American Iron & Steel Institute v. Occupational Safety & Health Administration

AMERICAN IRON AND STEEL INSTITUTE, for itself and on behalf of its members, Petitioners,

v.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION; United States Department of Labor,
Respondents,

United Steelworkers of America, AFL-CIO-CLC, Intervenor.

American College of Occupational and Environmental Medicine, Petitioner,

v.

Occupational Safety and Health Administration; et al., Respondents,

American Association of Occupational Health Nurses; American Nurses Association, Intervenors.

Nos. 98-6146, 98-6334.

United States Court of Appeals,

Eleventh Circuit.

Aug. 3, 1999.

Petitions for Review of Final Rulemaking by the Occupational Safety and Health Administration.

Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and FORRESTER*, District Judge.

ANDERSON, Chief Judge:

These consolidated cases seek judicial review of the Occupational Safety and Health Administration's

("OSHA") new standard for respiratory protection in the workplace. The separate challenges are brought by

the American Iron and Steel Institute ("Industry") and the American College of Occupational and

Environmental Medicine ("Doctors") and relate to different aspects of the new standard. For the reasons that

follow, we conclude that OSHA correctly applied the law and that its factual determinations were supported

by substantial evidence, and therefore the petitions for review are DENIED.

I. BACKGROUND

The Occupational Safety and Health Act of 1970 ("OSH Act"), 29 U.S.C. §§ 651-678, was enacted

*
Honorable J. Owen Forrester, U.S. District Judge for the Northern District of Georgia, sitting by
designation.
to ensure safe and healthy working conditions for employees. The OSH Act empowers OSHA to promulgate

standards "dealing with toxic materials or harmful physical agents ... which most adequately assure[ ], to the

extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment

of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such

standard for the period of his working life." 29 U.S.C. § 655(b)(5). One such hazard is caused by harmful

dusts, fumes, gases, and the like that contaminate the atmospheres in many workplaces. OSHA began to

regulate employee exposure to such contaminants as early as 1971. In January 1998, OSHA issued a new

regulatory standard representing a comprehensive revision of those portions of the old standard which

addressed the manner and conditions of respirator use ("Standard"). See 63 Fed.Reg. 1152 (Jan. 8, 1998)

(codified at 29 C.F.R. § 1910.134). It is the Standard that is at issue in this case.

A. History of Respiratory Regulation

In 1971, while OSHA was still in its infancy, it promulgated an initial respiratory protection standard

pursuant to § 6(a) of the OSH Act, 29 U.S.C. § 655(a). Section 6(a) authorized OSHA to adopt national

consensus standards as occupational safety and health standards in a prompt manner, without the lengthy

procedures normally incident to administrative rulemaking, during a period of two years from the OSH Act's

effective date. Under that framework, OSHA adopted the American National Standards Institute ("ANSI")

Standard Z88.2-1969, "Practices for Respiratory Protection." That standard reflected a preference for

engineering controls over respirators;1 in effect, it allowed respirators only "[w]hen effective engineering

controls are not feasible, or while they are being instituted." This restriction on the use of respirators,

sometimes referred to as the Hierarchy-of-Controls Policy, thus became an ingrained part of OSHA's

regulatory framework, and was codified at 29 C.F.R. § 1910.134(a)(1).

The authority that was conferred by § 6(a) to codify national consensus standards as federally

1
A respirator is "an enclosure that covers the nose and mouth or the entire face or head" with the goal
of "prevent[ing] the inhalation of harmful airborne substances or oxygen-deficient air." 63 Fed.Reg. at
1158. Engineering controls, by contrast, are structural methods of arresting harmful contaminants at their
source and preventing them from entering the general workplace area—"for example, enclosure or
confinement of the operation, general and local ventilation, and substitution of less toxic materials." 29
C.F.R. § 1910.134(a)(1).
mandated occupational safety and health standards expired in 1973, but the respiratory protection standard

remained intact. After 1973, OSHA was bound to follow § 6(b) of the OSH Act, 29 U.S.C. § 655(b), in

promulgating, modifying, or revoking standards. Section 6(b) requires the notice and comment procedures

typical to administrative rulemaking.2 Various parts of the old respiratory protection standard were revised

and updated over the years pursuant to § 6(b), but the changes were relatively minor. The Standard was

limited to issues relating to the manner and conditions of use of respirators, and retained the Hierarchy-of-

Controls Policy as reflected in § 1910.134(a)(1).

The issuance of the Standard in 1998 was the culmination of several years of regulatory debate,

hearings, and comment from industry, labor, and other interested persons. OSHA first published an advance

notice of proposed rulemaking on May 14, 1982. See 47 Fed.Reg. 20803. On September 17, 1985, OSHA

announced the availability of a preliminary draft of a new respiratory protection standard. On November 4,

1994, OSHA published a proposed version of the new respiratory protection standard, and the hearing

required by 29 U.S.C. § 655(b)(3) was held June 6, 1995. Following the hearing, OSHA obtained additional

comments from interested parties. The final Standard was published on January 8, 1998 and became effective

on April 8, 1998.

B. Highlights of the Standard

The Standard retains the Hierarchy-of-Controls Policy, which as a general matter prefers engineering

controls over respirators worn by individual employees. 29 C.F.R. § 1910.134(a)(1). However, the employer

is required to provide respirators for its employees when respirators are necessary to protect their health. 29

C.F.R. § 1910.134(a)(2). The Standard requires certain employers to develop and implement a written

respiratory protection program that includes several mandatory items. 29 C.F.R. § 1910.134(c). Employers

are required to select particular types of respirators based on certain criteria, such as the nature of harmful

2
OSHA must first publish a proposed rule promulgating, modifying, or revoking an occupational
safety or health standard in the Federal Register and give interested parties a 30-day comment period. 29
U.S.C. § 655(b)(2). Interested parties have the right to demand a public hearing by filing objections
within that time period. 29 U.S.C. § 655(b)(3). The final rule can be issued only upon the expiration of
60 days after the later of the termination of the comment period, or the completion of the public hearing.
29 U.S.C. § 655(b)(4).
contaminants and workplace and user factors. 29 C.F.R. § 1910.134(d). In this regard, atmospheres in

workplaces are classified into two categories: "immediately dangerous to life and health" ("IDLH"), and

non-IDLH. Only certain highly effective types of respirators may be used in IDLH atmospheres. 29 C.F.R.

