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06/28/78 National Constructors v. Ray Marshal


June 28, 1978




Before LUMBARD* , Senior Circuit Judge for the Second Circuit, and McGOWAN and WILKEY, Circuit Judges.



Occupational Safety and Health, and THE




No. 77-1197 1978.CDC.100

Petition for Review of the Secretary of Labor's Revised Standard for Ground-Fault Circuit Protection.



To bring power to electrical handtools and other equipment, constructors typically provide building sites with temporary electrical systems, often involving many feet of extension cords and large numbers of moveable outlets. Because the construction environment exposes this electrical transmission equipment, as well as the tools themselves, to severe wear and tear, accidental leakages of electricity and resulting electrical shocks, I. e., ground faults, present a significant threat to the safety of construction workers. In order to alleviate such dangers, the Assistant Secretary of Labor for Occupational Health and Safety promulgated and, more recently, modified certain "ground-fault circuit protection" standards that must be met on all construction sites using temporary electrical systems. 20 C.F.R. §§ 1910.309(c), 1926.400(h) (1977), As modified, 41 Fed.Reg. 55703-04 (1976). This petition challenges the recent modifications of those standards. Finding that the modifications were not promulgated according to the statutorily mandated process, we remand the record for at least ninety days to allow for correction of the defect identified hereinafter. I

By explicit provision in their promulgation notice, the modified safety standards were issued under the authority of two statutes. See 41 Fed.Reg. 55696 (1976). The first, the Construction Safety Act , 40 U.S.C. § 333, was passed in 1969 and authorized the Secretary of Labor ("the Secretary"), after Mandatory consultation with the advisory committee, and apparently after compliance with the formal rulemaking provisions in the Administrative Procedure Act , 5 U.S.C. 553(c), 556, 557, to establish health and safety standards that every contractor of a federal or federally financed building must meet as a condition of his contract with the government. 40 U.S.C. § 333(a). See S.Rep.No. 320, 91st Cong., 1st Sess. (1969), Reprinted in (1969) U.S.Code Cong. & Admin.News, p. 1073 ("formal hearings" required). *fn1

The other statute is the Occupational Safety and Health Act of 1970 , 29 U.S.C. § 651 Et seq. This much more comprehensive legislation authorizes the Secretary of Labor to establish workplace standards aimed at improving and preserving the health and safety of all American employees involved in commerce among the several states. 29 U.S.C. 651, 652, 655. The relevant procedural requirements for promulgating and modifying those standards provide first that the Secretary May submit his proposal to an advisory committee. If he does, he is then bound to furnish the committee with certain information and to await its recommendation for a specified time period. 29 U.S.C. § 655(b)(1).

The Secretary must, in any event, publish, and accept comments on, the proposal to promulgate or modify a standard. Id. § 655(b)(2). OSHA does not explicitly refer to the APA, and its promulgation procedure is a hybrid of informal and formal rulemaking. Thus, while a pre-promulgation hearing is required if requested, and is reviewable under the substantial evidence rule traditionally applied to formal rulemaking, the hearing may be informal (I. e., without cross examination, adversary presentation, and detailed findings). *fn2

As this synopsis of the two statutes suggests, Congress provided similar but not identical promulgation procedures for health and safety standards under CSA and OSHA. Under the former, advisory committee consultation at some point is mandatory, and formal rulemaking is apparently required. Under the latter, pre-proposal consultation with an advisory committee is merely elective, and an informal hearing will suffice. Nonetheless, the Secretary has devised a single promulgation process for construction industry standards aimed at satisfying the requirements of both statutes; and it is the Labor Department's faithfulness to this process that is at issue herein. *fn3

Under this procedure, the Assistant Secretary of Labor for Occupational Safety and Health ("Assistant Secretary") is delegated the Mandatory duty of submitting to an Advisory Committee on Construction Safety and Health ("the Advisory Committee" or "the Committee") "Any proposal . . . together with all pertinent factual information available to him . . . ." Within an established time period, the Committee may make a recommendation to the Assistant Secretary. *fn4 Once that period has expired, or the Committee has issued a recommendation, the Assistant Secretary may propose a health and safety standard; if he does, he must solicit public comments and provide an informal hearing thereon. 29 C.F.R. §§ 1911.10, 1911.11(b) (1977). After considering the data presented in written submissions and in any hearing held, the Assistant Secretary must publish either a final rule or notification of his decision not to issue a rule. *fn5 II

