Dole v. United Steelworkers of America/Dissent White

by Byron White

Justice WHITE, with whom THE CHIEF JUSTICE joins, dissenting.

The Court's opinion today requires more than 10 pages, including a review of numerous statutory provisions and legislative history, to conclude that the Paperwork Reduction Act of 1980 (PRA or Act) is clear and unambiguous on the question whether it applies to agency directives to private parties to collect specified information and disseminate or make it available to third parties. On the basis of that questionable conclusion, the Court refuses to give any deference to the Office of Management and Budget's (OMB's) longstanding and consistently applied interpretation that such requirements fall within the Act's scope. Because in my view the Act is not clear in that regard and deference is due OMB under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), I respectfully dissent.

In Chevron, supra, we set forth the general principles to be applied in cases such as this one:

"When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id., at 842-843, 104 S.Ct., at 2781-2782 (footnotes omitted).

As the Court acknowledges, there is no question in this case that OMB is the agency charged with administering the PRA. Unless Congress has directly spoken to the issue whether an agency request that private parties disclose to, or maintain for, third parties information such as material safety data sheets (MSDS's) is an "information collection request" or a "recordkeeping requirement" within the Act's scope, OMB's interpretation of the Act is entitled to deference, provided of course that it is based on a permissible construction of the statute.

The Court concedes that the Act does not expressly address "whether Congress intended the Paperwork Reduction Act to apply to disclosure rules as well as information-gathering rules." Ante, at 34. Curiously, the Court then almost immediately asserts that interpreting the Act to provide coverage for disclosure requests is untenable. Ante, at 35. The plain language of the Act, however, suggests the contrary. Indeed, the Court appears to acknowledge that petitioners' interpretation of the Act, although not the one the Court prefers, is nonetheless reasonable: "Petitioners' interpretation . . . is not the most natural reading of this language." Ibid. (emphasis added). The Court goes on to arrive at what it believes is the most reasonable of plausible interpretations; it cannot rationally conclude that its interpretation is the only one that Congress could possibly have intended. The Court neglects to even mention that the only other Court of Appeals besides the Third Circuit in this case to address a similar question rejected the interpretation that the Court now adopts. ^[1] In addition, there is evidence that for years OMB has been reviewing proposals similar to the standard at issue in this case routinely and without objection from other agencies. ^[2] As I see it, by independently construing the statute rather than asking if the agency's interpretation is a permissible one and deferring to it if that is the case, the Court's approach is clearly contrary to Chevron.

The hazard communication standards propounded by the Occupational Safety and Health Administration (OSHA) require chemical manufacturers to develop hazard information about their products, to adequately label such products, and to prepare for their products MSDS's to be sent to downstream employers who utilize those products. See 29 CFR §§ 1910.1200(d), (f) and (g) (1988). Those employers are directed to prepare written hazard communication programs that include a list of hazardous chemicals known to be present at the work site, § 1910.1200(e); to ensure that containers are properly labeled, § 1910.1200(f); and to collect, maintain, and make available to their employees copies of MSDS's with respect to hazardous chemicals that they use in their business, § 1910.1200(g).

OMB, as I see it, reasonably concluded that these requirements were subject to its approval under the PRA, which makes OMB responsible for implementing the statutory purpose of minimizing the burden and maximizing the usefulness of the Government's information collection requirements. OMB is instructed to do this through a process of reviewing agency "information collection requests" in order to 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 for the agency." 44 U.S.C. § 3504(c)(2) (1982 ed.).

An "information collection request" is defined as "a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, collection of information requirement, or similar method calling for the collection of information." 44 U.S.C. § 3502(11) (1982 ed., Supp. V). A "recordkeeping requirement" is defined as "a requirement imposed by an agency on persons to maintain specified records." § 3502(17). "Collection of information" is defined as

"the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods calling for either-

"(A) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or

"(B) answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes." 44 U.S.C. § 3502(4) (1982 ed.).

"Reporting requirement" is not specifically defined by the statute.