§ 1910.134(d)(2). With respect to non-IDLH atmospheres, the Standard permits an employer to choose

between atmosphere-supplying respirators (i.e., those with a self-equipped oxygen tank) and the less

burdensome air-purifying respirators (i.e., those which merely filter the incoming air). 29 C.F.R. §

1910.134(d)(3)(iii). However, air-purifying respirators are usable only if certain specified steps are taken to

ensure that the filtering device is working and maintained properly. 29 C.F.R. § 1910.134(d)(3)(iii)(B). The

medical evaluation provisions of the Standard require the employer "to provide a medical evaluation to

determine the employee's ability to use a respirator, before the employee is fit tested or required to use the

respirator in the workplace." 29 C.F.R. § 1910.134(e)(1). The medical evaluation provisions spell out the

procedures in this regard much more specifically than the prior standard. In addition, whereas licensed

physicians were responsible for such medical evaluations under the prior standard, the Standard allows

non-physician "licensed health care professionals" to perform such evaluations to the extent allowed under

state law. 29 C.F.R. § 1910.134(e)(2). The new Standard also contains detailed provisions relating to initial

and periodic fit-testing to ensure respirators fit an employee-user's face properly, 29 C.F.R. § 1910.134(f),

proper day-to-day use of respirators, 29 C.F.R. § 1910.134(g), maintenance and care of respirators, 29 C.F.R.

§ 1910.134(h), the required quality of the breathing gases used in conjunction with an air-supplying

respirator, 29 C.F.R. § 1910.134(i), proper identification and labeling of filters, cartridges, and canisters, 29

C.F.R. § 1910.134(j), provision of training and information to employees, 29 C.F.R. § 1910.134(k), periodic

self-evaluations of an employer's written respiratory protection program to ensure that it continues to work

properly, 29 C.F.R. § 1910.134(l ), and appropriate record-keeping regarding medical evaluations and

fit-testing, 29 C.F.R. § 1910.134(m).

C. Provisions Under Attack and Alignment of the Parties

The instant petitions for review are brought by the Industry and the Doctors. The Industry challenges
three particular aspects of the Standard. First, it challenges the retention of the Hierarchy-of-Controls Policy

in § 1910.134(a)(1), and OSHA's failure even to consider revising or abrogating that policy in light of its

revision of the rest of the regulation. Second, it challenges § 1910.134(d)(3)(iii)(B) and the conditions placed

upon the use of air-purifying respirators, as opposed to air-supplying respirators. Third, it challenges the

requirements in § 1910.134(f)(2) and § 1910.134(k)(5) regarding, respectively, annual fit-testing and annual

retraining, contending that less frequent fit-testing and retraining would have sufficed.

The Doctors, on the other hand, challenge only one aspect of the Standard: the provision in §

1910.134(e) enabling non-physician licensed health care professionals (e.g., nurses, physician's assistants,

etc.) to perform the medical evaluation services that were previously conducted only by physicians ("Non-

Physician Involvement Provision"). They contend that the Non-Physician Involvement Provision is defective

because OSHA failed to notify interested parties that it was considering the elimination of mandatory

physician involvement, that it is void for vagueness, and that it is not amply supported by the factual

evidence.

The United Steelworkers of America ("Steelworkers") have intervened in this litigation; the

Steelworkers defend the Standard against the Industry's attack, but adopt the Doctors' argument regarding the

Non-Physician Involvement Provision. The American Association of Occupational Health Nurses and the

American Nurses Association (collectively, "Nurses") have intervened in defense of the Non-Physician

Involvement Provision against the Doctors' attack.

II. DISCUSSION

A. Standard of Review

We must uphold OSHA's factual determinations underlying its regulations if they are supported by

substantial evidence in the record considered as a whole. 29 U.S.C. § 655(f); AFL-CIO v. OSHA, 965 F.2d

962, 969-70 (11th Cir.1992). Substantial evidence is "such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion." American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490,

101 S.Ct. 2478, 2497, 69 L.Ed.2d 185 (1981). "All that need be shown is that OSHA's determination is
supported by substantial evidence presented to or produced by it and does not rest on faulty assumptions or

factual foundations." Color Pigments Mfrs. Ass'n v. OSHA, 16 F.3d 1157, 1160 (11th Cir.1994). OSHA's

policy decisions are entitled to the same deference. AFL-CIO, 965 F.2d at 970. Of course, questions of law

are reviewed de novo.

B. The Industry's Challenge

1. Retention of the Hierarchy-of-Controls Policy

The Industry's first challenge to the Standard is addressed to the retention of the Hierarchy-of-

Controls Policy from the prior standard.3 The Hierarchy-of-Controls Policy reflects a general preference for

engineering controls, which eliminate or arrest pollution at the source, over respirators in reducing employee

exposure to airborne contaminants. Although it comprehensively revised those aspects of the prior standard

relating to the manner and conditions of respirator use, OSHA altogether excluded the Hierarchy-of-Controls

Policy from the rulemaking proceeding. Consequently, the Hierarchy-of-Controls Policy was not open to

comment or scrutiny. In the issuing release for the Standard, OSHA explained its position in the following

way:

By leaving paragraphs (a)(1) and (a)(2) of the final rule unchanged from the corresponding
paragraphs of the respiratory protection standard that has been in effect since 1971, OSHA ....
continues the protection that employees have relied on, .... retains the language that employers are
familiar with, .... [and] allows OSHA and the affected public to continue to rely on OSHA
interpretations....

....

The unchanged language of paragraph (a)(1) was included in the language of the proposed
rule only to enable interested parties to view the rule as it would ultimately appear in the Code of
Federal Regulations in its entirety. Since OSHA neither proposed nor adopted modifications to
proposed paragraph (a)(1), the Agency believes that it is not legally required to reconsider this issue
at this time. OSHA has the authority to identify which regulatory requirements it is proposing to
revise and which issues are to receive regulatory priority. Limiting this rulemaking to issues
concerning respirator programs is appropriate because such programs are the exclusive focus of this
rulemaking and to collect comments and data on additional issues would divert resources from the

3
The Hierarchy-of-Controls Policy provides that the prevention of atmospheric contamination must be
"accomplished as far as feasible by accepted engineering control methods (for example, enclosure or
confinement of the operation, general and local ventilation, and substitution of less toxic materials).
When effective engineering controls are not feasible, or while they are being instituted, appropriate
respirators shall be used pursuant to this section." 29 C.F.R. § 1910.134(a)(1).
 task at hand.

