has no legal authority to decide under the
OSH Act. The same was true with respect to the disputed
policy statement in National Park Hospitality Association.

The parties here agree that OSHA has no authority to
determine the preemptive effect of the OSH Act. Indeed,
ATRA argues that “OSHA cannot use its regulations to limit
the scope of preemption from that established by Congress. . . .
The OSH Act gives OSHA authority only to promulgate
national workplace health and safety standards, not to dictate
by regulation the scope of preemption.” Br. of Pet’r at 40.
OSHA does not disagree with this position. Br. for OSHA and
 9

the Dep’t of Labor at 46. Therefore, it is uncontested here that
Paragraph (a)(2) is nothing more than a “‘guideline’” that
“advise[s] the public of the agency’s construction of the statute
it administers.” EDWARDS, ELLIOTT, & LEVY, FEDERAL
STANDARDS OF REVIEW 160 (2d ed. 2013) (quoting Guernsey
Mem’l Hosp., 514 U.S. at 97, 99). “Interpretative rules . . . do
not have the force and effect of law; and they are not accorded
that weight in the adjudicatory process.” Id. (citing Guernsey
Mem’l Hosp., 514 U.S. at 99).

While ATRA recognizes that OSHA lacks legal authority
to define the preemptive scope of the OSH Act, it nonetheless
attempts to argue that Paragraph (a)(2) amounts to a legislative
rule. First, ATRA claims that Paragraph (a)(2) must have the
force of law because it is published in the Federal Register and
the Code of Federal Regulations. Reply Br. of Pet’r at 8. But
this is not dispositive. In National Park Service Ass’n, the
disputed agency statement was also published in the Federal
Register and the Code of Federal Regulations, 538 U.S. at 806
(quoting 36 C.F.R. § 51.3 (2002)), and the Court nonetheless
concluded it was a non-legislative “general statement of
policy.” Id. at 809; see also 5 U.S.C. § 552(a)(1)(D) (requiring
statements of policy to be published in the Federal Register).

Second, ATRA claims that the 2012 modifications to
Paragraph (a)(2) must be legislative because a state court relied
on the language to hold that HazCom does not preempt a state
failure-to-warn tort. Br. of Pet’r at 42-43; Reply Br. for Pet’r at
9-10. But one state court’s decision to credit the agency’s view
on preemption does not mean that the court was obligated to
follow it, or that the agency’s view is legally binding. OSHA
recognizes that courts should not afford Paragraph (a)(2) the
“controlling weight” given to agency regulations with the force
of law, see Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 844 (1984), but instead maintains that its
“explanation of state law’s impact” on the HazCom standard
should be afforded more limited deference that “depends on its
 10

thoroughness, consistency, and persuasiveness.” Br. for OSHA
and the Dep’t of Labor at 43-44 (quoting Wyeth v. Levine, 555
U.S. 555, 577 (2009)); see also United States v. Mead Corp.,
533 U.S. 218, 228, 234-35 (2001); Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944).

The agency does not assert that Paragraph (a)(2) should be
dispositive in any court’s determination as to whether HazCom
preempts a particular state failure-to-warn tort. Rather, OSHA
has consistently relied on judicial decisions that have
independently reached the position espoused in Paragraph
(a)(2). These judicial decisions invariably invoke section
653(b)(4) of the OSH Act, which provides that the Act is not to
be construed so as to supersede “common law . . . with respect
to injuries, diseases or death of employees arising out of, or in
the course of, employment.” See October 2011 Letter,
reprinted in Br. for OSHA and the Dep’t of Labor App’x
(citing United Steelworkers of Am., AFL-CIO-CLC v.
Marshall, 647 F.2d 1189, 1235-36 (D.C. Cir. 1980) (“[W]hen
a worker actually asserts a claim under workmen’s
compensation law or some other state law, Section [653](b)(4)
intends that neither the worker nor the party against whom the
claim is made can assert that any OSHA regulation or the OSH
Act itself preempts any element of the state law.”); Lindsey,
480 F.3d at 210-11 (“[S]tate laws of general applicability. . .
would generally not be preempted. . . . [T]he difference
between [a] state products liability action and the legislated
state standard . . . is critical. . . . [T]he [state] Products Liability
Act fits squarely within those actions protected by [29 U.S.C.
§ 653(b)(4)].” (quotations omitted)); Pedraza, 942 F.2d at 53
(“There is a solid consensus that section [653](b)(4) operates
to save state tort rules from preemption.” (citations omitted));
February 2010 Letter (citing same cases); 77 Fed. Reg. at
17,694 (citing Lindsey and Pedraza); Br. for OSHA and the
Dep’t of Labor at 26-28, 37-39 (collecting cases). Thus,
Paragraph (a)(2) reflects OSHA’s understanding of the OSH
Act based, in large part, upon judicial interpretations of the
 11

OSH Act. Paragraph (a)(2) is not a legislative rule promulgated
by the agency.

