DOLE v. UNITED STEEL WORKERS OF AMERICA

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Argument of Jeffrey P. Minear

Chief Justice Rehnquist: We'll hear argument next in Number 88-1434, Elizabeth Dole v. United Steelworkers of America.

You may proceed whenever you are ready, Mr. Minear.

Mr. Minear: Thank you, Mr. Chief Justice, and may it please the Court:

The Paperwork Reduction Act requires OMB to review agency information collection requests to determine whether they are necessary for the proper performance of the agency's functions.

The question in this case is whether that review process applies to the Secretary of Labor's hazard communication standard, which requires employers to compile and maintain chemical hazard information for disclosure to their employees.

I would like to being by explaining how this issue has arisen.

I will then explain why the government believes that the hazard communication standard is subject to paperwork review.

The Secretary first published a hazard communication standard in 1983.

That standard, which applied only to the manufacturing sector of the economy, directed covered employers to develop written hazard communication programs, to compile and maintain material safety data sheets, to ensure that chemical containers are properly labeled and to provide their employers with training concerning workplace chemical hazards.

OMB conducted a paperwork review of that standard and approved it in full.

The court of appeals for the Third Circuit rejected a number of judicial challenges to the 1983 standard in the decision known as Steelworkers I.

The court took the additional step of ordering the Secretary to consider extension of the standard to the entire economy.

The Secretary commenced a new rule making to consider that matter.

Respondents then initiated a contempt action, arguing that the Secretary was obligated to make that decision on the existing record.

The Third Circuit agreed in the decision known as Steelworkers II, and the court threatened the Secretary with contempt sanctions unless she issued a final decision within 60 days.

The Secretary complied with that order, and on August 24, 1987 issued a revised hazard communication standard covering both the manufacturing and non-manufacturing sectors of the economy.

He also transmitted the revised standard to OMB for paperwork review.

OMB solicited comments and conducted a public hearing on the revised standard.

Based on that record OMB disapproved the paperwork requirements associated with three provisions of the standard.

Respondents then initiated a new contempt action, arguing that the Secretary's submission of the standard to OMB violated the court's previous orders, because OMB lacked authority to review the pertinent provisions.

The court agreed and invalidated OMB's disapproval.

The court acknowledged that OMB is required to review information collection requests, but it concluded that the provisions at issue are insulated from OMB authority because they embody policy... substantive policy decision making, and because they do not require the collection of information.

The government seeks reversal of that decision.

As I stated at the outset, the Paperwork Reduction Act requires OMB to review information collection requests.

We submit that the court of appeals erred in concluding that the disapproved provisions of the hazard communication standard do not contain such requests.

We start with the language of the statute.

The Paperwork Reduction Act defines an information collection request as, among other things, a reporting or recordkeeping requirement, collection of information requirement, or other similar method calling for the collection of information.

The disapproved provisions, which required employers to compile, maintain and disclose chemical hazard information, clearly fall within that definition.

For example, the three disapproved provisions which specify an employer's obligations with respect to multi-employer worksites, FDA approved drugs and consumer products, all require employers to compile and maintain material safety data sheets in various circumstances.

Thus, the disapproved provisions plainly impose recordkeeping requirements.

Unknown Speaker: What were the specific items that were disapproved?

Mr. Minear: There are three disapproved provisions.

The first provide... applied to multi-employer worksites, and it required that the material safety data sheets be either collected at the worksite at a centralized location, or that each employer at the worksite transfer his material safety data sheets to other employers.

Unknown Speaker: How about the other two?

Mr. Minear: The other... the next disapproved provision was FDA-approved drugs.

This would require, for instance, it requires that a... for instance a hospital pharmacy, comply with the hazard communications standard.

So that, for instance, a hospital pharmacist, in addition to having to package inserts that he would normally use in evaluating the drugs, would also have to compile and maintain a material safety data sheet for each of those drugs, with the exception of pills or tablets.

The third provision--

Unknown Speaker: Didn't something have to do with labels?

Mr. Minear: --There are no... all of... two of these provisions are involved here.

The FDA-approved drug provision and the consumer products are general exemptions from the... limited exemptions from the general requirements of the hazard communication--

Unknown Speaker: How does granting an exemption require anything to be collected?

Mr. Minear: --It specifies what the particular employer's obligations might be.

For instance, this exemption--

Unknown Speaker: Well, I know, but if you exempt it then he doesn't have any obligations.

Mr. Minear: --But it was not a complete exemption, it was only a partial exemption dealing with these provisions.

Unknown Speaker: Well, I know, but nevertheless... nevertheless, the exemption didn't require the collection or reporting of any information.

Mr. Minear: OMB--

Unknown Speaker: It said sorry, Fred, you don't have to do any of that collecting--

Mr. Minear: --OMB's objection was that this exemption did not go far enough, and by not going far enough, imposed paperwork requirements on various regulated employers.

So in that sense it certainly does impose the hazard communication--

Unknown Speaker: --It did what?

Mr. Minear: --It... OMB's position was that the limited nature of the exemption subjected employers to paperwork burdens.

In this case... let's take the example of the hospital pharmacist.

Under this exemption--

Unknown Speaker: Well, to the extent it wasn't exempt, I am sure it imposed paperwork requirements.

But to the extent it was exempt, it lessened the requirement.

Mr. Minear: --And OMB's position was that the exemption did not go far enough.