63 Fed.Reg. at 1180. The Industry, for its part, contends that this position is unsupportable because it allows

OSHA selectively to insulate favored aspects of a standard from public scrutiny and judicial review. The

Industry also contends that since 1971, when the original Hierarchy-of-Controls Policy was adopted, the

factual circumstances have changed dramatically and now respirators may be every bit as effective as

engineering controls. The Industry also notes that the Hierarchy-of-Controls Policy was originally adopted

as part of a § 6(a) standard, which means that it has never been subject to the notice and comment procedures

and scrutiny attendant to most rulemakings.

Thus, the legal issue for our consideration is whether OSHA, when it was comprehensively revising

those aspects of the Standard relating to the manner and conditions of respirator use, could exclude the

Hierarchy-of-Controls Policy from the rulemaking proceeding. Logic dictates that an agency must have some

discretion in setting an agenda for rulemaking and excluding some matters categorically. Otherwise

rulemaking would be very difficult because an agency would be unable to concentrate its scarce resources

on a particular problem. Our decision in AFL-CIO v. OSHA, 965 F.2d 962 (11th Cir.1992), is instructive on

this issue. In AFL-CIO, this Court reviewed OSHA's Air Contaminants Standard, a comprehensive set of

permissible exposure limits ("PELs") for 428 toxic substances. The notice of proposed rulemaking for the

Air Contaminants Standard proposed to issue new or revised PELs for a number of substances, but "limited

the scope of [the] rulemaking to those substances for which [a private standard-setting organization]

recommended limits that were either new or more protective than the existing PELs." Id. at 969 (citing the

notice of proposed rulemaking). After issuance of the Air Contaminants Standard, industry and labor unions

attacked it from both sides in this Court.

The unions in AFL-CIO argued that by limiting the rulemaking to those substances that either (1) had

no existing PEL, or (2) for which the standard-setting organization had recommended a limit more protective

than the existing PEL, OSHA had violated the command of the OSH Act that it set standards " 'which most

adequately assure[ ] ... that no employee will suffer material impairment of health or functional capacity.'
" Id. at 984 (quoting 29 U.S.C. § 655(b)(5) (alterations in original)). The court rejected this argument:

[W]e [do not] find a requirement that OSHA include all possible substances in one rulemaking.
OSHA has never claimed that the Air Contaminants Standard constituted the entire universe of
substances needing regulation, and it seems reasonable that some limit needed to be set as to what
substances could be considered in this rulemaking. The list of [the standard-setting organization's]
recommendations is a rational choice as the source for that limitation. [Those] recommendations are
well known to industry and the safety and health community. Therefore, we find that the agency's
choice to so limit this rulemaking is a valid exercise of OSHA's authority to set priorities for
rulemaking.

Id.

The union brought a separate challenge to a decision by OSHA "to defer issuing standards for

monitoring and medical surveillance of the new PELs until a later rulemaking." Id. at 985. Under § 6(b)(7)

of the OSH Act, occupational safety and health standards are required to provide for "monitoring or

measuring employee exposure," and to prescribe medical examinations and tests, where appropriate. 29

U.S.C. § 665(b)(7). The union claimed that OSHA violated this requirement by promulgating the Air

Contaminants Standard without simultaneously promulgating monitoring and medical surveillance rules with

respect to that standard. We also dismissed this argument, holding that this was "purely a matter of regulatory

priority" with respect to which the agency had ample discretion. AFL-CIO, 965 F.2d at 985. Thus, OSHA

was permitted to wait and address monitoring and medical surveillance at another point.

While AFL-CIO suggests that the agency's chosen scope of rulemaking is a matter subject to judicial

review, it also stands for the proposition that such review is rather limited and deferential in nature. With

respect to avoiding consideration of substances for which the private standard-setting organization had not

recommended a more protective PEL, we held that it was reasonable for OSHA to confine its rulemaking in

that manner. With respect to monitoring and medical surveillance, we allowed OSHA to postpone

consideration of those issues until a later date. AFL-CIO did not precisely define the standard of review of

an agency's choice of scope for a particular rulemaking, and we need not do so today. It is clear, however,

that the standard of review is at least as deferential as a reasonableness standard.

We hold that the decision to exclude the Hierarchy-of-Controls Policy from revision was reasonable.

The Standard deals with appropriate measures for employers to take with respect to respirator use; for
example, training, maintenance, quality of device, etc., are included within its ambit. These matters are not

necessarily factually intertwined with the propriety of implementing engineering controls, if feasible, rather

than resorting to respirators. The Industry has presented nothing to this Court to lead us to believe that the

alleged technological improvement in respirators substantially alters the comparative benefits of engineering

controls versus respirators. To the contrary, it appears that the major rationale for engineering controls is that

they make respiratory protection automatic, while respirators are dependent on use and constant attention and

are subject to human error. Of course, technological improvement in respirators is not likely to reduce

substantially the risk of human error, and in any event no such suggestion has been made in this case. Under

these circumstances, it was not unreasonable for OSHA to determine that allowing submission of evidence

about the relative merits of engineering controls and respirators would have distracted attention from and

clouded the essential issues before it, namely, how respirators should be used if they are used.4 Like the AFL-

CIO court, we hold that "the agency's choice to so limit this rulemaking" by excluding the Hierarchy-of-

Controls Policy from consideration "is a valid exercise of OSHA's authority to set priorities for rulemaking."

AFL-CIO, 965 F.2d at 984. The Industry has failed to demonstrate that OSHA's decision was unreasonable.