In order to expedite the implementation of OSHA, the Secretary was authorized during the first two years of the Act's effectiveness to forego the promulgation procedures discussed above and instead summarily to adopt "national consensus standard(s)" as health and safety rules. *fn6 Using this temporary and summary procedure, Labor Department officials in 1972 adopted the standards in the National Electrical Code adhered to by the National Fire Protection Association and the American National Standards Institute to cover most "electrical installations and utilization equipment. . . ." 37 Fed.Reg. 3431 (1972), Codified in 29 C.F.R. § 1910.308(c)(vi) (1977). These same standards are made explicitly applicable to construction jobsites by 29 C.F.R. 1926.400(b) (1977).

As adopted under OSHA, the NEC required a three-wire grounding system for protection against ground faults. Under this system, the wiring in all electrical cords, receptacles, and plugs must be trifurcated, with the third wire serving to drain off any electrical leakage to a low-resistance ground path, thereby preventing dangerous shocks. Although relatively simple and effective when implemented properly, this system will not work if the three-wire system is not electrically continuous from outlet to tool. Hence, any tool, extension cord, or outlet with only a two-wire set-up will destroy the utility of the protective system.

After the Secretary adopted the NEC under OSHA, an amendment to that consensus code went into effect among its private adherents. That amendment required, in addition to the three-wire system, that outlets at construction sites be installed with ground-fault circuit interrupters (GFCI's). This device measures the flow of electricity out of and back into the outlet and breaks the circuit within one-fortieth of a second whenever there is a significant imbalance in the two flows as occurs when there is leakage of electricity.

As part of the NEC, this requirement would have gone into effect on January 1, 1974, under OSHA as well among the NEC's private adherents, but the Assistant Secretary issued a notice a few weeks before that date suspending the effectiveness of the GFCI modification. 38 Fed.Reg. 33397 (1973). The Assistant Secretary took this action after the Advisory Committee recommended the suspension pending further study of the practicability of GFCI's of different "settings" *fn7 and designs. *fn8

Although the Advisory Committee had recommended that a "study committee" pursue the matter further, See note 8 Supra, the Assistant Secretary chose instead to suspend the GFCI modification temporarily, in order to solicit public comments and to hold an informal hearing thereon. 38 Fed.Reg. 33983, 35235 (1973). *fn9 The notices, comments, and hearings focused primarily on the appropriate settings for GFCI's and on whether the requirement should extend beyond temporary construction sites to other industrial sites. *fn10

By October 1974, the Assistant Secretary was prepared to propose a GFCI requirement for temporary wiring on construction sites, and he accordingly brought his proposal before the Advisory Committee. Once again, however, the Committee was not prepared to give its support. After extensively discussing the proposal, particularly with reference to the alleged insufficiency of the three-wire grounding system, the Committee rejected, by an 8-5 vote, a motion to recommend against the GFCI requirement, but unanimously passed a motion reiterating the Committee's recommendation of an impartial study of the need for and workability of GFCI's. JA at 176, 190. Although expressing some pique that their earlier study proposal had been ignored by the Assistant Secretary, Id. at 178, the members clearly understood the non-binding nature of their recommendations. *fn11

As his representative explained to the Committee, the Assistant Secretary was hesitant to conduct the recommended study, due both to insufficient resources and to a desire to follow the statutory notice-comment-and-hearing procedure. JA at 181-82. Nonetheless, the Assistant Secretary did issue another public notice in April 1975, which mentioned the Committee's action prefatory to proposing that the NEC's suspended GFCI requirement be revoked completely. 40 Fed.Reg. 15390 (1977), Corrected, 40 Fed.Reg. 18468 (1977). This notice summarized the arguments for and against the GFCI requirement, and again invited public comment. It was at this stage that the Assistant Secretary first publicly focused attention on possible alternatives to GFCI's, including "regularly testing tools (to) insure that (three-wire protection systems) were operational." 40 Fed.Reg. 15391 (1977).