And that is why it disapproved that provision.

Unknown Speaker: Mr. Minear, you went through the statutory language a little fast for me, to tell you the truth, on the collection of information.

Are you relying on the statutory provision that is quoted at page 3 of your brief when you say collection of information?

Because you left out a good deal of text, and I have a little trouble--

Mr. Minear: That is the definition for collection of information.

What I quoted to you was the definition for an information collection request.

The reason that... it might be most helpful to turn to the addendum, which has all of these materials collected.

OMB's basic responsibility is set forth in Section 3504--

Unknown Speaker: --What page is that?

Mr. Minear: --This is at page 3(a) of the statutory addendum in our brief.

Unknown Speaker: Yes.

Mr. Minear: Okay.

Section... subsection (c) of 3504 says the information collection request clearance and other paperwork control functions of the director shall include--

Unknown Speaker: Is this the statute or is this... this is the statute?

Mr. Minear: --This is the statute.

Unknown Speaker: Yeah.

Mr. Minear: Reviewing and improving... and approving information collection requests proposed by agencies.

We then turn to the definition of an information collection request, which is... appears on page 2 in the middle of the page.

The term information collection request means a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, collection of information requirement or other similar method.

It is that latter portion that I quoted.

Unknown Speaker: It says calling for the collection of information, is what it ends with.

Mr. Minear: Calling for the collection of information.

Unknown Speaker: And then that is defined with the... in the statutory provision on page 3 of your brief, isn't it?

Mr. Minear: That is right.

Unknown Speaker: And that is defined as collection of information, the obtaining or soliciting of facts or opinions by an agency.

Mr. Minear: Yes.

Through the use of written report--

Unknown Speaker: And how is this by an agency?

Mr. Minear: --Because the agency is the party that is making the request that the information be collected.

Unknown Speaker: No, no.

How is the collecting by an agency, because your... the information collection request refers to... to collection of information.

And as I understand the definition of collection of information, it refers to collection of information by agencies.

Mr. Minear: But in referring to that, the collection of information doesn't specify who the information is sent to.

It only specifies who is making the request here for obtaining or soliciting facts and opinions.

And you note, for instance--

Unknown Speaker: No, that isn't right.

The obtaining of facts, soliciting facts or information is by an agency.

Mr. Minear: --Yes.

And what the Secretary... and if you continue reading on, I think my point is clear.

Unknown Speaker: Through the use of written report forms.

Mr. Minear: Through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements.

Unknown Speaker: That is right.

Mr. Minear: And what there, we submit, is being imposed here is--

Unknown Speaker: It's a record... requirement of keeping records so that the agency will be able to get the information it wants.

Mr. Minear: --Or that it will be disclosed to the public.

If the... this provision--

Unknown Speaker: That's not what it says.

Mr. Minear: --does not specify who ultimately obtains the... information or where it would be kept.

And in terms of recordkeeping that also is defined, if we turn to the next page, to 2(a), section 17, the term recordkeeping requirement means a requirement imposed by an agency on persons to maintain specified records.

Unknown Speaker: Where are you now, Mr. Minear?

Mr. Minear: This is on page 2(a), about two-thirds of the way down, definition number 17.

And again, there term recordkeeping--

Unknown Speaker: I can't follow you.

Well, Mr. Minear, certainly the language though does seem to speak in terms of things furnished to an agency or collection by an agency.

Mr. Minear: --It's... well, I think there is a couple of responses to that.

First of all it obviously includes recordkeeping requirements.

Nothing is transmitted to an agency in the course of a recordkeeping requirement.

Rather, a party must compile the records and maintain them.

And that in fact is emphasized by the definition number 17 of recordkeeping requirements.

Unknown Speaker: What if all the agency required was telling the employer to post certain notices, some safety notices or equal employment opportunity notices?

Mr. Minear: The question would be whether the party... now, there are certain exemptions--

Unknown Speaker: No written report required?

Mr. Minear: --Yes.

But the question would be does the employer have to gather or maintain information.

Now, in the case... suppose for instance it was an NLRB publication, a notice to employers.

Unknown Speaker: Uh huh.

Mr. Minear: The employer in that situation doesn't have to gather any information; he simply has to post it.

So that most likely, under the OMB regulations, would not be covered.

In any case, most litigation matters are not covered.

There are separate exceptions that deal... exemptions that deal with litigation matters.

But our basic point and the way that OMB applies this statute is to look to whether the party who is subject to a requirement has to gather, obtain or maintain information.

That is the gist of the requirement for an information collection request.

And if there is an information collection request, and under 3504(c), the information collection request is subject to OMB review.

Unknown Speaker: I take it that a control number is required for every information request?

Mr. Minear: Yes.

And so, for instance, a... control number would have been required and was obtained for the regulation, hazard communication standard.

It does contain a control number.

Unknown Speaker: So that if the regulations here had been approved, the control number would simply be on the information request?

Mr. Minear: It would be on... in this case it is on the regulation.

On the other hand, if it's a form or a questionnaire, for instance, it would be on those forms or questionnaires.

The notion of the control number--

Unknown Speaker: Well, I take it all of the documents... that the employers had to assemble pursuant to this regulation, they would not have had to have a control number even if they had been approved?

Mr. Minear: --No.

A control number is applied to the instrument that requires the collection of information; in this case it is the regulation.