We also conclude that the fact that the original Hierarchy-of-Controls Policy was promulgated

pursuant to § 6(a)'s abbreviated procedures, rather than the usual § 6(b) notice-and-comment proceedings,

bears no special significance in this analysis. Section 6(a), 29 U.S.C. § 655(a), authorized OSHA for a

limited time (through 1973) to adopt existing national consensus standards as occupational safety and health

standards without the rigors of notice-and-comment proceedings. The Hierarchy-of-Controls Policy, having

been originally adopted pursuant to § 6(a), has thus never undergone public scrutiny, unlike most of the

4
We have some concern about one apparent discrepancy in the record. In 1989, OSHA initiated a
rulemaking proceeding to consider revisions that would have altered the Hierarchy-of-Controls Policy
and liberalized the use of respirators in lieu of engineering controls. When it later withdrew this
rulemaking, see 59 Fed.Reg. 20650 (Apr. 25, 1994), OSHA's stated explanation was that "any changes to
the policy for use of engineering controls must be closely coordinated with revisions in the respiratory
protection regulations." Id. This explanation seems inconsistent with OSHA's current position that the
Hierarchy-of-Controls Policy is a sufficiently different subject matter that it is reasonably separable from
the issues dealt with in the Standard. However, we cannot place too much weight on this remark. Even if
OSHA at one time thought it would be appropriate to consider the two matters together, that says little
with respect to the issue of whether it might also be reasonable to consider the two matters separately.
standards that are in effect today. The Industry makes much of the fact that the Hierarchy-of-Controls Policy

has eluded comment and scrutiny for 28 years in this manner. Although this situation may be undesirable

from a public policy standpoint,5 it is fully consistent with the language Congress used for § 6(a). The plain

language of § 6(a) causes it to operate "[w]ithout regard to ... the other subsections of this section." 29 U.S.C.

§ 655(a). Further, although OSHA's authority to promulgate standards under § 6(a) expired in 1973, there

is no statutory provision causing standards adopted under § 6(a) themselves to expire at any time.6 Rather,

a § 6(a) "start-up" standard continues in effect until it is modified or revoked by a new rulemaking initiated

under § 6(b).7 See AFL-CIO, 965 F.2d at 968-69 (referring to the possibility of updating a § 6(a) standard,

the court pointed out that the statute provides two mechanisms to revise existing standards, i.e., a § 6(b)

proceeding or, in the case of a need for an emergency temporary standard, a § 6(c) proceeding). Because the

statute treats § 6(a) standards and § 6(b) standards as having equal force of law once they are promulgated,

the fact that the Hierarchy-of-Controls Policy originated under § 6(a) rather than under § 6(b) does not affect

our analysis of whether OSHA was bound to reconsider it here.

The Industry also implies that the Hierarchy-of-Controls Policy has outlived its validity under § 6(a)

5
On the other hand, the apparent rationale for the abbreviated procedures in § 6(a) was that OSHA was
authorized under § 6(a) only to adopt pre-existing "national consensus standards." A "national consensus
standard" is defined as "any occupational safety and health standard or modification thereof which (1) has
been adopted and promulgated by a nationally recognized standards-producing organization under
procedures whereby it can be determined by the Secretary that persons interested and affected by the
scope or provisions of the standard have reached substantial agreement on its adoption, (2) was
formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has
been designated as such a standard by the Secretary, after consultation with other Federal agencies." 29
U.S.C. § 652(8).
6
Compare § 6(c) of the OSH Act, 29 U.S.C. § 655(c), which provides for "emergency temporary
standards" that must be followed by a full-scale § 6(b) rulemaking on the same subject matter within six
months, see 29 U.S.C. § 655(c)(3). The absence from § 6(a) of a similar provision mandating a follow-up
§ 6(b) proceeding suggests that § 6(a) proceedings have an indefinite life.
7
The Industry cites excerpts from legislative history indicating a Congressional view that § 6(a)
standards would be merely temporary pending plenary action by OSHA. Assuming arguendo that these
excerpts genuinely reflect Congress's intent, they do not give us license to disregard the plain language of
the OSH Act, which allows § 6(a) standards to continue in effect indefinitely. We cannot judicially
supply an expiration date, or an enforceable obligation to reconsider, when Congress has not seen fit to
enact any such provision.
because it no longer represents a national consensus standard. This argument is without merit because the

Industry has proffered no evidence that the Hierarchy-of-Controls Policy no longer represents the national

consensus standard. To the contrary, the most recent national consensus standard, ANSI Standard Z88.2-

1992, § 4.2, retains the Hierarchy-of-Controls Policy.8 Thus, the Industry has failed to demonstrate that

OSHA's decision to limit the instant rulemaking to issues relating to the manner and conditions of respirator

use was unreasonable.

For the foregoing reasons, we reject the Industry's challenge to the retention of the Hierarchy-of-

Controls Policy.

2. Change Schedule Requirement for Air-Purifying Respirators

We turn next to the Industry's challenge to the conditions expressed in 29 C.F.R. §

1910.134(d)(3)(iii)(B) on the use of air-purifying respirators. By way of background, there are two categories

of respirators. First, there are atmosphere-supplying respirators ("ASRs"), which "suppl[y] the respirator user

with breathing air from a source independent of the ambient atmosphere," e.g., an oxygen tank. 29 C.F.R.

§ 1910.134(b). Second, there are air-purifying respirators ("APRs"), which use the air from the ambient

atmosphere but are equipped with a filter, cartridge, or canister designed to remove air contaminants before

they reach the user and are inhaled. Id. The main shortcoming associated with APRs is that the filters,

cartridges, or canisters generally have a limited lifetime and may cease to function properly without the user's

knowledge, thereby exposing the user to toxic contaminants. This situation is sometimes called the

"breakthrough problem." Of course, the breakthrough problem "is avoided entirely by the use of [ASRs].

Such respirators do not rely on filter sorbents and instead deliver clean outside air to the wearer's respirator."

63 Fed.Reg. at 1204. The Industry generally prefers APRs because they are cheaper and interfere less with

workplace duties.

The Standard provides that in workplace atmospheres that are not immediately dangerous to life and

8
If a party showed that the factual underpinning for a particular standard had evaporated, that might be
relevant to the reasonableness of OSHA's decision to exclude the standard from a related proceeding; or,
on the other hand, that might constitute a basis for the party to petition OSHA to modify or revoke the
standard pursuant to § 6(b)(1).
health ("non-IDLH"), an APR may be used only if one of two conditions is met. 29 C.F.R. §

1910.134(d)(3)(iii). First, an APR may be used if it is equipped with an end-of-service-life indicator

("ESLI"); the parties agree that this is very rare because there are only a few certified ESLIs. 29 C.F.R. §

1910.134(d)(3)(iii)(B)(1). Second and alternatively, an APR may be used if "the employer implements a

change schedule for canisters and cartridges that is based on objective information or data that will ensure

that canisters and cartridges are changed before their end of service life." Id. § 1910.134(d)(3)(iii)(B)(2).

The Industry's disagreement with OSHA centers on this latter condition ("Change Schedule Condition"),

which it feels is overly stringent and unnecessarily limits the use of APRs.

