 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 12, 2013               Decided April 11, 2014

                         No. 12-1375

                SEAWORLD OF FLORIDA, LLC,
                      PETITIONER

                              v.

       THOMAS E. PEREZ, SECRETARY, UNITED STATES
                 DEPARTMENT OF LABOR,
                     RESPONDENT


       On Petition for Review of a Final Order of the
     Occupational Safety & Health Review Commission


     Eugene Scalia argued the cause for petitioner. With him on
the briefs were Baruch A. Fellner and Daniel P. Rathbun.

     Amy S. Tryon, Attorney, U.S. Department of Labor, argued
the cause for respondent. With her on the brief were Joseph M.
Woodward, Associate Solicitor, Charles F. James, Counsel for
Appellate Litigation, and Kristen M. Lindberg, Attorney.

   Before: GARLAND, Chief Judge, and ROGERS and
KAVANAUGH, Circuit Judges.

    Opinion for the Court by Circuit Judge ROGERS.

    Dissenting Opinion by Circuit Judge KAVANAUGH.
                                2


     ROGERS, Circuit Judge: SeaWorld of Florida, LLC,
operates a theme park in Orlando, Florida, that is designed to
entertain and educate paying customers by displaying and
studying marine animals. Following the death of one of
SeaWorld’s trainers while working in close contact with a killer
whale during a performance, the Occupational Safety and Health
Review Commission found that SeaWorld had violated the
general duty clause, § 5(a)(1) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 654(a)(1), by exposing the
trainers to recognized hazards when working in close contact
with killer whales during performances, and that the abatement
procedures recommended by the Secretary of Labor were
feasible. SeaWorld challenges the order with respect to one
citation. Concluding its challenges are unpersuasive, we deny
the petition for review.

                                I.

     On February 24, 2010, SeaWorld trainer Dawn Brancheau
was interacting with Tilikum, a killer whale, during a
performance before a live audience in a pool at Shamu Stadium
in Orlando. Ms. Brancheau was reclined on her back on a
platform a few inches below the water surface. Tilikum was
supposed to mimic her behavior by rolling over. Instead, the
killer whale grabbed her and pulled her off the platform into the
pool, refusing to release her. She suffered traumatic injuries and
drowned as a result of Tilikum’s actions.

     The Secretary of Labor issued three citations to SeaWorld
after an investigation by an Occupational Safety and Health
Administration (“OSHA”) compliance officer. Only the second
citation is at issue. It alleged two instances of a “willful”
violation of the general duty clause for exposing animal trainers
to the recognized hazards of drowning or injury when working
                                3

with killer whales during performances. The first instance
related to animal trainers working with Tilikum being exposed
to “struck-by and drowning hazards” by being “allowed
unprotected contact with Tilikum” while conducting “‘drywork’
performances on pool ledges, slideouts and platforms.” Citation
2, Instance (a). In SeaWorld’s terms, when trainers are out of
the pool or on submerged ledges called “slideouts” in water no
deeper than their knees, their interactions with killer whales are
called “drywork.” Any interaction in deeper water is
“waterwork.” According to the Secretary, “[a]mong other
methods, one feasible and acceptable means of abatement would
be to not allow animal trainers to have any contact with Tilikum
unless they are protected by a physical barrier.” Id. The second
instance concerned animal trainers working with killer whales
other than Tilikum who were exposed to struck-by and drowning
hazards when they were “allowed to engage in ‘waterwork’ and
‘drywork’ performances with the killer whales without adequate
protection.” Citation 2, Instance (b). The Secretary listed as
possible abatement methods “prohibit[ing] animal trainers from
working with killer whales, including ‘waterwork’ or ‘dry
work,’ unless the trainers are protected through the use of
physical barriers or through the use of decking systems, oxygen
supply systems or other engineering or administrative controls
that provide the same or greater level of protection for the
trainers.” Id. The Secretary proposed a penalty of $70,000.

    Following an evidentiary hearing, the Administrative Law
Judge (“ALJ”) found that on February 24, 2010, a
“performance” was still in progress when Tilikum seized Ms.
Brancheau and pulled her into the pool water. SeaWorld of Fla.,
LLC, 2012 WL 3019734, slip op. at 16, at *12 (No. 10-1705,
2012). (A customer had taken a video of the performance.) The
ALJ found that the first and third elements of a violation of the
general duty clause — existence of a workplace condition
presenting a hazard that likely caused death or serious physical
                                 4

harm — were established by the events on February 24, 2010:
Ms. Brancheau’s death demonstrated that close contact with
killer whales was a hazard likely to cause death or serious
injury. Based on evidence regarding three previous deaths
involving killer whales (beginning in 1991 with Tilikum),
SeaWorld’s written training manuals and safety lectures as
implemented specifically to Tilikum, and SeaWorld’s incident
reports, the ALJ found that the Secretary had established by
“abundant” record evidence that “SeaWorld recognized the
hazard created when its trainers worked in close contact with
Tilikum during drywork performances,” satisfying the second
element of a violation. Id. at 25–26, *19. Further, the ALJ
found that evidence, including SeaWorld’s incident reports,
established that SeaWorld recognized the hazard when trainers
worked in close contact with other killer whales; SeaWorld’s
statistics regarding the predictability of killer whale behavior, on
the other hand, were unpersuasive because not based on
rigorous, scientific data. The ALJ concluded that SeaWorld’s
claim that “it was unaware working with killer whales presents
a recognized hazard is difficult to reconcile with numerous
comments made over the years by SeaWorld management
personnel, including [two] corporate curators of animal training
. . . [whose] comments were documented and circulated among
all of the SeaWorld parks.” Id. at 29, *22.

     The ALJ also found that the Secretary had established the
fourth element of a violation: feasible abatement of the hazard
for trainers working with Tilikum and other killer whales.
SeaWorld had not argued, the ALJ noted, that it is infeasible to
install barriers or implement a minimum distance between
trainers and whales, but rather “considers the extensive safety
training of its trainers and the operant conditioning of its killer
whales to be an adequate means of abatement that materially
reduces the hazard the killer whales present to the trainers.” Id.
at 34, *25. The ALJ found the Secretary had met her burden to
                                5

show SeaWorld’s safety program is inadequate. Despite
SeaWorld’s contention that its operant conditioning “materially
reduces the recognized hazard,” id., the ALJ concluded that
“SeaWorld’s reliance on its trainers to recognize precursors and
prevent unpredictable behavior by the killer whales runs counter
to the requirements of the Act. ‘The duty to comply with
section 5(a)(1) . . . rests with the employer.’” Id. at 36, *27
(quoting Armstrong Cork Co., 8 BNA OSHC 1070, 1074, 1980
WL 10754, at *5 (No. 76-2777, 1980)). The ALJ further
concluded that “SeaWorld holds trainers to a near-impossible
standard set by upper management, who engage in a form of
Monday morning quarterbacking.” Id. at 37, *28. Additionally,
the ALJ noted that SeaWorld had already implemented the
means of abatement recommended by the Secretary for trainers
working with Tilikum — namely, maintaining a minimum
distance from the killer whale, or imposing a physical barrier
between the killer whale and trainers — and concluded the same
or similar abatement involving other killer whales was no less
feasible.