And that is... the purpose of the control number is to allow a person... among other things, to allow a person to determine whether OMB has reviewed the information collection request.

And so a party would look to the... the regulation itself, identify the control number, and that would verify that OMB had in fact reviewed it.

Now, OMB's implementing regulations, which the Third Circuit did not even acknowledge, compels the same result that I have described here.

They state that an information collection request includes any requirement or request for persons to obtain, maintain, retain, report or publicly disclose information.

Thus, OMB's regulations clearly contemplate the provisions at issue here would be subject to OMB review.

Respondents argue that the paper--

Unknown Speaker: Mr. Minear, before you go further, I share Justice White's confusion as to... as to how this exception can be possibly held to be imposing any requirement.

Is there any way that this case can be viewed as involving the regulation to which the exception is an exception?

Mr. Minear: --I am afraid I don't follow that question.

Could you repeat that?

Unknown Speaker: Well, it seems to me it is the regulation requiring the... the maintaining of these records and the giving of this information, that is... is the gravamen of the government activity that... that the parties are complaining about, not the exception to that.

Is there any way that we can regard this case as involving the principle regulation, rather than merely the scope of the exception from the regulation?

Mr. Minear: Well, I think, to clarify this, the regulation, in terms of identifying what is an information collection request, one could look at the hazard communication itself as being a general information collection request.

Its general purpose is, as stated in its very first paragraph, is to require parties to compile and maintain and disclose information.

Unknown Speaker: Right.

Why isn't that so?

Mr. Minear: So, I think that that is... that is appropriate, to view that the hazard communication standard itself, as an information collection request.

But it also can be viewed as consisting of a number of different discrete information collection requests itself.

Now, OMB will only try to carve out objections to those paperwork requirements that it finds objectionable.

And for that reason it disapproved these exemptions on the basis that they weren't broad enough.

It's, another way of looking at this problem--

Unknown Speaker: It didn't disapprove the exemption, it disapproved the substantive portion of the rule to which the exemption applied.

Mr. Minear: --Or more specifically, it disapproved the paperwork requirements of that substantive requirement.

Unknown Speaker: And the procedural status of the case permits us to view it that way?

Mr. Minear: Yes.

Unknown Speaker: Okay.

Mr. Minear: As I was saying before, the Respondents principal argument here is that the Paperwork Reduction Act should apply only to information collection requests that require submission of information directly to the government.

But as I have pointed out, that would exclude recordkeeping requirements, which is one of the main sources of coverage of the Paperwork Reduction Act, and which was, in fact, a major impetus for the passage of this act.

One of the principal concerns of the sponsors was to clarify that the predecessor act, the Federal Reports Act, did in fact cover recordkeeping requirements, and those would be subject to OMB review.

Unknown Speaker: Mr. Minear, their point is, I think, that it covers recordkeeping requirements that, when the records are kept for inspection by the government to carry out its law enforcement responsibilities, like OPA used to require business to keep all sorts of records.

That's the kind of thing they wanted to be sure... it wasn't to keep, to have records for investigation or inspection by third parties, was it?

Mr. Minear: Well, first we disagree with that, because I think that the Act has no express provision, nothing in the text suggests concretely that regular recordkeeping requirements that have, would not be viewed by the government, would be covered.

The definition of recordkeeping requirement describes any recordkeeping requirement... any requirement that a person maintains specified records.

OMB has clarified that in its regualtions to indicate that in fact it does include records that are simply maintained for... by an individual, and are not reviewed by the government.

In any event, the records that are maintained here are reviewed by OSHA.

For instance, the multi-employer worksite provision requires that the parties... prepare a written hazard communication program describing how the hazard communication program would apply in multi-employer worksites.

That written form must be on the site when an OSHA inspector comes to visit and inspect.

And that's one of the ways in which he insures compliance, by the fact that there is a written report, the written hazard communication program, that describes his obligations and how he is fulfilling them.

So, in fact, the only difference between the OSHA situation and the SEC situation is that, in OSHA... in the OSHA case the OSHA inspector goes to the plant, while in the case of the SEC inspection, the materials are mailed to the SEC office in Washington.

Unknown Speaker: Well, say the labor board entered an order saying there was unfair labor practice and required that notices be posted to the employees telling them that steps had been taken to comply.

Is that subject to OMB review?

Mr. Minear: No, that would not be, for two reasons.

The first reason is, under OMB's regulations, disclosures of that nature, that do not require the compilation of information by the individual, regulated individual, are not subject to OMB review.

The regulations state that.

Also, I think that it might be exempt under one of the litigation exemptions that are contained in 3502.

Unknown Speaker: What about... the SEC, I notice in the legislative, had a lot of interest in it... I take it registration statements would be subject to this requirement.

What about prospectuses that are sent out to potential purchasers of securities and the like?

Mr. Minear: I believe that SEC believes that there is coverage across the board.

And in fact there is a recent, the SEC recently issued a regulation and requested paperwork review and submitted it for paperwork review.

This involved municipal securities, and in the case of municipal securities nothing is filed with the SEC.

These... and official information is provided to a broker, and the SEC required that the information be disseminated more broadly.

It did seek review, paperwork review of that, and its view is that that is substantive paperwork review.

That--

Unknown Speaker: Did the OMB, in terms of carrying out its function of reviewing and improving information collection requests, say by the way, you haven't requested enough information?