As it is directed to do by the PRA, see § 3516, OMB has issued regulations and rules for exercising its authority under the statute. Although the statute itself does not in so many words reach agency directives to collect, disseminate, or make available to third parties specified information that is not delivered to the agency itself, OMB regulations so interpret the Act. The regulations also plainly reach the hazard communication standards that OSHA has presented for OMB's approval in this case. ^[3]

I cannot say that these regulations, so far as they are involved here, are inconsistent with the Act. It is not unreasonable to characterize as a "reporting requirement" an employer's obligation to disclose hazard information, by labeling or making MSDS's available, especially in light of the absence of a definition in the statute. Nor is it unreasonable to characterize the obligation to compile copies of MSDS's as a "recordkeeping requirement," or the directive to prepare a hazard communication program with its list of dangerous chemicals as an "information collection request" within the meaning of 44 U.S.C. § 3502 (1982 ed., Supp. V). Since that definitional section, after including reporting and recordkeeping requirements, concludes with the words "or other similar method calling for the collection of information," it is tenable to conclude that reporting and recordkeeping are among the information collection requests requiring OMB approval.

Section 3502(4) likewise defines "collection of information" as including reporting and recordkeeping requirements, but that definition begins with the words "the obtaining or soliciting of facts or opinions by an agency" through written report forms, etc. The Court's argument is that this definition limits the PRA to facts or opinions obtained by an agency for its own use and hence excludes recordkeeping, reporting requirements, and information collection designed to inform or benefit third parties such as employees, customers, or the public. This argument, however, pays too little attention to the precise language of the provision. First, an agency does not "obtain" information when it imposes a recordkeeping requirement. Second, § 3502(4) not only speaks of "obtaining" facts and opinions by an agency but of the "soliciting" of facts and opinions by an agency. The word "soliciting" would appear to mean something beside "obtaining" and is commonly understood as including a request for another person to perform some act. It is not unreasonable therefore to construe this language as extending OMB's authority to requests for recordkeeping, reporting, and information collection that is intended to benefit third parties but is not delivered to the agency itself.

Furthermore, the Court does not explain why if "information collection requests" and the "collection of information" are limited to agency directives that information be provided to the agency, the statutory definitions of those terms explicitly include "recordkeeping requirement[s]." See 44 U.S.C. §§ 3502(4) and (11) (1982 ed. and Supp. V). One response might be that Congress intended to limit the term "recordkeeping requirement" to records prepared for the agency and which must be provided to the agency upon request. But Congress specifically defined the term "recordkeeping requirement" without including such a limitation and it is unlikely Congress intended to imply such a limitation. An agency can certainly "use" information without collecting and analyzing it or periodically auditing it for compliance or enforcement purposes. It can hardly be said that requiring recordkeeping and reporting for the benefit of employees is not useful to the agency or an appropriate means for the agency to carry out its obligation to provide a safe workplace.

It is common ground in this case that if the information required to be reported or made available to employees were first sent to the agency and then distributed to employees, there would be no question about OMB's authority. Likewise, as I understand it, the mere fact that the records ordered to be kept are not physically delivered to the agency does not bar OMB jurisdiction, so long as the records are kept for examination and use by the agency. The Court concedes as much, noting that requests for information provided indirectly to an agency, such as requirements that tax and business records be kept on hand, fall within the PRA's scope because those documents are subject to "possible examination as part of a compliance review." Ante, at 33, and n. 4.

In support of its argument that the Act applies only when information is actually transmitted to an agency, the Court points to language in the Act's general statement of purpose indicating that Congress was concerned with minimizing " 'the cost to the Federal Government,' " maximizing " 'the usefulness of information collected, maintained, and disseminated by the Federal Government,' " and reducing the paperwork burdens " 'for persons who provide information to and for the Federal Government.' " Ante, at 36-37 (emphasis deleted), quoting 44 U.S.C. § 3501 (1982 ed. and Supp. V). The Court ignores, however, the very first statement of purpose in the Act, which declares that Congress intends that the Act "minimize the Federal paperwork burden for individuals, small businesses, State and local governments, and other persons." 44 U.S.C. § 3501(1) (1982 ed.). Reading the Court's discussion of the Act, one might think that Congress was only concerned with minimizing the Government's costs and reducing the paperwork burdens on federal agency employees who are forced to process massive amounts of information. Common sense and § 3501(1) clearly belie that conclusion. ^[4] Complaints from the private sector about bureaucratic red tape far predate the enactment of the PRA.

