JUN 2 1990

U.S. Department of Labor
Occupational Safety and Health Administration
Washington, D.C. 20210

Reply to the Attention of:

JUN 2, 1990

MEMORANDUM FOR:   REGIONAL ADMINISTRATORS

THROUGH:          LEO CAREY, DIRECTOR OFFICE OF FIELD PROGRAMS

FROM:             PATRICIA K. CLARK DIRECTOR DESIGNATE
                 DIRECTORATE of COMPLIANCE PROGRAMS

SUBJECT:          Enforcement Guidance - 29 CFR 1910.272(i)(2)
                 Standard for Grain Handling Facilities

On April 25, 1990, the Fifth Circuit Court of Appeals issued its decision in National Grain and Feed Association V. OSHA and Food & Allied Service Trades V. Secretary of Labor. A copy of this decision is also attached.

The court lifted the stay of enforcement of the 1/8-inch action level for priority areas and, therefore, the requirement of section 29 CFR 1910.272(i) (2) of the standard, which requires the removal of fugitive grain dust accumulation of more than 1/8-inch in priority housekeeping areas of grain elevators or equivalent employee protection, is enforceable effective August 1, 1990. Each region shall cite for non-compliance with this provision of the standard, starting on that date. We will advise you of any further legal developments in this regard.

Please provide a copy of this memorandum and the Court's decision to State Designees and 7(c) (1) Consultation Project Managers.

Attachments

U.S. Department of Labor
Occupational Safety and Health Administration
Washington, D.C. 20210

Reply to the Attention of:

FEB 7, 1989

MEMORANDUM FOR:        REGIONAL ADMINISTRATORS

THROUGH:               LEO CAREY, Director Office of Field Programs

FROM:                  THOMAS J. SHEPICH, Director
                      Directorate of Compliance Programs

SUBJECT:               Enforcement Guidance - 29 CFR 1910.272(i)(2)
                      Standard for Grain Handling Facilities

On January 24, 1989, the Fifth Circuit Court of Appeals issued its decision, copy attached, in response to the Department's petition for rehearing on several aspects of the court's earlier decision of October 27, 1988, including the issue of the 1/8 inch action level. As part of its decision, the court declared that its mandate would be issued forthwith and, in fact, was entered on January 25, 1989. As of that date, the court's previously announced stay of the 1/8 inch action level became effective and the provisions remanded to OSHA for further consideration. Therefore, grain elevator operators need not comply with the provisions of 29 CFR 1910.272(i) (2).

Moreover, it has been determined as a policy matter that violations of this provision that were observed subsequent to October 27, 1988, should not be cited, and any citations issued for such violations, but not yet a final order, shall be withdrawn. It is requested that this office be provided with a copy of any outstanding citations regarding this provision, regardless of the time period.

Please provide a copy of this memorandum and the court's decision to State Designees and 7(c)(1) Consultation Project Managers to ensure that they are aware of OSHA's enforcement posture in this regard.

Attachment

U.S. Department of Labor
Occupational Safety and Health Administration
Washington, D.C. 20210

Reply to the Attention of:



DEC 13, 1988

MEMORANDUM FOR:    REGIONAL ADMINISTRATORS

THROUGH:           LEO CAREY, DIRECTOR OFFICE OF FIELD PROGRAMS

FROM:              THOMAS J. SHEPICH, DIRECTOR
                  DIRECTORATE OF COMPLIANCE PROGRAMS

SUBJECT:           Enforcement Guidance - 29 CFR 1910.272(i)(2)
                  Standard for Grain Handling Facilities

The Department has recently filed a petition for rehearing on certain aspects of the court's decision. This filing has the effect of delaying the issuance of the court's stay of enforcement of 29 CFR 1910.272(i)(2). The provision may therefore be enforced according to its terms.

For the above reasons, the requirement of 29 CFR (i)(2) that cleaning measures be initiated whenever dust accumulations exceed 1/8" in the specified priority housekeeping areas of grain elevators remains in effect. Each region shall continue to inspect and cite for noncompliance with this provision. We will advise you immediately of any further legal developments affecting the enforceability of 29 CFR 1910.272(i)(2).

Please provide a copy of this memorandum and the Court's decision to State Designees and 7(c)(1) Consultation Project managers to ensure that they are aware of OSHA's enforcement posture in this regard.

Attachment

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 87-4960 - THE NAT'L GRAIN & FEED ASSOC. vs. OSHA AND 88-4256 - FOOD & ALLIED SERVICE TRADES DEPT. vs. DOLE (#`s 29 C.F.R. Section 1910.272 and 52 Fed. Reg. 49592 and 49631)

The following action has been taken in the above case:

Motion to consolidate granted.

|X| Order enclosed has been entered.