Mr. Minear: --I question whether it could do that, because its primary purpose is to determine whether the information that is requested is necessary for the proper performance of the functions of its... of the agency.

Unknown Speaker: And--

Mr. Minear: And so in the context--

Unknown Speaker: --Including whether the information will have practical utility for the agency.

Mr. Minear: --That is right.

Unknown Speaker: Now, and yet this information is given to other people.

Mr. Minear: That's right, but nevertheless, practical utility can... the government... the question of practical utility turns on whether the agency is able to use the information effectively.

The agency in this case, OSHA, is using this information by disseminating it to its... to the public, and thereby fulfilling one of its requirements--

Unknown Speaker: Having it disseminated.

Mr. Minear: --Or having it disseminated.

And what Respondents have really asked for is a distinction here between the situation where an employer is required to send the information to government and the government disseminates it, or the situation where the government, or the government simply requires the individual to bear the more onerous burden of disseminating the information directly to the public.

And we submit there is no basis for any distinction.

Unknown Speaker: Or to its employees.

Mr. Minear: Or to its employees, yes.

Unknown Speaker: How did the agency measure... OMB measure the burden in this case?

Did it measure the burden imposed by making all of these records, or is there no burden because the agency doesn't receive anything back?

Mr. Minear: The burden... the number of burden hours are calculated based on the burden that is borne by the individual who is regulated under the... under the hazard communication standard.

Unknown Speaker: Even though the statute says the burden means the time and effort... that's 3502(3): the term burden means the time, effort and financial resources expended by persons to provide information to a federal agency.

Mr. Minear: Yes, but I don't--

Unknown Speaker: So I take it this is your same argument, that this is all information being provided to the agency?

Mr. Minear: --If that was applied literally it would simply mean the cost of actually mailing these documents to the agency, and that certainly can't be what it means.

OMB has issued a clarifying regulation on this as well and indicates that it is also the burden... the burdens associated with public disclosure.

And those can be very substantial burdens.

I think our petition points out that they can be up to 250 million burden hours per year in the way that OMB calculates these matters.

In any event, those calculations are conducted by the agency, which is given a prescription by OMB--

Unknown Speaker: But is it your position that the burden in this case is measured by all of the hours taken to compile the documents by the employers, and that that is all information provided to a federal agency?

Mr. Minear: --I, in terms of... my position is that the OMB regulation properly interprets burden.

But regardless of the interpretation of burden, the question here is whether this is an information collection request.

And we submit that it certainly is.

Now, the definition of burden, the OMB regulation specifies a broader calculus for making that calculation beyond what was stated simply in the definition of burden, and I think it bears that... that interpretation.

We submit that the court also erred in this case in holding that the Paperwork Reduction Act does not give OMB authority to overrule an agency's determination of the kinds of disclosure needed to accomplish its substantive policies.

The Act expressly grants OMB exactly that authority.

Section 3504(c) states that OMB information request clearance functions shall include determining whether the collection of information by an agency is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.

Section 3508 uses the same language to describe the standard that OMB must employ in reviewing information collection requests.

Thus, the Act plainly authorizes, and indeed requires, that OMB to determine whether an agency's proposed collection of information requirements are necessary to accomplish the agency's functions.

I believe I would like to reserve the remainder of my time for rebuttal.

Unknown Speaker: Thank you, Mr. Minear.

Mr. Gold.

Argument of Laurence E. Gold

Mr. Gold: Chief Justice, and may it please the Court:

As Mr. Minear indicated at the end, but only at the end of his argument, we believe there are two questions here and that the ruling below rests on two grounds.

The first question is whether the hazard communication standard, and in particular the aspects of the standard disproved by OMB, are information collection requests.

The second is whether OMB acted properly, taking into account the entirety of the Paperwork Reduction Act, and most particularly the portions of the Act that we reproduce on page 39 of our brief, which state that the authority of OMB shall be exercised consistent with applicable law and that nothing in this chapter shall be interpreted as increasing or decreasing the authority of OMB with respect to the substantive policies and programs of departments, agencies and offices, acted properly in disapproving these provisions.

Our basic position, which has been foreshadowed by the discussion thus far, is that when Congress talked about information collection requests, as the language of the statute persuasively indicates, Congress was talking about the collection of information by the government and for the government use.

The indications are numerous in this regard and we lay out the basic points at pages 24 and 25 of our brief.

First of all, as has been pointed out, this statute has to do with alleviating certain burdens on private parties, and the burdens are defined as the time, effort or financial resources expended by persons to provide information to a federal agency.

Unknown Speaker: Mr. Gold, do you agree that OMB is entitled to a certain amount of deference in its construction of the provisions of the act that are critical here?

Mr. Gold: We... we think that they are entitled to a certain amount of deference, but you get into the question which is one which is... we well understand a difficult one, whether OMB is moving into an area that was never intended by Congress to be regulated.

This is an issue that has proved perplexing to the court.

The proposition that an agency of limited jurisdiction, which is given a limited function, can expand that function--

Unknown Speaker: That is true of all agencies.

There isn't a single agency that doesn't have limited jurisdiction and not have a limited function.

Mr. Gold: --And there are line... there are these line-drawing questions which we think are inherent in the point you've just articulated, and that there is a threshold question every time an agency asks for deference.

Is the agency attempting to move into an area which Congress didn't permit the agency to enter at all.

