“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2270 THUNDERBIRD COOS BAY, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January23, 1976DECISIONBefore BARNAKO, Chairman; MORAN and CLEARY,Commissioners.CLEARY, Commissioner:I. Introduction??????????? OnFebruary 12, 1973, respondent, Thunderbird Coos Bay, Inc., was issued twocitations alleging serious violations of section 5 of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ? 651 et seq. [hereinafter cited as ?theAct?]. One citation alleged a serious violation of section 5(a)(2) of the Actfor failing to comply with the safety standard at 29 CFR ?\u00a01910.213(h)(1)[1] [hereinafter cited as ?1910.213(h)(1) ]. The other citation alleged a serious violation of section5(a)(1) of the Act, the general duty clause,[2] in that two employees wereriding on a stack of loose lumber which was being carried on the forks of aforklift truck.??????????? Followinga timely notice of contest of both citations, a hearing was held in this casebefore Administrative Law Judge Garl Watkins. On May 15, 1974, Judge Watkinsissued a decision vacating both citations and their corresponding proposedpenalties.??????????? OnJune 10, 1974, the Secretary of Labor filed a petition for discretionary reviewtaking exception to the Judge?s actions in vacating both citations. Review wasdirected pursuant to section 12(j) of the Act on the issue of whether theJudge erred in vacating the alleged serious violation of ? 1910.213(h)(1). Thedirection for review was accompanied by the express statement that submissionsare not limited to the issue or issues actually directed for review. Consistentwith the foregoing statement, the Secretary submitted a brief excepting to thevacating of the alleged serious violation of section 5(a)(1) of the Act as wellas the alleged serious violation of ? 1910.213(h)(1).2aII. Issues on review??????????? Theissues on review are the following:??????????? 1.Whether the Judge erred in vacating the alleged serious violation of ?1910.213(h)(1) by holding:(a) That section 6(f) of the Act was notthe exclusive method for challenging a safety standard.(b) That the Commission was a proper forumfor determining the validity of a safety standard.(c) That headnote 4 of American NationalStandards Institute (ANSI) standard 01.1 1954 (R?1961) was an integral part ofthe standard and was adopted through the language of 29 CFR ? 1926.304(f).(d) That ANSI 01.1 1954 (R?1961) was not a?national consensus standard? within the meaning of section 3(9) of the Act.??????????? 2.Whether, assuming the validity of ? 1910.213(h)(1), a serious violation of thestandard was shown by the Secretary.??????????? 3.Whether the Judge erred in holding that respondent did not violate section5(a)(1) of the Act.III. Decision??????????? 1.The Judge?s invalidation of ? 1910.213(h)(1).??????????? Ahearing in this case was held in Coos Bay, Oregon, on June 27, 1973. At theclose of this hearing the record was left open pending the reception of furtherevidence regarding the asserted invalidity of ? 1910.213(h)(1). This receptionof further evidence took the form of a ?supplemental hearing? held before Judge Watkins onAugust 28?31 and September 17, 1973, in Seattle, Washington.[3][4]??????????? Asubstantial portion of the Judge?s decision in the instant case concerned thevalidity of ? 1910.213 and attendant issues litigated at the ?supplementalhearing.?[5] Judge Watkins concludedthat: (1) section 6(f) of the Act was not the exclusive method for challenginga safety standard; (2) the Commission was a proper forum for determining thevalidity of a safety standard; (3) the ANSI headnote was an integral part ofthe standard and was adopted through the language of 29 CFR ? 1926.304(f); and(4) the ANSI 01.1 1954 (R?1961) standard was not a ?national consensusstandard? within the meaning of section 3(9) of the Act.??????????? Inasmuchas Judge Watkins? conclusions regarding the validity of ? 1910.213 were commonto this case and nine other cases5 all ten cases were consolidated for reviewpurposes on August 29, 1974. In addition, Judge Watkins? decision inNoblecraft Industries, Inc., No. 3367 (August 8, 1974), which incorporatedthe above conclusions, was consolidated for review purposes with the other tencases on September 26, 1974).??????????? Ourdecision in Noblecraft Industries, Inc., No. 3367 (November 21, 1975)addresses the Judge?s conclusions regarding the validity of ? 1910.213 andattendant issues. We reversed the Judge and held that ? 1910.213 is a valid andenforceable standard. Our holding in Noblecraft Industries, Inc., supra,is dispositive of the ? 1910.213 issue in this case. Accordingly, we reach themerits of the alleged serious violations of ? 1910.213(h)(1) and section5(a)(1) of the Act.??????????? 2.Alleged serious violation of ? 1910.213(h)(1).[6]??????????? JudgeWatkins vacated the citation for serious violation of ? 1910.213(h)(1) solelyon the grounds that the cited standard was invalid and unenforceable. Indeed,the Judge stated that the evidence supported the Secretary?s allegation thatrespondent?s Dewalt radial arm saw was not equipped with a guard covering thelower portion of the saw blade. Respondent admitted the existence of the sawand its use without a lower blade guard on the date of the inspection.??????????? Basedon the foregoing, we conclude that a violation of ? 1910.213(h)(1) wasestablished. The question remains, however, as to whether this violation was?serious? within the meaning of section 17(k) of the Act.??????????? Unrebuttedtestimony of the compliance officer showed a substantial probability thatamputations and serious lacerations could result in the event of an accidentinvolving the use of respondent?s unguarded radial saw. There was alsopreponderating evidence showing that respondent knew of the unguarded conditionof the saw. Accordingly, we hold that the violation of ? 1910.213(h)(1) was?serious.?[7]??????????? Respondentconducts a small business and has no history of previous violations of the Act.Moreover, there is nothing in the record that leads us to doubt respondent?sgood faith. Finally, as noted, there is a paucity of evidence regarding thenumber of employees exposed to the unguarded saw and the duration of suchexposure. Considering these facts in light of the section 17(j) penaltyassessment criteria, we find inappropriate the $500 penalty proposed by theSecretary. Under the circumstances, we deem a $100 penalty appropriate for theserious violation of ? 1910.213(h)(1).??????????? 3.Alleged serious violation of section 5(a)(1) of the Act.[8]??????????? Inthe citation for a serious violation of section 5(a)(1) the Secretary allegedthat:The employer failed to provide a place ofemployment that was free from recognized hazards that are causing or are likelyto cause death or serious physical harm in that two (2) employees were ridingon unbanded lumber that was on the forks of a lift truck and the forks wereapproximately fifteen (15) feet above the ground level.\u00a0??????????? Evidenceadduced at the hearing established the conditions alleged to exist on the dateof the inspection. In his findings of fact, Judge Watkins found:On that date, two of its employees wereseen by Respondent?s construction superintendent at a dangerous height from theground on the lifting part of a forklift truck. A loose load of lumber was alsoon the lift portion of the forklift truck. Immediately he saw them [sic], thesuperintendent went a distance of fifty feet or possibly a little farther towhere they were, spoke to them, and the men came down.\u00a0??????????? Thesefindings and other relevant evidence must be examined in order to determinewhether a violation of section 5(a)(1) was established.??????????? Inorder to establish a violation of section 5(a)(1), the Secretary must prove:(1) that the employer failed to render its workplace?free? of a hazard which was (2) ?recognized? and (3) ?causing or likely tocause death or serious physical harm.?National Realty & Constr. Co., Inc. v.O.S.H.R.C., 489 F.2d 1257, 1265 (D.C.Cir.1973). Ourexamination of the record in light of the above elements indicates that theJudge erred in vacating the citation.??????????? Therewas little question that the practice of allowing employees to ride on theelevated forks of a forklift truck was a recognized hazard in the constructionindustry. Photographic exhibits and testimony of the compliance officer showedthe patent nature of the hazard posed by this practice. Indeed, the hazard inthis case was compounded by the fact that the employees were riding on top of astack of loose lumber that was on the forks of the lift. Apart from the patentnature of this hazard, the Secretary placed in evidence several state safetycodes, all of which indicated that no person should be permitted to ride onpowered industrial vehicles unless safe riding facilities are provided.Considering these facts, we find that the conduct referred to in the citationwas a ?recognized hazard? within the meaning of section 5(a)(1) of the Act.??????????? TheSecretary also showed that the hazard was likely to cause death or seriousphysical injury to the employees being transported on the forks of the lift.The compliance officer testified that when a lift truck is moving the fork masthas a tendency to move back and forth. He further testified that, since thepassengers were provided with no fall protection and were in fact sitting ontop of an unbanded stack of lumber, they could very easily have fallen off ifthe lift driver had stopped suddenly or hit something. The resulting fifteenfoot fall to the ground could result in serious physical injury or death in theevent the passengers fell forward into the path of the moving forklift truck.We conclude, therefore, that the requisite likelihood of death or seriousphysical injury was shown by the Secretary.??????????? Finally,we conclude that the evidence showed that respondent failed to render itsworkplace free from this recognized hazard. The compliance officer testifiedthat the forklift riding incident occurred while both he and respondent?sconstruction superintendent were within plain view of the men riding on theforks of the lift truck.[9]??????????? JudgeWatkins refused to hold respondent in violation of section 5(a)(1). He inferredthat this ?may have been an isolated, momentary, foolhardy (and evenbelligerent) act on the part of two or three employees (emphasis added).?[10] We consider it morereasonable in light of our experience to infer that respondent, through itsconstruction superintendent, condoned, or at least, failed to prohibit thispractice. In the absence of evidence negating this inference, we find that theSecretary has sustained his burden of showing that respondent failed to renderits workplace free from this recognized hazard.??????????? Inlight of the above, we reverse Judge Watkins and affirm the citation forserious violation of section 5(a)(1) of the Act.??????????? Asnoted, the consequences of an accident occurring as a result of this violationwould probably be serious. But, respondent?s construction superintendentimmediately ordered the employees down off the lift. Consequently, the durationof the employees? exposure to the hazard was relatively short.[11] We, therefore, concludethat the gravity of this violation was moderate. This determination coupledwith our previous observations concerning respondent?s small size, good faith,and absence of a history of previous violations leads us to conclude that the $500penalty proposed by the Secretary is excessive. A $100 penalty is appropriateunder the circumstances of this case.??????????? Itis, therefore, ORDERED that:??????????? (1)The citation for serious violation of ? 1910.213(h)(1) is affirmed and a $100penalty is assessed.??????????? (2)The citation for serious violation of section 5(a)(1) of the Act is affirmedand a $100 penalty is assessed.?FOR THE COMMISSION?William S. McLaughlinExecutive SecretaryJanuary 23, 1976MORAN, Commissioner, Dissenting:??????????? Forthe reasons expressed in my opinion in Secretary v. Noblecraft Industries,Inc., OSAHRC Docket No. 3367, November 21, 1975, I would vacate thecitation for noncompliance with 29 C.F.R. ? 1910.213(h)(1) because thatstandard was improperly promulgated. Furthermore, it is palpably wrong for theCommission to reverse the Judge?s dismissal of an alleged violation of 29U.S.C. ? 654(a)(1) without ever advising the respondent that the correctness ofthe Judge?s decision on that charge would be reviewed by the Commission. To actin this manner contradicts the basic underpinnings of due process of law.[12]??????????? Thecomplainant?s petition for discretionary review requested review of the Judge?sholdings on both citations. However, the direction for review specifically indicatesthat review was granted only on the citation for noncompliance with ?1910.213(h)(1).[13]Thereafter, the employer elected not to file a review brief. Now, he is toldwithout any prior warning that the Judge?s decision is reversed and that he isbeing held in violation of 29 U.S.C. ? 654(a)(1). Such a procedure is unjustand injudicious.??????????? Messrs.Barnako and Cleary attempt to justify their action on the basis of a loophole:a form letter attached to the direction for review by the Office of the ExecutiveSecretary when it was transmitted to the parties which suggested that briefscould be submitted on other issues. This is a type of response often raised bythe bucket-shop operators of yesteryear. In effect, Mr. Cleary?s directiondenied review on item 1, the ? 654(a)(1) charge. The only reasonable conclusionof a reader of that review order is that item 1 was no longer in issueregardless of what the opposing party might say in an appellate brief.Furthermore, the aforementioned form letter advised each party that briefs must?be filed within 30 days of the date of this notice.? It contains no provisionfor the submission of a reply brief if an opposing party were to raise an issuein his initial brief that was not included in the direction for review. Resortto this type of procedure smacks of bureaucratic sleight-of-hand ill-suited foruse by persons who are sworn to dispense equal justice under the law.??????????? Itshould also be noted however that the Executive Secretary?s form letter is notprovided for in the Commission?s Rules of Procedure and has never before beenregarded as an official position upon which a party may rely. As a matter offact the Commission members never see this form letter prior to its mailing andhave no way of knowing what wording the Executive Secretary?s office may chooseto place in that form letter.??????????? Agood example of this is contained in the pending case of Secretary v. MorrisEnterprises, Inc., OSAHRC Docket No. 12283. In that case separateDirections for Review were issued by two members of the Commission: Mr. Clearyand myself. The one I filed was mailed to the parties accompanied by a formletter dated November 7, 1975. That form letter contained only the followingstatement:?Review has been directed of the Judge?sdecision previously filed in the above-captioned case (see attached).?