### 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 fa iled to comply with 29 C.F.R. § 1910.132(d)(1)

. For the reasons that follow, w e AFFIRM the Commission’s conclusion that the Secretary of Labor ’s (“ the Secretary”) interpretation of § 1910.132(d)(1) was reasonable. How ever, because we det ermine 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 Case: 15-60462 Document: 00513453849 Page: 1 Date Filed: 04/06/2016No. 15

- 60462

2 M art did not have adequate notice that its actions were noncompliant with § 1910.132(d)(1), we VACATE th e 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 dis tribution 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 e nter 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 inspect ed 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 Sec retary reasonably interpreted § 1910.132(d)(1) to require Wal

- Mart to con duct a n individual hazard assessment of its distribut ion 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

. Case: 15-60462 Document: 00513453849 Page: 2 Date Filed: 04/06/2016No. 15

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3 similarities to the distribu tion 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 cond uct 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 ex istence 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 locati on. The ALJ thus concluded that the S ecretary 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 pract ices 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. § 65 9(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 Case: 15-60462 Document: 00513453849 Page: 3 Date Filed: 04/06/2016No. 15

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4 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 wh ether 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 m ay 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 interpret ing 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 15 0 (citation omitted). When the regulatory language is ambiguou s, 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 U nited 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 BN A 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 prese nt, or are likely to be Case: 15-60462 Document: 00513453849 Page: 4 Date Filed: 04/06/2016No. 15

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

- Mart to individually assess each of its distribution centers for hazard s , 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 ass essment 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 i n 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 envisi on that an employer should personally observe working cond itions to adequately perform a hazard assessment. The appendix stat es 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 hazar ds. 29 C.F.R. Pt. 1910, Subpt. I,

2 Wal

- Mart asserts that an interpretation of the regulation requiring individual haza rd 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 acco unts 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 appea r.
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 obligat ions, they are interpreted in light of what is reasonable.”). Case: 15-60462 Document: 00513453849 Page: 5 Date Filed: 04/06/2016No. 15

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6 App. B.3. However, the appendix is clearly and explicitly designated as non

mandatory. 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. A ccordingly, the Secretary’s interpretation of § 1910.132(d)(1), confirmed by the Commission, is “consistent with the regulatory language and is otherwise reasonable. ” M artin , 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 c onfirm 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 Se cretary may issue citations as a means of interpreting a n 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 15 8. “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 Case: 15-60462 Document: 00513453849 Page: 6 Date Filed: 04/06/2016No. 15

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7 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, b efore 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 OS HA 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 l ocation 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

. ” I d . In other words, at the time Wal

- Mart was cited, a reasonable employer in Wal

- Mart’s position would not have known that it s 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. S ee Corbesco , Inc. , 926 F.2d at 427. IV. Conclusion Although we ultimately determine the Secretary and Commission’ s interpretatio n 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 s uggests that a hazard assessment of the Se arcy Center was conducted .”

5 Because we hold that Wal

- Mart did not receive fair notice of a potential violation of § 1910.132(d)(1), w e need not address whether there was s ubstantial evidence to support a citation. Case: 15-60462 Document: 00513453849 Page: 7 Date Filed: 04/06/2016