I mean, this is a problem, and we quote the cases which have been particularly acute in the National Labor Relations Act.

And in cases like Insurance Agents, the court said that the issue of whether the agency could regulate the economic weapons of parties when they were engaged in collective bargaining was, I think I have the quote right, simply not a question that was given to the agency to ask and answer.

And noted quickly that where the question is one that was given to ask, then deference is appropriate.

So--

Unknown Speaker: Those are old cases, Mr. Gold.

I really don't know that in any modern cases we have really tried to draw that old line that agencies are entitled to no deference when they are deciding their own jurisdiction.

Those are oldies and baddies.

I don't really think we've... we have used--

Mr. Gold: --We think they are oldies and goodies.

Unknown Speaker: --Every time, as the Chief Justice suggested, every question that comes up is a question of the agency's authority.

Does the agency have authority to do this?

It is always deciding its jurisdiction.

So, you know, to say that you can't, you can't give it deference when it is deciding its jurisdiction is to say that you can't give it deference, period.

It has no jurisdiction to act unlawfully.

Mr. Gold: Well, plainly it has no jurisdiction to act unlawfully.

And I do think that there is a problem in speaking in metaphors of this kind, but that doesn't mean that there isn't a basic kernel of truth.

There is, it seems to us, quite a paradox in saying that if the agency wants to aggrandize its authority and Congress has provided for judicial review, the judiciary is to accept that aggrandizing step if it is reasonable.

There are other areas where there... where it's quite plain that the question arises in the interstices of the statute within an area that is the agency's where that problem just doesn't arise.

But, for the purpose of this discussion, it seems to me that we have two alternatives.

We grasp at both of them.

First is that this isn't the kind of issue, when you look at the entire statute, in which OMB is entitled to deference.

Secondly, there is a limit in deference, and OMB, giving it deference, deserves to lose this case.

It does seem, to us, for the reasons I was starting to develop and that have been noted by various members of the Court, that there isn't a word in this statute which pushes towards the conclusion that Congress intended to cover as an information collection requirement materials which, as a substantive matter A has to provide to B for B's protection, as opposed to materials which, as the statute says again and again are provided to the government for its use either in policy making or law making or in law enforcement.

The definition of burden, the use of the term collection by an agency in the critical definition, collection of information requirement, and the entire point of the exercise, which is to determine whether the information has practical utility, which is defined to mean the ability of an agent... of an agency to use information it collects, particularly the capability to process such information in a timely and useful fashion.

Every part of the statute most fairly read speaks to the question which, not surprisingly the legislative history shows was the only question posed to Congress, namely, should there be a system of rationalizing and assuring that the bureaucracy's appetite for information for its own use, particularly in the planning stage, should be reviewed and should be subject to efficiency and other rationality controls.

Efficiency and rationality controls by an agency, namely OMB, which has an overall management function for the government, and which has no particular parochial interest in the information at hand.

And we have no doubt that the Paperwork Reduction Act, in those terms, in its efficiency terms in assuring that agencies only ask for what they can use and demonstrate that what they are asking for can be, as the statute so strongly indicates, can be processed and assimilated in a rational way.

Not surprisingly, OMB's spokesman at the hearings, and this on page 26 of our brief, said no one questions the basic need of the for information to plan, make policy decisions, operate and evaluate programs, and perform necessary research.

The question is rather, how much information is essential.

So this was supposed to be a planning, programmatic type of effort.

There is not a word, despite the fact that there are a myriad of labeling requirements and myriad of other regulatory requirements concerning the provision of information to third parties in the legislative history concerning these very different types of regulations.

And it seems to us that the kind of materials you have here, and the issue you have here, is different from the kind of issue that was discussed at great length in the legislative history and that is adverted to in the little, literal language of the statute in three different respects.

If an agency wishes to seek information for its own use, the inquiry, when the matter is reviewed by OMB, as I have indicated, is is more information better.

Can you use this information?

What are you going to do with it?

How will you process it?

How... what are your people doing now?

How is this going to work?

In contrast, in the situation that we have here, the hazard communication standard, the agency, under a particular statute, the Occupational Safety and Health Act, and in particular its Section 6(b)(5) and 6(b)(7), face the question of how do you reduce the risks in operating circumstances of handling hazardous chemicals.

And the result was a determination that we are not going to ban the use of these chemicals, we're not going to regulate how they are used, what processes they are used by.

But rather, we are going to take what seems to us on any account to be a far more passive form of regulation.

We are going to require that if you act to circulate these potentially hazardous chemicals in interstate commerce, you have to advise people what the chemicals are, what effects they may have, how they can adversely effect individuals, and how they can be safely used.

And in those terms the comparison here is entirely different from the kind of comparison you do between more information and less information in a normal collection of information, or in collection of information covered by this statute.

Because the comparison is the burden on chemical manufacturers, the economy, downstream employers, of having... commanding control regulation or process regulation, versus the kind of burden imposed here.

There is nothing in this statute which instructs OMB how to do that kind of job, or which indicates that Congress thought that that kind of job was the kind of job that OMB should be doing.

Unknown Speaker: I take it, OMB here on the exemption said they disapprove the exemptions because the exemptions didn't go far enough.

Mr. Gold: Correct.

Unknown Speaker: That you shouldn't have required all these labels in certain areas, even if you thought they should.

Mr. Gold: Correct.

It was really invalidating the underlying substantive requirement that was left when OSHA was finished.