\u00a0??????????? TheDirection for Review filed by Mr. Cleary, however, was accompanied by a formletter dated November 6, 1975 which stated as follows:?Review has been directed of the Judge?sdecision previously filed in the above case.?Submission of briefs are invited withrespect to (see attached).?Briefs are invited specifically withrespect to the above-referenced issues.?If the parties wish to file briefs onthese issues, notice must be given the undersigned within 10 days of the dateof this notice. Such briefs must then be filed within 30 days of the date ofthis notice. Extensions of time will not be granted except in extraordinarycircumstances.?An original and seven copies must besubmitted to the Commission on paper as prescribed in the Commission?s Rules ofProcedure.????????????? Thefact that different form letters are used willy-nilly in the very same casedemonstrates both the sapless basis on which form letters are attached and theflimsy footing upon which the Barnako?Cleary foundation for justifying theiraction in this case is based.??????????? Fairnessdictates that my colleagues, when they decided to entertain this issue?insteadof pulling a loophole from their bag of tricks?should have issued a supplementaldirection for review indicating that they would consider this additional issue.See Secretary v. Trustees of Penn Central Transportation Co., OSAHRCDocket No. 5796, December 22, 1975 (dissenting opinion) in which I amcriticized (by the same two members who make up the majority in this case) fordelaying that case by adding issues in a supplemental direction for review.That case was originally directed for review on October 22, 1974, whereasreview was granted in the instant case on June 14, 1974. In the former case, mycolleagues accuse me of causing a delay, yet they have no trouble reversinghere in a case that has been before the Commission more than four months longereven though the respondent was told that the Judge?s action on that citationwould not be reviewed. Not only is the fallaciousness of that reasoningapparent, but it smacks of moral double-bookkeeping.??????????? Sincethe foregoing opinion refers to the Judge Watkins? decision several times andfootnote 4 thereof directs the attention of its readers to specific pages inhis decision, that decision is attached hereto as Appendix A.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2270 THUNDERBIRD COOS BAY, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: June14, 1974DECISIONAND ORDERAppearances:Ernest A. Scott,Jr. Attorney Office of the Solicitor United States Department of Labor Seattle,Washington For the Secretary\u00a0James A. McClaskeyMessrs. Gilley, Busey & Porter Portland, Oregon For the Respondent\u00a0At ConsolidatedSupplemental Hearing:Robert A. FrielAssociate Regional Solicitor Jane Ann McKenzie Attorney United StatesDepartment of Labor Seattle, Washington For the Secretary\u00a0Douglas B. M.Ehlke Tacoma, Washington For Respondent Weyerhaeuser Company in Dockets 1231and 1758\u00a0George J. TichySpokane, Washington For Respondent Konkolville Lumber Company in Docket 2437\u00a0GARL WATKINS, Judge:??????????? In this enforcement action under Section 10 of theOccupational Safety and Health Act of 1970, 29 USCA 651, et seq.?notable onlyfor its paucity of evidence on material facts to be proved?the Secretary ofLabor seeks a finding of two violations of the Act by Respondent at a motelconstruction site in Coos Bay, Oregon on January 16, 1973.??????????? The first alleged is a violation of Section 5(a)(1) infailing to furnish a place of employment free from recognized hazards becausetwo employees were seen by Complainant?s Compliance Officer fifteen feet in theair on a forklift truck. In the second Citation, the Secretary alleges aserious violation of Section 5(a)(2) of the Act because, on the day ofinspection it is admitted that an employee of Respondent used a Dewalt radialarm saw without a guard on the lower portion of the blade as required by 29 CFR1910.213(h)(1). For each alleged violation of the Act, the Secretary seeks theimposition of a monetary penalty of $500.00.??????????? The Citations, allegations of the Complaint, and in thecase of the second, the standard under consideration follow.CITATIONFOR SERIOUS VIOLATION:? Citation Number 1of 2 Standard or regulation allegedly violated Description of alleged violation January 16, 1973 Section 5(a)(1) of Public Law 91?596 The Occupational Safety & Health Act. The employer failed to provide a place of employment that was free from recognized hazards that are causing or are likely to cause death or serious physical harm in that two (2) employees were riding on unbanded lumber that was on the forks of a lift truck and the forks were approximately fifteen (15) feet above the ground level.? \u00a0 \u00a0COMPLAINTIV? On or about January 16, 1973, at theaforesaid Coos Bay, Oregon worksite and place of employment, respondentcontrary to section 5(a)(1) of the Act failed to furnish to its employees aplace of employment which was free from recognized hazards that were causing orwere likely to cause death or serious physical harm to its employees in thatrespondent permitted a number of its employees to ride on top of unbandedlumber that was being transported or carried on the forks of a lift truck whoseforks were at such time approximately fifteen (15) feet above ground level.?PROPOSED PENALTY: $500.00CITATIONFOR SERIOUS VIOLATION:? Citation Number 2of 2 Standard or regulation allegedly violated Description of alleged violation January 16, 1973 29 CFR 1910.213(h)(1) \u00a0 A ?Dewalt? Radial Arm Saw had no guard covering the lower portion of the saw blade. ?COMPLAINTV.? On or about January 16, 1973, at theaforesaid Coos Bay, Oregon worksite and place of employment, respondentviolated the safety and health regulations in the following respects:?A?Dewalt? Radial Arm Saw did not have a guard covering the lower portion of itsblade, contrary to 29 C.F.R. ? 1910.213(h)(1).????????????? STANDARD:? 29C.F.R. 1910.213(h) Radial saws.??(1) The upper hood shall completely enclosethe upper portion of the blade down to a point that will include the end of thesaw arbor. The upper hood shall be constructed in such a manner and of suchmaterial that it will protect the operator from flying splinters, broken sawteeth, etc., and will deflect sawdust away from the operator. The sides of thelower exposed portion of the blade shall be guarded to the full diameter of theblade by a device that will automatically adjust itself to the thickness of thestock and remain in contact with stock being cut to give maximum protectionpossible for the operation being performed.?\u00a0PROPOSED PENALTY: $500.00??????????? The hearing was in Coos Bay, Oregon on June 28, 1973. Therecord indicates compliance with the Rules of Procedure regarding service andposting. No one appeared and sought to assert a party status.??????????? Respondent?s Answer was an admission that it was anOregon corporation doing business in Coos Bay and then a general denial,followed by an affirmative defense that it had no notice of either allegationand as ?partial defense and in mitigation? an allegation that the proposedassessment of penalties was not reasonable.??????????? The Secretary propounded two sets of Requests forAdmissions. The first was answered, and the second admitted at the hearing.??????????? As in other related cases, I announced at the outset ofthe hearing the questions which had arisen with respect to the validity of Part1910 of 29 CFR. This question had not been raised specifically by Respondent upto that time but the Secretary?s allegation of a valid enactment of 29 CFR 1910had been denied by Respondent?s Answer. Respondent has consistently taken theposition that the standard is invalid although counsel did not participate inthe supplemental hearing.??????????? From the testimony of David M. Hancock, Secretary?sCompliance Officer, Manni Weiseke, Respondent?s Coos Bay manager (for themotel?not for construction), and from admissions of Respondent, the following?bare bones? case is satisfactorily established.??????????? Respondent is in the motel business. In January of 1973,it was also doing construction at Coos Bay in the building, re-building, orenlargement of its motel. All that is established is that it was doingconstruction work and the pictures show some of it. The motel was apparently inpartial operation at the time.??????????? Tex Martin was its construction superintendent. There issome confusion because Hancock testified throughout on direct that thesuperintendent was Tex ?Winter.? The record was reopened and, on being recalled,he said he meant ?Martin? all the time. It is unnecessary to decide whetherMartin?s statement that he was Respondent?s superintendent is necessary toprove the fact of his employment because Request for Admission No. 15 of thefirst set admits ?that Respondent had a superintendent (Tex. Martin) at its jobsite, 1313 Bayshore Drive, Coos, bay, Oregon, on January 16, 1973.???????????? Pictures were taken of the two men high in the air on theforklift in question accompanied only by a pile of loose lumber (Secretary?sExhibits 1, 2 and 10). Martin said they were Respondent?s employees. The recorddoes not show their identity, their jobs or in any detail what they were doing.Hancock did say, ?They were moving from section to section, and instead ofwalking or getting down on a ladder and moving over, they just rode on theforklift truck.? (Tr. 29) There is no indication whether this is observation orconjecture.??????????? So far as the record shows, immediately on Martin firstseeing the men on the truck?when Hancock mentioned them?he said, ?I had betterget them down before they kill themselves.? (Tr. 30) He went to where the menwere, spoke to them, and they got down.??????????? The existence of the saw and its use on the date ofinspection without a lower blade guard are admitted. There is no evidence as tohow it was used, by whom, or how long. It is shown in Secretary?s Exhibits 3and 4.??????????? Thus if 29 CFR 1910.213(h)(1) is valid, Respondent was inviolation of it. Since only the violation is shown, it is not serious. Sincethere is no evidence of acts of any person connected with the use of the saw,there is no justification for imposing a penalty.??????????? Our inquiry will now be into the woodworking machineryguarding standards and the charges laid under it, specifically into thequestion of the validity of the standards themselves.??????????? This question was the subject of a supplemental hearingin Seattle on August 20, 30 and 31, 1973, and completed at a continued hearingon September 17. Ten cases were consolidated in that part of the hearings forthe purpose of receiving evidence on the validity of the standards set out in29 CFR 1910.213 and the legality of the actions of the Secretary in adoptingthem. This is one of the ten cases. At the conclusion of the session onSeptember 17, an order of severance of the cases was entered.??????????? Three more cases containing the identical question havesince been assigned to me. One has been heard.[14]??????????? Perhaps a few words about the background of the inquiryand the reasons for the scrutiny of the standards having to do with machineguarding requirements for woodworking machinery would be in order.??????????? After hearing the two consolidated Weyerhaeuser cases(Dockets 1231 and 1758) in Klamath Falls, Oregon on January 16 through 19,1973, I was in the process of preparing decisions in two other cases involvinglineal pine moulding plants in Prineville, Oregon (Consolidated Pine, Docket#945 and Prineville Mouldings, #1045). The only violation charged in one ofthose cases and the only serious violation alleged in the other was adeficiency in the guard of hand fed crosscut table saws under 29 CFR1910.213(d)(1). The facts of both cases were almost identical.??????????? The guards went completely around the circular sawsexcept for about six inches at the top of each where the moulding was loweredonto the saws to be trimmed. They are called ?trim saws? in the industry.??????????? The superintendents of the two Respondents and of oneother similar plant with 30, 30 and 20 years respective experience, and broadknowledge of practices in the industry, testified the use of such saws wasuniform in the kind of plants they managed. They had never heard of such sawsbeing guarded as required by the cited standard.??????????? I became curious about how the guarding requirementscould be ?national consensus standards.? This line of inquiry led me to theSeattle Public Library where I found only the 1971 standard 01.1?Revised, ofthe American National Standards Institute (hereinafter ?ANSI?, whetherreference is to the organization with its present name, or previous names ofAmerican Standards Association or United States Standards Association). Atelephone call to the New York office of ANSI brought me the sourcestandard?ANSI 01.1 1954, reaffirmed 1961. (29 CFR 1910.221 lists the source as?AMCI.? All parties stipulated this was a misprint. ?ANSI? 01.1 1954 R(?reaffirmed?) 1961 is correct.)