     Although crediting the testimony of a SeaWorld curator of
animal training regarding the educational and inspirational
justification for continuing “waterwork” with killer whales, the
ALJ concluded that justification “must be measured against the
risk incurred by allowing trainers to interact closely with killer
whales.” Id. at 42, *31. Observing that OSHA has “no specific
standard” regulating employees working in close contact with
killer whales, and that the Secretary had presented no evidence
SeaWorld had a “heightened awareness of the illegality of its
conduct” or manifested “plain indifference to employee safety,”
id. at 44–45, *33, the ALJ found that violations were “serious,”
not “willful,” and imposed a fine of $7,000 for the general duty
clause violation in Citation 2, emphasizing that his order was
limited to show performances. Id. at 45–47, *34–35. SeaWorld
unsuccessfully sought discretionary review by the Commission,
                                6

whereupon the ALJ’s decision and order became final. See 29
C.F.R. § 2200.90(d). SeaWorld petitions for review of the
general duty violation.

                                II.

     The general duty clause, § 5(a)(1) of the Occupational
Safety and Health Act, provides: “Each employer [ ] shall furnish
to each of his employees employment and a place of employment
which are free from recognized hazards that are causing or are
likely to cause death or serious physical harm to his employees.”
29 U.S.C. § 654(a)(1). As explained by the House Committee on
Education and Labor, “[b]earing in mind the fact that there is no
automatic penalty for violation of the general duty, this clause
enables the Federal Government to provide for the protection of
employees who are working under such unique circumstances
that no standard has yet been enacted to cover this situation.”
H.R. REP. NO. 91-1291, at 21–22 (1970) (emphasis in original).
In a seminal case this court, in turn, observed that “[t]hough
novel in approach and sweeping in coverage, the legislation is no
more drastic than the problem it aims to meet.” Nat’l Realty &
Constr. Co. v. OSHRC, 489 F.2d 1257, 1260–61 (D.C. Cir. 1973)
(footnote omitted). Notwithstanding the “unqualified and
absolute” textual imperative that the workplace be “free” of the
recognized hazard, id. at 1265, the court further observed that
“Congress quite clearly did not intend the general duty clause to
impose strict liability: The duty was to be an achievable one,” id.
at 1265–66. So understood, the court held that “[a]ll preventable
forms and instances of hazardous conduct must . . . be entirely
excluded from the workplace.” Id. at 1266–67. See also Cont’l
Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980); Gen.
Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d
453, 458, 464 (1st Cir. 1979); Titanium Metals Corp. of Am. v.
Usery, 579 F.2d 536, 543–44 (9th Cir. 1978); Getty Oil Co. v.
OSHRC, 530 F.2d 1143, 1145 (5th Cir. 1976); Brennan v.
                                 7

OSHRC, 501 F.2d 1196, 1198, 1200 (7th Cir. 1974); Brennan v.
OSHRC, 502 F.2d 946, 951–52 (3d Cir. 1974); REA Express,
Inc. v. Brennan, 495 F.2d 822, 826 (2d Cir. 1974).

     “To establish a violation of the General Duty Clause, the
Secretary must establish that: (1) an activity or condition in the
employer’s workplace presented a hazard to an employee, (2)
either the employer or the industry recognized the condition or
activity as a hazard, (3) the hazard was likely to or actually
caused death or serious physical harm, and (4) a feasible means
to eliminate or materially reduce the hazard existed.” Fabi
Constr. Co. v. Sec’y of Labor, 508 F.3d 1077, 1081 (D.C. Cir.
2007) (citation omitted). Tempering the range of potential
remedies that might be imposed upon finding a violation of the
clause, the court explained: “In other words, ‘the Secretary must
prove that a reasonably prudent employer familiar with the
circumstances of the industry would have protected against the
hazard in the manner specified by the Secretary’s citation.’” Id.
(quoting L.R. Willson & Sons, Inc. v. OSHRC, 698 F.2d 507, 513
(D.C. Cir. 1983)) (emphasis in original).

     SeaWorld contests only the second and fourth elements
regarding recognized hazard and feasibility. In challenging the
general duty citation, SeaWorld does not perforce contend that
the Secretary of Labor or the Occupational Safety and Health
Review Commission lack legal authority to require employers to
provide a reasonably safe working environment for employees.
Rather, SeaWorld takes issue with the interpretation by these
officials of what constitutes a recognized hazard that would
subject an employer to citation under the Occupational Safety
and Health Act. First, SeaWorld contends that the finding that
it exposed its employees to a “recognized hazard” is unsupported
by substantial evidence. Second, it contends that “when some
risk is inherent in a business activity, that risk cannot constitute
a ‘recognized hazard.’” Pet’r Br. at 33. Third, it contends that
                                8

the ALJ’s decision was based on unreliable expert testimony
about the extent of killer whale predictability after SeaWorld’s
training and precautions. As regards the feasibility of physical
barriers and minimum distances SeaWorld contends that the
Secretary failed to prove feasible abatement methods (or that
SeaWorld had already implemented these measures), and that the
ALJ failed to consider evidence these abatement measures
present additional hazards and erred because eliminating close
contact changes the nature of a trainer’s job. Finally, SeaWorld
contends the general duty clause is unconstitutionally vague as
applied because SeaWorld lacked fair notice of the Secretary’s
abatement measures.

     The court must uphold the Commission’s decision unless it
is “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” Fabi Constr. Co., 508 F.3d at 1080
(quoting 5 U.S.C. § 706(2)(A)) (internal quotation marks
omitted); see A.E. Staley Mfg. Co. v. Sec’y of Labor, 295 F.3d
1341, 1345 (D.C. Cir. 2002). The factual findings of the
Commission, “if supported by substantial evidence on the record
considered as a whole, shall be conclusive.” 29 U.S.C. § 660(a);
see, e.g., Fabi Constr. Co., 508 F.3d at 1081. Under this
standard, the court must “uphold Commission findings so long
as there is ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” AJP Constr., Inc.
v. Sec’y of Labor, 357 F.3d 70, 73 (D.C. Cir. 2004) (citations
omitted). Likewise, the court “must accept the ALJ’s credibility
determinations . . . unless they are patently unsupportable.” Id.
(ellipsis in original) (citation omitted). The court will “defer to
the Secretary’s interpretation of the Act and regulations,
upholding such interpretations so long as they are consistent with
the statutory language and otherwise reasonable.” Anthony
Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1302 (D.C. Cir. 1995)
(citing Martin v. OSHRC, 499 U.S. 144, 150–51 (1991)).
                                9

                                A.
     Whether a work condition poses a recognized hazard is a
question of fact. See Baroid Div. of NL Indus., Inc. v. OSHRC,
660 F.2d 439, 446 (10th Cir. 1981). Substantial evidence
supports the finding that “drywork” and “waterwork” with killer
whales were recognized hazards. Tilikum is a 32-year-old male
killer whale with known aggressive tendencies who in 1991
killed a whale trainer at a marine park in Vancouver, British
Columbia. SeaWorld had established special protocols for
Tilikum, which prohibited “waterwork” and, among other things,
required non–killer whale personnel and guests to stay five feet
behind pool walls or three feet from Tilikum’s head, indicating
that SeaWorld recognized the possibility of harm to people
standing outside of the pool on land. Although “drywork” with
Tilikum continued, SeaWorld limited it to a team of experienced
trainers who used extra caution. The caution with which
SeaWorld treated Tilikum even when trainers were poolside or
on “slideouts” in the pool indicates that it recognized the hazard
the killer whale posed, not that it considered its protocols
rendered Tilikum safe.