The Change Schedule Condition approach was selected by OSHA to the exclusion of a competing

approach, discussed in the proposed standard and drawn from prior informal practice. The prior practice

relied on a totally different criterion: whether the substance in question had "adequate warning properties."

Adequate warning properties are characteristics, for example gaseous odor or skin irritation, that would alert

a user to the fact that the cartridge or canister had reached the end of service life and was no longer working

properly. If the user would be alerted to a malfunction, the reasoning went, there would be no risk of

contamination because the user could then promptly change the cartridge or canister. The Standard abandons

the reliance on adequate warning properties in favor of the more objective criteria of ESLIs and change

schedules. 63 Fed.Reg. at 1204-07. As OSHA explains, "there is too much variation between individuals

[in perception of sensory thresholds], ... there is no good screening mechanism to identify persons with

sensory receptor problems, and ... employees [would] be overexposed to hazardous air contaminants." Id.

at 1204. The new conditions are admittedly narrow because (1) ESLIs are extremely rare; and (2) the

breakthrough test data upon which change schedules are generally based are not available for many hazardous

gases and vapors. In the issuing release, OSHA conceded that breakthrough test data are scarce, and implied

that to some extent the Standard is "technology-forcing": "[R]espirator manufacturers, chemical

manufacturers, and even [the National Institute for Occupational Safety and Health] must provide more

information about how long respirator cartridges and canisters can be expected to provide protection for
employees." Id. at 1205. The Industry argues that the Change Schedule Condition leads to an overwhelming

preference for ASRs that may actually increase the risk of accidents because ASRs tend to be bulky and

cumbersome, and employees in some lines of work are accustomed to using APRs. According to the Industry,

these problems with ASRs represent an "important aspect of the problem" which OSHA "entirely failed to

consider." See generally Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42, 103

S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983).

OSHA responds that the Change Schedule Condition does not automatically favor ASRs. In fact,

compared to the adequate-warning-properties approach, the Change Schedule Condition in some ways

permits wider use of APRs. Whereas under the prior regime APRs could be used only if the toxic substance

carried adequate warning properties, now APRs can be used even if there are no warning properties, provided

that a reliable change schedule is in place. Thus, the Change Schedule Condition restricts the use of APRs

in some ways but expands the use of them in others. OSHA further contends that the Industry's concerns

about weight and mobility problems associated with ASRs are overstated. Finally, OSHA notes that even

if breakthrough data are not widely available, employers may rely on other information, for example, change

schedule recommendations from respirator manufacturers, as long as that information is reliable. OSHA also

calls on the respirator industry to disseminate change schedule information more widely and effectively. 63

Fed.Reg. at 1205.

Because the Industry's challenge to the Change Schedule Condition is exclusively factual in nature,

our review is limited to whether OSHA's determinations are "supported by substantial evidence in the record

considered as a whole." 29 U.S.C. § 655(f). After reviewing the record, we conclude that OSHA's decision

to replace the subjective adequate-warning-properties approach with the Change Schedule Condition is

supported by substantial evidence. There was a consensus among commentors that inherent unreliability

problems exist with odor and irritation thresholds. See 63 Fed.Reg. at 1204-06. Change schedules based on

"objective information or data" better promote worker safety by ensuring on a consistent basis that APRs are

properly serviced and maintained. Moreover, the record belies the Industry's argument that OSHA entirely
failed to consider the fact that ASRs tend to be bulky and cumbersome. The record reflects that OSHA did

consider the uncomfortableness and mobility restrictions caused by APRs and weighed those factors in the

balance. 63 Fed.Reg. at 1204 (quoting Associated Builders and Contractors' comment). Thus, the factual

determinations and policy choices underlying the Change Schedule Condition are consistent with the OSH

Act and supported by substantial evidence.

3. Annual Fit-Test and Retraining Requirements

We turn next to the Industry's challenge to the provisions in the Standard requiring annual fit-testing

and retraining of respirator-using employees. See 29 C.F.R. § 1910.134(f)(2), (k)(5). With respect to the

annual fit-testing requirement, a respirator cannot function properly unless it is properly fitted to the wearer's

face. Accordingly, the Standard requires in paragraph (f) that an employee be fit tested with a respirator of

the same make, model, style, and size as is proposed to be used, before he actually begins to use one in the

course of employment. The Industry does not object to this initial-test requirement, but does object to a

requirement in (f)(2) that wearers be tested at least annually following the initial test.

With respect to the annual retraining requirement, the Standard requires in paragraph (k) that "the

employer ... provide effective training to employees who are required to use respirators." Training should

address the necessity of respirators, fit, usage, maintenance, limitations and capabilities, emergency situations,

malfunction, inspection, and storage. See 29 C.F.R. § 1910.134(k)(1)(i)-(vii). The Industry does not object

to the initial training requirement, but does object to a requirement in (k)(5) that such training be

re-administered to employees annually. Like the challenge to the Change Schedule Condition, these

challenges are exclusively factual and therefore this Court's review is on the deferential "substantial evidence"

standard. 29 U.S.C. § 655(f).

The Industry points out that some evidence indicates that annual fit-testing is unnecessary because

only a tiny percentage of employees experience facial changes that necessitate changes in respirator fit, and

those who do can easily be detected by physical appearance.9 OSHA noted that "[c]ommenters generally

9
In this regard, (f)(3) provides that the employer must conduct a fit test whenever anyone "makes
visual observation of ... changes in the employee's physical condition that could affect respirator fit. Such
agreed that some additional fit testing beyond an initial test was necessary, but opinions varied widely on the

appropriate intervals at which such tests should be performed." 63 Fed.Reg. at 1223. "[A] large number of

rulemaking participants supported OSHA's proposal to require the testing of respirator fit on an annual basis."

Id. at 1224. We conclude that the annual fit-testing requirement is supported by substantial evidence in the

record considered as a whole.

We find that the annual retraining requirement is also supported by substantial evidence. "OSHA's

compliance experience [had] demonstrated that inadequate respirator training is a common problem, and is

often associated with respirator program deficiencies that could lead to employee exposures to workplace

contaminants." 63 Fed.Reg. at 1261-62. OSHA stated that annual retraining is necessary so that "employees

know about the respiratory protection program and ... cooperate and actively participate in the program," "so

that employees will be confident when using respirators," and to "eliminate complacency on the part of both

the employer and employees." Id. at 1261. OSHA noted that commenters requesting less frequent or no

retraining submitted no data indicating that less frequent training "would be sufficient for respirator users to

retain information critical to the successful use of respirators on an individual basis." Id. Additionally, OSHA

explained that annual retraining is the norm with respect to a number of other, substance-specific OSHA

standards that involve respirators. Id.