Also curious is the Court's reliance on the statement that one purpose of the Act was to reduce the paperwork burden "for persons who provide information to and for the Federal Government." 44 U.S.C. § 3501(5) (1982 ed., Supp. V) (emphasis added). Aside from reiterating the point just made regarding the Act's focus on reducing the paperwork burdens on the private sector, the natural reading of the statement is that Congress recognized that agencies may sometimes request that private parties provide information to others as part of an agency's administration of its duties. It is surely reasonable to conclude that the word "for" means something different than the word "to" and that it includes not only situations in which private parties must keep records available for use and review by an agency, but also requirements that private parties collect and provide information to third parties.

Contrary to the Court's assertions, disclosure requests do present some of the problems Congress sought to solve through the PRA. The Court concedes that Congress intended the Act to apply when information is "filed with an agency for possible dissemination to the public (i.e., when the agency is an intermediary in the process of data dissemination)." Ante, at 42. But if that is true, how can it be so clear that Congress intended to permit agencies to bypass the Act by simply requesting private parties to submit information directly to third parties? From a policy perspective, and certainly from the private sector's perspective, it makes little difference whether an agency collects information and then disseminates it or requires those in possession of the information to submit it directly to the relevant third parties. In fact, the latter option generally will impose greater paperwork burdens on private parties, although either choice results in a federal agency imposing major paperwork burdens on the private sector. The Court's response is that one approach imposes costs on the Federal Government and the other does not. But that distinction is flawed because it promotes a secondary objective of the PRA and ignores what I consider to have been Congress' primary objective in enacting the statute.

In addition, the legislative history on which the Court relies is unconvincing. Like the statute itself, the legislative history never expressly addresses the question of disclosure requirements. Of course, the Court can find and cite to legislative history that is allegedly relevant to and supports its interpretation of the statute, but one can just as easily point to legislative history of similar quality supporting an alternative construction of the Act. See ante, at 41-42, and nn. 8, 9. ^[5]

Since the statute itself is not clear and unambiguous, the legislative history is muddy at best, and OMB has given the statute what I believe is a permissible construction, I cannot agree with the outcome the Court reaches. If Chevron is to have meaning, it must apply when a statute is as ambiguous on the issue at hand as the PRA is on the subject of disclosure requirements. Contrary to the Court of Appeals and to the majority, I would defer to OMB's position that the obligation to compile copies of MSDS's and the labeling requirements are information collection requests subject to its approval. It follows that OMB was not acting contrary to the statute in disapproving the three provisions specifically involved in this case.

But even accepting for the moment the Court's construction of the statute, it is notable that the Court fails to consider whether the requirement that employers at multi-employer work sites file all of the relevant MSDS's in a central location or exchange them and make them available at their home offices, see 29 CFR § 1910.1200(e)(2) (1988), might be considered a "recordkeeping requirement." Granted, one purpose of the multiemployer standard is to provide workers with an opportunity to learn the dangers associated with the handling of particular materials used on the work site; nonetheless, the proposed standard does not require employers to actually disseminate the MSDS's to their workers. Rather it requires them to physically compile and maintain massive quantities of paperwork at multiemployer job sites, such as construction sites, or their home offices. This requirement certainly looks like a "recordkeeping requirement" in the plainest sense of the term. In addition, the Department of Labor may periodically check these records for compliance with substantive requirements, see §§ 1910.1200(e)(4) and (g)(11), a factor the Court emphasizes in describing which recordkeeping requests are subject to the Act. As I see it, even under the Court's interpretation of the Act, this portion of the standard should be subject to OMB review.