In a subsequent public notice by the Department in September 1975, the tentative references in the April notice to an alternative "assured grounding" system of regularized equipment testing had flowered into a "possible requirement" that might be promulgated by the Department under OSHA, and into one of several issues that would be addressed specifically at an informal hearing. The hearing was also slated to consider the GFCI requirement, suggesting that the Assistant Secretary was now having second thoughts about permanently revoking that requirement. 40 Fed.Reg. 40170-71 (1975).

This new round of written comments and oral presentation finally convinced the Assistant Secretary that new standards Were necessary to supplement the three-wire ground fault protection system then required under OSHA. In a December 1976 notification, he reviewed the evidence supporting both the need for additional construction site protection from ground faults (including a finding that about 30 deaths occur annually due to the insufficiency of the three-wire system12), and the safety-effectiveness, workability, and cost of GFCI's. This notice also discussed the utility and the necessary elements of an assured grounding system as a back-up to the three-wire system and as a substitute for the GFCI requirement. The Assistant Secretary concluded that the GFCI and assured grounding proposals were equally viable; and both were accordingly promulgated as alternative final standards in the December notice. They became effective on February 22, 1977. 41 Fed.Reg. 55697-704 (1976).

The final standards provide that, in addition to three-wire ground-fault protection systems, construction sites Either must install "approved" GFCI's on all 120-volt, 15- and 20-ampere receptacle outlets, Or must institute "assured equipment grounding conductor programs." 29 C.F.R. 1910.309(c) (1977). Approved GFCI's are defined as those "determined to be safe by a nationally recognized testing laboratory, such as, but not limited to, Underwriters' Laboratories, Inc. . . . ."13 Although the GFCI standard does not adhere to the one in the NEC, and does not provide the exact specifications of acceptable GFCI's other than by reference to UL's approval criteria, the Assistant Secretary's explanation in the Federal Register did consider and find acceptable the settings of GFCI's that were UL-approved at the time of promulgation. 41 Fed.Reg. 55702 (1976). See note 7 Supra. The assured grounding program sets forth a rigorous set of (1) tests to be conducted on specified cord sets, attachment caps, plugs, and receptacles as well as of the hand tools themselves, before first use, after repairs, and every three months, and (2) visual inspections to be made daily.

At no time after October 1974 until the rule was promulgated did the Assistant Secretary consult the Advisory Committee. Hence, the Committee had no opportunity to comment on the assured grounding program alternative, except as its members, on their own, availed themselves of the various comment and hearing opportunities offered the general public between October 1974 and December 1976. This fact was brought home to Committee members on March 30, 1977, when the Assistant Secretary's designee explained the standards to the Committee After they had gone into effect. The members, after voicing their criticisms of the alternative standards, See note 24 Infra, including complaints that their study proposal had been ignored, were told by a Labor Department official that they, like "anybody, can petition for amendments or changes to standards." JA at 874.

This petition for review under OSHA was brought by the National Constructors Association, whose members perform about one-third of the dollar value of industrial construction work in this nation. The Association, which took an active role in the rulemaking proceedings, presses three arguments upon us. First, it argues that the Assistant Secretary erred procedurally in promulgating the modified ground fault protection. Next, the Association claims that the Assistant Secretary, by relying on UL to provide the specifications of an approved GFCI, unlawfully subdelegated authority to private individuals. Finally, the Association contends that the standards do not find substantial support in the record, as required by 29 U.S.C. § 660(a). See note 2 Supra. III