While retraining at some other periodic interval might also be defensible, OSHA was entitled to

require annual retraining as a precautionary measure to assure "that no employee will suffer material

impairment of health or functional capacity even if such employee has regular exposure to the hazard." 29

U.S.C. § 655(b)(5). Moreover, OSHA could conclude based on the record that annual retraining is reasonably

necessary to ensure that employee knowledge about respirators does not fall into obsolescence. Given that

conscientiousness among employees is such a critical element in the formula for success of a respirator

conditions include, but are not limited to, facial scarring, dental changes, cosmetic surgery, or an obvious
change in body weight." 29 C.F.R. § 1910.134(f)(3). This provision operates independently of the
annual fit-test requirement in (f)(2). The Industry argues that (f)(3) will effectively pick up all cases
necessitating a change in fit, leaving the automatic annual fit test called for by (f)(2) duplicative and
unnecessary.
program, OSHA could reasonably find that the Industry's suggested alternative of screening employees to

determine who needed retesting would not serve its goal of preventing misuse and "ensur[ing] a reasonable

amount of recall and performance on the part of the respirator user." 63 Fed.Reg. at 1261. We see no basis

for disturbing OSHA's factual conclusions and policy decisions in this regard.

C. The Doctors' Challenge

In their petition for review, the Doctors challenge the Non-Physician Involvement Provision in

paragraph (e) of the Standard, which for the first time allows non-physician licensed health care professionals,

as opposed to only physicians, to perform the required medical evaluations to the extent permitted under state

law. The Doctors contend that OSHA gave insufficient notice to interested parties of its intent to adopt this

new policy, that the Non-Physician Involvement Provision is void for vagueness, and that the Non-Physician

Involvement Provision is not supported by substantial evidence.10

10
The government argues that the Doctors lack standing to challenge the Standard. We are not
troubled by the standing argument. Preliminarily, the Steelworkers, an organization composed of
employees who are the beneficiaries of the OSH Act and of the Standard, have intervened and adopted
much of the Doctors' argument against the provision allowing non-physician involvement in medical
evaluations. No one questions that the Steelworkers have standing. Thus, except to the extent that the
Doctors raise points not adopted by the Steelworkers, the standing question is moot. See Planned
Parenthood of the Atlanta Area, Inc. v. Miller, 934 F.2d 1462, 1465 n. 2 (11th Cir.1991) (when one
plaintiff has standing to bring all claims in an action, the court need not inquire into the standing of the
others).

An association has standing to sue on behalf of its members if (1) the members otherwise
have standing to sue in their own right, (2) the interests the association seeks to protect are
germane to its purpose, and (3) neither the claim asserted nor the relief requested require the
participation of individual members. Hunt v. Washington State Apple Advertising Comm'n, 432
U.S. 333, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). With respect to the first prong, an
individual generally has standing to sue if (1) he has suffered injury in fact traceable to the
challenged action and redressable by the courts (constitutional standing), and (2) the interest he
seeks to vindicate falls within the zone of interests that the statute was designed to protect
(prudential standing). See, e.g., Northeastern Fla. Chapter, Associated Gen. Contractors of
America v. Jacksonville, 508 U.S. 656, 113 S.Ct. 2297, 2301-02, 124 L.Ed.2d 586 (1993); Allen
v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). We find that the
individual members of the Doctors have suffered injury in fact because of the economic injury,
i.e., loss of patients and income, inflicted by the lack of a requirement that medical evaluations be
performed only by physicians, and that this injury is redressable through judicial review of the
Standard. We can pretermit the more difficult question regarding whether the Doctors' members'
interests fall within the zone of interests protected by the OSH Act, cf. R.T. Vanderbilt Co. v.
OSHRC, 708 F.2d 570, 576-78 (11th Cir.1983) (OSH Act confers prudential standing only on
employee interests and employer interests), because prudential standing is flexible and not
1. Medical Evaluations and the Non-Physician Involvement Provision

"Medical evaluation to determine whether an employee is able to use a given respirator ... is necessary

to prevent injuries, illnesses, and even, in rare cases, death from the physiological burden imposed by

respirator use." 63 Fed.Reg. at 1207. To this end, 29 C.F.R. § 1910.134(e)(1) provides that "[t]he employer

shall provide a medical evaluation to determine the employee's ability to use a respirator, before the employee

is fit tested or required to use the respirator in the workplace." Paragraph (e) goes on to specify the

procedures that should be followed in these medical evaluations. Initially, the employee either completes a

medical questionnaire that identifies employees who may need further examination, or undergoes a physical

examination that yields the same information. 29 C.F.R. § 1910.134(e)(2). Employees for whom further

examination is indicated are then subject to a follow-up medical examination including "any medical tests,

consultations, or diagnostic procedures that the [physician or other licensed health care professional] deems

necessary to make a final determination." 29 C.F.R. § 1910.134(e)(3).

The Standard does not distinguish between physicians and other licensed health care professionals.

Rather, it allows all of the tasks associated with medical evaluations to be performed by any licensed health

care professional to the same extent as they may be performed by a physician, to the extent permitted under

state law. The Standard uses the term "physician or other licensed health care provider," which is defined

as "an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows

him or her to independently provide, or be delegated the responsibility to provide, some or all of the health

care services required by paragraph (e) of this section." 29 C.F.R. § 1910.134(b). Because licensure,

registration, and certification of health care professionals is basically a matter of state law, the Standard

essentially defers to state law on the question of who may provide the medical evaluation services required

jurisdictional in nature, see Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct.
1003, 1013, 140 L.Ed.2d 210 (1998) (suggesting that courts cannot pretermit Article III standing
issues, but can pretermit prudential standing issues, in order to resolve cases where the merits are
relatively easy). Therefore, we can assume arguendo that the Doctors' individual members would
have standing to sue in their own right. Moreover, we find that the interests sought to be
protected by the organizations here are germane to their purposes, and that participation of
individual members is not required.
by paragraph (e). In contrast, the prior standard provided that "[p]ersons should not be assigned to tasks

requiring use of respirators unless it has been determined that they are physically able to perform the work

and use the equipment. The local physician shall determine what health and physical conditions are

pertinent." 29 C.F.R. § 1910.134(b)(10) (1997) (emphasis added).