     As to other killer whales, SeaWorld suggests that close
contact with these whales was not a recognized hazard because
all whales behave differently and its incident reports help
SeaWorld improve training. But SeaWorld’s incident reports
demonstrate that it recognized the danger its killer whales posed
to trainers notwithstanding its protocols. At the time of Ms.
Brancheau’s death, seven killer whales were at the Orlando park.
Even though SeaWorld had not recorded incident reports on all
of its killer whales, a substantial portion of SeaWorld’s killer
whale population had at least one reported incident. The ALJ
also relied on the many comments by SeaWorld management
personnel, including corporate curators of animal training, who
described the need for caution around killer whales generally, not
only around certain killer whales. Killer whales bit trainers’
                                10

body parts on several occasions (although not generally
puncturing skin) and in 2006 a killer whale pulled a trainer
underwater by the foot and submerged him repeatedly for
approximately 10 minutes. Although this incident occurred
during “waterwork,” substantial evidence supports the finding
with regard to “drywork” as well. On numerous occasions,
trainers fell or were pulled into the water, as later happened with
Tilikum and Ms. Brancheau, or killer whales lunged out of the
water toward trainers. These incidents constitute substantial
evidence to support the ALJ’s finding that “drywork” was also
a recognized hazard.

     SeaWorld’s position is that working with killer whales was
not a recognized hazard because its training and safety program
adequately controlled the risk. To train its killer whales,
SeaWorld uses “operant conditioning” to reinforce desired
behaviors with food or other rewards. It also trains its employees
who work with killer whales to recognize particular behaviors
that it calls “precursors,” which indicate that the killer whales
may act aggressively, and keeps detailed incident reports of
when its killer whales had behaved aggressively or otherwise
undesirably toward trainers, including pulling trainers into the
pool. The Secretary presented evidence that the killer whales
posed a hazard in spite of SeaWorld’s safety measures. On
multiple occasions, including the death of Ms. Brancheau,
SeaWorld’s incident reports indicated that the killer whales
showed no immediate precursors of aggressive behavior or
ignored SeaWorld’s emergency procedures designed to make
them cease aggressive behavior. Statements by SeaWorld
managers do not indicate that SeaWorld’s safety protocols and
training made the killer whales safe; rather, they demonstrate
SeaWorld’s recognition that the killer whales interacting with
trainers are dangerous and unpredictable and that even senior
trainers can make mistakes during performances, and the
managers repeatedly urged caution in working with the killer
                                11

whales. The evidence thus supports the ALJ’s finding that a
recognized hazard existed, even beyond the impact of
SeaWorld’s safety protocols.

     In relying on SeaWorld’s safety program to establish a
recognized hazard, the ALJ did not, as SeaWorld suggests,
“invert[] the requirement of the General Duty Clause that the
Secretary, ‘as a threshold matter,’ ‘submit evidence proving . . .
that the methods undertaken by the employer to address the
alleged hazard were inadequate.’” Pet’r Br. at 30 (quoting U.S.
Postal Serv., 2006 WL 6463045, at *8 (OSHRC No. 04-0316,
Nov. 20, 2006)) (ellipsis in brief). In the Postal Service case, the
Secretary alleged that letter carriers risked being hit by cars in
dim or dark conditions and proposed carriers be required to wear
reflective garments that complied with industry standards, but
failed to show that carriers had been hit because of lack of
visibility when wearing the reflective garments provided by their
employer, see id. at *2, *9, or that the proposed reflective
garments would have made a difference, see id. at *9. Here,
there was substantial record evidence that SeaWorld recognized
its precautions were inadequate to prevent serious bodily harm
or even death to its trainers and that the residual hazard was
preventable.

     The remedy imposed for SeaWorld’s violations does not
change the essential nature of its business. There will still be
human interactions and performances with killer whales; the
remedy will simply require that they continue with increased
safety measures. SeaWorld itself has limited human interactions.
After Ms. Brancheau’s death in 2010, SeaWorld ceased
“waterwork” with all of its killer whales. It also imposed
distance between trainers and Tilikum during drywork and, to a
lesser degree, between other killer whales and trainers during
drywork. These self-imposed limitations are relevant to the
assessment of which aspects of SeaWorld’s business are essential
                                12

and indicate that the Secretary’s remedy will not eliminate any
essential element. SeaWorld does not assert (and at oral
argument disavowed) that a public perception of danger to its
trainers is essential to its business. See Oral Argument
Recording at 15:05–16:05. Nor has SeaWorld ever argued that
limiting interactions in the way that the remedy requires would
have a detrimental economic impact on its profits. And
SeaWorld is, after all, a for-profit entity owned, at times relevant
to the Commission proceedings, by the Blackstone Group, an
investment firm.

     Pelron Corp., 12 BNA OSHC 1833, 1986 WL 53616 (No.
82-388, 1986), on which SeaWorld relies, is inapposite. That
case involved an enforcement action against a company that
manufactured products by mixing, inter alia, ethylene oxide. See
id. at *1. The ALJ had defined the alleged hazard as the
“possibility” of accumulations of unreacted ethylene oxide,
which the Commission found could never be prevented. See id.
at *3. Thus, impliedly, the only remedy would have been to
close the plant. Here, the Secretary and the Commission could
reasonably conclude that the danger to SeaWorld’s trainers
during performances from killer whales can be prevented by use
of physical barriers and distance, and closing SeaWorld is not at
issue. The hazard killer whales pose during performances is not
“so idiosyncratic and implausible” that it cannot be considered
preventable. Nat’l Realty & Constr. Co., 489 F.2d at 1266.
SeaWorld controls its employees’ access to and contact with its
killer whales, unlike the employer in Megawest Financial Inc.,
17 BNA OSHC 1337, 1995 WL 383233, at *8–9 (No. 93-2879,
1995) (ALJ), who could not prevent the potentially criminal,
violent actions of third parties residing in the apartment buildings
it managed. SeaWorld’s reliance on the Commission’s
observation in Pelron that “[s]ome industrial activities are by
their very nature dangerous. To permit the normal activities in
such an industry to be defined as a ‘recognized hazard’ within
                                13

the meaning of section 5(a)(1) is to eliminate an element of the
Secretary’s burden of proof,” Pelron, 1986 WL 53616, at *3, is
misplaced; the Commission was addressing the requirement that
recognized hazards be “preventable” and “be defined in a way
that . . . identifies conditions or practices over which the
employer can reasonably be expected to exercise control.” Id.
(citing Nat’l Realty & Constr. Co., 489 F.2d at 1266; Davey Tree
Expert Co., 11 BNA OSHC 1898, 1899 (No. 77-2350, 1984)).

     To the extent SeaWorld maintains that close contact is
integral to cleaning and caring for their animals (i.e.,
“husbandry”), and that it was arbitrary and capricious to find a
recognized hazard in the performance context but not in the
husbandry context, its position is unfounded. Contact during
husbandry was not at issue before the ALJ or the Commission.
Regardless, although some aspects of husbandry may require
close contact, according to SeaWorld’s vice president for
veterinary services, many procedures can be conducted in a
medical pool with a lifting bottom that restricts the killer whale’s
mobility, or can be performed from poolside behind a short wall.
In his opinion, notwithstanding performance-contact limitations,
“SeaWorld is adequately caring for these animals to this day.”
Tr. ALJ Hearing at 1778 (Sept. 19, 2011).