The crux of petitioner's procedural argument is that the Assistant Secretary did not make proper use of the Advisory Committee in promulgating the modified safety standards. As a preface to our consideration of this argument, we may distill three conclusions from the statutory and regulatory background to this suit discussed above. First, consultation with the Advisory Committee on "any proposal" is a prerequisite to valid promulgation under OSHA of any construction-related safety standard. 29 C.F.R. § 1911.10(a) (1970); See note 4 Supra. Although, as relevant here, this requirement is a product of the Department's own regulations, it draws heavily on the legislative policies underlying the Construction Safety Act, See notes 3 & 5 Supra, and reflects an established opinion under OSHA. See 29 U.S.C. 655(b)(1), 655(b)(2); note 2 Supra. Second, while the Assistant Secretary must provide the Committee with the opportunity to issue a recommendation, as well as with whatever information he has that is relevant thereto, he need not await that recommendation indefinitely, but may proceed with rulemaking after a given period of time.14 Finally, even when the Committee does make a recommendation, the Assistant Secretary need not follow it15 although the Department's own practice in this and other cases, as well as the case law, support a requirement that the Department publish the substance of the Committee's recommendation in its initial notice of proposed action on a standard or modification. Synthetic Organic Chem. Mfrs. Ass'n v. Brennan, 506 F.2d 385, 388-89 (3rd Cir. 1974), Cert. denied, 423 U.S. 830, 96 S. Ct. 50, 46 L. Ed. 2d 48 (1975).

In light of these three conclusions, we may quickly dispose of two procedural arguments made by the Association. Because OSHA's advisory-committee-consultation option, as well as the Department's regulation, make clear that the Assistant Secretary need only supply whatever information he has available to him At the time he submits his proposal to the Committee,16 and because petitioner does not claim that such information was not supplied, the Assistant Secretary cannot be faulted for failing to provide the Committee with the requisite information or, more specifically, for failing to prepare the "impartial study" twice recommended by the Committee. To hold otherwise would be to require the Assistant Secretary to follow the Committee's recommendation, which Congress clearly did not intend. See note 15 Supra and accompanying text.

For these same reasons, we are not persuaded that the Assistant Secretary denied the Committee the requisite opportunity to issue a recommendation on the GFCI proposal. With respect to that proposal, Department officials fulfilled their duty to the Committee under the statute and regulation.

We are left, therefore, with petitioner's claim that as to the Assured grounding proposal, the Assistant Secretary shirked his duty of consultation with the Committee. Although admitting that nothing like the assured grounding program was ever formally presented to or discussed by the Committee prior to its adoption, See note 26 Infra, the Department insists that it paid sufficient heed to the Committee by twice presenting it with GFCI proposals. Under the Department's view of the procedures mandated by OSHA's advisory committee option and adopted in the Department's regulations, the rulemaking process has a linear quality such that it begins at one point (the Assistant Secretary's proposal) and travels in a straight line through several other statutorily mandated points (Advisory Committee consultation, notice of proposed rulemaking, reception of public comments, hearing), and ends at another point (final promulgation), without ever turning back and passing through any of the points a second time. Hence the validity of the procedures is tested merely by retracing the linear progress of the proposal from its inception to final promulgation, making sure that the right points were reached in the right order.17

This view of the promulgation process is overly formalistic, and accordingly ignores the purposes of the requisite procedures. The Department officials responsible for adopting the promulgation procedures at issue here presumably expected that every OSHA standard would derive substantial benefit from each step in the prescribed process.18 This expectation reflects the same view on the part of the drafters of CSA and OSHA, whose mandatory and optional advisory committee provisions, respectively, were the models for the Department's regulations. See note 3 Supra. The legislative history of these two statutes suggests at least three purposes for advisory committee consultation: first, to enable Labor Department officials to take advantage of the expertise of committee members in formulating a wide variety of standards;19 second, to allow the persons who will be affected by the standards to participate in their promulgation;20 and third, to enable those same persons to abide by the standards once promulgated.21 A fourth reason, identified by the Third Circuit, is that the pre-promulgation recommendations of an advisory committee will have a beneficial organizing and educative effect on the public comment and hearing procedure that follows.22

Because the Department's exiguous use of the Advisory Committee served none of these four purposes with respect to the assured grounding program alternative, "the effectiveness of the educational process which Congress intended to provide for agency rulemaking" was "undermined," and the "latitude for promulgating unwise rules" was accordingly increased.23 Thus, the Assistant Secretary never availed himself, or apprised public commentators, of the Committee's expert views on the question of whether an assured grounding program could provide a useful supplement to the three-wire grounding system or a valuable alternative to GFCI's.24 Even more important, he did not seek its views on how to devise a workable assurance program that would provide for the necessary tests without requiring constructors to commit inefficient amounts of resources to scanning the large quantity of tools and electrical transmission equipment found on many construction sites. Moreover, by promulgating the assured grounding program without bringing it to the attention of the industry and labor representatives on the Committee, the Assistant Secretary deprived industry of an important tier of participation in the formulation of and thus of an opportunity better to comprehend and comply with the standards.

