Hunton Andrews Kurth special counsel and former NLRB general counsel Ronald Meisburg recently wrote an article, “Navigating NLRB: Attacking Instability With APA Rulemaking”, as part of Law360’s Expert Analysis series. You can read the full article here.
In May 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule to “Improve Tracking of Workplace Injuries and Illnesses, “ which requires employers to electronically submit their injury and illness records to OSHA. Specifically, establishments with 250 or more employees must annually submit their Forms 300, 300A, and 301. And, establishments with 20 to 249 employees must annually submit their Form 300A. Prior to this rule, most employers had no obligation to submit their illness/injury logs to OSHA. This rule has been controversial, as OSHA intends to post the records, subjecting employers to increased scrutiny by investors, business partners, regulators, and the public at large. Moreover, many employers are skeptical that OSHA will appropriately safeguard individualized confidential information from public disclosure.
Federal agencies need not go through the formal and drawn-out “notice-and-comment” process when altering an interpretation of a regulation. In a unanimous decision, the Supreme Court in Perez v. Mortgage Bankers Association stated that the Administrative Procedure Act (the “APA”) does not mandate notice-and-comment rulemaking for interpretive rules. In doing so, the Supreme Court overturned the doctrine established by the D.C. Circuit’s 1997 decision, Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997), which had held that an agency must use the APA’s notice-and-comment procedures prior to issuing a new interpretation of a regulation that deviates significantly from a definitive interpretation the agency had previously adopted. In Perez, the Supreme Court addressed the question of whether the Paralyzed Veterans doctrine was consistent with the APA, ultimately finding that it was not.