B. Paragraph (a)(2) is Not Reviewable

“Like agency policy statements, ‘interpretative rules’ that
do not establish a binding norm are not subject to judicial
review under the APA.” EDWARDS, ELLIOTT, & LEVY,
FEDERAL STANDARDS OF REVIEW at 161. The APA only
provides for judicial review of “final agency action,” 5 U.S.C.
§ 704; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990),
and interpretative rules or statements of policy generally do not
qualify because they are not “finally determinative of the
issues or rights to which [they are] addressed.” EDWARDS,
ELLIOTT, & LEVY, FEDERAL STANDARDS OF REVIEW 157 (2d
ed. 2013) (citing Ctr. for Auto Safety v. Nat’l Highway Traffic
Safety Admin., 452 F.3d 798, 800 (D.C. Cir. 2006)).

Of course, if an agency issues a statement that is labeled
an interpretative rule or a policy statement and it has all of the
indicia of a final legislative rule, then the rule will be subject to
review. See, e.g., Barrick Goldstrike Mines Inc. v. Browner,
215 F.3d 45, 48 (D.C. Cir. 2000) (holding that an agency rule
does not escape review under the APA merely because it is
labeled an “informal” guideline); Gen. Elec. Co. v. EPA, 290
F.3d 377, 384-85 (D.C. Cir. 2002) (holding that a purported
Guidance Document was a legislative rule, not a policy
statement, and thus reviewable); McLouth Steel Prods. Corp.
v. Thomas, 838 F.2d 1317, 1322 (D.C. Cir. 1988) (holding that
a purported interpretive rule was in fact a legislative rule and
thus subject to review). Likewise, “an interpretative rule is
subject to review when it is relied upon or applied to support an
agency action in a particular case.” EDWARDS, ELLIOTT, &
LEVY, FEDERAL STANDARDS OF REVIEW 161 (2d ed. 2013)
(citing Fed. Express Corp. v. Holowecki, 552 U.S. 389, 399
(2008)). These authorities are inapposite here. OSHA has
merely offered Paragraph (a)(2) as a guideline, not as a
 12

legislative rule; and OSHA has not offered Paragraph (a)(2) in
support of its position in any pending actions. Paragraph (a)(2)
is therefore not subject to review.

C. Paragraph (a)(2) is Not Subject to Notice and Comment
Rulemaking Under the APA

Notice and comment rulemaking procedures are required
under the APA when substantive rules are promulgated,
modified, or revoked. 29 U.S.C. § 655(b)(2), (b)(7); 5 U.S.C.
§ 553. Substantive or legislative rules are those that “grant
rights, impose obligations, or produce other significant effects
on private interests,” Batterton v. Marshall, 648 F.2d 694,
701-02 (D.C. Cir. 1980) (citations omitted), or which “effect a
change in existing law or policy.” Alcaraz v. Block, 746 F.2d
593, 613 (9th Cir. 1984) (quotations omitted). Interpretative
rules and policy statements are expressly excluded from the
requirements of notice and comment rulemaking under the
APA. See 5 U.S.C. § 553(b).

As noted above, OSHA has no authority to promulgate a
rule with the force of law on the preemptive effect of the OSH
Act and the agency never meant for Paragraph (a)(2) to have
this effect. It is therefore clear that the agency was not required
to employ notice and comment rulemaking before modifying
the disputed paragraph.

D. This Dispute is Not Ripe for Review

The Article III case or controversy requirement prohibits
courts from issuing advisory opinions on speculative claims.
EDWARDS, ELLIOTT & LEVY, FEDERAL STANDARDS OF REVIEW
141 (2d ed. 2013) (citing Blanchette v. Connecticut Gen. Ins.
Corp. (Reg’l Rail Reorganization Act Cases), 419 U.S. 102,
138 (1974)). ATRA’s claim that the substance of Paragraph
(a)(2) impermissibly exceeds the preemptive scope of the OSH
Act does not present a concrete case or controversy ripe for
 13

judicial review. Id. (“Even when an agency has taken final
action, a court may refrain from reviewing a challenge to the
action if the case is unripe for review.” (citing Toilet Goods
Ass’n v. Gardner, 387 U.S. 158 (1967))). A “ripeness issue
normally arises in cases in which a regulated party faces the
threat of future agency enforcement action.” Id.; Truckers
United for Safety v. Fed. Highway Admin., 139 F.3d 934, 938
(D.C. Cir. 1998) (“to the extent that [petitioner] wishes to
challenge the substance of the regulatory guidance, it must
wait until the Administration actually applies it in a concrete
factual situation”).

