The opinion of the court was delivered by: Huvelle, District Judge.
Before the Court are defendants' Motion To Dismiss or, Alternatively,
for Summary Judgment, and plaintiff's Cross Motion for Summary Judgment.
Plaintiff is attacking the legality of the Data Collection Initiative
that defendants initiated in order to gather information regarding the
rate of workplace injuries and illnesses, and the average number of
employees and total hours worked. In response defendants have moved to
dismiss on the grounds that this Court concludes that it lacks
jurisdiction, and therefore, the complaint will be dismissed with
Plaintiff, a Delaware corporation with businesses located in various
states, has brought this suit against the Secretary of Labor and the
Assistant Secretary of Labor for Occupational Safety and Health in their
capacities as the administrators of the Occupational Safety and Health
Act of 1970, 29 U.S.C. § 651 et seq., ("OSH Act"). Under the
statute, the Secretary of Labor is responsible for administering the
Act; she has delegated most of these duties to the Assistant Secretary
for Occupational Safety and Health, who heads the Occupational Safety and
Health Administration ("OSHA").
A. Statutory and Regulatory Framework
Congress enacted the OSH Act "to assure so far as possible every
working man and woman in the Nation safe and healthful working conditions
and to preserve our human resources." 29 U.S.C. § 651 (b). To that
end, the Act "provid[ed] for appropriate reporting procedures with
respect to occupational safety and health." § 651(b)(12).
Specifically, the Act requires that "[e]ach employer shall make, keep and
preserve . . . such records regarding his activities relating to this
chapter as the Secretary . . . may prescribe by regulation [including
those] requiring employers to maintain accurate records of, and to make
periodic reports on, workrelated deaths, injuries and illnesses . . . ."
§§ 657(c)(1)-(2). "On the basis of the records kept pursuant to
section 657(c) . . . employers shall file such reports with the
Secretary as he shall prescribe by regulation . . . ." § 673(e).
Pursuant to the OSH Act, OSHA requires employers to maintain and report
certain information on occupational injuries and illnesses. See
29 U.S.C. § 657, 673. In 1995 and 1996, OSHA adopted a Data
Collection Initiative ("DCI"), which was designed to gather some of this
data. Under the DCI, OSHA sends selected employers a survey form
requesting information regarding the average number of employees and
total number of hours worked by the employees over a specified period, as
well as the number of employee injuries and illnesses that occurred
during that time. Using this information, OSHA determines the
injury/illness incidence rate for each establishment, which in turn is
used to decide whether to target the employer for an intervention
effort, such as an inspection or referral for assistance in reducing
workplace injuries and illnesses.
When the DCI was first implemented in 1995, an OSHA regulation required
employers to maintain and make available the requested illness and injury
data, but not information on the average number of employees and total
employee hours. In American Trucking Ass'ns., Inc. v. Reich, 955 F. Supp. 4
(D.D.C. 1997) [hereinafter ATA], the American Trucking Association and
two other employers successfully challenged the DCI survey. There, the
Court found that OSHA "must promulgate a regulation before purporting to
command employers to file reports like the one at issue here. . . .
Because the agency's action was taken without `observance of procedure
required by law,' it violates the Administrative Procedure Act." Id. at 7
(citing 5 U.S.C. § 706 (2)(D)).
In response, OSHA promulgated 29 C.F.R. § 1904.17 to authorize its
annual DCI. The regulation provides in part:
Each employer shall, upon receipt of OSHA's Annual
Survey Form, report to OSHA or OSHA's designee the
number of workers it employed and the number of hours
worked by its employees for periods designated in the
Survey Form and such information as OSHA may request
from records required to be created and maintained
pursuant to 29 C.F.R. part 1904.
C. Prior Proceedings Involving Sturm Ruger
Plaintiff Sturm Ruger is a gun manufacturer with a facility consisting
of several buildings located in Newport, New Hampshire. The Pine Thee
Castings Division ("Pine Tree") is a division of Sturm Ruger that
manufactures steel investment castings. Pine Tree is located in one of
the three buildings in the Newport facility; it employs approximately
one-quarter of Sturm Ruger's nearly 1,150 workers. Roughly sixty percent
of the castings that Pine Tree manufactures are used in Sturm Ruger
guns; the rest are sold to third parties. Sturm Ruger & Co. v. United
States, 2000 WL 36931, at *1 (D.N.H. Jan. 22, 1999).
On April 22, 1997, as part of the DCI, OSHA requested information from
Sturm Ruger for Pine Tree. Sturm Ruger complied with the request and
returned the completed survey to OSHA. Based on this information, on June
15, 1998, two OSHA compliance officers arrived at Pine Tree to inspect
the facility. Sturm Ruger refused to consent to the inspection. As a
result, OSHA obtained a warrant to inspect Pine Tree. On July 6, OSHA
officers attempted to execute the warrant but were prevented from doing
so by Sturm Ruger ...