## Facts

- NIOSH administered respirator certification standards under which thirteen respirator types were approved for asbestos work.
- OSHA and EPA regulations allowed employers to use multiple certified respirators for asbestos abatement.
- In April 1986, EPA and NIOSH published “A Guide to Respiratory Protection for the Asbestos Abatement Industry,” recommending supplied-air respirators “for maximum protection.”
- The Guide described eleven of the thirteen NIOSH-approved respirators as “not recommended” for asbestos abatement work, while leaving their certifications unchanged.
- The Industrial Safety Equipment Association (ISEA) and member manufacturers alleged the Guide effectively “decertified” the disfavored respirators, causing market harm and prompting contractors and regulators to treat the recommendations as mandatory.
- ISEA sued for declaratory and injunctive relief, alleging (1) an APA violation for adopting new rules without notice-and-comment and (2) a due process violation based on deprivation of property interests tied to certifications and product goodwill.
- The district court dismissed the complaint with prejudice, characterizing the Guide as nonbinding informational material and not reviewable agency action.

## Issues

1. Whether the Guide constituted final, reviewable “agency action” under the APA despite not changing regulations or certification status.
2. Whether the Guide functioned as a legislative rule that required notice-and-comment rulemaking because it effectively decertified previously approved respirators.
3. Whether publication of the Guide deprived manufacturers of a protected property interest without due process.

## Decision

- The D.C. Circuit affirmed the dismissal with prejudice.
- The court held the Guide was a nonbinding informational publication and lacked the legal consequences required for final agency action.
- The court rejected the claim that the Guide decertified respirators, emphasizing certifications and underlying regulatory permissions remained intact.
- The court held alleged economic harms from government recommendations did not establish an APA claim or a due process deprivation where legal status was unchanged.

## Legal Principles

- Nonbinding agency guidance that recommends practices but does not alter legal rights, obligations, or enforcement consequences generally is not “final agency action” reviewable under the APA.
- A document is not a legislative rule requiring notice-and-comment when it does not amend existing regulations, revoke approvals, or impose binding requirements on regulated parties.
- Practical influence and market effects from agency speech, without a change in legal status, do not convert informational guidance into reviewable agency action.
- Due process requires a deprivation of a protected entitlement; reputational or economic injury from nonbinding government recommendations, absent a change in legal entitlement, is insufficient.

## Conclusion

Because the respirator Guide left governing regulations and NIOSH certifications unchanged and operated only as nonbinding advice within the agencies’ authority to disseminate health information, it was not final agency action under the APA and did not deprive manufacturers of property without due process.


Indus. Safety Equip. Ass’n, Inc. v. EPA, 837 F.2d 1115 (D.C. Cir. 1988)