In other words, to talk about the substance of these exemptions, OSHA said that, with regard to drugs, if the drug was in its final form you didn't have to provide additional information, training and so on.

But if it wasn't, given the fact that particularly in hospitals the people who were handling the materials were faced with quite different hazards, then the ultimate consumer would be... that you did have to provide these hazard warnings.

OMB said if it is covered by FDA we don't care, at least outside the manufacturing sector.

The rationality of what OMB did here wouldn't survive, so far as at least we can understand it, any form of review.

But they said in the manufacturing sector, it's all right to protect people in the way that OSHA did.

But outside the manufacturing sector, and hospitals are outside the manufacturing sector, it is not all right to protect people with these added warnings.

The reason, the reason is known to OMB but can't be found in its documents.

Then, with regard to consumer products, OMB said that there was no need to provide the particular information that OSHA had required because the products were subject to review by the Consumer Product Safety Commission.

Unknown Speaker: That's not really before us, though, that issue, is it?

I mean, do we have to decide whether, assuming OMB has the authority to review these things, its review was arbitrary or capricious?

That is not here, is it?

Mr. Gold: It seems to us that it is here.

The government is the master of its own petition, but as I indicated when we began, the two... in the court below they gave two grounds.

Ground number one was that this kind of requirement is not an information collection request, because it is for the use of third parties.

Ground number two is that, in light of the substantive provisions of the product... the Paperwork Reduction Act, which I have noted in 3504(a) and 3518(e)--

Unknown Speaker: Mr. Gold, the government's petition phrases the question, the last four lines, as whether the Paperwork Reduction Act's review process applies to agency regulations developed as a part of the agency's statutory mission that require regulated entities to collect information for disclosure of third parties.

Mr. Gold: --Well, the only thing I can't figure out of that, Chief Justice, is that on that view, this petition ought to be dismissed and we ought to win.

Because, as I said, the court below gave two grounds.

And the second ground--

Unknown Speaker: But that, that question suggests that the actual arbitrary and capricious review of particular standards isn't before us now, don't you think?

Mr. Gold: --If... I... I don't understand what the government is about in this, and they've saved time for rebuttal, I leave it to them.

We pointed out in the brief in opposition that... and this is not an arbitrary and capricious standard that the lower court used, but we pointed out in the brief in opposition, we point it out again in our brief, that the court below invalidated what OMB did on two grounds.

If only one of those grounds is here, unless there is some theory that once the court below has told that ground one is unsound, even though the two grounds were in the alternative, something will change, that there ought to be a remand, we don't understand what... what is going on here.

But we believe that the court below is right on both its independent grounds, and that's--

Unknown Speaker: But supposing we... we were to reject both of what you call its independent grounds, that we would say that the PRA as construed by OMB does cover furnishing of information of third parties, and that it can have something to do with the substantive affairs of the agency.

Mr. Gold: --Right.

Unknown Speaker: That still would not mean that we were holding OMB's agency, regulations on these particular cases, that we were upholding them, would it?

Mr. Gold: Well, I presume, to deal with the second of these two questions, you would have to confront our arguments that OMB disregarded the substantive policies and programs of the statute, and therefore acted improperly in this case.

Unknown Speaker: It would just be contrary to law.

Mr. Gold: Yes.

That is part of construing what the Paperwork Reduction Act is about.

I mean, the government says on this part of the case, that the Paperwork Reduction Act says that the OMB director can review paperwork collection requests to determine whether they are necessary for the proper performance of the functions of the agency.

That is the statutory language.

A question that was confronted by the court below, that we raised that was confronted by the court below, and that as we read the opinion in the petition Appendix at 8a, decided in our favor, is that in determining what is necessary for the performance of the functions of the agency, OMB has to take account of and conform to the substantive requirements in this instance of the Occupational Safety and Health Act.

And that OMB did not do so in this case.

And that that is demonstrable.

Not only, as I have indicated, is it hard to find a scintilla of reason in what OMB did in terms of the lines it drew, but much more to the point, as I started to note, the Occupational Safety and Health Act sets out a highly protective standard with regard to the balance between employer financial interests and employee safety and health interests.

This Court has put it, in American Textile Manufacturers, which is at 452 U.S., that Section 6(b)(5) of OSHA directs the Secretary to issue the standard that most adequately assures that no employee will suffer material impairment of health, limited only by the extent to which this is capable of being done.

Unknown Speaker: Mr. Gold, you did... you did make this argument in your brief in opposition to the petition too, so we couldn't get rid of it on some procedural nicety, I suppose?

Mr. Gold: We tried to--

Unknown Speaker: Yeah.

Mr. Gold: --prevent that.

And we make the argument starting at page 39 through to the conclusion of our brief on the merits.

And our basic point on this is that if indeed this is a collection of information request, that at least where the statute is as plain and clear as this statute is, OMB cannot, in the guise of determining whether something is necessary for the performance of the function of the agency, rewrite the balance in a way which is entirely different from the underlying substantive statute.

That just reads out of the Paperwork Reduction Act itself the provision that in carrying out its functions it has to respect the substantive policies and programs.

And here it is absolutely manifest, for the reasons that we develop, that OMB applied a completely different standard in determining what ought to be promulgated to employees than the OSH Act mandates.

The conclusion with regard to this multi-employer worksite issue at OMB was that OSHA is wrong that employees need or will use this information.