??????????? My curiosity was further aroused by the headnote onSection 4.1 of that standard. This Section includes all substantive materialadopted in the OSHA standards in the cases before me. The headnote is:NOTE: It isrecognized that the standards for saw guards in 4.1 are not perfectlyapplicable to all operations for which saws are used. The standards given arethose which woodworkers have agreed are most generally useful. Since there area considerable number of cases not satisfactorily met by these standards, theenforcing authority should exercise rather wide latitude in allowing the use ofother devices which give promise of affording adequate protection. It may beexpected that by so doing further progress in saw guarding will be encouraged.???????????? Further inquiries within the ANSI organization, with afew members of the ANSI ?01? committee which adopted the standard in 1954 andreaffirmed it in 1961, as well as with Mr. Patrick F.Cestrone who was Directorof the Office of Safety and Health Standards, United States Department ofLabor, when 29 CFR 1910.213 was adopted as a national consensus standard;convinced me it would be advisable to obtain additional evidence in some areashaving to do with the question of the validity of the woodworking machineguarding sections of the Occupational Safety and Health standards.??????????? Three rather obvious questions having to do with thevalidity of the standards seemed not to be answered adequately by the record.They were:??????????? (1) The effect of the headnote; which was not adopted bythe Secretary and which, in itself, constituted an integral part of thestandard,??????????? (2) Whether the ANSI 01 standard is in fact a nationalconsensus standard as defined in the Act. Stated more precisely and in thereverse, the real question here is whether Congress adopted a definition of anational consensus standard which could be met by the ANSI promulgation as oneadopted ?under procedures whereby it can be determined by the Secretary thatpersons interested and affected by the scope or provisions of the standard havereached substantial agreement on its adoption,……..?, (Sec. 3(9)(1) of theAct)??????????? (3) Whether the standards were ?formulated in a mannerwhich afforded an opportunity for diverse views to be considered……..? (Sec.3(9)(2) of the Act)??????????? Respondent Weyerhaeuser, and later Konkolville (Docket2347), squarely raised the question of legality and validity of the standardfrom every point of approach necessary to test it.??????????? In the meantime, eight more cases (including Konkolville)were assigned to me, all alleging violations of subsections of 29 CFR 1910.213.In some the question of the validity of the standard was raised. In some it wasnot. Two of the Respondents were not represented by counsel.??????????? Under the circumstances is seemed unconscionable to me tomake an extensive inquiry tending to show whether or not the woodworkingmachine guarding standards were valid in a few cases, and reach whateverdecision might be forthcoming; without going into the same question in all thecases. The two Respondents not represented by counsel had no way of knowing howto raise the defense of invalidity of the standard. Counsel in the others hadat best a difficult task in finding out that their clients might be chargedunder unenforceable regulations.??????????? Consequently, the question was raised at the hearings onthe merits in all cases thus far heard. In the case of pro se Respondents, Iinterpreted their answers to include a defense of illegality and invalidity ofthe standards. Other counsel were given an opportunity to amend theirpleadings. The posture of all cases on which hearings have been held is nowsuch that the question is properly raised in all.??????????? Before proceeding to the three main questions raised,disposition must first be made of certain preliminary matters.??????????? While not arguing the point at length in his briefs, theSecretary has consistently taken the position that neither the ReviewCommission as an independent or administrative adjudicatory agency, nor I as ajudge conducting its hearings, had the right to reopen the cases, callwitnesses and consider evidence not produced by counsel for the parties.(Konkolville was not reopened. The record was left open for the supplemental hearing.)I have been told repeatedly that I am not (and of course the Review Commissionis not) a ?court.? Apparently the feeling is that a ?judicial? adjudicatorybody can do what an independent or ?administrative? adjudicatory body cannotdo.??????????? The question is interesting, and it must be resolvedcontrary to the Secretary?s position. While most authorities refer to the?inherent power? of courts to call witnesses in order to develop the truth in ajudicial inquiry; the fact is, it is an ?inherent duty.? However far able andcompetent advocacy may cause us to digress from some fundamental principlesinvolved in adjudicatory proceedings under our system, the fact remains thatthe primary responsibility for developing the record lies with the presidingofficer of the tribunal.??????????? Briefly expressed, ?courts have inherent power to do allthings that are reasonably necessary for the administration of justice withinthe scope of their jurisdiction.? (20 Am Jur 2d, Courts ? 79)??????????? Federal Rule of Evidence 614(a) providesCALLING ANDINTERROGATION OF WITNESSES BY JUDGE?(a) Calling byJudge. The judge may, on his own motion or at the suggestion of a party, callwitnesses, and all parties are entitled to cross-examine witnesses thus called.?(b) Interrogationby judge. The judge may interrogate witnesses, whether called by himself or bya party.?(c) Objections.Objections to the calling of witnesses by the judge or to interrogation by himmay be made at the time or at the next available opportunity when the jury isnot present.\u00a0??????????? McCormick has been rather widely quoted. ? 8, pages 12?13provides:8. THE JUDGE MAYEXAMINE AND CALL WITNESSES……….. Not only may the judge examine witnessescalled by the parties, but in his discretion he may also, for the purpose ofbringing out needed facts, call witnesses whom the parties might not have chosento call.\u00a0??????????? While the Administrative Procedure Act does notspecifically provide for the calling of witnesses by a hearing examiner oradministrative law judge, numerous cases have upheld this right even over theobjections of the parties; usually basing it on 5 USCA 556(c)(9).??????????? Professor Davis in his Administrative Law Treatise takesthe position that such power and authority are present under the quoted sectionof the Administrative Procedure Act; and cites authorities encouraging suchaction in agencies having rules similar to our Rule of Procedure 66, as well asthose not having such rules. A clear inference from Davis is that there is agreater need for independent action of this kind on the part of anadministrative law judge or hearing examiner than in the case of a judge in thejudicial branch of the government. He cites Congressional history in theadoption of the APA:(? 10.02)?……..that presiding officers have ?the authority and duty?as a court does?to makesure that all necessary evidence is adduced and to keep the hearing orderly andefficient….. The trial examiner shall have authority….. (j) To call,examine and cross-examine witnesses, and to introduce into the recorddocumentary or other evidence.? The courts have often upheld the active role ofexaminers: ?It is the function of an examiner, just as it is the recognizedfunction of a trial judge, to see that facts are clearly and fully developed.He is not required to sit idly by and permit a confused or meaningless recordto be made.? \u00a0Ruleof Procedure 66 of the Review Commission provides:?Rule66 DUTIES AND POWERS OF JUDGES.?Itshall be the duty of the Judge to conduct a fair and impartial hearing, toassure that the facts are fully elicited, to adjudicate all issues and avoiddelay. The Judge shall have authority…….., to:?(h)…..order hearings reopened…..?(j)Call and examine witnesses and to introduce into the record documentary orother evidence;????????????? The only United States Court of Appeals case under ourRule 66 which has come to our attention is: Brennan, Secretary of Labor v.OSAHRC and John J. Gordon Company 2nd Circuit, Feb. 25, 1974?Docket73?1729.??????????? The second preliminary question requiring decision iswhether Section 6(f) of the Act provides an exclusive method?the only methodwhich may be used at any time?to challenge the validity of any standard issuedby the Secretary.??????????? The section provides:SEC. 6. (f) Anyperson who may be adversely affected by a standard issued under thissection may at any time prior to the sixtieth day after such standard ispromulgated file a petition challenging the validity of such standard with theUnited States court of appeals for the circuit wherein such person resides orhas his principal place of business, for a judicial review of such standard. Acopy of the petition shall be forthwith transmitted by the clerk of the courtto the Secretary. The filing of such petition shall not, unless otherwiseordered by the court, operate as a stay of the standard. The determinations ofthe Secretary shall be conclusive if supported by substantial evidence in therecord considered as a whole. (Emphasis supplied)\u00a0??????????? The Solicitor contends that since a specific section ofthe Act provides a procedure to challenge the validity of a standard if theaction is started within sixty days after its effective date, this method isexclusive; even though the Act doesn?t say so.??????????? Respondents, on the other hand, take the position that thisis a pre-enforcement remedy only, and that the validity of any standard may bechallenged in an enforcement proceeding.??????????? Respondents? position seems fundamentally correct. Thewords underlined above indicate the action is optional, not mandatory. There isno express language indicating this is an exclusive method for attacking astandard. Additionally it would seem that investing ?any person who may beadversely affected? with a right to test the validity of a standard, butlimiting that right to 60 days from the effective date indicates an intent onthe part of Congress to provide this as a preliminary pre-enforcementprocedure, rather than as the sole procedure by which a standard can bechallenged.??????????? Respondent Weyerhaeuser quotes from Divesco Roofing& Insulation Company, Docket 345, 1 OSHC 1079:?…….. thelegal validity of the standards under the Constitution and Statutes of theUnited States is necessarily involved in the adjudication of enforcementproceedings, and this function has been reserved for the Commission subject tojudicial review.\u00a0??????????? Admittedly the language of the entire statute couldprovide a clearer guide to the answer we seek here. Perhaps it is ambiguous orunclear and subject to construction. If so, then it is proper to examine theLegislative History for assistance.??????????? Two such references would seem sufficient. In the finalSenate report, No. 91?1282, page 8, as reprinted in the Legislative History,page 148, we find the following:?Judicial Reviewof Standards.?Section 6(f) provides that any person who may be adverselyaffected by a standard may, within 60 days of its issuance, seek judicialreview in an appropriate United States court of appeals. While this would bethe exclusive method for obtaining pre-enforcement judicial review of astandard, the provision does not foreclose an employer from challenging thevalidity of a standard during an enforcement proceeding. Unless otherwiseordered by the court, the filing of the petition would not operate as a stay ofthe standard.? (Emphasis supplied).\u00a0??????????? In explaining the real need for a twofold system ofstandards review, Senator Williams stated in a speech on the Senate floor?andin support of the provision as it was enacted?The bill asreported by the committee provides an opportunity for a person affected by thepromulgation of a standard to seek judicial review within 60 days of thepromulgation of such standard or the standard may also be challenged duringan enforcement proceeding.??????????? This is a very board-scaled judicialreview protection that completely meets any industry concerns regarding theability to contest the standards in court. (Underlining added) LegislativeHistory, p. 431\u00a0??????????? Other references in the Legislative History of the Actare to the same effect, but their inclusion would only lengthen this decisionunnecessarily.??????????? Neither the Review Commission nor its judges havehesitated to invalidate a standard for a variety of reasons?but all on thebasic ground that the action of the Secretary in adopting the particularstandard was in excess of the power granted him by the Act. A few casesdiscussing the principle?most holding the standard invalid?follow:??????????? Joseph Bucheit and Sons Company, Docket 295, 1OSHC 3106. (?Validity? distinguished from ?wisdom?)??????????? Oberhelman-Ritter Foundry, Inc., Docket 572, 1OSHC 3087, (?should? changed to ?shall?. Standard invalidated.)??????????? Divesco Roofing & Insulation Company, supra.??????????? Tilo Company, Inc., Docket 211, 1 OSHC 1206(Standard invalid?unenforceably vague)??????????? Santa Fe Trail Transport Company, Docket 331, 1OSHC 1457 (whether hospital, infirmary, or clinic; in ?near proximity to workplace.? Invalid as unenforceable vague.)??????????? More standards have been held invalid by theCommission?and judges?on this ground than on any other.??????????? The third preliminary question for decision before we mayreach the heart of the case, is whether the Review Commission has the right topass on the legality or validity of a standard at all. Whether this be called a?right?, ?power?, ?authority? or ?jurisdiction? makes no difference. Thespecific question is whether the validity and legality of those portions of 29CFR 1910.213 under review, as derived from ANSI 01.1 1954, reaffirmed 1961, maybe adjudicated by the Review Commission, an independent or ?administrative?adjudicatory tribunal; or whether they must be left untouched until they comebefore a ?judicial? adjudicatory tribunal.??????????? It is worthy of note in passing that insofar as theprecise issued involved in this case are concerned, the trial judge?s duty,authority and power at the hearing stage of the proceeding, are no differentfrom the Review Commission?s duty, authority and power at its review stage ofthe proceeding. No contention has been made on the part of any party that thereis a difference, and no authority in support of any such position has beencited.??????????? It should likewise be noted that the questions involvedhere are sufficiently closely related to those last discussed, that someauthorities cited are persuasive to the issues in both. There are moredifferences than similarities, however, and thus the subjects lend themselvesmore readily to separate discussion.??????????? We may start on the assumption that unless the Secretaryacts in some manner authorized by statute to withdraw his regulation (we callit a ?standard?) or otherwise invalidate it, and if litigation then developsquestioning its legality or validity, the answers can only be determined by?adjudication.? The question is?in what forum; considering the precisequestions raised and all parts of the particular statute???????????? The Secretary would have us believe the tribunal must beso marked as to indicate it is a ?court? or part of the judicial branch of thegovernment.??????????? I have read and considered the briefs filed, and thecases cited therein; and have conducted some independent research. On the basisof this Act, I find no authority, even persuasive, in support of theSecretary?s position.??????????? For example, the Secretary?s greatest emphasis asauthority for his position?as determined by its prominent position and repeatedcitation in the Solicitor?s briefs?is on the case of Stark v. Wickard(1944), 321 U.S. 559, 88 L.Ed. 733, 64 S.Ct. 559, 571. In that case, the court,speaking through Mr. Justice Reed said:The responsibilityof determining the limits of statutory grants of authority in such instances isa judicial function entrusted to the courts by Congress by the statutesestablishing courts and marking their jurisdiction.