## Facts

- The Occupational Safety and Health Act authorizes the Secretary of Labor to issue standards and rules to ensure safe and healthful employment and permits civil penalties “for each violation.”
- OSHA historically treated some employer omissions—such as failing to provide required respirators or required training—as potentially chargeable on a per-employee basis in enforcement.
- In 2008, the Secretary amended OSHA regulations (including 29 C.F.R. § 1910.9 and parallel construction provisions) to state expressly that, for certain requirements, each employee who did not receive required protection (e.g., a respirator) or required training constitutes a separate violation for penalty purposes.
- Trade associations representing regulated employers challenged the amendments, arguing they effectively created substantially higher penalties by multiplying violations per employee rather than per instance of noncompliant conduct.
- The petitioners sought direct review in the D.C. Circuit, asserting the amendments exceeded statutory authority and were unlawful under administrative law principles.

## Issues

1. Whether the OSH Act authorizes OSHA to define the “unit of violation” so that failure to protect each affected employee constitutes a separate violation for penalty purposes.
2. Whether the challenged amendments were impermissible new “standards” requiring additional statutory justification, rather than a permissible clarification of how violations are counted.
3. Whether OSHA’s per-employee interpretation and explanation were reasonable and not arbitrary or capricious under the Administrative Procedure Act.

## Decision

- The D.C. Circuit denied the petition for review and upheld the challenged rules.
- The court held that the OSH Act leaves discretion to the Secretary to define what constitutes a “violation,” including the unit of violation used for enforcement and penalties.
- The court accepted OSHA’s characterization of the amendments as a clarification that did not impose new substantive safety duties beyond existing requirements.
- The court concluded OSHA’s per-employee counting approach for specified obligations was reasonable and adequately explained, and therefore not arbitrary or capricious.
- The court rejected arguments that the rule was unfairly punitive or lacked notice, noting penalty amounts remain subject to statutory factors and OSHA had long indicated per-employee charging for certain requirements.

## Legal Principles

- When a statute authorizes penalties “for each violation” without specifying the unit of violation, an agency may reasonably define the unit through regulation, subject to administrative-law review.
- A rule that clarifies how violations will be counted and penalized, without adding substantive compliance obligations, may fall within an agency’s general rulemaking authority to carry out the statute.
- Courts will uphold an agency’s interpretation where statutory ambiguity exists and the agency’s construction is reasonable and supported by an adequate explanation in the rulemaking record.
- Challenges asserting disproportionate penalties do not invalidate a counting rule where penalty assessments remain discretionary and constrained by statutory penalty factors.

## Conclusion

The D.C. Circuit held that OSHA acted within its statutory authority by clarifying that certain failures to provide required respirators or training may be charged as separate violations for each affected employee, and it upheld the rule as a reasonable, non-arbitrary exercise of the agency’s enforcement-defining discretion.


Nat'l Ass'n of Home Builders v. Occupational Safety & Health Admin., 602 F.3d 464 (D.C. Cir. 2010)