     SeaWorld’s suggestion that because trainers “formally
accepted and controlled their own exposure to . . . risks,” the
hazard of close contact with killer whales cannot be recognized,
see Pet’r Br. at 40, contravenes Congress’s decision to place the
duty to ensure a safe and healthy workplace on the employer, not
the employee. This court has long held “this duty is not qualified
by such common law doctrines as assumption of risk,
contributory negligence, or comparative negligence.” Nat’l
Realty & Constr. Co., 489 F.2d at 1266 n.36. SeaWorld’s
reliance on Oil, Chemical & Atomic Workers International
Union v. American Cyanamid Co., 741 F.2d 444 (D.C. Cir.
                               14

1984), is misplaced; the alleged hazard in that case was the
employer’s policy prohibiting women of childbearing age from
working in high lead-exposure positions unless they had been
surgically sterilized, and the court held that “the general duty
clause does not apply to a policy as contrasted with a physical
condition of the workplace.” Id. at 448. The court explained
that the optional sterilization policy “does not affect employees
while they are engaged in work or work-related activities.” Id.
at 449. The potential harm to SeaWorld’s trainers exists in their
workplace and involves conditions over which SeaWorld has
control.

     The Secretary and the Commission could also reasonably
determine that the remedy does not go to the essence of
SeaWorld’s productions. SeaWorld has had no “waterwork”
performances since Ms. Brancheau’s death in 2010, and it
temporarily suspended “waterwork” after other incidents, such
as the killing of a trainer by a killer whale in 2009 at a non-
SeaWorld park in Spain. With distance and physical barriers
between Tilikum and trainers during drywork, Tilikum can still
perform almost the same behaviors performed when no barriers
were present. The nature of SeaWorld’s workplace and the
unusual nature of the hazard to its employees performing in close
physical contact with killer whales do not remove SeaWorld
from its obligation under the General Duty Clause to protect its
employees from recognized hazards.

     Our dissenting colleague’s analysis, although framed as a
question of who decides, Dissent at 1–2, acknowledges that
Congress has vested in the Secretary and the Commission
general authority to protect employees from unhealthy and
unsafe work places, see id. at 2–3. Ignoring this court’s
precedent regarding congressional purpose and intent and
stretching Pelron beyond its moorings, our colleague concludes
Pelron is dispositive. Dissent at 6. Nothing the Commission
                               15

said in Pelron immunizes a workplace’s dangerous “normal
activities” from oversight; the Commission simply applied well-
established law that only “preventable” hazards can be
considered as recognized. See Pelron, 1986 WL 53616, at *3
(citing Nat’l Realty & Constr. Co., 489 F.2d at 1266). This case
is not Pelron. In Pelron, the Secretary had neither identified a
preventable hazard nor proved “the inadequacy of Pelron’s safety
program,” nor demonstrated the existence of additional safety
measures. See id. Here, the Secretary identified a preventable
hazard in “conditions or practices over which [SeaWorld] can
reasonably be expected to exercise control.” Id. Neither Pelron
nor our precedent bar the Secretary from taking enforcement
action when preventable dangerous activities in a theme park
result in death or serious injury to an employee and feasible
measures exist to abate the hazard.

     Moreover, it is worth noting four rhetorical moves by our
colleague. First, although maintaining that policy questions are
not before the court, Dissent at 12, the first three pages of his
opinion can only be read as raising the question: “When,” in the
dissent’s words, “should we as a society paternalistically decide”
that employees should be protected from “the risk of significant
physical injury?” Id. at 1. This is a question to be answered by
Congress, not this court. And Congress has done so. See supra
at 6. Second, although this case is only about a single
“entertainment show,” our colleague repeatedly characterizes
this case as being about the “sports and entertainment
industries.” Dissent at 2 (emphasis added). No one has
described SeaWorld’s killer whale performances as a “sport,”
and a legal argument that the “sports industry” should not be
regulated by OSHA can be raised when and if OSHA attempts to
do so. Until then, this court will not find that OSHA acted
arbitrarily based on a few responses to hypotheticals in briefing
or oral argument. Third, our colleague is simply wrong in saying
that OSHA has “departed from tradition and stormed headlong
                                 16

into a new regulatory arena,” involving entertainment shows. Id.
at 3. In fact, this is hardly the first time that OSHA has regulated
the working conditions of such shows.1 Fourth, and as a
consequence, the parade of horribles presented by our colleague
is not relevant here. This court, moreover, could easily generate
a list of horribles on the other side, which, under our colleague’s
view, could not be distinguished. Many traditional industries can
be extremely dangerous to their employees: construction, metal


        1
           See, e.g., Murphy Enters., Inc., 17 BNA OSHC 1477, 1995
WL 547935 (No. 93-2957, 1995) (ALJ) (upholding 1993 citation to
carnival regarding operation of “a large Ferris wheel”); Interpretation
Letter, Office of General Industry Enforcement, OSHA (Jan. 28,
1997), available at https://www.osha.gov/pls/oshaweb/
owadisp.show_document?p_table=INTERPRETATIONS&p_id=22
337 (stating that OSHA “is concerned with the safety and health of all
workers in the entertainment industry” and that “theatrical employees
need to be protected from all occupational safety and health hazards”);
OSHA, Inspection 307495846, Walt Disney Entm’t, Inc. (Feb. 11,
2004), available at http://osha.gov/pls/imis/
establishment.inspection_detail?id=307495846 (citing Walt Disney
Entertainment for death of worker who was run over and killed by a
float during a parade); OSHA Std. Interp. 1975.3, 2005 WL 3801567
(June 16, 2005) (stating that “OSHA’s general industry standards”
apply to employees working at “carnivals, amusement parks, and
water parks”); Region 8 News Release, OSHA (Aug. 2, 2007),
available at https://www.osha.gov/pls/oshaweb/
owadisp.show_document?p_table=NEWS_RELEASES&p_id=14362
(citing Denver Zoo for failing “to provide appropriate protocols to
prevent inadvertent contact with dangerous animals”); Western World,
Inc., 2013 WL 7208643 (No. 07-0144, 2013) (ALJ) (upholding 2006
citation regarding a “reenactment of an Old West-style gunfight”); see
also Region 2 News Release, OSHA (Mar. 4, 2011), available at
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_tab
le=NEWS_RELEASES&p_id=19362 (announcing OSHA’s issuance
of citations to the Broadway production of “Spider-Man” following
injuries to cast members during flying routines).
                                17

pouring, logging, welding, firefighting, roofing, electrical power
line installation, handling explosives. Yet these industries have
been regulated pursuant to the Occupational Safety and Health
Act, notwithstanding that employers could claim their employees
were also “willing participants,” “even in the face of known
physical risk,” id. at 1–2, or that the employees were taking part
in “the ‘normal activities’ intrinsic to the industry,” id. at 6.