Employers will have difficulty coordinating the provision of the information.

They may have to have multiple file cabinets, and therefore OSHA should go do it again.

Well, that is fine if you don't have an act that says that the Secretary of Labor is supposed to set a standard that "most adequately" assures that no employee will suffer impairment of health, and in which, as this Court said, Congress itself defined the basic relationship between cost and benefits by placing the benefit of worker health above all other considerations.

With regard to the--

Unknown Speaker: "Most adequately" is a... is a strange phrase, isn't it.

I mean, you could say--

Mr. Gold: --It's a statutory phrase.

Unknown Speaker: --I know, but what does it mean?

"Most certainly" would make your case easily, but "most adequately" you might say--

Mr. Gold: Well, there's a feasibility--

Unknown Speaker: --you know, it is the best-balanced provision around, and that would justify what OMB did.

Mr. Gold: --I doubt that it would, even if this Court hadn't already construed the language, because the Secretary of Labor had raised, had come to the opposite conclusion on what "most adequately" assures.

And if we are going to have deference, the deference there goes to the Secretary of Labor, unless you are going to read out the provision that these... that the Paperwork Reduction Act doesn't increase OMB's authority and is not to be used to trench on the substantive policies and programs.

Now, obviously there are some limits here, and we note them.

But when you are talking about an express provision of the underlying statute, and OMB says we strike the calculus differently than you do, this isn't a question of whether you can use the information as an efficiency, but rather it is our determination about what the underlying act requires, what these employees really need.

Unknown Speaker: Well, isn't that about all that was in this redo ordered by the court?

Mr. Gold: I apologize, Justice.

Unknown Speaker: When you say these regulations were simply policy judgments by the agency.

Mr. Gold: That's right.

Unknown Speaker: And the OMB shouldn't have disagreed with them.

Why was it... why was it... how did it ever get over to the OMB?

Mr. Gold: Well, it got over to OMB because these agencies, out of--

Unknown Speaker: Are scared to death?

They just--

Mr. Gold: --Yes.

Out of a concern for their budgets.

This is the Office of Management and Budget.

Unknown Speaker: --Well, I know, but if you are right they shouldn't have sent them over at all.

Mr. Gold: Well, we believe that they shouldn't have sent them over at all, but as--

Unknown Speaker: Was there anything in there that the OMB had any business passing on or not?

Mr. Gold: --We believe not.

We believe not.

We believe that the Third Circuit was right on both its first ground and its second ground.

But even if we are wrong on the first and it should have gone over to OMB--

Unknown Speaker: Yes.

Mr. Gold: --Then OMB went beyond its limited charted, because it got into the question of what this statute, what the underlying substantive statute, the Occupational Safety and Health Act, requires employers to provide employees.

And let me make one other point about that if I could.

OMB got into the question not of what information should be collected, or even what information should be retained, but what information should be disseminated by an employer to a third party.

There's absolutely nothing in this statute about that.

Unknown Speaker: Thank you, Mr. Gold.

Mr. Minear, do you have rebuttal?

You have eight minutes remaining.

Rebuttal of Jeffrey P. Minear

Mr. Minear: Yes, Your Honor.

Unknown Speaker: Looking at the definitions here, and the one that jumps out at me is the definition of burden.

It is central to the whole operation of this OMB process that they have to determine whether the burden is excessive in relation to the benefits that the government is going to get out of this thing.

Right?

Mr. Minear: Well, no, Your Honor, I disagree.

Unknown Speaker: That's not essential?

Mr. Minear: No.

The standard for review is set forth in 3504(c).

The information collection request clearance and other paperwork control functions of the director shall include reviewing and approving information collection requests proposed by agencies.

Conducting that review, the standard is then set forth in 3508.

Unknown Speaker: Yeah.

Mr. Minear: Before approving a proposed information collection request, the director shall determine whether the collection of information by an agency is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.

That is the standard that is applied.

3504(c) sets forth the requirement that agencies submit information collection requests to OMB.

OMB then reviews it under that standard.

Now, the term burden is used elsewhere in the statute, but it is not used in the operative provisions that are at issue here.

The question here... I'd like to remind the Court, is the authority of OMB to review the hazard communication standard.

That is the issue that is presented.

And these are the provisions that determine that authority.

Unknown Speaker: You say the word burden is not... why was the definition of burden printed in your Addendum if it has nothing to do with the provisions at issue in the case before us?

Mr. Minear: In part because the parties raised in their--

Unknown Speaker: Just to confuse me.

Mr. Minear: --No, because the party had raised this in their brief in opposition, and we wanted to have all of the relevant provisions at the Court's fingertips.

But it doesn't enter into the question that's presented here.

Respondents put great reliance on all of this inferential support for their position, but the question here is whether this is an information collection request.

That is the standard for determining whether the matter is subject to OMB review.

And in conducting the review, again the question is whether it is necessary for the proper performance of the functions of the agency.

Unknown Speaker: But, all right.

At least it requires this, that the agency has to submit to the director an estimate of the burden that will result from the information collection request, right?

Mr. Minear: That is right.

Unknown Speaker: Now, why would the government require the agency to sub... if, if an information request includes what you say it does, a request that you give information to somebody else--

Mr. Minear: Or just a recordkeeping requirement.

Unknown Speaker: --Or just a recordkeeping requirement.