In determining whether a dispute is ripe for review, courts
consider “both the fitness of the issues for judicial decision and
the hardship to the parties of withholding court consideration.”
Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967). Toilet
Goods held that a challenge to a regulation allowing agency
officials to suspend a company’s certification if it denied
inspectors access to facilities was unripe because the
petitioners had not presented a scenario in which the agency
had exercised this authority. The Court could not evaluate the
regulation without specific context because it had “no idea
whether or when such an inspection [would] be ordered and
what reasons the [agency might] give to justify [any such]
order.” 387 U.S. at 163. The Court explained that “judicial
appraisal . . . is likely to stand on a much surer footing in the
context of a specific application of this regulation than could
be the case in the framework of the generalized challenge.” Id.

Paragraph (a)(2) does not carry the force of law on the
preemptive effect of the OSH Act because OSHA lacks the
legal authority to render dispositive decisions on preemption;
Paragraph (a)(2) is subject to neither the requirements of notice
and comment rulemaking nor judicial review because it is
nothing more than an interpretative statement; and OSHA has
not purported to rely on or apply Paragraph (a)(2) in support of
an agency action in a concrete case; therefore, the present
 14

challenge to Paragraph (a)(2) is, a fortiori, unripe for judicial
review.

ATRA will suffer no legally cognizable hardship from
this result. Gardner suggests that “hardship to the parties of
withholding court consideration” might warrant review in a
generalized challenge that is otherwise poorly suited for
adjudication. Id. at 149. But the Court has explained that such
hardship cannot be established when an agency’s interpretative
guideline does not have “adverse effects of a strictly legal
kind.” Nat’l Park Hospitality Ass’n, 538 U.S. at 809. National
Park Hospitality Ass’n held unripe for review the National
Park Service’s “general statemen[t] of policy” on how the
Contract Disputes Act applied to concession contracts in the
national parks. Because the National Park Service lacked
authority to promulgate legally binding rules interpreting the
Contract Disputes Act, the disputed statement could not have
legal effects “required for a showing of hardship.” Id.

The simple point here is that it is impossible to review
ATRA’s challenge outside the context of a particular state tort
action in which preemption is at issue. And the parties agree
that a court, not OSHA, “must determine in each particular
case whether there is an applicable federal safety standard and
whether a state requirement, such as a common law obligation,
makes it impossible for parties to comply with federal law.”
Br. of Pet’r at 46-47; accord Br. for OSHA and the Dep’t of
Labor at 19 (“[A] state law must yield when there is a conflict
between federal and state law.”).

“In sum, we find it too speculative whether the problem
[ATRA] presents will ever need solving; we find the legal
issues [ATRA] raises not yet fit for our consideration, and the
hardship to [ATRA] of biding its time insubstantial.
Accordingly, we agree with [OSHA] that this matter is not ripe
for adjudication.” Texas v. United States, 523 U.S. at 302.
 15

III. CONCLUSION

For the foregoing reasons, we deny ATRA’s petition
for review.

So ordered.

ENDNOTES
1
Available at OSHA Website, Standard Interpretations (Archived), Part
1926, Safety and Health Regulations for Construction,
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=IN
TERPRETATIONS&p_id=20702.
2
Available at OSHA Website, Standard Interpretations, 1996, Guidelines
for Workplace Violence Prevention Programs for Night Retail
Establishments,
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=IN
TERPRETATIONS&p_id=22281.
3
Available at OSHA Website, Standard Interpretations, 2007, Employer
Liability and Payment Requirements for Prescription Protective Eyewear,
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=IN
TERPRETATIONS&p_id=25893.
4
Available at OSHA Website, Standard Interpretations, 2007,
Clarification of OSHA’s Position on Preemption Precluding State Court
Findings with Regard to Defective NIOSH-Certified Respirators,
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=IN
TERPRETATIONS&p_id=28049.