     Our colleague’s main point appears to be that the Secretary
and the Commission were arbitrary and capricious by failing to
reasonably distinguish SeaWorld’s killer whale shows from the
NFL and NASCAR. It’s all or nothing, the dissent suggests.
Dissent at 10. Either OSHA must regulate SeaWorld’s killer
whale shows and the NFL and NASCAR — or it cannot regulate
any of the three because no rational distinction is possible. Id.
But SeaWorld offers nothing to show that it raised the
NFL/NASCAR hypothetical before the Commission. The
Occupational Safety and Health Act provides: “No objection
that has not been urged before the Commission shall be
considered by the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary
circumstances.” 29 U.S.C. § 660(a); Frank Lill & Son, Inc. v.
Sec’y of Labor, 362 F.3d 840, 844 (D.C. Cir. 2004). No
principle of administrative law requires an agency to anticipate
and distinguish a hypothetical that a party did not raise until its
subsequent appellate briefs. Cf. Appalachian Power Co. v. EPA,
251 F.3d 1026, 1036 (D.C. Cir. 2001). Perhaps when squarely
faced with that question OSHA will accept the dissent’s
argument that, under the Brown & Williamson principle, it
cannot regulate sports regardless of statutory text because
“Congress could not have intended” it. Dissent at 11 (quoting
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160
(2000)). Perhaps OSHA will say, as did its appellate counsel in
response to SeaWorld’s counsel’s hypothetical, that physical
contact between players is “intrinsic” to professional football in
                               18

a way that it is not to a killer whale show. See Resp’t Br. at 52.
In any event, no principle of law requires a court, when
reviewing a citation based on specific facts relating to one of
several kinds of entertainment shows put on by a single
employer, to reach beyond that citation and decide the
hypothetical application of the statute to another industry.

     Furthermore, in maintaining that the citation of SeaWorld
was arbitrary and capricious in view of the dangerous nature of
killer whale shows, our colleague overlooks that SeaWorld itself
has implemented similar abatement measures and done so
without any suggestion of harm to its profits. Substantial
evidence supports the finding that close trainer contact with
killer whales is not integral to SeaWorld’s workplace. The scope
of our review affords no occasion to “substitute our own
judgment for that of the agency, but . . . examine[s] only
‘whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment.’” Wisc. Valley Improvement Co. v. FERC, 236 F.3d
738, 745 (D.C. Cir. 2001) (quoting Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). We note,
however, that had Congress intended all unsafe and unhealthy
performances in the entertainment industry to be beyond the
scope of employee protection, it could have included such an
exemption in the Occupational Safety and Health Act, and it did
not. “When that is Congress’ purpose, it makes its intention
clear by using language that makes express exceptions . . . or
expressly permits the making of distinctions [the statute] would
otherwise prohibit.” Miller v. Clinton, 687 F.3d 1332, 1340
(D.C. Cir. 2012). For instance, Congress authorized the
Secretary, after notice and hearing, to make “reasonable
variations, tolerances, and exemptions to and from any or all
provisions . . . as he may find necessary and proper to avoid
serious impairment of the national defense.” 29 U.S.C. § 665.
SeaWorld does not contest that it is an “employer” under the Act.
                               19

Neither does SeaWorld point to anything in the Act or
regulations that would require exemption of its shows, much less
of all entertainment performances.

                                B.
     Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), expert testimony must “both rest[] on a reliable
foundation and [be] relevant to the task at hand.” Id. at 597.
SeaWorld’s challenge to the ALJ’s decision to credit the
testimony of the Secretary’s expert with regard to the aggressive
behavior of killer whales fails for the following reasons.

     SeaWorld contends that the Secretary’s expert’s testimony
was unreliable because his experience was confined to observing
wild whales, he had not conducted any studies on captive whales,
he admitted not knowing whether being in captivity altered killer
whale behavior, and he had no experience training killer whales.
Killer whales are found in all oceans of the world and live in
long-term social groups. They are at the top of the food chain,
and are called killer whales because they prey on other, larger
whales and other marine animals; when in the wild they are not
known to prey on humans. The Secretary’s expert did not claim
that he had expertise about killer whales in captivity, and the
ALJ did not so qualify him; rather, the ALJ ruled that he “is
qualified to talk about the nature of killer whales in terms for
their predictability of behavior” and about “safety measures to be
taken.” Tr. ALJ Hearing at 821–22 (Sept. 19, 2011). The ALJ
acknowledged that the expert’s experience with safety measures
necessary for observing wild killer whales from boats might not
directly relate to safety measures for close interactions with
captive killer whales, but concluded this went to the weight of
his testimony, not its admissibility.

    “[F]inders of fact are normally accorded wide latitude in
determining whether proffered expert testimony would be
                                20

helpful.” U.S. Postal Serv., 2006 WL 6463045, at *10. This
court has held that the ALJ’s “reasonable determination . . .
regarding not only the relevance but the reliability of expert
testimony” is entitled to deference. Sec’y of Labor v. Keystone
Coal Mining Corp., 151 F.3d 1096, 1107 (D.C. Cir. 1998). The
Secretary’s expert had logged thousands of hours observing the
behavior of killer whales in the wild, and based on that expertise
he opined that Tilikum’s killing of Ms. Brancheau “exemplifies
the same behavior I have seen in approximately 100 foraging
encounters in the wild with killer whales.” Report of D.A.
Duffus, Ph.D., at 14 (July 26, 2011). He had also reviewed
nearly 100 of SeaWorld’s incident reports and concluded they
“clearly tell us that trainers are at risk every time they enter the
water with whales.” Id. His experience and knowledge supports
the reliability of his testimony, and his observations of killer
whale behavior were relevant to the predictability of killer
whales and the safety of close contact with them. SeaWorld
countered his opinions with its own expert who had worked as a
SeaWorld trainer. We find no abuse of discretion by the ALJ,
particularly in view of his acknowledgment of the limitation on
the weight properly accorded to the Secretary’s expert’s opinions
and the expert’s acknowledgments of both the limits of his
experience and the evidence showing SeaWorld’s operant
conditioning often worked to reduce risk.

                              C.
     Substantial evidence supports the ALJ’s findings that it was
feasible for SeaWorld to abate the hazard to its employees by
using barriers or minimum distance between trainers and killer
whales, most notably because SeaWorld has implemented many
of these measures on its own. When an employer has existing
safety procedures, the burden is on the Secretary to show that
those procedures are inadequate. See Cerro Metal Prods. Div.,
Marmon Grp., Inc., 12 BNA OSHC 1821, 1986 WL 53467, at *2
(No. 78-5159, 1986) (citing Nat’l Realty & Constr. Co., 489 F.2d
                                21

at 1267–68 & n.40). The record evidence showed that
SeaWorld’s training and protocols did not prevent continued
incidents, including the submerging and biting of one trainer in
2006, the killing of a trainer by a SeaWorld-trained and -owned
killer whale in 2009 at an amusement park in Spain, and Ms.
Brancheau’s death in 2010. SeaWorld employees repeatedly
acknowledged the unpredictability of its killer whales. This
record evidence supports the ALJ’s finding that existing
protocols were inadequate to eliminate or materially reduce the
hazard to SeaWorld’s trainer employees performing with killer
whales.

