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06/28/78 National Constructors v. Ray Marshal

June 28, 1978

ASSOCIATION, PETITIONER

v.

RAY MARSHAL, SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR, EULA BINGHAM, ASSISTANT SECRETARY OF LABOR FOR



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

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

NATIONAL CONSTRUCTORS ASSOCIATION, an unincorporated

Occupational Safety and Health, and THE

OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, U.S. DEPARTMENT OF

LABOR, RESPONDENTS

No. 77-1197 1978.CDC.100

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

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN

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 ...


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