\u00a0As quoted out of context,this is persuasive language in favor of the position of the Secretary here.??????????? The court neither says nor implies, however, thatCongress cannot adopt a law wherein the initial adjudication ?to protectjusticiable individual rights against administrative action? is by anindependent or ?administrative court?, subject to judicial review by the UnitedStates Court of Appeals. The real question involved in our case is whetherCongress did adopt such a law.??????????? Nor could the court have so stated or implied, becausethe holding of the case was simply that the plaintiffs had standing to sue inFederal District Court to question the validity of a milk marketing regulationof the Secretary of Agriculture.??????????? The authority cited by Mr. Justice Reed in support of thequoted statement above is U.S. v. Morgan (1939) 307 U.S. 183, 83 L.Ed.1211, 59 S.Ct. 795?799, 800. In the opinion by Mr. Justice Stone may be foundlanguage even more favorable in this instance to the position of theRespondents in our case; if we consider it out of context also, and assume the?agency? to be the Review Commission, and its ?action? adjudicatory……… Inconstruing a statute setting up an administrative agency and providing for judicialreview of its action, court and agency are not to be regarded as whollyindependent and unrelated instrumentalities of justice, each acting in theperformance of its prescribed statutory duty without regard to the appropriatefunction of the other in securing the plainly indicated objects of the statute.Court and agency are the means adopted to attain the prescribed end, and so faras their duties are defined by the words of the statute, those words should beconstrued so as to attain that end through coordinated action. Neither bodyshould repeat in this day the mistake made by the courts of law when equity wasstruggling for recognition as an ameliorating system of justice; neithercan rightly be regarded by the other as an alien intruder, to be tolerated ifmust be, but never to be encouraged or aided by the other in the attainment ofthe common aim….. (Emphasis added)\u00a0??????????? If this language could be used literally, it would bedecisive of the issue of this case. It cannot, however, because the administrativeaction to which reference was made was not adjudication. It was the adoption ofan order by the Secretary of Agriculture fixing maximum rates to be charged atthe Kansas City stock yards; and the question in the case was the validity ofthe order.??????????? Neither case can be considered as precedent in the onebefore us.??????????? Judge Burchmore?s statement in Divesco, supra,warrants repeating:…….. the legalvalidity of the standards under the Constitution and Statutes of the UnitedStates is necessarily involved in the adjudication of enforcement proceedings,and this function has been reserved for the Commission subject to judicialreview.??????????? ??????????? The problem is to find the intent of Congress?either fromthe plain language of the Act or from inferences to be drawn from it. If apoint is reached where it may be concluded that the language is not clear andunambiguous, that it may be subject to construction, then?and only then?may weconsult the Legislative History for aid in finding an answer to our inquiry.??????????? There is no specific provision in the Act spelling out inexact words the power of the Review Commission to adjudicate the validity ofthe standards adopted by the Secretary and the legality of his actions in soadopting them. Our considered conclusion is that this power and authority areso clearly granted by inferences to be drawn from the Act, there is noreasonable ground for disagreement about it. Our further conclusion is that theReview Commission is not only a proper forum for such adjudication, but it isthe only one where the question may be raised past the pre-enforcement statusof the standard.??????????? Suppose we enumerate and explain briefly the reasons forthese statements.??????????? (1) The Review Commission?s function is adjudicatory;nothing more, nothing less. The basic grant of this power is in Section 2(b) ofthe Act:CONGRESSIONALFINDINGS AND PURPOSE?SEC. (2)……….?(b) The congressdeclares it to be its purpose and policy, through the exercise of its powers toregulate commerce among the several States and with foreign nations and toprovide for the general welfare, to assure so far as possible every working manand woman in the Nation safe and healthful working conditions and the preserveour human resources??(3)…….. bycreating an Occupational Safety and Health Review Commission for carrying outadjudicatory functions under the Act;???(2) All findingsof violations and imposition of penalties by default?for failure to contest anaction of the Secretary?are those of the Review Commission. The statuteprovides: ?They shall be deemed a final order of the Commission…..? (Sec.10(a)(3))?(3) With theexception of certain equitable powers to restrain conditions or practices inthe event of imminent danger, vested in the United States District Courts (Sec.13), all civil actions and adjudications under the Act are in the ReviewCommission. All findings of violations of the Act are functions of the ReviewCommission.\u00a0??????????? Under Section 10(c), if a proposal of the Secretary iscontested, ?the Commission shall afford an opportunity for a hearing? under theprovisions of the Administrative Procedure Act. Thereafter the Commission mustenter an order ?based on findings of fact, affirming, modifying, or vacatingthe Secretary citation or proposed penalty, or directing other appropriaterelief,…..???????????? We have referred to a common practice by both the ReviewCommission and its judges to hold various standards of the Secretary invalidfor a variety of announced reasons. In each case the challenge to the standardwas in the Commission proceedings and the real basis for the holding was thatthe Secretary was acting in excess of his statutory power and authority inadopting the standard. A few examples were given.??????????? Of equal?or greater?importance is the fact that implicitin every finding of a violation of an occupational safety or health standardunder Section 5(a)(2) of the Act, is a holding that the standard is valid?thatit was enacted by the Secretary in a proper exercise of his legislative powerand authority.??????????? The Commission is directed to ?affirm? a citation andproposed penalty in some cases. If a standard is questioned and can be heldvalid only by a ?judicial? court; the Commission might find itself in thecompletely untenable position of being required to affirm a penalty without afinding that the standard is valid.??????????? Can this be the intention of the Congress? We think not.??????????? (4) Not only does it have sole power to find violationsof the law and standards with respect to occupational safety and health, but?The Commission shall have authority to assess all civil penalties…..? (Sec.17(j)). This is not a review?it is the first adjudicatory act with respect tothe penalty.??????????? (5) Contempt powers are granted as under the NationalLabor Relations Act (Sec. 12(i)).??????????? (6) The Chairman is authorized to ?appoint such hearingexaminers….. as he deems necessary to assist in the performance of theCommission?s functions…..? (Sec. 12(e)). Some of these functions areenumerated (Sec. 12(j)). As stated above, and for the purpose of this inquiry,the duties and powers of a hearing examiner (judge) are no greater or less atthe hearing level than are those of the Review Commission at the review level.??????????? ?(7) A directmethod of review is provided of all decisions of the Commission to the UnitedStates Court of Appeals. Section 11(a) provides:JUDICIAL REVIEW?SEC. 11. (a) Anyperson adversely affected or aggrieved by an order of the Commission issuedunder subsection (c) of section 10 may obtain a review of such order in anyUnited States court of appeals for the circuit in which the violation isalleged to have occurred or where the employer has its principal office, or inthe Court of Appeals for the District of Columbia Circuit, by filing in suchcourt within sixty days following the issuance of such order a written petitionpraying that the order be modified or set aside. A copy of such petition shallbe forthwith transmitted by the clerk of the court to the Commission and to theother parties, and thereupon the Commission shall file in the court the recordin the proceeding as provided in section 2112 of title 28, United States Code.Upon such filing, the court shall have jurisdiction of the proceeding and ofthe question determined therein, and shall have power to grant such temporaryrelief or restraining order as it deems just and proper, and to make and enterupon the pleadings, testimony, and proceedings set forth in such record adecree affirming, modifying, or setting aside in whole or in part, the order ofthe Commission and enforcing the same to the extent that such order is affirmedor modified. The commencement of proceedings under this subsection shall not,unless ordered by the court, operate as a stay of the order of the Commission. Noobjection that has not been urged before the Commission shall be considered bythe court, unless the Failure or neglect to urge such objection shall beexcused because of extraordinary circumstances. The findings of the Commissionwith respect to questions of fact, if supported by substantial evidence on therecord considered as a whole, shall be conclusive. If any party shall apply tothe court for leave to adduce additional evidence and shall show to thesatisfaction of the court that such additional evidence is material and thatthere were reasonable grounds for the failure to adduce such evidence in thehearing before the Commission, the court may order such additional evidence tobe taken before the Commission and to be made a part of the record. TheCommission may modify its findings as to the facts, or make new findings, byreason of additional evidence so taken and filed, and it shall file suchmodified or new findings, which findings with respect to questions of fact, ifsupported by substantial evidence on the record considered as a whole, shall beconclusive, and its recommendations, if any, for the modification or settingaside of its original order. Upon the filing of the record with it, thejurisdiction of the court shall be exclusive and its judgment and decree shall befinal, except that the same shall be subject to review by the Supreme Court ofthe United States, as provided in section 1254 of title 28, United States Code.Petitions filed under this subsection shall be heard expeditiously.\u00a0??????????? ?Two provisions areparticularly worthy of note here. First, no objection that has not been urgedbefore the Commission can be considered by the Court of Appeals. Thus, if therehas been no question, or decision, on the validity of a standard; it cannot beconsidered by the Court of Appeals on review.??????????? Secondly, additional evidence may be ordered inexceptional circumstances. In this case it is taken ?before the Commission,?which may thereafter modify its findings or make new ones; and any reviewthereafter shall be considered as from the beginning.??????????? The foregoing should show without question the intent ofCongress to allow the Review Commission the right to pass on the validity andlegality of standards adopted by the Secretary; and also require that they bechallenged in the Review Commission proceedings. Perhaps viewing the questionfrom a somewhat different angle might be helpful.??????????? As a practical matter, how would an employer test thevalidity of a standard promulgated by the Secretary in a ?court? rather thanbefore the Review Commission???????????? He could not make his first request for a ruling onreview to the United States Court of Appeals under Section 11(a) of the Actafter a Commission decision. This Section provides: ?No objection that has notbeen urged before the Commission shall be considered by the court,…..???????????? Should the employer then start an action in the UnitedStates District Court seeking an injunction? Again, this action would fail. Onthe state of the record of every one of the cases I now have before me, reliefwould be denied because of failure to exhaust administrative remedies. Perhapsnot all decisions would be on exactly the same basis as that of the three judgepanel in Lance Roofing Co. vs. Hodgson, Secretary of Labor (1972), 1 OSHC 1012,343 F.Supp. 685. Good reasons exist in all for holdings other than on theidentical ground. For a variety of holdings involving the principle ofexhausting administrative remedies, see cases cited in Davis-Administrative LawTreatise, Chapter 20.??????????? An action for declaratory judgment would meet no betterfate. The doctrine of exhaustion of administrative remedies applies alike tosuch actions. In Lance Roofing, supra, the plaintiffs sought declaratory?aswell as injunctive?relief.??????????? The question was asked as to how an employer wishing tochallenge the validity of a standard now may go about doing it in a ?judicial?court. The obvious answer is that he has no way of doing it. The firstchallenge must be made before the trial judge at the hearing stage of theReview Commission proceeding. Failing this, a Respondent will necessarily beheld to have failed to exhaust his administrative remedies.??????????? We believe the implication is so clear that the ReviewCommission proceeding is not only the proper, but the exclusive forum for acurrent challenge to the validity of a standard of the Secretary, there shouldbe no need to resort to legislative history as an aid in reaching thisconclusion. Since the Act does not so provide by its express terms, however, acontention considered by some to be reasonable might be made that it is subjectto constitution to the extent that legislative history may be invoked, and weshall therefore turn in this direction for additional assistance.??????????? In the Legislative History, there are references carryinga clear implication of the Congressional intent that the legality and validityof a regulation (standard) of the Secretary may be tested and decided by theReview Commission. These are in two contexts. First, in reference to the factthat Section 6(f) of the Act is a pre-enforcement remedy only and that thestandard may be tested in an enforcement proceeding. Secondly, in emphasis onthe adjudicatory function of the Review Commission.??????????? Two such references have already been cited. Followingare additional expressions of Congressional intent.??????????? For example, in the Index itself, under ?Standards?, isthe following:?Standards,pre-enforcement review. (See Section 6(f) in Section-by-Section Index,?Judicial Review of Standards?)?