     Abatement is “feasible” when it is “economically and
technologically capable of being done.” Baroid, 660 F.2d at 447
(citing Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490
(1981)). After Ms. Brancheau’s death, SeaWorld required that
all trainers work with Tilikum from a minimum distance or
behind a barrier, and “waterwork” ceased with all of its killer
whales. As in ConAgra, Inc., McMillan Co. Div., 11 BNA
OSHC 1141, 1983 WL 23849 (No. 79-1146, 1983),
implementing the ordered abatement is feasible because it would
involve extending these practices to all killer whales and into the
future. See id. at 1145, *5. As the ALJ noted, SeaWorld had not
argued the Secretary’s proposed abatement was not economically
or technologically feasible and had already implemented
abatement for at least one of its killer whales and needed only to
apply the same or similar protective contact measures it used
with Tilikum to other killer whales. Consequently, the Secretary
was not required to specify the precise manner in which
abatement should be implemented. That the ALJ subsequently
granted SeaWorld’s request for a six-month extension of the
abatement deadline, in view of SeaWorld’s difficulty in
scheduling two consulting experts, does not undermine the
substantial evidence that SeaWorld could feasibly abate the
hazard. SeaWorld does not dispute that the Secretary’s
                                22

abatement measures would materially reduce, if not eliminate,
the hazard killer whales pose to its employees during
performances. SeaWorld’s use of protective contact with
Tilikum, the three-year moratorium on “waterwork” after Ms.
Brancheau’s death, and repeated temporary cessation of
“waterwork” with all killer whales or particular killer whales
after other incidents support the finding that these changes were
feasible and would not fundamentally alter the nature of the
trainers’ employment or SeaWorld’s business.

     To the extent SeaWorld suggests that veterinary care would
be less effective and dangers to trainers from killer whales might
increase absent close contact during performances, this issue is
not properly before the court. SeaWorld’s petition to the
Commission for review did not include this issue, and SeaWorld
presents no extraordinary circumstances to excuse its failure to
do so. The court, therefore, lacks jurisdiction to consider it. See
29 U.S.C. § 660(a); Frank Lill & Son, Inc., 362 F.3d at 844.

                                D.
     Facial challenges to the general duty clause have been
rejected, see Ensign-Bickford Co. v. OSHRC, 717 F.2d 1419,
1421 (D.C. Cir. 1983), and although an as-applied challenge
would be possible, courts have long accommodated possible
constitutional problems with fair notice in this context by
interpreting “recognized hazard” only to include preventable
hazards, see id. (citing Nat’l Realty & Constr. Co., 489 F.2d at
1265–66), or applying the clause only “when a reasonably
prudent employer in the industry would have known that the
proposed method of abatement was required,” Donovan v. Royal
Logging Co., 645 F.2d 822, 831 (9th Cir. 1981).

     SeaWorld contends the general duty clause is
unconstitutionally vague as applied because it lacked fair notice
that the abatement measures would be required. But the
                                23

administrative record establishes that SeaWorld did not lack fair
notice because the hazard arising from trainers’ close contact
with killer whales in performance is preventable. Given
evidence of continued incidents of aggressive behavior by killer
whales toward trainers notwithstanding SeaWorld’s training,
operant conditioning practices, and emergency measures,
SeaWorld could have anticipated that abatement measures it had
applied after other incidents would be required. SeaWorld
suggests that it was entitled to rely on the fact that the State of
California’s Division of Occupational Safety and Health
(“Cal/OSHA”) did not issue a citation for killer whale hazards
after a killer whale bit and dragged a trainer underwater during
a performance, puncturing the trainer’s skin on both feet and
breaking the metatarsal in his left foot. Cal/OSHA, however,
inspected a different SeaWorld facility (in San Diego) and it, not
the federal OSHA, resolved the citation question. In any event,
the State inspection report included a warning on point.
Although noting that SeaWorld had been following industry
standards and was a recognized leader in training killer whales
for performance, and that its employees were well-trained and
followed emergency procedures, Cal/OSHA concluded that
SeaWorld of San Diego’s procedures “were not entirely
effective at stopping the unwanted behaviors of the killer whale
during this attack” and that “[s]hort of eliminating all of the
water interactions with the killer whales, there is no guarantee
that employees can be kept safe from an attack by the killer
whale once they get in the water with the animal.” Cal/OSHA
Information Memorandum at 1 (Feb. 28, 2007).

    Accordingly, we deny the petition for review.
     KAVANAUGH, Circuit Judge, dissenting: Many sports
events and entertainment shows can be extremely dangerous
for the participants. Football. Ice hockey. Downhill skiing.
Air shows. The circus. Horse racing. Tiger taming.
Standing in the batter’s box against a 95 mile per hour
fastball. Bull riding at the rodeo. Skydiving into the stadium
before a football game. Daredevil motorcycle jumps. Stock
car racing. Cheerleading vaults. Boxing. The balance beam.
The ironman triathlon. Animal trainer shows. Movie stunts.
The list goes on.

     But the participants in those activities want to take part,
sometimes even to make a career of it, despite and
occasionally because of the known risk of serious injury. To
be fearless, courageous, tough – to perform a sport or activity
at the highest levels of human capacity, even in the face of
known physical risk – is among the greatest forms of personal
achievement for many who take part in these activities.
American spectators enjoy watching these amazing feats of
competition and daring, and they pay a lot to do so.
Americans like to witness the thrill of victory, to cheer the
linebacker who hammers the running back at the goal line, to
yell with admiration as Derek Jeter flies into the stands down
the left-field line to make a catch, to applaud the gymnast
who nails the back flip off the balance beam, to hold their
collective breath as Jack Hanna plays with pythons, to root on
the marathoner who is near collapse at the finish line, to
scream “Foreman” when the announcer says “Down goes
Frazier.” And American spectators also commiserate during
the “agony of defeat,” as immortalized in the Wide World of
Sports video of a ski jumper flying horribly off course.

     The broad question implicated by this case is this: When
should we as a society paternalistically decide that the
participants in these sports and entertainment activities must
be protected from themselves – that the risk of significant
physical injury is simply too great even for eager and willing
                               2
participants? And most importantly for this case, who decides
that the risk to participants is too high?

     In the first instance, the sports and entertainment
industries regulate themselves, often through collaboration
between management and participants, to ensure that the risks
are at least known to all. Often, the sports and entertainment
industries take affirmative steps to make the sports or
activities safer for participants. Major League Baseball has
required batters to wear increasingly protective helmets; just
this offseason, it issued a new rule about home-plate
collisions. The NFL has prohibited certain hits to the head.
NASCAR has mandated roll cages, fire retardant uniforms,
and window netting. And so on.

     Sometimes Congress, state legislatures, or state
regulators jump into the fray by prohibiting or otherwise
regulating certain sports or entertainment activities. See, e.g.,
Professional Boxing Safety Act of 1996, Pub. L. No. 104-272,
110 Stat. 3309. State tort law also looms as a significant
constraint in most jurisdictions, particularly for allegedly
known but unwarned-of risks to the participants, as the NFL
has recently experienced. See In re National Football League
Players’ Concussion Injury Litigation, MDL No. 2323, 2014
WL 114351 (E.D. Pa. Jan. 14, 2014).

     On the other hand, the bureaucracy at the U.S.
Department of Labor has not traditionally been thought of as
the proper body to decide whether to ban fighting in hockey,
to prohibit the punt return in football, to regulate the distance
between the mound and home plate in baseball, to separate
the lions from the tamers at the circus, or the like.