2. Whether OSHA Gave Sufficient Notice

The Doctors' first challenge to the Non-Physician Involvement Provision is that OSHA failed to

satisfy the statutory notice requirements of the OSH Act. See 29 U.S.C. § 655(b)(2) ("The Secretary shall

publish a proposed rule promulgating, modifying, or revoking an occupational safety or health standard in

the Federal Register and shall afford interested persons a period of thirty days after publication to submit

written data or comments."). The thrust of this argument is that prior to issuance of the Standard, OSHA's

proposed rule failed to give notice that OSHA was contemplating the total elimination of federally mandated

physician involvement. Rather, the Doctors argue, OSHA had suggested merely that its revisions to the

respiratory protection standard might allow non-physician health care professionals to function under the

supervision of a physician, or to perform some but not all medical evaluation tasks. The Doctors argue that

they were blindsided by an outcome that went further than any of the proposed alternatives.

The D.C. Circuit provided guidance on an analogous question in National Mining Ass'n v. Mine

Safety & Health Admin., 116 F.3d 520, 531 (D.C.Cir.1997). In National Mining Association, the regulation

at issue abandoned the Mine Safety & Health Administration's ("MSHA") longstanding policy of requiring

pre-shift examinations to determine methane and oxygen levels in a coal mine three hours before shifts begin,

in favor of a new policy requiring examinations at fixed intervals. The abandonment of the old three-hour

policy occurred suddenly in the final rule, whereas the proposed rule ("1994 Draft") had adhered to the

three-hour policy and thus no comment had been submitted to MSHA on that matter. The petitioner protested

that had it known MSHA was reconsidering the three-hour policy, it would have submitted comment pointing

out that state law already required frequent examinations, making such a change unnecessary.

The D.C. Circuit, recognizing that "[a]gencies are not limited to adopting final rules identical to
proposed rules" and that "[n]o further notice and comment is required if a regulation is a 'logical outgrowth'

of the proposed rule," identified the controlling legal principle as "whether the purposes of notice and

comment have been adequately served." National Mining Association, 116 F.3d at 531 (internal quotation

marks omitted). Specifically, notice is inadequate if "the interested parties could not reasonably have

anticipated the final rulemaking from the draft rule." Id. (internal quotation marks omitted). Applying this

test, the D.C. Circuit held that the fixed-interval examination regulation was not a "logical outgrowth" of the

1994 Draft. "The discussion accompanying the proposed rule dealt with preshift examinations in some detail,

but the agency did not mention any problems with the timing of the examinations, and it did not express any

interest in changing that aspect of the rule." Id. Since "[n]one of this would have alerted a reasonable

interested party that the final rule might alter the provisions about when preshift examinations must be

conducted," the notice was defective. Id.

In the instant proposed rulemaking, OSHA opened its discussion of medical evaluation procedures

by noting that "there appears to be considerable difference of opinion as to what circumstances should trigger

a physical examination, what the physical examination should consist of, who is to administer such an

examination, and what the specific criteria should be for passing or failing." 59 Fed.Reg. 58884, 58907 (Nov.

15, 1994) (emphasis added). Further and more specifically, OSHA said that "[c]ommenters questioned the

preproposal draft requirement that the medical evaluation be performed by a licensed physician. .... OSHA

requests comments on this issue and on the extent of the role that should be given to [non-physician] health

professionals." Id. at 58910. The extent of non-physicians' appropriate role was also thoroughly explored

at the public hearings on the Standard, as is demonstrated by the transcripts of those hearings.

Under these circumstances, interested parties were adequately put on notice that the Standard might

establish an expanded role for non-physician health care professionals and, concomitantly, a diminished

mandatory role for physicians. The Doctors could reasonably have anticipated that the final Standard might

eliminate a mandatory role for physicians. See Alabama Power Co. v. OSHA, 89 F.3d 740, 744 n. 2 (11th

Cir.1996) (notices of proposed rulemaking and hearing sufficiently put petitioners on notice that OSHA was
proposing to regulate not only synthetic, but also natural, fabrics, because the notices requested comments

pertaining to the flammability of fabrics generally); United Steelworkers of America v. Schuylkill Metals

Corp., 828 F.2d 314, 317-18 (5th Cir.1987) (notice of proposed rulemaking regarding anti-retaliation

regulations that solicited comment as to "the appropriate scope of protection" for employees removed from

dangerous workplaces gave adequate notice that production bonuses might be included as protected

employment privileges in the final standard). This is so even though language in the draft standards did not

go so far as to eliminate any federally mandated role for physicians. The Non-Physician Involvement

Provision was a "logical outgrowth" of the notice-and-comment process.

3. Void-for-Vagueness

The Physicians' second argument is that the Non-Physician Involvement Provision is "so vague,

indefinite and incapable of consistent and uniform enforcement that it contravenes the OSH Act and the

constitutional guarantee of due process." According to the Physicians, the definition of "physician or other

licensed health care provider" in § 1910.134(b) is inherently circular and ambiguous and employers cannot

be certain whether they are in compliance with the standard. We reject this argument as wholly without merit.

First, we apply the void-for-vagueness doctrine outside of the First Amendment context only rarely. A rule

that does not reach constitutionally protected conduct is not void for vagueness unless it is "impermissibly

vague in all of its applications." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102

S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982); see also Exxon Corp. v. Busbee, 644 F.2d 1030, 1033 (5th Cir.

May 11, 1981) (appropriate test is whether statute is "substantially incomprehensible"), cert. denied, 454 U.S.

932, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981). Under § 1910.134(e), an employer must arrange for medical

evaluations performed on respirator-using employees by "an individual whose legally permitted scope of

practice ... allows him or her to independently provide, or be delegated the responsibility to provide," the

service of administering a medical evaluation. 29 C.F.R. § 1910.134(b). This language is neither

impermissibly vague in all its applications nor substantially incomprehensible. Employers may consult state

law to determine to what extent, if any, a non-physician health care professional may be used to satisfy the
Standard.

Second, the thrust of the Non-Physician Involvement Provision is permissive rather than prohibitory.