\u00a0??????????? In a Section by Section analysis and comparison of theCommittee reported Bill S.2193?containing the pertinent language of the presentAct?and substitute Bill S.4044, is this reference to the former:?6. JudicialReview of Standards Judicial review of standards is provided in the variousUnited States Courts of Appeals. This right may be exercised up to 60 daysafter the standard is promulgated. (Sec. 6(f)). Judicial review of standardswould also be possible in enforcement proceedings. (Emphasis supplied)(LegislativeHistory, p. 304)\u00a0??????????? Representative Steiger of Wisconsin made the followingstatement with respect to the specific language of the Bill which became partof the law having to do with the Review Commission and its adjudicatoryprocedures:?Persons aggrievedby a citation of the Secretary of Labor will appeal to the Commission ratherthan to the Secretary, as is the case in the committee bill. We will, with thisamendment, provide for a separation of powers. Standards will be promulgated bythe Secretary of Labor and contested citations will be considered by anindependent court, so to speak, an independent review commission.?(LegislativeHistory, p. 1074)\u00a0??????????? In preparing this decision, we are not unmindful of thedecision in Secretary of Labor vs. Boise Cascade Corporation, Docket2944. By stipulation of counsel, Judge Kennedy had before him a transcript of amajor portion of the proceedings in our cases, (three of four days of thesupplemental hearing), but none of the 17 exhibits.??????????? This brings us to the heart of the case. We are faced squarelywith the necessity of deciding the merits of Respondents? challenge toparticular sections of 29 CFR 1910.213?and only those sections as they apply tothe facts in this record.??????????? Perhaps a word of caution?and of limitation?might beappropriate here. Not only have there been inferences, but also broad sweepingstatements that the effect of this action may be to establish the validity orinvalidity of all parts of section 213 of Part 1910. These are all the sectionshaving to do with machine guarding of woodworking machinery. Hopefully suchstatements were inadvertent, but at best they show a disregard of the actualeffect of decisional law.??????????? Neither this forum nor any other can do more than pass onthe precise questions before it in a particular case, here the validity orinvalidity of enumerated sections or subsections of standards; and then onlywith reference to the record before it. The practical effect of some holdingsmay go much farther; but the adjudications themselves are so limited.??????????? Before going into a detailed consideration of thespecific sections of the standards and the grounds on which they arechallenged, a brief review of some of the evidence in the record would seem tobe in order.??????????? I called six witnesses who testified at the supplementalhearing. They are: Patrick F. Cestrone, Silver Springs, Maryland; Consultant,Occupational Safety and Health Associates. In 1971, Mr. Cestrone was Directorof the Office of Safety and Health Standards, United States Department ofLabor. He was charged with the responsibility of what has been aptly termed a?crash program? to develop national consensus standards and established Federalstandards for the Secretary to ?. . . by rule promulgate as occupational safetyor health? standards under Section 6(a) of the Act.??????????? Nixon deTarnowsky, Scarsdale, New York; StandardsCoordinator for Safety and Health Standards, American National StandardsInstitute, New York City.??????????? David Zabriskie, Fairlawn, New Jersey; Manager ofConstruction Safety Division, Engineering and Safety Services, AmericanInsurance Association, New York City; Secretary of the ANSI 01 Committee sinceJune of 1970.??????????? Lewis R. Morrison, Ardsley, New York, Corporate SafetyManager, ACF Industries, Inc., New York City. As an employee of the Lumbermen?sMutual Casualty Company of Chicago and as a representative of the NationalAssociation of Mutual Casualty Companies, he was a member of the ANSI 01Committee at the time ANSI 01.1 was adopted in 1954.??????????? A. A. Skonning, Riverside, Illinois; retired SeniorEngineer, Western Electric Company; 29 years experience in safety engineering,particularly woodworking; representative of the National Safety Council on theANSI 01 Committee in 1954 and 1961.?Joseph J. Prabulos, Woodbury,Connecticut; retired Safety Director, National Distillers and ChemicalCorporation; member of ANSI 01 Committee in 1954, 1961 and 1971; representativeon the committee of a trade association, Associated Cooperage Industries.??????????? Dan Adair, Portland, Oregon; Vice President of consultingfirm, Hearing Conservation and Noise Control, Inc.; representative of NationalSafety Council on ANSI 01 Committee in 1954 and 1961.??????????? In addition, Respondent Weyerhaeuser called Thaden Demas,Assistant Director for the Division of Products Approval, American PlywoodAssociation, Tacoma, Washington.??????????? There is no conflict in evidence on any material fact inthis part of the case.??????????? ANSI does not write standards. In case of a consensusstandard, one of its prime functions is to certify that standards presented toit are in fact representative of a ?consensus? of those parties who have aninterest in the subject covered.??????????? Usually the standards are written by committees of theorganization, commonly sponsored by one or more members. There are 160 nationalorganizations and 1,000 individual company dues paying members. The areas ofactivity of the organization in promulgating standards and approving them arevery broad. The Safety Technical Advisory Board involved with the standard hereunder consideration is only one of 26 such advisory boards, each concerned withits own category of standards.??????????? In this case, the 01 Committee was sponsored by theAssociation of Casualty and Surety Companies, a large trade association of thebiggest stock casualty companies in the country (now a part of the AmericanInsurance Association by reason of merger with the National Board of FireUnderwriters); and the International Association of Government Labor Officials.??????????? When a request is made for permission to sponsor astandard, and certain formalities have been completed, such as a finding byANSI of the need for such a standard, approval of its scope, the competence ofthe proposed sponsors, membership of the committee, including competence and comprehensiveinterests of committee members (usually trade associations or otherorganizations of groups of companies rather than individual companies, alongwith labor and governmental organizations); the committee is pretty much leftalone to do its job of writing the standard. In the process, technicalassistance is supplied by the ANSI organization only on request. Committeemembers are usually highly skilled experts in the field in which they areworking.??????????? When the job is completed and the proposed standardapproved by a ?consensus? of the committee, it then undergoes further scrutiny.In this case the Safety Technical Advisory Board passed on the technicalcompetence of the standard and the Board of Standards Review on whether itrepresented a ?consensus.? Involved in the process now is a public review andcomment period following distribution of the proposed standard to recipients of?ANSI Reporter.? This has a circulation of 10,000, including The Bureau ofNational Affairs, Commerce Clearing House, National Safety Council, and otherpublishers of trade periodicals.??????????? Early in 1971, Patrick F. Cestrone had completed about 31years of government service as a professional safety engineer, most of it insupervisory capacities. He was Director of the Office of Safety and HealthStandards, United States Department of Labor. For more than 2 years, Cestroneand those under his supervision had worked on planning for the Labor Departmentin anticipation of some type of comprehensive Federal occupational safety and healthlaw.??????????? The ?crash program? to which reference was made wasprincipally the preparation of a comprehensive set of occupational safety andhealth standards promulgated by the Secretary of Labor under Section 6(a) ofthe Occupational Safety and Health Act of 1970. These were published on May 29,1971 in 36 Federal Register, commencing at page 10466.??????????? Adoption of these standards by the Secretary was mandatedby Section 6(a) of the Act. They were of two kinds, ?national consensusstandards? and ?established Federal standards.? As the man primarilyresponsible for ?putting together the package? Cestrone was familiar with allthe details of the project.??????????? Cestrone does not remember specifically the details ofrewriting NASI 01.1 and its adoption as 29 CFR 1910.213 and 214. Nor does hehave a definite recollection of considering and eliminating the headnotepreviously quoted at the beginning of Section 4, ?Woodworking Machinery?, onpage 9 of the ANSI printed standard (Respondent?s Exhibits s?1 and S?3); or thereason for its omission from Section 213 of Part 1910. He does recall ANSI01.1, and that it was adopted as a national consensus standard.??????????? Among the objectives of the group headed by Mr. Cestronewas to make no changes in either the scope or the substance of any nationalconsensus standard. Part of the job also was to eliminate any consensusstandards that were advisory, or recommended. No provision was intended to beincluded in the final product unless its requirements were mandatory.??????????? Neither Cestrone nor, so far as he knew, anyone elseengaged in the project took any steps to insure the legality of the standardsbeing adopted; for example, to determine whether the national consensusstandards met the statutory definitions of Section 3 (9) of the Act. As to ANSI01.1 there were two reasons for this.??????????? First, the Secretary was not only under a mandate of thestatute (Section 6(a)) to adopt national consensus standards produced by ANSIand the National Fire Protection Association (NFPA); but the legislative historyof the Act contained numerous committee reports and other comments urging speedand purporting to explain why the standards, having already met the ?consensusprinciple?, could and should be adopted without further ado.??????????? Further scrutiny will show that the language of thelegislative history tending to show compliance of the ANSI standards with thestatutory definition of a national consensus standard was in error.??????????? In his testimony, Mr. Cestrone referred to several suchpassages from the legislative history:Q. What part ofthe legislative history, and to what part of the legislative history do yourefer there, if you know??A. May I sit andrefer and to my notes??Q. Yes, yes, referto any notes you have.?A. With respect tosupport of the legislative history and support of interim standards, myreference is to report 21?82, starting on page 141, which accompanied theSenate version of the bill S 2193, particularly legislative history starting onpage 146?6.?Q. Is that in thelegislative history??A. It?s in thegreen June book, and I can read to you if you want me.?Q. If you have thepertinent language it might be good to put it in the record.?a. Senate Report91?1282, page 141, calendar number 1300; Accompanying Senate Bill S 2193, page146?6. ?The purpose of this procedure is to establish as rapidly as possibleNational Occupational Safety and Health standards with which industry isfamiliar. These standards may not be as effective or up to date as isdesirable, but they will be useful for immediately providing a nation wideminimal level of safety and health. Two private organizations are the majorsources of consensus standards; the American National Standards Institute,Incorporated and the National Fire Protection Association. By the Act?sdefinition a consensus standard is one which has been adopted under procedureswhich have given diverse views an opportunity to be considered, and whichindicated interested and affected persons have reached substantial agreement onits adoption.??Q. Pardon me, sir.I?m interested in the part before ?affected persons.??A. Which indicatethat interested and affected persons have reached substantial agreement on itsadoption.?Q. This is sayingwhat has been done and the statute says it must be done, is that correct, sir??A. Yes, sir, andif I may finish this last phrase, the point I wanted to make here. I don?t knowwhether I left what I thought was non-applicable language out but it followsthat, ?It is appropriate to permit the Secretary to promulgate such standardswithout regard to the provisions of the Administrative Procedures Act. The billalso provides for the issuance in similar fashion of those standards??Q. Are you quotingnow??A. Yes, sir. ?. .. which have been issued under other federal standards and which under this Actmay be applicable to additional employees who are not under the protection ofsuch other federal laws. Such standards have already been subjected to theprocedural scrutiny mandated by law under which they were issued. Suchstandards moreover in large part represent the incorporation of voluntaryindustrial standards.??Your Honor, in theHouse Report 911291 which accompanied HR 16785 starting on page 831, but thepages of specific reference are page 847. The intent of this interim standardsprovision is to give the Secretary of Labor a speedy mechanism to promulgatestandards with which industry is familiar. These may not be as effective as thecurrent standards promulgated under formal procedures but they will be usefulfor immediately providing a nation-wide minimum level of health and safety.?Section 6??Q. Does that referto the reference or standards referred to by the terms of the statementelsewhere? Did those include ANSI national consensus standards??A. Yes.(Tr. S54, S55, S56and S57)\u00a0??????????? As to the adoption of ANSI 01.1 as a national consensusstandard, Cestrone recalled believing the legality of the standard wasprotected not only by the congressional mandate of the statute andcongressional urgency in reports and debates, but also by the fact that theLabor Department?s Solicitor advised that the standard had been adopted ?byreference? under the Walsh-Healy Act.??????????? There is some question as to what was intended by thewitness when he referred to adoption ?by reference.???????????? Cestrone referred specifically to the provisions ofSection 4(b)(2) of the Act. This simply purported to ?blanket in? all existingWalsh-Healy regulations?as well as those under other safety Acts?asOccupational Safety and Health standards; by ?deeming? all such?without furtheridentification or reference?to be occupational safety and health standards.??????????? The witness may have been referring to the adoption ?byreference? in 41 CFR 50.204?2. This reference applies to the general machineguarding requirements for all machines and states that all standards on thissubject produced by the four named major standards-producing organizations areeffective under the Walsh-Healy Act; without specific reference to any suchprivately produced standards, their provisions, or their application.??????????? This section was mentioned by the Solicitor at thebeginning of the supplemental hearing on the Secretary?s Motion for Judgment onthe pleadings. It was not urged thereafter by the Solicitor except inconnection with his argument that 29 CFR 1910.213 is in fact a nationalconsensus standard.??????????? The fact is ANSI 01.1954 (R 1961) was taken apart andreassembled, under the direction of Mr. Cestrone, to become 29 CFR 1910.213 and214. (See Respondent?s Exhibit S?3, showing details of the dismantling andreassembling job.) It was then adopted as a national consensus standard. In theprocess the headnote at the beginning of Section 4 was removed and appearsnowhere in the Occupational Safety and Health Standards.??????????? There was no intent or effort to adopt any standard inthe alternative, or as both a national consensus standard and an establishedFederal standard.?The new Part 1910contains Occupational Safety and Health standards which are either nationalconsensus standards or established Federal standards.?