                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 06-16172                 ELEVENTH CIRCUIT
                                                               AUGUST 3, 2007
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                             OSHRC No. 98-00485

ELAINE CHAO, Secretary of Labor,

                                                         Petitioner,

                                     versus

CAGLE'S INC.,
OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION,

                                                         Respondents.

                         ________________________

                  Petition for Review of a Decision of the
             Occupational Safety and Health Review Commission
                       ________________________

                               (August 3, 2007)

Before TJOFLAT, HULL and COX, Circuit Judges.

PER CURIAM:

     This petition for review concerns a final order of the Occupational Safety and

Health Review Commission (Commission) under the Occupational Safety and Health
Act of 1970 (“OSH Act”), 29 U.S.C. §§ 651-678. After two employees at Cagle’s

Inc.’s chicken processing plant in Collinsville, Alabama were asphyxiated after

entering a trailer containing waste breading contaminated with carbon dioxide, OSHA

inspected the worksite. Multiple citations were issued.

      An Administrative Law Judge (ALJ) conducted a hearing pursuant to section

12(j) of the OSH Act, 29 U.S.C. § 66(j), and thereafter issued a decision affirming

some of the citations, but vacating the citation in question here, which alleged a

violation of the permit-required confined space (“permit space”) standard. The

Review Commission reviewed and affirmed some of the citations, but vacated the

citation in question. Petitioner Elaine Chao, the Secretary of Labor (Secretary), filed

a petition for review, contesting only the vacation of the alleged violation of the

permit space standard.

      The disagreement between the Secretary and the Review Commission involves

the requirement under OSHA’s permit space standard that a space must be “large

enough and so configured that an employee can bodily enter and perform assigned

work.” 29 C.F.R. § 1910.146(b) (definition of a “confined space”). The Secretary

interpreted this to mean any space large enough and so configured that some work,

if assigned, could be performed there. The ALJ disagreed with this interpretation,

holding that the trailer was not a confined space because employees were never

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assigned work inside the trailer. The Review Commission also disagreed with the

Secretary’s interpretation, finding that there was no violation of OSHA’s permit-

space standard because “nothing in the record indicates that it was possible under the

circumstances for an employee to perform [currently] assigned work inside the

trailer.” (R.16-69 at 5.) In short, the Review Commission interpreted the regulation

to mean that employees must have current assignments that they could perform inside

the space.

      The Secretary argues that her interpretation must be upheld by the Review

Commission and this court so long as the interpretation is reasonable. Thus, she

contends, the Review Commission erred as a matter of law by rejecting her

reasonable interpretation of the regulation, and we should reverse the Review

Commission’s holding. The Review Commission counters that its interpretation is

correct, it correctly determined that the citation should be vacated, and its decision

is entitled to considerable deference, subject to being overturned only if it is arbitrary

or capricious. The Secretary alternatively argues that even under the Review

Commission’s interpretation, the Review Commission erred in holding that Cagle’s

employees could not enter the trailer to perform their currently-assigned work of

dumping waste. We agree with this alternative argument.

      29 C.F.R. § 1910.146(b) defines entry as “the activity by which a person passes

                                            3
through an opening into a permit-required confined space. Entry includes ensuing

work activities in that space and is considered to have occurred as soon as any part

of the entrant’s body breaks the plane of an opening into a space.” Cagle’s employees

sometimes manually dump the waste by cutting out a side of a box and emptying the

box through one of the roof openings. (R.14-42 at 6, 8.) The Secretary correctly

points out that employees could put their hands in one of the roof openings while

doing so. Because entry occurs “as soon as any part of the entrant’s body breaks the

plane of an opening into a space,” the entry of employees’ hands would qualify under

the regulation. 29 C.F.R. § 1910.146(b). Thus, it was reasonably foreseeable that

Cagle’s employees could enter the trailer in the course of doing currently-assigned

work, namely manually dumping waste into the trailer.

      Accordingly, we need not resolve the dispute between the Secretary and the

Review Commission regarding the interpretation of the regulation, as Cagle’s

employees could have entered the waste breading trailer in the course of doing work

currently assigned. For that reason, we vacate the Review Commission’s holding that

Cagle’s employees could not enter the trailer to perform their currently-assigned work

of dumping waste and remand to the Review Commission for further proceedings

consistent with this opinion.

      VACATED AND REMANDED.

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