    To be sure, the Occupational Safety and Health Act of
1970 grants general authority to the Department of Labor to
ensure that employers provide a reasonably safe workplace to
                                3
their employees. See Pub. L. No. 91-596, 84 Stat. 1590.
Under the Act, the Department may promulgate specific
occupational safety and health standards “reasonably
necessary or appropriate to provide safe or healthful
employment and places of employment.” 29 U.S.C. § 652(8);
see id. § 655(b). The Act’s residual General Duty Clause also
requires that each employer – under threat of monetary
penalties in individual cases – “furnish to each of his
employees employment and a place of employment which are
free from recognized hazards that are causing or are likely to
cause death or serious physical harm to his employees.” Id.
§ 654(a)(1); see id. § 666.

     But the Department of Labor, acting with a fair degree of
prudence and wisdom, has not traditionally tried to stretch its
general authority under the Act to regulate participants taking
part in the normal activities of sports events or entertainment
shows.

     In this case, however, the Department departed from
tradition and stormed headlong into a new regulatory arena.
The Department issued a citation to SeaWorld that effectively
bans SeaWorld from continuing a longstanding and popular
(albeit by definition somewhat dangerous) show in which
SeaWorld trainers play with and interact with whales. The
Department’s SeaWorld decision was upheld administratively
by the independent Occupational Safety and Health Review
Commission,1 and the majority opinion today affirms.


    1
      The Occupational Safety and Health Review Commission is
an independent adjudicatory agency “established to settle disputes
between employers and the Secretary of Labor over citations issued
by the Secretary’s inspectors.” Oil, Chemical & Atomic Workers
International Union v. Occupational Safety & Health Review
Commission, 671 F.2d 643, 652 (D.C. Cir. 1982). We are
                                  4
     Whether SeaWorld’s show is unreasonably dangerous to
participants and should be banned or changed is not the
question before us. The question before us is whether the
Department of Labor has authority under current law to make
that decision – in addition to the authority already possessed
by Congress, state legislatures, state regulators, and courts
applying state tort law.

     In my view, the Department of Labor’s unprecedented
assertion of authority to proscribe SeaWorld’s whale show is
triply flawed:        First, it departs from longstanding
administrative precedent governing the extent of the
Department’s authority. Second, it irrationally and arbitrarily
distinguishes (i) close contact between trainers and whales in
SeaWorld shows from (ii) contact between players in the NFL
or speeding in NASCAR races, for example, which the
Department still proclaims as exempt from regulation under
this statute. Third, the decision green-lights the Department
to regulate sports and entertainment activities in a way that
Congress could not conceivably have intended in 1970 when
giving the agency general authority to ensure safer
workplaces.2



technically reviewing the decision of the Commission, which in
turn reviewed and upheld the Department of Labor’s citation. In
this case, to the extent the Department’s decision to cite SeaWorld
was arbitrary and capricious, the Commission’s decision to uphold
that citation likewise would be arbitrary and capricious. Therefore,
for ease of reference, this opinion refers to the action of the
Department of Labor, the real party in interest.
     2
       This case concerns injuries to participants, not to spectators.
The Department of Labor has not claimed authority under the
Occupational Safety and Health Act to prevent injuries to
spectators, such as injuries caused by foul balls or flying hockey
pucks. The spectators are not employees of the teams or industries
                                  5
     First, the Department of Labor’s action departs without
acknowledgment or explanation from longstanding
administrative precedent.      It is therefore arbitrary and
capricious and cannot stand. See FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009) (“An agency may
not, for example, depart from a prior policy sub silentio or
simply disregard rules that are still on the books.”).

     The courts and the Department of Labor have recognized
that the broad terms of the General Duty Clause must be
applied reasonably lest the Clause morph into a blunt
instrument by which absolute workers’-compensation-like
liability is imposed on employers for all workplace injuries.
The courts and the Department have stated that it must have
been “feasible” for the employer to eliminate or materially
reduce the recognized hazard at issue. See, e.g., Fabi
Construction Co., Inc. v. Secretary of Labor, 508 F.3d 1077,
1081 (D.C. Cir. 2007); National Realty & Construction Co.,
Inc. v. Occupational Safety & Health Review Commission,
489 F.2d 1257, 1266-67 & n.37 (D.C. Cir. 1973). And
importantly, the Department has acknowledged that hazards
posed by the normal activities intrinsic to an industry cannot
be “feasibly” eliminated and so may not form the basis of a
General Duty Clause citation.

     In the leading Pelron case, the Department of Labor had
issued a General Duty Clause citation to Pelron Corporation,
a manufacturer of liquid specialty chemicals, following a
chemical explosion at one of Pelron’s manufacturing
facilities. See Pelron Corp., 12 BNA OSHC 1833, 1986 WL
53616, at *1 (No. 82-388, 1986). The Department alleged
that the mere “accumulation” in Pelron’s facility of a


and so are not within the scope of the Act. Injuries to spectators are
often addressed by state tort law.
                               6
potentially dangerous chemical constituted a recognized
hazard that Pelron had failed to eliminate. Id. at *4. But the
Occupational Safety and Health Review Commission vacated
the Department’s citation. See id. at *1. In explaining why
the mere presence of a dangerous chemical could not
constitute a recognized hazard, the Commission stated:
“Obviously, some industrial activities are by their very nature
dangerous. To permit the normal activities in such an
industry to be defined as a ‘recognized hazard’ within the
meaning” of the General Duty Clause is “to eliminate an
element of the Secretary’s burden of proof and, in fact, almost
to prove the Secretary’s case by definition, since under such a
formula the employer can never free the workplace of
inherent risks incident to the business.” Id. at *3.

     Pelron means that some activities, though dangerous, are
among the “normal activities” intrinsic to the industry and
therefore cannot be proscribed or penalized under the General
Duty Clause. At oral argument, counsel for the Department
of Labor confirmed that Pelron remains good law, and so the
Department must adhere to Pelron. See Oral Arg. at 17:02-
17:05.

     Pelron is dispositive in this case. In the sports and
entertainment fields, the activity itself frequently carries some
risk that cannot be eliminated without fundamentally altering
the nature of the activity as defined within the industry.
Tackling is part of football, speeding is part of stock car
racing, playing with dangerous animals is part of zoo and
animal shows, and punching is part of boxing, as those
industries define themselves.

    Management and participants in the relevant sports or
entertainment industry must initially decide what their
competition or show consists of and how to market it to
                                  7
spectators – subject to appropriate regulation by Congress,
state legislatures, state regulators, or state tort law. Here,
SeaWorld has decided that close contact between SeaWorld
trainers and whales is an important aspect of its shows. Even
the administrative law judge who upheld the Department’s
citation in this case agreed that “SeaWorld’s business model
was premised on the spectacle of close contact between the
killer whales and the trainers during performances.”
SeaWorld of Florida, LLC, 2013 CCH OSHD ¶ 33,329, 2013
WL 5505276, at *5 (No. 12-1697, 2013) (ALJ).

     Under the current statutory scheme, Pelron precludes the
Department of Labor from entering the arena and altering the
activities of the participants in those competitions or shows,
whether it be the NFL or NASCAR or SeaWorld. The
Department of Labor can no more tell the participants in a
sports event or entertainment show that their activities are
simply too dangerous to perform than it could tell the Pelron
Corporation that its chemicals were simply too dangerous to
produce.