It expands an employer's range of options, permitting him to retain a non-physician licensed health care

professional to perform medical evaluations in lieu of a physician, to the extent permitted by state law. The

void-for-vagueness doctrine typically applies where a statute prohibits conduct without clearly defining that

conduct. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1075, 71 L.Ed.2d 152

(1982). The Non-Physician Involvement Provision, in contrast, does not prohibit employers from doing

anything. The Physicians cite no case law extending the void-for-vagueness doctrine to invalidate a clause

whose sole effect is to give a regulated person an additional, optional means of compliance with a statute or

regulation.

4. Whether Supported by Substantial Evidence

Finally, we turn to the question whether OSHA's decision to allow non-physician licensed health care

professionals to provide medical evaluation services to the same extent as physicians is supported by

substantial evidence in the record as a whole. OSHA's statement in the notice of proposed rulemaking that

it was considering diminishing the role of physicians in the medical evaluation process provoked a wide range

of comment from multiple perspectives. As OSHA explains in the preamble to the Standard, some

commenters recommended that non-physicians be permitted to administer questionnaires under the

supervision of a physician. 63 Fed.Reg. at 1211. Some commenters recommended that only physicians be

involved in medical evaluation programs. Id. Some commenters recommended that only health care

professionals with certain degrees of specialization in occupational medicine be involved, without regard to

whether they were physicians or not. Id. OSHA decided to allow non-physician licensed health care

providers to perform medical evaluations to the extent allowed under state licensure laws. OSHA cited record

evidence that non-physician health care professionals generally are qualified to assess an employee's ability

to use a respirator based on uniform, accepted medical questionnaires, that they have in fact done so safely

and effectively on many occasions, and that permitting their involvement would contribute to an "efficient
and effective allocation [of] health care resources." Id. at 1212. Moreover, OSHA concluded that

non-physician health care professionals are capable of identifying cases that need to be referred to physicians,

and would so refer cases when necessary or appropriate. OSHA noted the absence of any record support for

continuing the mandatory, exclusive role of physicians. Id.

We have reviewed the record and find OSHA's decision to be supported by substantial evidence.11

While the comments were extremely varied, a common thread running through many of the comments was

that registered nurses, physician's assistants, and other such health care providers are well-equipped to

perform basic medical functions, such as assessing responses to medical questionnaires, provided that

appropriate measures are in place for referring non-routine cases to a physician. There also was evidence

from several commenters to the effect that they had safely and efficaciously used non-physician licensed

health care professionals in the past for medical evaluations involving respirators. 63 Fed.Reg. at 1212.

Moreover, the Non-Physician Involvement Provision does not automatically allow non-physician individuals

11
One point made by the Doctors warrants special attention. The Doctors call our attention to a
statement in the issuing release that "an insufficient number (slightly more than 2,000 nationally) of
[physicians with training and experience in occupational medicine] are available for [the purpose of
conducting medical evaluations]." 63 Fed.Reg. at 1211. According to the Doctors, this statement is flatly
erroneous and there actually are as many as 127,946 physicians with training in occupational medicine.
(The 2,000 number appears to represent the number of board-certified occupational physicians.) One of
OSHA's rationales for expanding the role of non-physician licensed health care professionals was that
there is a shortage of physicians available to do this type of work. If OSHA actually relied on the number
2,000 in making its decision, the factual support for the Non-Physician Involvement Provision would be
subject to serious doubt.

Nevertheless, after reading the number 2,000 in the overall context of OSHA's issuing
release, we are not troubled. During the evolution of the Standard into its final form, OSHA did
not have before it a simple, dichotomous choice between mandatory physician involvement and
the Non-Physician Involvement Provision. Rather, it was faced with a plethora of alternatives
and suggestions from all angles. One of those suggestions was that the medical evaluation
provision should rely on board-certified occupational physicians, as opposed to other types of
physicians. The reference to the 2,000 number should be read in the context of OSHA's rebuttal
of this particular argument, not as a statement that involvement of non-physicians is necessary
because only 2,000 physicians in the United States can perform these services. Although it would
have been ideal for OSHA to clarify how exactly the 2,000 number fit into its position on the
final Standard, OSHA's shortcoming in this regard does not shake our conclusion that the Non-
Physician Involvement Provision is supported by substantial evidence in the record as a whole.
We note that when OSHA summarized its factual grounds for the Non-Physician Involvement
Provision, it did not mention the 2,000 number. See 63 Fed.Reg. at 1212.
to perform medical evaluation services; rather, it merely defers to state law on the extent of permissible

involvement. State licensure laws can be trusted, as they are relied upon in similar contexts, to ensure that

individuals performing medical evaluations under the Standard have the requisite competence, and such laws

in fact typically provide for physician oversight over other health care professionals. See, e.g., Ala.Code §

34-24-292; Fla. Stat. § 458.347; O.C.G.A. § 43-34-26.1.

The Doctors also make some arguments that are more closely akin to legal challenges than factual

challenges. First, they claim that the Non-Physician Involvement Provision's deference to state law on who

may perform medical evaluations abdicates OSHA's responsibility to promote the OSH Act's policy of

uniform national standards. We reject this challenge. While the goal of the OSH Act is indeed to create

uniform national standards for worker safety, the Doctors cite no case law saying that OSHA is statutorily

bound to override state law on matters of general applicability, e.g., the licensure of health care professionals,

to the extent that those matters happen to intersect with an occupational safety or health standard. Moreover,

the Doctors have not demonstrated that the challenged deference to state law is likely to result in

nonuniformity in the quality of the evaluation workers receive or in actual worker safety and health. Second,

the Doctors suggest that the decision to allow non-physician licensed health care professionals to perform

medical evaluations may have been improperly motivated by economic considerations, i.e., that it would be

too costly to require employers always to use physicians. We also reject this challenge. The record in this

case makes it clear that economic considerations were not considered improperly. Rather, the record

demonstrates that the decision to allow non-physician licensed health care professionals to perform the

necessary evaluations was influenced by factual evidence to the effect that such persons are generally

qualified to perform such services, and that state law provides an effective and sufficient way to gauge such

qualification. OSHA did not conduct a cost-benefit analysis. Indeed, contrary to the Doctors' argument, the

record suggests that economic considerations exercised little or no influence on OSHA's decision in this

regard. Cf. 63 Fed.Reg. at 1173 (explaining that OSHA's final economic analysis "did not attempt to factor

in the offsetting value of cost savings from ... allowing employers to use licensed health care providers in
addition to physicians to perform medical evaluations"). For all of these reasons, we uphold the Non-

Physician Involvement Provision.

III. CONCLUSION

For the foregoing reasons, the petitions for review are

DENIED.