(36 Fed. Reg.10466, May 29, 1971).???????????? The Secretary?s own regulation showing source?29 CFR1910.221?shows that both Sections 213 and 214 were derived from?ANSI?01.1?1954?(R?1961)?Safety Code for Woodworking Machinery.???????????? There is no statutory authority to promulgate thestandard except as one or the other.??????????? Thus, the standard under scrutiny in this case?orportions of it?is either a valid general industry occupational safety andhealth standard adopted as a national consensus standard; or so far as we arehere concerned, it has no relevance.??????????? We now come to consideration of the three principalquestions to be answered by this decision.??????????? The first is the effect of deleting the headnote toSection 4.1 ?Woodworking Machinery?, page 9, ANSI 01.1 1954 (R 1961). It is asfollows:?NOTE: It isrecognized that the standards for saw guards in 4.1 are not perfectlyapplicable to all operations for which saws are used. The standards given arethose which woodworkers have agreed are most generally useful. Since there area considerable number of cases not satisfactorily met by these standards, theenforcing authority should exercise rather wide latitude in allowing the use ofother devices which give promise of affording adequate protection. It may beexpected that by so doing further progress in saw guarding will be encouraged.?\u00a0??????????? The record shows a similar note to have been part of the01.1 standard in 1944. Another is a part of the 1971 revision.??????????? The record further shows that at a meeting in the summerof 1973, for the first time the ANSI 01 Committee considered removing the textof the note as it has appeared and placing its provisions as part of the textof the various sections applicable. (See Secretary?s Exhibit S?2.)??????????? A number of undisputed facts should be considered.??????????? First, all of the provisions of 29 CFR 1910.213 aremandatory. The headnote is not.??????????? The note is not ?explanatory?, ?preliminary?, ?asuggestion?, ?a recommendation?, ?for information purposes?, or even an?exhortation.? It is an integral part of the standard itself.JUDGE WATKINS: Mr.Ehlke, I forgot to ask Mr. deTarnowsky something. If you want to cover it,okay; if not, I?ll ask him again.?I want to makesure he testified as to whether the headnote that we?ve been talking about is apart of the standard. Would you cover that??MR. EHLKE: That?smy next question.?Q. (By Mr. Ehlke)Turn to page 9 of that document, sir. Is there a note at the beginning ofsection 4 entitled ?Woodworking Machinery???A. Yes, it is.?Q. What type ofnote would that be, sir??A. We call it aheadnote.?Q. Are headnotesan integral part of the standards??A. Yes.?Q. Is thisheadnote an integral part of that standard??A. Yes, it is.?(Tr. S172)\u00a0??????????? There is considerably more evidence in the record to thesame effect. There is no evidence to the contrary.??????????? The saws covered by Section 213 of Part 1910 simplycannot be used for many jobs they are designed to do while guarded as requiredby the standard. This evidence is also undisputed and from expert andtechnically competent witnesses?members of the Committee.??????????? All Committee members stated that ANSI 01.1 would notbe?and could not be?a ?consensus? standard with the headnote removed. Thoseasked stated they would not have voted for it as a consensus standard in theabsence of the headnote.??????????? It is interesting to note the difference in the methodused by the Secretary in adopting ANSI 01.1 in the Construction Standards, fromthat used here in the General Industry Standards.??????????? Subpart I of the Construction Standards covers?Tools?Hand and Power?, and includes 29 CFR 1926.300 ?General Requirements?,through Section 305. Section 304 of Part 1926, entitled ?Woodworking Tools?,has some specific requirements for portable, power driven circular saws(subparagraph (d)); and then provides:(f) Otherrequirements. All woodworking tools and machinery shall meet other applicablerequirements of American National Standards Institute, 01.1?1961. Safety Codefor Woodworking Machinery.\u00a0??????????? Leaving aside other questions for the purpose ofdiscussion; the result is the adoption of ANSI 01.1 with its headnote. This isthe procedure?and the result?intended by Congress in Sec. 6(a) of the Act.??????????? Whatever may be the good or bad things about mandatorystandards, or the validity or invalidity of adoption by reference; this was theenactment of what appeared on its face to be a national consensus standard?assuch; not as changed. With the headnote still a part of the standard,enforcement of Construction standards must consider that all parts of Section4.1 of ANSI 01.1 are optional?not mandatory.??????????? In adopting Part 1910, including Section 213, on theother hand, the Secretary states in Volume 36, No. 105, Federal Register, page10466, May 29, 1971:?Thenational consensus standards contain only mandatory provisions of the standardspromulgated by those two organizations. The standards of ANSI and NFPA may alsocontain advisory provisions and recommendations, the adoption of which byemployers is encouraged, but they are not adopted in Part 1910.????????????? Perhaps the Secretary made a mistake in including Section213 of Part 1910. With the headnote, provisions of Section 4.1 of ANSI 01.1:?are not perfectly applicable to all operations for which saws are used.? Thestandards are only those ?which woodworkers have agreed are most generallyuseful.? ?…….. there are a considerable number of cases not satisfactorilymet by these standards.???????????? With the headnote, ANSI 01.1 is not mandatory. Theheadnote, all provisions as they appear in 29 CFR 1910.213 are mandatory. Theanswer is that simple.??????????? The Secretary exceeded his statutory authority in failingto retain the headnote as it was?an integral part of the standard.??????????? The second and third questions for consideration arewhether, in two respects, ANSI 01.1 1954 (R 1961) meets the statutorydefinition of national consensus standard.??????????? The Act provides:SEC. 3. For thepurposes of this Act?(9) The term?national consensus standard? means any occupational safety and health standardor modification thereof which (1), has been adopted and promulgated by anationally recognized standards-producing organization under procedures wherebyit can be determined by the Secretary that persons interested and affected bythe scope or provisions of the standard have reached substantial agreement onits adoption, (2) was formulated in a manner which afforded an opportunity fordiverse views to be considered and (3) has been designated as such a standardby the Secretary, after consultation with other appropriate Federal agencies.???????????? Although Section 3 (9) of the Act contains only threenumbered subsections, as we view it two requirements are contained in thefirst. There are therefore, four requirements for a standard to meet thisstatutory definition.??????????? (1) It must have been ?adopted and promulgated by anationally recognized standards-producing organization.???????????? (2) ?Under procedures whereby it can be determined by theSecretary that persons interested and affected by the scope or provisions ofthe standard have reached substantial agreement on its adoption.???????????? (3) ?Was formulated in a manner which afforded anopportunity for diverse views to be considered.???????????? (4) ?Has been designated as such a standard by theSecretary, after consultation with other appropriate Federal agencies.???????????? Respondent Konkolville argues in its brief that the firstand fourth requirements are not met. We find it unnecessary to decide thesequestions because we hold that ANSI 01.1 does not meet the statutory definitionof a national consensus standard under the second.??????????? A word about the fourth (has been designated, etc.) is inorder, however, because it has significance in our holding that the standardunder discussion was adopted as a national consensus standard. It wasdesignated as such, and as nothing else. Further, it was ?. . . by rulepromulgated? as such by the Secretary, as provided by Section 6(a) of the Act.??????????? In the Federal Register adopting Part 1910, ?OccupationalSafety and Health Standards? (36 Fed. Reg. 10466, May 29, 1971), the Secretarystates:The nationalconsensus standard are occupational safety and health standards adopted andpromulgated either by the American National Standards Institute (ANSI) or bythe National Fire Protection Association (NFPA) under procedures whereby it canbe determined that persons interested and affected by the scope or provisionsof the standards have reached substantial agreement on their adoption. I havedetermined that those standards have been adopted and promulgated under suchprocedures. Accordingly, pursuant to this determination, after consultationwith other appropriate Federal agencies, and in accordance with section 3 (9)of the Act, I do hereby designate as national consensus standards thosestandards in Part 1910 which are standards adopted and promulgated by eitherthe American National Standards Institute or the National Fire ProtectionAssociation. (Emphasis added)???????????? The first question which must be decided under thisstatutory definition (the second of the principal questions in the case) iswhether the standard was promulgated ?under procedures whereby it can bedetermined by the Secretary that persons interested and affected by the scopeor provisions of the standard have reached substantial agreement on itsadoption,???????????? Assuming first of all that the ?procedures? are those ofANSI?the standards-producing organization?a number of other unansweredquestions are immediately apparent. For example,(1)Who are persons interested and affected by the scope or provisions of thestandards?(2)How many such persons are there?(3)How many must ?have reached substantial agreement on its adoption?(4)What is ?substantial agreement on its adoption????????????? It might be pointed out there is no requirement that theSecretary find or ?determine? that the persons contemplated have reachedsubstantial agreement. Rather the requirement is that the circumstances ofadoption of the standard be such that these things ?can be determined by theSecretary.???????????? The Secretary does purport to so find in the FederalRegister cited. His statement to this effect is in the last quotation from it.??????????? We may assume the Secretary cannot find that which isuntrue. He cannot ?determine? that something happened when in fact it did nothappen. Thus, although the statute does not require the Secretary to?determine? the specific facts regarding the adoption of the standard by ANSI;those facts must exist so that the Secretary could so determine them. Thosefacts are ?that persons interested and affected by the scope or provisions ofthe standard have reached substantial agreement on its adoption,???????????? Who are ?persons interested and affected by the scope orprovisions of the standard?? Little time need be spent in answering thisquestion. The record shows so many thousands of persons who are clearly withinthis class we need not concern ourselves with the niceties of deciding in aborderline case whether or not a particular person or class of persons iswithin it.??????????? For example, these are shown by the record:Workmenwho operate the machineryLabororganizations to which the workmen belongEmployerswho hire the workmenTradeassociations of those employers??????????? Workmens compensation or industrial insurance carrierswho insure the employers and workmen, both by reason of their financialinterest in the safety of the workmen and the insurance companies? traditionalinterest in safety.Tradeassociations of the workmens compensation insurance carriersGovernmentalorganizations with an interest in employee safetyPrivatesafety organizations, for example, the National Safety Council??????????? Producers of safety standards, such as ANSI??????????? The last two questions posed above present greaterdifficulties of solution. How many ?persons interested and affected? must haveagreed on the adoption of an ANSI standard? The literal language of the statutewould be satisfied if the answer were either ?two? or ?all.? Either answer isridiculous.??????????? Might the answer be ?a representative number?; or ?asubstantial number?; whatever either of these expressions means? I have beenunable to find anything in the Legislative History helpful in trying to answerthis question.??????????? It would rather seem from numerous passages in thehistory that Congress became enamored of its own definition and began to assumethat both ANSI and NFPA standards met it. At the same time, from some of thetestimony, one might draw the inference that ANSI began to believe itsstandards met the Congressional definition.??????????? As will be shown, the answer to the question is academic.Since we are talking about ?consensus? standards, however, would it not besensible to believe Congress intended that ?a consensus? of ?persons interestedand affected? agreed to the adoption of the standard???????????? Consensus means?Generalagreement.? ?Collective opinion. The judgment arrived at by most of thoseconcerned.? (Webster?3rd Unabridged)\u00a0?Majorityof opinion.? (Random House?College Edition)\u00a0??????????? DeTarnowsky quoted from one of ANIS?s principalpublications, ?Consensus implies much more than a concept of a simple majority,not necessarily unanimity.???????????? Perhaps it would be helpful to delve slightly deeper intoANSI procedures, particularly in its method of ?obtaining a consensus.? Thereis reference to the question in the testimony of Mr. deTarnowsky:?Q. (By Judge) Theother day when we had?well, that was Tuesday?and we had this meeting with allof us there, I asked, I believe, if there is an ANSI?if ANSI defines consensusanywhere. I didn?t ask then, but I meant it, of course, as a guide. You thenconsulted your files, and would you tell us what you found about that??A. The term?consensus in standardization practice is achieved when substantial agreementis reached by concerned interests according to the judgment of duly appointedauthority.??Q. Then we oughtto identify it. I?m reading in a different place.