The Department's linear view of the promulgation process also ignores the language of its own procedural regulation, which in turn utilizes the terms of OSHA itself. Under those provisions, committee consultation must occur as to "Any (construction-related) Proposal " by the Department under authority of OSHA. 29 C.F.R. § 1911.10(a) (1977) (emphasis added), Tracking, 29 U.S.C. § 655(b)(1). This language has two important consequences. First, it establishes committed consultation as a separate step in the promulgation process, and, as such, goes beyond the dictates of traditional informal rulemaking under the APA. See United States v. Finley Coal Co., 493 F.2d 285, 289-90 & n. 4 (6th Cir. 1974). Second, the language places a "stricter" requirement on when, and how often, the agency must utilize the advisory committee procedure than does the APA with respect to public comment during informal rulemaking. Shell Oil Co., supra note 23, 574 F.2d 512, 517.25 That is to say, the committee must have "sufficient notice of ("any') proposal to be finally adopted (to allow) comment" thereon. Id.

The fact that the assured grounding alternative adhered to the APA's informal rulemaking procedure, because it was a "logical outgrowth" of the notice, public comment, and informal hearing administered by the Department, South Terminal Corp. v. EPA, 504 F.2d 646, 659 (1st Cir. 1974), therefore, is of no final consequence in deciding this petition. The alternative assured-grounding proposal, as the Department admits, was never presented to the Committee,26 nor did it grow logically out of anything that was presented to, or heard from, the Committee.27 Consequently, consulting the Committee as to the GFCI proposal, and allowing public comment on both that proposal and on the assured grounding program, did not satisfy the requirement that the Assistant Secretary bring "Any " proposal before the Committee.28

In sum, we are convinced that under the Department's own promulgation regulation, as explained by its statutory models, CSA and OSHA, advisory committee consultation should, but in this case did not, consist of something more than a single and brief rest stop on the route between a tentative proposal of one construction health and safety standard, and the final promulgation of another, superficially related, but substantively quite different, standard.29 Because the deviation from the requisite procedures is so great, we cannot be sure that the Assistant Secretary would have promulgated the modified ground fault protection standard in its current form had he used the proper process.30 Accordingly, the modified ground fault protection standard must be remanded to the Department so that it may engage in the appropriate consultation with the Advisory Committee.31

On the other hand, because we do not find that the standard as promulgated is illegal,32 nor, upon our initial review of the record, do we see any glaring deficiencies in the evidence supporting that standard,33 we feel that a minimum ninety-day remand of the record during which the regulations shall remain in effect will suffice to allow the Committee to be convened and to issue any recommendation it chooses on the assured grounding/GFCI alternative standard.34 If the Committee recommends that the standard should be altered, the Assistant Secretary must reevaluate the final regulation although the final decision as to its contents lies with him. See notes 11 & 15 Supra and accompanying texts. Should he decide to change the standard, a new round of public comment and a hearing on the change would be required If the change is not a "logical outgrowth" of the public comments already received. See pp. -- - -- of -- - U.S.App.D.C., 970-971 of 581 F.2d, Supra. By the same token, should he be inclined not to follow the Committee's recommendations, he must at least reserve judgment until he has compared those recommendations with the written and oral comments he received from the public during the previous promulgation period: If he decides that the Committee's recommendations might significantly have refocused the public commentary, he must withhold making a final decision until he has issued a new public notice soliciting public comments on the Committee's recommendations, and until he has held a new hearing, if one is requested. See pp. -- -, -- - of -- - U.S.App.D.C., 959, 969 of 581 F.2d, Supra. That is to say, once the Assistant Secretary has convinced himself of the wisdom of a chosen course of action after he has had the benefit of the Committee's recommendations, and once he is convinced that further public comment would shed no new light on the matter, he may return the record to this court for entry of an appropriate order.

It is so ordered.


* Sitting by designation pursuant to 28 U.S.C. § 294(d).

Opinion for the Court filed by McGOWAN, Circuit Judge.

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