IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60462

WAL-MART DISTRIBUTION CENTER #6016, 

 Petitioner

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; 

THOMAS E. PEREZ, SECRETARY, DEPARTMENT OF LABOR, 

 Respondents

Petition for Review of an Order of the Occupational

Safety and Health Review Commission

Before CLEMENT and HAYNES, Circuit Judges, and GARCIA 

MARMOLEJO, District Judge.*

HAYNES, Circuit Judge:

Wal-Mart Distribution Center # 6016 (“Wal-Mart”) petitions for review 

of the decision of the Occupational Safety & Health Review Commission (the 

“Commission”) that found that Wal-Mart failed to comply with 29 C.F.R. 

§ 1910.132(d)(1). For the reasons that follow, we AFFIRM the Commission’s 

conclusion that the Secretary of Labor’s (“the Secretary”) interpretation of 

§ 1910.132(d)(1) was reasonable. However, because we determine that Wal-

 

* District Judge of the Southern District of Texas, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

April 6, 2016

Lyle W. Cayce

Clerk

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Mart did not have adequate notice that its actions were noncompliant with 

§ 1910.132(d)(1), we VACATE the citation and penalty. 

I. Background

In October of 2006, Wal-Mart performed a hazard assessment of its 

distribution center in Searcy, Arkansas, as required by 29 C.F.R. 

§ 1910.132(d)(1), which states:

The employer shall assess the workplace to determine 

if hazards are present, or are likely to be present, 

which necessitate the use of personal protective 

equipment (PPE). 

The Searcy distribution center is one of approximately 120 distribution centers 

operated by Wal-Mart nationwide. In January of 2008, the Occupational 

Safety and Health Administration (“OSHA”) audited the Searcy distribution 

center as part of Wal-Mart’s application to enter the Searcy location into

OSHA’s Voluntary Protection Program (“VPP”).1 During the audit, Wal-Mart 

informed OSHA that the hazard assessment for its Searcy location would be 

applied to its other distribution centers. 

In February of 2008, OSHA inspected Wal-Mart’s distribution center in 

New Braunfels, Texas. The following August, OSHA issued Wal-Mart a 

citation for failing to conduct a hazard assessment for its New Braunfels 

location, in violation of § 1910.132(d)(1), and imposed a penalty of $1,700. 

An administrative law judge (“ALJ”) affirmed the violation of 

§ 1910.132(d)(1). He concluded that the Secretary reasonably interpreted 

§ 1910.132(d)(1) to require Wal-Mart to conduct an individual hazard 

assessment of its distribution center in New Braunfels despite its alleged 

 

1 The VPP is a program that allows qualified companies with rigorous safety practices 

and strong safety records to avoid regular inspections. See Austin Indus. Specialty Servs., 

L.P. v. Occupational Safety & Health Review Comm’n, 765 F.3d 434, 440 (5th Cir. 2014). 

OSHA recognized the Searcy distribution center as a VPP worksite in May of 2008. 

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similarities to the distribution center in Searcy, Arkansas. The ALJ rejected 

Wal-Mart’s argument that its “cookie cutter” approach to constructing and 

operating distribution centers removed any need to conduct an individual 

hazard assessment of the New Braunfels distribution center, because this 

approach failed to confirm the uniformity of workplace conditions. He further 

rejected Wal-Mart’s contention that a section of its safety manual established 

the existence of a hazard assessment of the New Braunfels location because 

this document failed to specifically mention the New Braunfels distribution 

center or certify that it represented a hazard assessment for that location. The 

ALJ thus concluded that the Secretary had established that Wal-Mart had 

violated § 1910.132(d)(1). 

The Commission granted discretionary review of the ALJ’s decision and, 

in a 2-1 decision, affirmed the violation of § 1910.132(d)(1). It concluded that 

because Wal-Mart had failed to personally observe that conditions at the New 

Braunfels distribution center were identical to those in Searcy, Wal-Mart had 

violated § 1910.132(d)(1). The Commission also rejected Wal-Mart’s argument 

that it was not provided adequate notice that its practices failed to comply with 

§ 1910.132(d)(1). Wal-Mart then petitioned our court to review the 

Commission’s order. 

