No. 92-1661.United States Court of Appeals, District of Columbia Circuit.Argued May 12, 1994.
Decided July 12, 1994.
Page 163
Petition for Review of an Order of the United States Department of Labor.
John Banzhaf, III, Washington, DC, argued the cause for petitioner. With him on the briefs were Peter H. Meyers, Washington, DC and Kathleen E. Scheg, Hyattsville, MD.
Charles F. James, Atty., U.S. Dept. of Labor, Washington, DC, argued the cause for respondents. With him on the brief were Joseph M. Woodard, Associate Sol., Occupational Safety and Health Admin. and Ann Rosenthal, Atty., U.S. Dept. of Labor.
Before MIKVA, Chief Judges, BUCKLEY and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA.
MIKVA, Chief Judge:
[1] Action on Smoking and Health (“ASH”) challenges, on several grounds, the Occupational Safety and Health Administration’s (“OSHA”) delayed and proposed regulation of environmental tobacco smoke (“ETS”) as a potential occupational carcinogen. Due to justifiability and finality considerations, we deny ASH’s petition.[2] I. Background
[3] On July 31, 1992, ASH petitioned OSHA to initiate a rulemaking pursuant to OSHA’s Cancer Policy, 29 C.F.R. §§ 1990.101-1990.152, to regulate environmental tobacco smoke, independent of other indoor air quality (“IAQ”) contaminants, as a potential occupational carcinogen. On October 30, 1992, OSHA informed ASH by letter that it had not yet reached a final decision about whether and how to regulate ETS in the workplace but indicated that it was disinclined to focus on ETS in isolation from other indoor air quality contaminants. On December 22, 1992, ASH filed this petition for review claiming that OSHA has unreasonably delayed initiating a rulemaking to regulate ETS as a potential occupational carcinogen.
[5] II. Discussion
[6] The Occupational Safety and Health Act (“Act”), 29 U.S.C. § 655(f), and Administrative Procedure Act (“APA”), 5 U.S.C. § 704, respectively confer jurisdiction on this court to review health and safety standards that OSHA promulgates and other final agency action that OSHA undertakes under the Act. To ensure that agencies do not derogate their statutory duties and elude judicial review through agency inaction or
Page 164
delay, this court has recognized a narrow exception to the finality requirement upon which judicial review is ordinarily conditioned: this court may assert jurisdiction over suits seeking relief from agency inaction or delay that jeopardizes our future statutory power of review. See Telecommunications Research Action Center v. FCC, 750 F.2d 70, 75-76 (1984) (“TRAC“).
[7] Although petitioner’s allegation that OSHA unreasonably delayed issuing health and safety standards for ETS qualifies for this exception, we do not reach the merits of this claim. Petitioner based its claim upon the period of delay prior to the agency’s April 5, 1994 issuance of a Notice of Proposed Rulemaking on Indoor Air Quality Contaminants. Because ETS is among the contaminants that OSHA proposes to regulate in that rulemaking, petitioner’s unreasonable delay claim is moot. See United Steelworkers of America v. Rubber Mfrs. Ass’n, 783 F.2d 1117, 1120 (D.C. Cir. 1986). Petitioner further claims that the proposed omnibus rulemaking will violate the Cancer Policy’s regulatory timetable and will unreasonably delay regulation of ETS. We find this claim unripe for judicial review and decline jurisdiction over it at this time. [8] The Supreme Court’s decision in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), provides the starting point for our ripeness analysis. In Abbott Laboratories, the Court explained that the “basic rationale” of ripeness doctrine is:[9] Id. at 148-49, 87 S.Ct. at 1515-16. These principles gave rise to a two-part test that “requir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 149, 87 S.Ct. at 1515-16. Under this test, “if the interests of the court and agency in postponing review outweigh the interests of those seeking relief, settled principles of ripeness squarely call for adjudication to be postponed.” National Ass’n of Regulatory Util. Comm’rs. v. Department of Energy, 851 F.2d 1424to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.
(D.C. Cir. 1988) (quoting State Farm Mutual Auto. Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C. Cir. 1986). [10] Under section 1990.142 of the Cancer Policy, a Notice of Proposed Rulemaking (“NPRM”) on any given carcinogen “shall provide for no more than a sixty (60) day comment period, and may provide for a hearing, which shall be scheduled for no later than one hundred (100) days after publication of the Notice of Proposed Rulemaking. The commencement of the hearing may be postponed once, for not more than 30 days, for good cause shown.” In addition, “[w]ithin one hundred twenty (120) days from the last day of any hearing or ninety (90) days from the close of any post hearing comment period, whichever occurs first, the Secretary shall publish in the FEDERAL REGISTER: (1) A final standard based upon the record in the proceeding; or (2) A statement that no final standard will be issued and the reasons therefore, or (3) A statement that the Secretary intends to issue a final rule, but that he is unable to do so at the present time.” 29 C.F.R. § 1990.147(a). [11] Although a conflict might arise between OSHA’s proposed IAQ rulemaking and the Cancer Policy’s regulatory timetable, we cannot now reasonably anticipate that it will. Because OSHA has not established a timetable for issuing its final rule on indoor air quality contaminants generally or ETS specifically, the agency has not even proposed to violate the Cancer Policy’s timetable for promulgating a final rule on ETS, much les actually violated it. OSHA could complete its proposed rulemaking expeditiously and issue its final rule within the 120 day time period set forth in the Cancer Policy. OSHA could also determine that it is unable to issue its final rule within that period and, consistent with § 1990.147(a)(3), take an additional 120 days to issue its final rule. In sum, we cannot presently say that OSHA’s proposed omnibus IAQ rulemaking will, in all likelihood, extend beyond the rulemaking schedule set forth in the Cancer Policy. (Although
Page 165
we recognize that a conflict does exist between the NPRM and the Cancer Policy insofar as the designated comment period is concerned, ASH failed to raise this claim in its petition for review and we therefore decline to address it. See FED.R.APP.P. 28(a)(5); Carducci v. Regan, 714 F.2d 171, 177
(D.C. Cir. 1983).)
[14] III. Conclusion
[15] Petitioner’s claim that OSHA unreasonably delayed initiating a rulemaking on ETS is mooted by the Notice of Proposed Rulemaking on Indoor Air Quality Contaminants that the agency issued on April 5, 1994. Petitioner’s claim of future unreasonable delay is not yet ripe for judicial review and considerations of finality preclude us from reaching the merits of petitioner’s challenge to the omnibus nature of OSHA’s proposed rulemaking.