     In short, under Pelron, the Department of Labor lacks
authority to regulate the normal activities of participants in
sports events or entertainment shows. Indeed, until its action
against SeaWorld, the Department of Labor had never before
asserted authority to regulate the normal activities of
participants in sports events or entertainment shows.3 If

     3
       The Pelron principle covers injuries to the participants taking
part in the relevant sport or show. To be clear, consistent with
Pelron, the Department of Labor of course may regulate the
workplace conditions that are not the “normal activities” of the
participants during the competition or show – for example, the
workplace conditions for the workers who cook the hot dogs or sell
the beer or build the stage or erect the goalposts, or the off-stage
conditions for the event’s participants. With the exception of the
                                  8
Pelron remains good law – and the Department itself
acknowledges that it does – then the Department’s
unprecedented attempt here to ban close contact between
trainers and whales at SeaWorld cannot stand.4



Spider-Man show, all of the examples listed in footnote 1 of the
majority opinion are outside the scope of the Pelron rule and not
responsive to this dissent. Moreover, even the Department’s action
with respect to the Spider-Man show came after its action against
SeaWorld in this case. The Department’s action against SeaWorld
was its initial, entirely unprecedented effort to regulate the normal
activities of sports events and entertainment shows.
     4
        The majority opinion says that applying Pelron here would
prevent the Department of Labor from regulating construction or
logging or roofing, among other things. That is incorrect and just
highlights, in my view, that the majority opinion is not fully
appreciating or correctly analyzing the critical and novel issue
presented in this case. The Department of Labor obviously has
authority over those kinds of workplaces. As explained in Pelron,
the Department may not completely forbid an industry from
offering its product – in the examples cited by the majority opinion,
the product might be a building, timber, or a roof – but the
Department of course may and frequently does attempt to reduce
the risk in the workplaces where the production of those products
occurs. In this case, a distinct issue arises because sports and
entertainment are industries where the product being offered is a
spectator event structured and marketed in a way that often includes
some risk for the participants, whether it is a punt return in football
or a whale show at SeaWorld. Put another way, in sports events
and entertainment shows, there is no distinction between the
product being offered and its production; the product is the
production. That’s what makes sports events and entertainment
shows analytically different from construction or logging or roofing
for purposes of the Pelron principle. And that’s no doubt why the
Department of Labor until recently has not seen fit to regulate the
sports and entertainment industries in this way.
                              9
     Second, a “fundamental norm of administrative
procedure requires an agency to treat like cases alike.”
Westar Energy, Inc. v. Federal Energy Regulatory
Commission, 473 F.3d 1239, 1241 (D.C. Cir. 2007). Here,
the Department has failed that basic test, and its action is
therefore arbitrary and capricious.

    To allay concerns about the breadth of its assertion of
regulatory authority in this case, the Department – consistent
with its traditional practice – has repeatedly disclaimed
authority under the General Duty Clause to ban, for example,
tackling in the NFL or excessive speed in NASCAR races.
See Br. for Secretary of Labor 52; Oral Arg. at 19:15-19:29,
33:05-33:25. As the Department no doubt realizes, the
Pelron principle bars it from asserting such broad regulatory
authority. The Department surely understands that it would
find itself on shaky legal ground – not to mention face
popular and congressional backlash – if it asserted such
authority.

     Yet the line the Department has drawn in applying the
Pelron principle is entirely arbitrary and unreasonable. The
Department cannot reasonably distinguish close contact with
whales at SeaWorld from tackling in the NFL or speeding in
NASCAR. The Department’s sole justification for the
distinction is that SeaWorld could modify (and indeed, since
the Department’s decision, has had to modify) its shows to
eliminate close contact with whales without going out of
business. But so too, the NFL could ban tackling or punt
returns or blocks below the waist. And likewise, NASCAR
could impose a speed limit during its races. But the
Department has not claimed that it can regulate those
activities. So that is not a reasonable way to distinguish
sports from SeaWorld. The Department assures us, however,
that it would never dictate such outcomes in those sports
                                10
because “physical contact between players is intrinsic to
professional football, as is high speed driving to professional
auto racing.” Br. for Secretary of Labor 52. But that ipse
dixit just brings us back to square one: Why isn’t close
contact between trainers and whales as intrinsic to
SeaWorld’s aquatic entertainment enterprise as tackling is to
football or speeding is to auto racing? The Department offers
no answer at all.5

     In my view, the Department of Labor either has authority
to regulate sports and entertainment so as to prevent injuries
to participants, or it does not. The fact that the Department
expressly disclaims its authority over the NFL and NASCAR,
and that the Department goes to such lengths to draw head-
scratching distinctions between sports events on the one hand
and entertainment shows on the other, shows that something
is up. What’s up is that the Department is treating similar
cases dissimilarly, the paradigmatic arbitrary and capricious
agency action. See Muwekma Ohlone Tribe v. Salazar, 708
F.3d 209, 215-16 (D.C. Cir. 2013); County of Los Angeles v.
Shalala, 192 F.3d 1005, 1022 (D.C. Cir. 1999); Transactive
Corp. v. United States, 91 F.3d 232, 237 (D.C. Cir. 1996) (“A
long line of precedent has established that an agency action is
arbitrary when the agency offered insufficient reasons for
treating similar situations differently.”).


    5
       The majority opinion does not try to defend the Department’s
effort to distinguish SeaWorld from, for example, the NFL or
NASCAR. Rather, the majority opinion says that SeaWorld’s
argument that the Department was arbitrarily distinguishing
SeaWorld from the NFL or NASCAR was not raised before the
Commission and has been forfeited. But in responding in this
Court to that argument by SeaWorld, the Department of Labor has
not asserted forfeiture. So the Department itself forfeited any
potential forfeiture argument.
                              11
     Because the Department of Labor’s decision rests on
illusory and arbitrary distinctions and rationales, it cannot
stand.

     Third, even though the Department disclaims authority
to, for example, ban punt returns in the NFL or speeding in
NASCAR, the Department’s action here still interferes with
the sports and entertainment industry to a degree that
Congress surely did not intend when it passed the
Occupational Safety and Health Act.

     The Congress that enacted the Act in 1970 was certainly
aware of the hazards in many popular sports such as football,
baseball, ice hockey, and boxing. It was also well aware of
the hazards in entertainment shows such as the circus. Yet as
SeaWorld correctly points out, Congress did not in any way
indicate or even hint that the Clause’s vague terms
encompassed an implicit grant of authority to the Department
of Labor to regulate and re-make some undefined swath of
America’s sports and entertainment behemoth.

    In the real world, it is simply not plausible to assert that
Congress, when passing the Occupational Safety and Health
Act, silently intended to authorize the Department of Labor to
eliminate familiar sports and entertainment practices, such as
punt returns in the NFL, speeding in NASCAR, or the whale
show at SeaWorld. See FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 160 (2000) (“[W]e are
confident that Congress could not have intended to delegate a
decision of such economic and political significance to an
agency in so cryptic a fashion.”).

                             ***

    To the extent sports or entertainment activities raise
concern about the risk of injury to the participants, several
                             12
extant legal bodies possess significant authority to clamp
down on unreasonable dangers: Congress, state legislatures,
state regulators, courts applying state tort law. I take no
position here on whether SeaWorld – or for that matter the
NFL or NASCAR – should be subject to more stringent
government regulation or liability, or otherwise should
voluntarily make its activities safer. That policy question is
not before us. My legal disagreement with the majority
opinion boils down to one basic question: Who decides?
Under current law, it is not the Department of Labor. I
respectfully dissent.