GILBERT F. GANUCHEAU, Clerk

cc: Mr. Randy S. Rabinowitz Mr. Mike Miller Mr. David C. Vladeck Mr. Richard L. Frank Mr. Robert H. Myers, Jr. By:__________________________

Mr. Nathaniel I. Spiller Deputy Clerk Ms. Barbara Werthmann Mr. Jay S. Bybee MOT-2 Mr. Marc L. Fleischaker Mr. Ray H. Darling

_________________

No. 87-4960 No. 88-4256 _________________

FOOD & ALLIED SERVICE TRADES DEPARTMENT, AFL-CIO, et al.,

_________________________

Before GARZA, WILLIAMS, and SMITH, Circuit Judges.

BY THE COURT:

We have under submission three motions filed subsequently to the issuance of our substitute opinion, 866 F.2d 717 (5th Cir. 1989). Petitioners Food & Allied Service Trades Department, AFL-CIO, et al. ("the unions"), move this court for an order enforcing our judgment. Petitioners National Grain & Feed Association, Inc., et al. ("the industry"), move that we reopen the public record. Respondent, the Secretary of Labor, moves for a lifting of our stay of enforcement. For the reasons set forth hereinbelow, we deny the motions for enforcement and reopening of the record and grant the motion to lift the stay.

The unions call for immediate enforcement of our judgment, asserting that workers are in need of the protection to be offered by the proposed grain-dust standards and that the secretary has taken inadequate steps, since the issuance of our prior opinions, to comply with our directive. The Secretary opposes the motion, asserting that on remand the agency is working to accommodate the court's requirements. The industry opposes the motion primarily by means of its motion to reopen the record.

There is little doubt that we have ample authority to issue an order directing compliance with our mandate. See, e.g., American Trucking Ass'ns. Inc. v. Interstate Commerce Comm'n, 669 F.2d 957, 960-61 (5th Cir. 1982) (per curiam) , cert. denied, 460 U.S. 1022 (1983). Here, the unions seek an order requiring the

Secretary (a) to file a statement regarding the feasibility of the 1/8-inch action level utilizing sweeping rates that are supported by substantial evidence and (b) to submit an expedited timetable to govern its reevaluation of whether the 1/8-inch action level should be expanded facility-wide. The first request is moot, as the Secretary has now, issued her statement regarding feasibility.

In her response, the Secretary observes that we have remanded for two purposes: (a) a reconsideration of compliance costs and (b) a consideration of whether to adopt a facility-wide grain-dust standard. The secretary notes that we set no time limit within which she was to act. Generally, courts "begin with recognition that an administrative agency is entitled to considerable deference in establishing a timetable for completing its proceedings," as "[a]n agency has broad discretion to set its agenda and to first apply its limited resources to the regulatory tasks it deems most pressing. Cutler v. Hayes, 818 F.2d 879, 896 (D.C. Cir. 1987).

The administrative scheme is such that we accord great deference to the agent in its rulemaking determinations. One factor weighing in the agency's favor is its declared intent to take action. See, e.g., Telecommunications Research & Action Center V. Federal Communications Comm'n, 750 F.2d 70, 80 (D.C. Cir. 1984).

In, Cutler, 818 F.2d at 897-98, the court enunciated the factors to be considered in evaluating an agency's lack of action: (1) the length of time that has elapsed since the agency came

under a duty to act, and any prospect of early completion; (2) the presence of any legislative mandate, and the degree of discretion given the agency by Congress with respect to timing; (3) whether injury will likely result from avoidable delay; (4) the presence or absence of bad faith on the agency's part; and (5) administrative necessity, the need to establish priorities given limited resources, and complexity of the task. Having weighed these factors, we determine that the time is not yet ripe for an order of enforcement.

The most troubling factor is that of injury. Nevertheless, the Secretary has convinced us that the agency is making good-faith progress and, not unexpectedly, has limited resources with which to accomplish that task.

While we deny the motion for immediate enforcement, we direct the Secretary to report to this panel on the status of the agency's review of whether to extend the action level facility-wide. Such report shall be by letter to the clerk filed on or before June 15, 1990. In requesting this status report, we emphasize that we intimate absolutely no view as to whether the action level should be extended facility-wide.

The industry asserts that in light of our remand, the agency should reopen the administrative record and engage in additional rulemaking proceedings, including the usual notice and comment procedures, with regard to the economic feasibility and

the costs and benefits of the 1/8-inch action level standard and with regard to consideration of a facility-wide standard. The industry asserts that there has been inadequate opportunity for review of all of the relevant factors and that, in any event, the agency now is working with stale data.