\u00a0A. I?m readingfrom the ?Guide of the Development of American National Standards?, datedNovember 2, 1972, page 6, the third paragraph, ?Consensus Principle.? I betterread the whole paragraph.?Q. Go ahead, sir.?A. The title ofthis paragraph is ?Consensus Principle?, ?The basic principle underlying ANSIapproval of a standard is that a consensus must be reached of those havingsubstantial concern with its scope and provisions. In standardization practicea consensus is achieved when substantial agreement is reached by concernedinterests according to the judgment of a duly appointed authority. Consensusimplies much more than a concept of a simple majority, not necessarilyunanimity.?(Tr. S164?165)???????????? From the record it is not clear who is the ?dulyappointed authority? whose judgement is used to determine when a ?consensus isachieved? by ?substantial agreement.? Although the Board of Standards Review ofANSI is charged with only one function?to determine whether or not the standard?represents a consensus??other procedures of ANSI apparently also go into thedetermination.??????????? First there is the selection and approval of thecommittee which is to write the standard and the determination that it has asbroad a base in the particular field as possible. One factor not considered atlength in testimony is the theory of placing somewhat unusual duties andresponsibilities on members of ANSI, and their individual committee members, tokeep the member organization informed of the work of ANSI committees in writingstandards. At the same time the individual is charged with the responsibilityof interpreting the attitude of the organization he represents?and itsmembers?in the development of the standards work.??????????? Testimony of Committee members does not disclose anyparticular attention having been paid to these responsibilities.??????????? The following quotation from ?The ASA System?(Secretary?s Exhibit S?1) is of interest in this connection.These principlesrequire thoroughgoing responsibility on the part of cooperating bodies andtheir representatives?responsibility in three senses, viz:(a) Responsibilityin representation. It is the duty of a representative (1) to keep sufficientlyin touch with his organization so that he can correctly interpret its attitudein the development of the work and can participate in decisions in committees;(2) to keep his organization informed of developments; (3) to act as a leaderin the formulation of the policies of his organization in regard to the matterswith which he is dealing; and (4) to refer back to his organization questionsupon which he feels unauthorized to speak for it;…..???????????? The statement was made above that the number of ?personsinterested and affected? who reach ?substantial agreement? on the adoption ofthe standard is academic. The fact is, nobody reaches substantial agreement?orany other kind of agreement?on the adoption of an ANSI consensus standardexcept the individual committee members writing the standard and theorganizations they represent.??????????? The organizations are usually not the employers but tradeor other associations, or the like. ?Substantial agreement? could also be saidto be reached by subsequent reviewing authorities within the ANSI organizationitself.??????????? It is not only a matter of common knowledge, but it isthe uncontradicted evidence in this record; that except in unusualcircumstances not here shown, no member of a trade association or similarorganization allows the organization to act for it, agree to anything for it,to speak for it, to express an opinion for it, or to commit it in any way.??????????? The evidence in this record does not include all the 13or 14 organizations constituting the ANSI 01 committee in 1954 and 1961. Itdoes, however, include the following:??????????? Nixon deTarnowsky testified that ANSI?s members do notauthorize the organization to make any decision for them involving judgment orto speak for them on any matter involving the technical content of a standard.He is familiar with the operation and practices of trade associations and hasrepresented at least one. With respect to the representative and in connectionwith ANSI procedures, he testified:?Q. But henormally speaks for the association and industry or the trade association only,not for individual members??A. That?s right.He?s a representative of the association. This is his function.?Q. I wonder if itisn?t usually the practice for a trade association representative to be verycareful not to speak in the names of the individual members??A. That iscorrect, they do. They must remember they are speaking for an association andnot for their company or themselves.?(Tr. S166?167)???????????? David Zabriskie is an employee of the American InsuranceAssociation and Secretary of the ANSI Committee. ?Roughly? all company memberswho subscribe to the engineering and safety services of the Association writeworkmens compensation insurance. These are the largest stock casualty companiesin the country (formerly constituting the Association of Casualty and Suretycompanies). Zabriskie testified that there are some mutual companies who arenow members.??????????? There are 150 to 160 of these companies writing workmen?scompensation insurance. The record does not show how many million policyholders they have or how many such policy holders own or operate saws of thetype covered by the woodworking machine guarding standards in question. A fairinference can be drawn the number is very large.??????????? Neither Zabriskie nor any other representative of theAmerican Insurance Association had authority from any member company to ?agree?to anything, to speak for it, or to make any decision or express an opinion onthe question of the adoption of any safety standard. If the committee member isa company employee, he is authorized to speak and vote for the Associationonly, not for his company. This situation is often the case. Nelson, thecurrent chairman of the ANSI 01 Committee, is an employee of St. Paul Fire andMarine. Steinman, the previous Chairman, was an employee of the United StatesFidelity and Guaranty Company.??????????? No company member of the American Insurance Associationhas authority from any policy holder to speak for it, ?agree? for it, take anyposition for it or express any opinion for it on any matter having to do with asafety standard. Every policy holder (in case of its insurance company) andevery company (in case of its trade association) jealously guards its own rightto ?agree?, ?assent?, ?take a position?, ?take action?, or withhold it, and inall respects to form its own opinions and conclusions and to express them onall matters?including safety.??????????? Lewis R. Morrison was a representative of the NationalAssociation of Mutual Casualty Companies on the ANSI 01 Committee in 1954. Hewas an employee of the Lumbermens Mutual Casualty Company of Chicago. The tradeassociation he represented was made up of the large mutual companies writingworkmens compensation insurance.??????????? The same facts are true with respect to Mr. Morrison aswith Mr. Zabriskie. He spoke for?voted for?only the trade association?not hisemployer or any other company. No company member of the trade association hadauthority to take any action or position or express any view on behalf of anyof its policy holders.??????????? A. A. Skonning, Senior Engineer, Western ElectricCompany, was a representative on the committee in 1954 and 1961 for theNational Safety Council. Dan Adair, an employee of the Safety Council, was alsoa representative. Both were active in the work of the Committee for aconsiderable number of years.??????????? In 1970, the National Safety Council had 9,000 members,8,000 of them industrial concerns. Others included labor unions and insurancecompanies. In 1963, a listing was developed of 28,000 industrial plantsinvolved in memberships of the National Safety Council.??????????? No member of the National Safety Council authorizedeither Skonning or Adair to speak for it, act for it, or do anything else inconnection with safety. As a member of the committee, Mr. Skonning voted onlyon behalf of the National Safety Council, not on behalf of Western Electric.??????????? Joseph J. Prabulos represented the Associated CooperageIndustries, a trade association, on the committee in its work resulting in therevision of the standard in 1954, its reaffirmation in 1961 and its furtherrevision in 1971. He was employed as Safety Director of the National Distillersand Chemical Corporation.??????????? Prabulos? recollection was that the trade association hadabout 130 member companies. As a committee member, he spoke and voted only forthe trade association, not for his employer. In other respects his testimony isthe same as that of the witnesses just mentioned except that, in addition, hehad no specific instructions or authorization from the trade association on howto cast any vote with respect to the standard.??????????? As with the other witnesses, Mr. Prabulos had no contactor communication with the member companies of his trade association, or withhis own company, with respect to the work of the ANSI committee.??????????? In fact, each committee member who testified was anexpert in his field, and used his own judgment in casting his vote in a mannerthat caused the committee to be in substantial agreement.??????????? It would serve no useful purpose to speculate on theprecise meaning of ?substantial agreement? to the extent of framing adefinition. Certainly it means much less than a formal and recorded agreement,either written or oral. It might be inferred from inaction?with knowledge ofessential facts?rather than from any positive action.??????????? At a minimum there must be some communication?or chanceto communicate?by a person held to be in ?substantial agreement.? In any event,to hold that many thousands of people are in ?substantial agreement? means morethan the best judgment of safety experts about what they are thinking; when theexperts have received no communications from them as to what they are thinking,and no authority from anyone to take or withhold any action.??????????? At the conclusion of the first three days of testimonyand at the request of counsel for Respondent, the case was continued toSeptember 17. Although not so limited, this was principally for the purpose ofobtaining further evidence tending to improve the record as to the number of?persons interested and affected by the scope or provisions of the standard.???????????? Most of the evidence we have is general?some of it vague.From the total, however, certain valid inferences may be drawn, particularlywith respect to minimum numbers of persons who may be so interested andaffected.??????????? A number of documents, or portions of them, wereintroduced in evidence. With the background record of the insurance and cooperageindustries, the National Safety Council, and the ANSI members, perhapsreference to one and a stipulation in connection with it would be sufficientfor our present purpose.??????????? Mr. George J. Tichy, counsel for Konkolville, did nottestify. By stipulation, however, the equivalent of his testimony was received.??????????? It was stipulated that, based on Respondent?s ExhibitS?8, that portion having to do with lumber, sawmills and wood products, Mr.Tichy would testify if he were called as a witness, and based upon hisexperience in the industry, not only as counsel but also including extensiveexperience as a workman; that in 1954, 1961, 1971 and 1973 there were no lessthan 30,000 industrial users of the types of saws found in Section 4.1 of ANSI01.1 1954 (R 1961) and adopted thereafter as 29 CFR 1910.213. The stipulationwas further that on each of the dates the ???????? It was further agreedthat the stipulation might be accepted in lieu of Mr. Tichy?s testimony, thathe was qualified to testify to the facts stated, and that the stipulation mightbe so used even though Tichy was in court and could have taken the witnessstand.??????????? It is of interest to note that so far as all the loggingand sawmill, as well as the Northwest Plywood industries are concerned; therewas no representative?either company or trade association?on the ANSI 01Committee. One of the reasons assigned for this was that at the time a?vertical? standard for sawmills was being considered and prepared. (29 CFR1910.265)??????????? From the foregoing it is abundantly clear that the ANSInational consensus standard here under consideration does not meet thedefinition of Section 3(9)(1) of the Act, as having been adopted ?underprocedures whereby it can be determined by the Secretary that personsinterested and affected by the scope or provisions of the standard have reachedsubstantial agreement on its adoption.???????????? One can but conclude that Congress mandated the use ofnational consensus standards as occupational safety and health standards underthe Act, espoused their adoption as interim regulations and under abbreviatedprocedures, sought to speed their promulgation and implementation; and at thesame time adopted a statutory definition that no national consensus standardcould meet. At least the standard here under consideration does not meet it.??????????? The third question for decision is whether the ANSI 01.11954 (R 1961) standard ?was formulated in a manner which afforded anopportunity for diverse views to be considered…..???????????? In an earlier explanation of the working of ANSI,reference was made to ?a public review and comment period.? References to thisprocedure under the same or similar language are in several places in theLegislative History.??????????? Nixon deTarnowsky testified the present system started in1969. Previous efforts, while not haphazard, were much less complete.?The old ASAsystem did not include a public review and comment period such as we have now.The old system relied exclusively on the membership of the ASA system. It waspublished in the Magazine of Standards, however, which was given generaldistribution, and was subscribed to by a great many more companies, but as Iunderstand it the public review and comment, as we have it today, did not existat the time 01 was promulgated.?