Finally, an argument that the Court does not make but which the United Steelworkers do is that Chevron should not apply in this case because OMB's regulations actually determine the scope of its jurisdiction under the Act. This Court has never accepted that argument and in fact, as Justice SCALIA pointed out in his lucid concurrence in Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 377, 108 S.Ct. 2428, 2442, 101 L.Ed.2d 322 (1988), there are good reasons not to accept it, reasons which Justice SCALIA has adequately set forth and which I will not repeat here. I note, however, that Chevron itself and several of our cases decided since Chevron have deferred to agencies' determinations of matters that affect their own statutory jurisdiction. ^[6] See, e.g., Massachusetts v. Morash, 490 U.S. 107, 116-118, 109 S.Ct. 1668, 1673-1675, 104 L.Ed.2d 98 (1989); K mart Corp. v. Cartier, Inc., 486 U.S. 281, 292-293, 108 S.Ct. 1811, 1818, 100 L.Ed.2d 313 (1988); EEOC v. Commercial Office Products Co., 486 U.S. 107, 114-116, 108 S.Ct. 1666, 1671-1672, 100 L.Ed.2d 96 (1988); NLRB v. Food and Commercial Workers, 484 U.S. 112, 123-128, 108 S.Ct. 413, 420-424, 98 L.Ed.2d 429 (1987); Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 221, 233, 106 S.Ct. 2860, 2867, 92 L.Ed.2d 166 (1986); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 845, 106 S.Ct. 3245, 3253, 92 L.Ed.2d 675 (1986); Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125-126, 105 S.Ct. 1102, 1107-1108, 84 L.Ed.2d 90 (1985). The application of Chevron principles cannot be avoided on this basis.

For the foregoing reasons, I respectfully dissent.

Notes

1. In Action Alliance of Senior Citizens of Philadelphia v. Bowen, 269 U.S.App.D.C. 463, 846 F.2d 1449 (1988), the court rejected an argument that the Federal Reports Act of 1942, 44 U.S.C. § 3501 et seq. (1976 ed.), the PRA's predecessor, did not cover an agency request that private parties conduct self-evaluations which should then be made available to the public and the agency upon request. The court stated:
2. For example, OMB has reviewed Environmental Protection Agency community right-to-know disclosure requests, 52 Fed.Reg. 38344, 38364 (1987), Federal Trade Commission textile fiber products identification disclosure and fair packaging and fair labeling disclosure requests, 53 Fed.Reg. 5986, 5987 (1988), and Food and Drug Administration nutrition labels. 52 Fed.Reg. 28607 (1987). In this case, the Secretary of Labor and OMB have consistently agreed that the hazard communication standard is subject to review under the Act. See 47 Fed.Reg. 12092, 12111 (1982); 48 Fed.Reg. 53280 (1983); 52 Fed.Reg. 31852, 31870 (1987); 53 Fed.Reg. 29822, 29826, 29849-29850 (1988). Courts should be particularly reluctant to intervene in the regulatory process when the executive agencies have been able to cooperate effectively.
3. Relevant to this case are the following definitions promulgated by OMB as 5 CFR § 1320.7 (1989):
4. In this same vein, § 3504, in setting forth OMB's authority and functions in administering the Act, directs that the information collection request clearance and other paperwork control functions of the Office shall include "setting goals for reduction of the burdens of Federal information collection requests." 44 U.S.C. § 3504(c)(5) (1982 ed.). See also § 3505(1), which directs OMB to set goals to reduce the paperwork burdens by specified percentages, as well as § 3507(a)(1)'s requirement that agencies take action to reduce the paperwork burden of a proposal before submitting such proposals to OMB.
5. In particular, see S. 1411 Hearings, at 61-87; H.R.Rep. No. 96-835, pp. 18-23 (1980); S.Rep. No. 96-930, pp. 13, 39-40 (1980).
6. In any event, the PRA itself provides a check on OMB's ability to expand its jurisdiction, at least with respect to independent regulatory agencies. Section 3507(c) provides as follows:

"Any disapproval by the Director, in whole or in part, of a proposed information collection request of an independent regulatory agency . . . may be voided, if the agency by a majority vote of its members overrides the Director's disapproval or exercise of authority. The agency shall certify each override to the Director, [and] shall explain the reasons for exercising the override authority. Where the override concerns an information collection request, the Director shall without further delay assign a control number to such request, and such override shall be valid for a period of three years."