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February 13, 2001


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 prejudice.


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).

The OSH Act also specifies procedures for its enforcement and the administrative review thereof. When the Secretary believes that an employer has violated the Act or any regulation or standard that was passed pursuant to it, she issues a citation to the offending party. § 658. The employer may then contest the citation before the Occupational Safety and Health Review Commission ("OSHRC" or "Commission"), an independent adjudicatory body. §§ 659(c), 661. The Commission refers initial proceedings to an Administrative Law Judge ("ALJ"), who hears the case and issues a decision. § 661(j). The full OSHRC, on the petition of a party or the initiative of any Commissioner, may review and modify the decision of the ALJ. § 661(j); 29 C.F.R. § 2200.91 (b). The Secretary or any person adversely affected or aggrieved by a final order of the Commission may petition the appropriate United States Court of Appeals for review. 29 U.S.C. § 660.

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.

B. The ATA Case

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.

29 C.F.R. § 1904.17 (a).

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 ...

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