II. Jurisdiction and Standard of Review

The Commission had jurisdiction under the Occupational Safety and 

Health Act of 1970, 29 U.S.C. § 659(c), and Wal-Mart timely petitioned for 

review as outlined in 29 U.S.C. § 660(a). 

An agency’s interpretation of its own regulation is “entitled to 

substantial deference.” Martin v. Occupational Safety & Health Review 

Comm’n, 499 U.S. 144, 150, 158 (1991) (citation omitted) (holding that a 

reviewing court should defer to the Secretary of Labor when the Secretary and 

the Commission provide reasonable but conflicting interpretations of an 

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ambiguous regulation promulgated under the Occupational Safety and Health 

Act). As such, we “review the Secretary’s interpretation to assure that it is 

consistent with the regulatory language and is otherwise reasonable.” Id. at 

156. 

The Commission’s “legal conclusions are reviewed as to whether they are 

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law.” Trinity Marine Nashville, Inc. v. Occupational Safety & Health 

Review Comm’n, 275 F.3d 423, 427 (5th Cir. 2001) (citations omitted). “Of 

course, we may also set aside [an] order if it violates . . . constitutional rights.” 

Corbesco, Inc. v. Dole, 926 F.2d 422, 425 (5th Cir. 1991). 

III. Discussion

A. Section 1910.132(d)(1)’s hazard assessment requirement

The Supreme Court has stated that in interpreting OSHA regulations, if 

“the meaning of regulatory language is not free from doubt, [we] should give 

effect to the agency’s interpretation so long as it is reasonable.” Martin, 499 

U.S. at 150 (citation omitted). When the regulatory language is ambiguous, 

we may also consult the regulation’s preamble. See Albemarle Corp. v. 

Herman, 221 F.3d 782, 786 (5th Cir. 2000). Ambiguous regulatory language 

also permits us to consult the appendix accompanying an OSHA regulation as 

an interpretive aid. See United Steelworkers of Am., AFL-CIO-CLC v. 

Schuylkill Metals Corp., 828 F.2d 314, 323 (5th Cir. 1987) (deeming a 

regulation’s appendix as “in essence[,] an interpretive bulletin” and using it to 

interpret the regulation); see also Article II Gun Shop, Inc., 16 BNA OSHC 

2035 (Nos. 91-2146 & 91-3127, 1994), 1994 WL 541792, at *4 n.12 (“Statements 

made in a nonmandatory appendix to a standard may be used to shed light on 

the intent of that standard.”). 

The regulatory language of § 1910.132(d)(1) requiring employers to 

“assess the workplace to determine if hazards are present, or are likely to be 

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present” is ambiguous. It is unclear whether “assess the workplace” requires 

Wal-Mart to individually assess each of its distribution centers for hazards, or 

whether Wal-Mart may use a single hazard assessment for all distribution 

centers allegedly identical in layout and operations.2 In short, the regulatory 

language is “not free from doubt” on the issue of whether Wal-Mart may use 

its Searcy hazard assessment for its New Braunfels location. Martin, 599 U.S. 

at 150. 

The preamble fails to provide much additional clarity. It makes specific 

references to a “particular” workplace, see Preamble to the PPE Final Rule, 59 

Fed. Reg. 16,336 (Apr. 6, 1994), lending some support to the Secretary’s 

contention that each distribution center must be individually assessed for 

hazards. However, the preamble also gives discretion to the employer, stating 

that the regulation is a “performance-oriented provision”3 in which the 

“employer is accountable . . . for the quality of the hazard assessment.” Id. 

The non-mandatory appendix to § 1910.132(d)(1) sheds some light on 

regulatory intent. It seems to envision that an employer should personally 

observe working conditions to adequately perform a hazard assessment. The 

appendix states that “in order to assess the need for PPE” an employer should 

“[c]onduct a walk-through survey of the areas in question” in which the safety 

officer should “observe” for potential hazards. 29 C.F.R. Pt. 1910, Subpt. I, 

 

2 Wal-Mart asserts that an interpretation of the regulation requiring individual 

hazard assessments for all its locations would render superfluous the language requiring 

employers to assess workplaces for hazards that “are likely to be present.” 29 C.F.R. 

§ 1910.132(d)(1). A more plausible interpretation is that this language merely accounts for 

the fact that a hazard may not necessarily manifest itself at the exact time a hazard 

assessment is being conducted and thus directs employers to assess the workplace for both 

readily apparent hazards and also hazards that could subsequently appear. 