(Tr. S154?155)???????????? The Magazine of Standards was published by ANSI. Itscirculation is not shown. Other trade publications reproduced proposals withrespect to the adoption of standards.??????????? Mr. Cestrone testified he had no difficulty in knowing ofany ANSI action contemplated in which he was interested over the years. At thesame time, however, it appears that for many years he was active in ANSI andserved on many of its committees and bodies.??????????? In general, the record indicates dissemination ofinformation about proposed actions regarding standards before the change in1969. The change brought about a much wider and more selective distribution ofinformation, and also brought into effect a number of new procedures withrespect to comments received.??????????? The statute does not designate whose ?diverse views? areto be considered; or who must be ?afforded an opportunity.? If the?opportunity? and ?diverse views? are limited to safety professionals, therewould be compliance with the statute.??????????? Nor is there a specific provision about who is to do the?considering.? By implication, however, this would be some part of the ANSIorganization.??????????? There is no indication Congress intended that a proceduresuch as that provided by Section 6(b) of the Act was thought to be required ofprivate standards-producing organizations. No attempt is made to spell outtimes, places, manners of publication or other dissemination of information ormethods used.??????????? Under all the circumstances, we feel there was no failureon the part of ANSI to meet the requirements of Section 3(9)(2) in its adoptionor promulgation of the standard here under consideration.??????????? In order that there may be no misunderstanding, I shouldlike to make it clear there is no intention in this decision to criticizeanybody.??????????? First, the Secretary of Labor was required by Section6(a) of the Act to adopt national consensus standards as occupational safetyand health standards ?unless he determines that the promulgation of such astandard would not result in improved safety or health for specifically designatedemployees.???????????? There are numerous references in the Legislative Historyto the assumption?stated as fact?that national consensus standards of ANSI andNFPA met the tests of the definition Section of the Act; even though the ANSIstandard here under review did not. All the Congressional views were known tothe people in the Labor Department charged with the responsibility ofdeveloping the program.??????????? Mr. Cestrone and his organization of about 60 people dida monumental job in about 34 days in putting together the package. There musthave been many other people in the Department of Labor under similar pressure.It just happens their identities and efforts have not come to our attention.??????????? Least of all do we consider this decision any criticismof the American National Standards Institute; its philosophies, its procedureor its results. The procedures have been tested by time and found to be in thepublic interest, and specifically in the interest of occupational safety andhealth. Nothing here should be construed as in any way reflecting on theintegrity or effectiveness of ANSI or of any of its procedures or results. Itsimply has a statutory definition of ?consensus? that its procedures cannotmeet?nor could those of any other private organization setting out to do thesame job.[15]??????????? Little time need be taken in deciding there was not aviolation of Section 5(a)(1) of the Act. The evidence set out above is allthere is in the record.??????????? For example, the record is completely consistent with thefollowing. Suppose we assume Respondent had a strict rule, rigidly enforced,against any employee riding on the fork of a forklift truck, at any level.Suppose further that a violation of this rule would result in immediatedischarge of both the rider and forklift truck operator. We may also assumethat the two employees shown in the pictures and the forklift operator weredischarged immediately. We could assume further facts such as an ongoingeffective safety program, employees who are proved to have knowledge of the ruleagainst riding forklifts, signs on the truck setting out the rule againstemployees riding it, and a record of employees having received immediatediscipline for less serious infractions of company rules.??????????? There is no evidence of any of these assumed facts, ofcourse. The point is this record is completely consistent with the existence ofall these facts.??????????? All we are able to determine from the record is thatimmediately he saw the two employees, Respondent?s superintendent said, ?I hadbetter get them down before they kill themselves.? Then, in the words ofHancock, ?he departed at that moment and I stood there. He told the men to getdown, and they did.? We are unwilling to hold Respondent in violation ofSection 5(a)(1) of the Act for what may have been an isolated, momentary,foolhardy (and even belligerent) act on the part of two or three employees.There is simply no evidence it was anything else.??????????? Both Citations and proposed penalties must be vacated andthe Complaint of the Secretary dismissed with prejudice. Based upon the entirerecord in this case, the undersigned now makes the followingFINDINGSOF FACTI??????????? Respondent is an Oregon corporation operating a motel atCoos Bay. On January 16, 1973, it was engaged in construction work at itsmotel.II??????????? On that date, two of its employees were seen byRespondent?s construction superintendent at a dangerous height from the groundon the lifting part of a forklift truck. A loose load of lumber was also on thelift portion of the forklift truck. Immediately he saw them, the superintendentwent a distance of fifty feet or possibly a little farther to where they were,spoke to them, and the men came down.III??????????? There is no evidence from which any other fact regardingthe incident in question can be found. There is no evidence that Respondentfailed to furnish such employees employment and a place of employment which wasnot free from recognized hazards that were likely to cause death or seriousphysical harm.IV??????????? On that date, an employee of Respondent operated a Dewaltradial arm saw at its work place when the saw was not equipped with a guard forthe lower portion of the blade. There is no evidence about how the saw wasused, by whom, or for how long.V??????????? The Secretary purported to promulgate 29 CFR 1910.213 asa national consensus standard by publication on May 29, 1971 in 34 Fed. Reg.10466. The source standard is one of the American National Standards Institute,adopted in 1954 and reaffirmed in 1961, commonly known as ANSI 01.1 1954 (R1961).VI??????????? A headnote to ANSI 01.1 1954 (R 1961) at the beginning ofSection 4.1 thereof provides:NOTE: It isrecognized that the standards for saw guards in 4.1 are not perfectlyapplicable to all operations for which saws are used. The standards given arethose which woodworkers have agreed are most generally useful. Since there area considerable number of cases not satisfactorily met by these standards, theenforcing authority should exercise rather wide latitude in allowing the use ofother devices which give promise of affording adequate protection. It may beexpected that by so doing further progress in saw guarding will be encouraged.\u00a0Section 213(h)(1) of Part1910 was derived from Section 4.1.9 RADIAL SAWS (a) Hoods and Guards of ANSI01.1 1954 (R 1961). The headnote is an integral part of Section 4.1 and everysub-section and part thereof. Section 4.1.9(a) with the headnote produces theresult that the use of lower blade guards for radial arm saws is optional.Section 213(h)(1) of Part 1910 has the effect of requiring the use of lowerblade guards for all radial arm saws, at all times used. Its requirements aremandatory. The meaning, scope and application of the source standard arethereby materially changed.VII??????????? ANSI 01.1 1954 (R 1961) before its purported adoption bythe Secretary, had not been adopted and promulgated by a nationally recognizedstandards-producing organization under procedures whereby it could bedetermined by the Secretary that persons interested and affected by the scopeor provisions of the standard had reached substantial agreement on itsadoption. In fact, only the 13 or 14 organizational members of the committeewriting the standard?not the corporations or other persons constituting suchorganizations?and the individuals representing them, along with members of theSafety Technical Advisory Board and the Board of Standards Review of ANSI hadreached such substantial agreement.VIII??????????? ANSI 01.1 1954 (R 1961) was formulated in a manner whichafforded an opportunity for diverse views to be considered.??????????? Based upon the foregoing and upon all facts admitted,stipulated, or proved by uncontradicted substantial credible evidence, theundersigned hereby makes the followingCONCLUSIONSOF LAWI??????????? Respondent is engaged in a business affecting commercewithin the provisions of Section 3(3) of the Occupational Safety and Health Actof 1970. The Review Commission has jurisdiction of the parties and subjectmatter of this action.II??????????? On January 16, 1973, Respondent was not in violation ofSection 5(a)(1) of the Act by failing to furnish to each of its employeesemployment and a place of employment which were free from recognized hazardsthat are causing or likely to cause death or serious physical harm to them.III??????????? ANSI 01.1 1954 (R 1961) was not enacted in part as 29 CFR1910.213(h)(1) because the Secretary was acting in excess of his statutoryauthority in the deletion of the headnote to Section 4.1.IV??????????? ANSI 01.1 1954 (R 1961) is not a national consensusstandard as defined in Section 3 (9) of the Act.V??????????? 29 CFR 1910.213(h)(1) was not a valid enactment by theSecretary of a national consensus standard, under Section 6(a) of the Act. 29CFR 1910.213(h)(1) is invalid and unenforceable.VI??????????? The Respondent is entitled to an Order vacating theCitations and proposed penalties, and dismissing the Complaint of the Secretarywith prejudice.ORDER?Based upon the foregoing:IIT IS HEREBY ORDERED:??????????? That two Citations issued to Respondent February 12,1973, naming therein a construction site at 1313 Bayshore Drive, Coos Bay,Oregon alleging violations of the Act, January 16, 1973, and proposed penaltiesin connection therewith of $500.00 each, be and the same hereby are Vacated.IIIT IS FURTHER ORDERED:??????????? That the Complaint of the Secretary be and the samehereby is dismissed with prejudice.?Dated: May 15, 1974GARL WATKINSJudge\u00a0[1] See note 6infra.[2] See note 8 infra.2a The exceptionbeing properly before us must be ruled upon. 5 U.S.C. section 557(c).[3] The ?supplementalhearing? was held pursuant to Judge Watkins? order in this case and thefollowing nine cases: Weyerhauser Co., Nos. 1231 & 1758; AcmeMetal, Inc., Nos. 1811 & 1931; Brady Hamilton Stevedore Co., No.2265; Jones Oregon Stevedoring Co., No. 2271; Juhr & Sons,No. 2314; Konkolville Lumber Co., Inc., No. 2437 and ContinentalKitchens, Inc., No. 2920.These cases werepending before Judge Watkins and each involved at least one citation allegingnon-compliance with a paragraph of 29 CFR ? 1910.213.[4] For a statementof the ? 1910.213 validity issue and related issues, see issue 1.(a)?(d) at p.2, supra.Judge Watkins?treatment of these issues appears in Thunderbird Coos Bay, Inc., No.2270 (May 15, 1974) (Administrative Law Judge) (slip op. at 8?57). Thatdecision is substantially similar to those issued in the cases referred to innote 2, supra.[5] See note 3, supra.[6] This standardprovides:??????????? ? 1910.213 Woodworking machineryrequirements.(h) Radial saws(1) The upper hood shall completely enclosethe upper portion of the blade down to a point that will include the end of thesaw arbor. The upper hood shall be constructed in such a manner and of suchmaterial that it will protect the operator from flying splinters, broken sawteeth, etc., and will deflect sawdust away from the operator. The sides of thelower exposed portion of the blade shall be guarded to the full diameter of theblade by a device that will automatically adjust itself to the thickness of thestock and remain in contact with stock being cut to give maximum protectionpossible for the operation being performed.[7] In his decision,Judge Watkins stated that the ? 1910.213(h)(1) violation was not ?serious?because there was insufficient evidence indicating how, by whom, or how longthe unguarded saw was used. This was error.The deficiencies noted by the Judgedo not relate to ?seriousness? within the meaning of section 17(k) of the Act.Rather, evidence relating to the number of employees exposed to a hazardouscondition and the duration of such exposure is only relevant in determining thegravity of the violation for penalty assessment purposes. See Pack RiverLumber Co., No. 1728 (February 18, 1975).[8] Section 5(a)(1)of the Act provides:Each employer shall furnish to each of hisemployees employment and a place of employment which are free from recognizedhazards that are causing or are likely to cause death or serious physical harmto his employees.[9] Specifically, theevidence showed that the compliance officer and the construction superintendentwere fifty feet from the forklift and facing it at the time of the incident.[10] Slip op. at58?59.[11] The fact that theemployees were immediately ordered down is also indicative of respondent?s goodfaith.[12] It also appearsthat the Commission is without jurisdiction at this time to consider the ?\u00a0654(a)(1)charge. The law provides that a Judge?s decision becomes the final order of theCommission within 30 days of its filing unless directed to be reviewed by aCommission member. 29 U.S.C. ? 661(i). In this case the Judge?s disposition ofthe ? 654(a)(1) charge was never so directed. A careful review of the record inthis case leads me to the conclusion that Judge Watkins? dismissal of the ?654(a)(1) charge became a final order of the Commission on June 14, 1974.Compare Brennan v. OSAHRC, 487 F.2d 230 (5th Cir. 1973).[13] The Direction forReview was issued by Commissioner Cleary on June 14, 1974. Its full textfollows:Pursuant to section 12(j) of theOccupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), item 2 ofthe Petition for Discretionary Review filed by the Secretary of Labor isgranted. The issues raised by that section of the Petition, a copy of which isattached, are whether the Administrative Law Judge had authority to considerthe validity of the standard and whether the standard and the ANSI standardfrom which it was adopted were properly construed.Review is also directed on the issue ofwhether the fact finding procedure followed by the Administrative Law Judge waswithin his authority.Item 2 of theSecretary?s Petition took exception to the Judge?s disposition of the ?\u00a01910.213(h)(1)charge. Item 1 of that Petition?on which review was not directed?takesexception to the Judge?s disposition of the ? 654(a)(1) charge. The referencein the Direction for Review to the ?fact finding procedure followed by theAdministrative Law Judge,? although not otherwise identified, was apparentlydirected to the supplemental hearing of June 27, 1973, discussed in footnote 3,supra, and accompanying text. No part of that hearing concerned the ?\u00a0654(a)(1)charge.[14] Wording of thedecision from this point will probably be identical to that covering the samequestions in the decisions of the other cases. Footnotes will point out thestart and finish of the decisional language repeated in each case.[15] This ends thatpart of the decision which is the same as a number of others, as mentioned infootnote 1.”