National Constructors Ass'n v. Marshal, 77-1197

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtOpinion for the Court filed by McGOWAN; McGOWAN
Citation581 F.2d 960
Parties, 6 O.S.H. Cas.(BNA) 1721, 1978 O.S.H.D. (CCH) P 22,826 NATIONAL CONSTRUCTORS ASSOCIATION, an unincorporated association, Petitioner, v. Ray MARSHAL, Secretary of Labor, U. S. Department of Labor, Eula Bingham, Assistant Secretary of Labor for Occupational Safety and Health, and The Occupational Safety and Health Administration, U. S. Department of Labor, Respondents.
Docket NumberNo. 77-1197,77-1197
Decision Date28 June 1978

Steven R. Semler, Chicago, Ill., for petitioner.

William G. Staton, Atty., U. S. Dept. of Labor, Washington, D. C., a member of the bar of the Supreme Court of Pennsylvania, was allowed to argue pro hac vice by special leave of this court, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health Administration, Washington, D. C., a member of the bar of the Supreme Court of New York was allowed to argue pro hac vice by special leave of this Court, with whom Michael H. Levin and Allen H. Feldman, Attys., U. S. Dept. of Labor, Washington, D. C., were on the brief, for respondent.

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

Opinion for the Court filed by McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge:

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.


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 (CSA), 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 (APA), 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). 1

The other statute is the Occupational Safety and Health Act of 1970 (OSHA), 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). 2

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. 3

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. 4 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. 5


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. 6 Using this temporary and summary procedure, Labor Department officials in 1972 adopted the standards in the National Electrical Code (NEC) 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" 7 and designs. 8

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). 9 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. 10

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 nonbinding nature of their recommendations. 11

As his representative explained...

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    ...recommendation regarding the use of deficiency findings. The case cited by the Plaintiff, National Constructors Ass'n v. Marshal, 581 F.2d 960 (D.C.Cir.1978), is inapposite. The National Constructors case concerned the process the Occupational Safety and Health Administration (“OSHA”) was r......
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