3 Performance-oriented provisions are interpreted in light of a reasonableness 

standard. Thomas Indus. Coatings, Inc., 21 BNA OSHC 2283 (No. 97-1073, 2007), 2007 WL 

4138237, at *4 (“Because performance standards . . . do not identify specific obligations, they 

are interpreted in light of what is reasonable.”).

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App. B.3. However, the appendix is clearly and explicitly designated as nonmandatory. 29 C.F.R. § 1910.132 (“Non-mandatory appendix B contains an 

example of procedures that would comply with the requirement for a hazard 

assessment.”).

In sum, the regulation, the preamble, and the non-mandatory appendix 

fail to resolve the ambiguity as to whether Wal-Mart may use its Searcy hazard 

assessment as the hazard assessment for the allegedly identical New 

Braunfels location. In such circumstances, we give substantial deference to an 

agency’s interpretation of its own regulation. Martin, 499 U.S. at 150. The 

Secretary notes that even if distribution centers have identical designs, 

working conditions can change due to lack of maintenance, new equipment, 

change in personnel and adjustments to work processes. Accordingly, the 

Secretary’s interpretation of § 1910.132(d)(1), confirmed by the Commission, is 

“consistent with the regulatory language and is otherwise reasonable.” Martin, 

499 U.S. at 156. While § 1910.132(d)(1) may not require an employer to 

conduct a full-fledged hazard assessment of all identical workplaces, it is 

reasonable to interpret § 1910.132(d)(1) to require an employer to confirm that 

workplaces are indeed identical before a hazard assessment for one workplace 

can qualify as the hazard assessment for another location. We agree with the 

Commission’s conclusion that the Secretary’s interpretation of § 1910.132(d)(1) 

is reasonable. 

B. Adequate notice

The Secretary may issue citations as a means of interpreting an OSHA

regulation, but “the decision to use a citation as the initial means for 

announcing a particular interpretation may bear on the adequacy of notice to 

regulated parties.” Martin, 499 U.S. at 158. “The touchstone for sufficiency of 

notice under the due process clause is reasonableness.” Corbesco, Inc., 926 

F.2d at 426. The designation as an OSHA VPP workplace can also implicate 

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whether an employer had adequate notice. “To establish a lack of fair notice, 

[the employer] must show that, through the VPP, it had a fair expectation that 

OSHA had found its procedures satisfactory.” Austin Indus. Specialty Servs., 

L.P. v. Occupational Safety & Health Review Comm’n, 765 F.3d 434, 440 (5th 

Cir. 2014). 

As mentioned above, before the Secretary clarified § 1910.132(d)(1) 

through its attempt to cite Wal-Mart, the regulatory language, the preamble, 

and the non-mandatory appendix of the regulation were ambiguous.

Furthermore, Wal-Mart notified OSHA during the VPP audit of its Searcy 

location that it was using the Searcy hazard assessment as the assessment for

its other distribution centers.4 OSHA subsequently recognized the Searcy 

location as achieving VPP status. Thus, Wal-Mart has shown that “through 

the VPP, it had a fair expectation that OSHA had found its procedures 

satisfactory.” Id. In other words, at the time Wal-Mart was cited, a reasonable 

employer in Wal-Mart’s position would not have known that its practices were 

a violation of § 1910.132(d)(1). As such, the Secretary’s citation of Wal-Mart 

violated Wal-Mart’s due process right to adequate notice. See Corbesco, Inc., 

926 F.2d at 427. 

IV. Conclusion

Although we ultimately determine the Secretary and Commission’s 

interpretation of § 1910.132(d)(1) to be reasonable, because Wal-Mart lacked 

adequate notice of that interpretation, we VACATE the citation and the related 

$1,700 penalty.5 

 

4 At oral argument, counsel for the Secretary claimed that the ALJ did not find that a 

hazard assessment was performed at the Searcy location. On the contrary, the ALJ stated 

that “the record suggests that a hazard assessment of the Searcy Center was conducted.” 

5 Because we hold that Wal-Mart did not receive fair notice of a potential violation of 

§ 1910.132(d)(1), we need not address whether there was substantial evidence to support a 

citation. 

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