Both the Secretary and the unions oppose the motion. They note that nothing in the Administrative Procedure Act, our prior opinions, or the Occupational Safety and Health Act requires the Secretary to reopen the record to comply with our order of remand. It is well established that we may not require additional procedures not mandated by law. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council. Inc., 435 U.S. 519, 524 (1978). The respondents also observe that additional formal proceedings also would serve to delay even further the implementation of the 1/8-inch action level.

We are persuaded that we should not depart here from the usual rule that a reviewing court should leave the agency free on remand to determine whether supplemental fact-gathering is necessary for correction of the perceived error or deficiency. See Federal Communications Comm'n v. Pottsville Broadcasting Co., 309 U.S. 134, 141-46 (1940); Fly v. Heitmeyer, 309 U.S. 146 (1940) (agency has discretionary authority to reopen record if it so chooses). Here, particularly in regard to the issue of the correct sweeping rate, we have already observed, 866 F.2d at 739, that the existing record is well developed.

The agency must also be given latitude on the issue of staleness. Here, the record was closed in 1985, and the standard

was published in 1987. Given the time required for agency review, such gaps are inevitable, though regrettable. See Vermont Yankee, 435 U.S. at 554-55.

The agency has deferred decision on whether to reopen the record on the issue of a facility-wide action level until the sweeping-rate and cost-benefit questions are resolved. Correctly, the agency concludes that the assessment of costs for priority-area housekeeping will have a bearing upon the agency's decision as to whether to expand the 1/8-inch action level beyond priority areas.

In declining to order a reopening of the administrative record, we of course leave the agency free to do so. We expect the agency to take whatever course will ensure a record adequate for a fair and comprehensive determination of the issues.

The Secretary requests that we lift our stay of enforcement as to the 1/8-inch action level requirement in priority areas. The Secretary asserts that the standard should now be enforced in light of her new Supplemental Statement of Reasons setting forth, in the Secretary's words, "OSHA's findings and conclusions concerning the economic feasibility of the standard when considered in light of this Court's January 24 [, 1989,] decision." As the Secretary describes the newly-filed document,

OSHA recalculated the total costs of the 1/8-inch action level requirement for priority areas using the industry's suggested cleaning rate of 1,500 square feet

per hour. Although the resulting cost estimates were significantly higher than OSHA originally projected, OSHA concluded that the standard is economically feasible for the industry as a whole.

In our previous opinion, we remanded for a type of cost-benefit justification, namely, that the cost of the rule be reasonably related to the expected benefits. 866 F.2d at 733. We noted, however, that in this context, cost benefit does not mean a rigid arithmetical exercise or a "formal, specific weighing of quantified benefits against costs. 866 F.2d at 733. More specifically, in Asbestos Information Ass'n/N Am. v. OSHA, 727 F.2d 415 (5th Cir. 1984), we indicated that the "reasonably related" language means that the proposed standard "must, on balance, produce a benefit the costs of which are not unreasonable. The protection afforded to workers should outweigh the economic consequences to the regulated industry." Id. at 423 (citing, inter alia, American Petroleum Inst. v. OSHA, 581 F.2d 493, 502-03 (5th Cir. 1978), aff'd sub nom. Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607 (1980)). As we stated in our prior opinion, 866 F.2d at 733, "'We cannot say that the cost of compliance is unreasonable if the [standard] in fact alleviates a grave danger'" (quoting Asbestos Information, 727 F.2d at 424 (brackets in prior opinion)). The determination that is called for involves a "considerable" amount of deference to agency discretion. Texas Indep. Ginners Ass'n v. Marshall, 630 F.2d 398, 411 n. 44 (5th Cir. 1980).

We conclude that the Secretary has met this standard. The new statement filed by the secretary sets forth in detail her new calculation of costs, based upon the industry's claimed sweeping

rate, and explains her analysis that such costs will not result in a threat to the existence or competitive structure of the industry. Given our deference to such administrative findings, we accept the Secretary's conclusion. Moreover, our prior determinations regarding the efficacy of the proposed standard in alleviating death and injury satisfies the other side of the equation, now that the Secretary has performed the modified cost-benefit analysis that our caselaw requires.

Hence, we now lift the stay of enforcement of the 1/8-inch action level for priority areas. Our lifting of the stay shall be effective at 12:01 a.m. August 1, 1990, in order to provide the industry with a reasonable time to effect compliance.

In summary, we DENY the motion for enforcement, DENY the motion to reopen the record, and GRANT the motion to lift the stay, effective August 1, 1990. SO ORDERED.

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