Why would they limit the burden that the agency has to tell OMB about to the following: the term burden means the time, effort or financial resources expended by persons to provide information to a federal agency.

Mr. Minear: I frankly do not know.

I think that might be an oversight.

That might be an oversight.

But then again--

Unknown Speaker: It's either an oversight or it's support for Mr. Gold's interpretation.

It could be either one.

Mr. Minear: --But it is only indirect support, Your Honor.

Again, the question here... is there any doubt in the Court's mind that there are recordkeeping requirements that are being imposed here?

That a pharmacist who has to collect 10,000 material safety data sheets and maintain them on the premises is keeping a record?

And the question here is whether the information collection request is subject to review.

The information collection request here is the recordkeeping requirement, among a number of other things.

I think, again I would like to focus the Court's attention that the question here is on OMB's authority to review the hazard communication standard.

Now, there has been some confusion that has been created about the ultimate decision here.

This is not an APA action to review OMB's decision in this case.

This came up as a contempt action, and in fact I don't believe that the court of appeals even had the record that OMB had compiled in making its decision.

So, really the only issue that is presented here is the question of the authority of the agency.

Unknown Speaker: But you do agree that both grounds for the court of appeal decision are before us, don't you?

Mr. Minear: Well, the other ground here that the party has raised is this question, Section 3518(e), which states that nothing in this chapter shall be interpreted as increasing or decreasing OMB's authority with respect to an agency's substantive policies and programs.

There are some key things that a court must focus on in this.

Unknown Speaker: I understand, but do you agree that issue is before us?

Mr. Minear: That this issue, about whether--

Unknown Speaker: Yes.

The 3518(e).

Mr. Minear: --Yes.

I do agree that that is before it.

In fact we briefed it extensively.

Unknown Speaker: Yeah.

Mr. Minear: And our point with respect to that is that the information... again this is a qualification on the Court's... on OMB's authority.

But what it states is that nothing shall be interpreted as increasing or decreasing OMB's authority.

Now, if you refer to the Federal Reports Act and it's, the Paperwork Reduction Act's predecessor, Section 3506, it employed the very same standard for reviewing whether an information... whether an information collection request should go forward, whether it is necessary for the proper performance of the function of the agency.

What I think 3518(e) indicates is there has simply been no change in the standard of review that OMB subjects these information collection requests to.

Now, the expansion, or the scope of an information collection request has been clarified to include recordkeeping requirements.

That was one of the chief purposes of the Act, to clarify that recordkeeping requirements would be subject to OMB review.

But all 3518(e) does is indicate that as an interpretive matter nothing except express... OMB has the powers that are expressly given here.

And that includes the express power to determine whether a matter is necessary for the proper functioning of the agency.

Unknown Speaker: Tell me about the labels.

Where does that, where do those fit in this?

Mr. Minear: The only--

Unknown Speaker: Are they recordkeeping, or what?

Mr. Minear: --They are, primarily the concerns here are recordkeeping, although there is also disclosure.

The court's ruling was that none of this would be subject to OMB review.

We indicated that OMB in fact reviews labels as well as other matters, insofar as they require a party to compile and maintain information.

For instance, if you have to prepare a nutrition label in the FDA context--

Unknown Speaker: So they... OSHA determines that this kind of a label is necessary to safeguard an employee.

OMB can say: not required at all.

Mr. Minear: --What OMB applies is the standard--

Unknown Speaker: Isn't that right?

That is what it said.

It said it doesn't go far, it doesn't go far... you should have exempted some other labeling requirements.

Mr. Minear: --Well, that is in part right, Your Honor.

But remember, OMB employs this... looks at the standard that the agency employs in making its determinations.

It looks to what the agency's mission is, as set forth in the statutes.

And then it takes a look at whether the agency has in fact met that requirement.

This is simply a matter of interagency review, to review... to prevent duplication of efforts, to make sure that, for instance, FDA is not doing something that conflicts with what OSHA is doing.

And it makes perfect sense that a centralized agency in the government should be able to review these matters before they come to the court for the court's review.

Unknown Speaker: It doesn't go to the scope of the reviewing authority anyway.

I mean, that same problem arises if you say that all that OMB can review is requests for information to be provided to the agency.

You still get into the same kind of a problem, don't you, of OMB second guessing the agency as to what is necessary?

Mr. Minear: Well, we think that OMB does have that authority to review other agencies actions here with respect to whether they are collecting information that is necessary for the performance of their function.

I see my time has expired.

Chief Justice Rehnquist: Thank you, Mr. Minear.

The case is submitted.

Print this transcript Transcript: 

Argument of Justice Brennan

Mr. Brennan: The other case is 88-143, Dole verus the United Steel Workers.

The case is here on certiorari to the Court of Appeals for the Third Circuit.

Among the regulatory tools available to government agencies charged with protecting public health and safety are rules which require regulated entities and disclose information directly to employees, consumers, or others.

The disclosure rules protect by providing access to information about what dangers exist, and how these dangers can be avoided.

Today we decide whether the Office of Management and Budget has the authority under the Paperwork Reduction Act of 1980 to review such regulations.

We hold that the Paperwork Reduction Act does not give the Office of Management and Budget the authority to review and control agency regulations mandating disclosure by regulated entities directly to third parties and therefore, affirm the Court of Appeals.

Justice White dissents and has filed a dissenting opinion in which the Chief Justice has joined.