LEADER EVAPORATOR, INC.

OSHRC Docket No. 5225

Occupational Safety and Health Review Commission

June 10, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Albert H. Ross, Regional Solicitor, U.S. Department of Labor

Robert H. Brown, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

A report of Review Commission Judge Abraham Gold, dated April 17, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i). Judge Gold affirmed certain items in a citation which alleged that Respondent violated 29 U.S.C. 654(a)(2) by failing to comply with the occupational safety standards at 29 C.F.R. 1910.308 and 1910.309(a).

The citation alleged, among other things, that an interior A/C wire system and portable, hand-held tools were ungrounded. Respondent admitted that the conditions existed but contended that the cited standards were invalid. Respondent argued that the electrical requirements governing those conditions are not set out in the cited standards. The cited standards merely incorporate by reference sections of the National Electric Code. Therefore, Respondent argued, it was not given adequate notice of what it was being required to do and finding a violation on the basis of Respondent's failure to comply would be offensive to due process of law. [*2]

Judge Gold rejected the argument, stating among other things, that the standards provide the information needed to obtain the materials incorporated by reference. He pointed out that the Secretary explained at 29 C.F.R. 1910.331 that copies of the referenced materials may be obtained from the issuing organizations, and the names and addresses of the issuing organizations were provided. Consequently, Judge Gold concluded that the standards were validly promulgated.

Thereafter, review was directed by Commissioner Moran, on his own motion; among others, he raised the following issue. n1

Are the said standards improper because the full text thereof was not published in the Federal Register or the Code of Federal Regulations?

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 He also requested submissions on the questions, 1. whether the Secretary complied with the provisions of 29 U.S.C. 665(a) in promulgating 29 C.F.R. 1910.308 and 1910.309, and 2. whether the said standards are national consensus standards within the meaning of 29 U.S.C. 652(9). These issues were not raised by either party at any time in this case, were not decided by the Judge, and have not been briefed by Respondent. In this circumstances, we do not find it necessary to decide them in this case.

[*3]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We have considered the entire record and adopt the Judge's report to the extent that it is consistent with the following:

Incorporation by reference in an administrative regulation is not, in itself, offensive to due process of law. The Administrative Procedure Act, 5 U.S.C. 551 et seq., specifically provides for incorporation by reference as indicated by the following provisions:

552. Public information; agency rules, opinion, orders, records, and proceedings

(a) Each agency shall make available to the public information as follows:

(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public --

* * *

(d) Substantive rules of general applicability adopted as authorized by law. . . .

* * *

Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph matter reasonably available to the class of persons [*4] affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register. (Emphasis added.)

On the basis of that section, we conclude that two conditions must be met for incorporation by reference to be permissible. First, the materials incorporated must be reasonably available to the class of persons to be affected. Secondly, the incorporation must be approved by the Director of the Federal Register.

With regard to the instant case, we note first that the standards in question were published in the Federal Register. The fact that they were published creates certain presumptions. Section 1507 of 44 U.S.C., the Federal Register Act, provides the following:

"The Publication in the Federal Register of a document creates a rebuttable presumption --

(1) that it was duly issued, prescribed, or promulgated;

(2) that all the requirements of this chapter and the regulations prescribed under it relative to the document have been complied with."

In other words, since the standards were published in the Federal Register, we must presume that they were validly promulgated. More specifically with respect [*5] to the incorporation issue, we must presume that the materials incorporated by reference are reasonably available and that the Director of the Federal Register approved the incorporation.

The presumptions are rebuttable. Respondent, however, did not introduce any evidence indicating that the matter incorporated by the cited standards is not reasonably available or that the Director of the Federal Register did not approve the incorporation. Therefore, Respondent failed to rebut the presumptions and the Judge did not err in refusing to invalidate the standards in this case.

Accordingly, we adopt the Judge's report as our decision to the extent that it is consistent herewith. So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I dissent for the reason that the National Electrical Code (NEC), NFPA 70-1971, is not "reasonably available" to respondent or others in the class of persons affected by these regulations. Because of this, to find respondent in violation of provisions of this code is inconsistent with the requirements of the Administrative Procedure Act, the objectives of the Occupational Safety and Health Act, and respondent's right to fair treatment.

In other cases involving [*6] different standards I have also expressed the view that incorporation by reference does not make such standards "reasonably available" to employers as required by 5 U.S.C. 552(a)(1).

Respondent, who employs about 20 people, manufactures maple sugar evaporators in St. Albans, Vermont. According to 29 C.F.R. 1910.6(b), an employer may learn of the content of material incorporated by reference by obtaining a copy of the text from the issuing organization or by traveling to a regional or national office of the Department of Labor's Occupational Safety and Health Administration (OSHA) where materials incorporated by reference are available for examination. This means that in order to find out what provisions of the NEC [*7] might apply to his business, this respondent would either have to travel from St. Albans, Vrmont to Boston, Massachusetts (the location of the nearest regional office of the Occupational Safety and Health Administration) or buy a copy of this 500-page volume from the National Fire Protection Association, the organization that publishes it. n2 I submit that this does not constitute the kind of availability that affords the degree of fairness required by the Administrative Procedure Act.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The National Electrical Code as currently in existence is sponsored by the National Fire Protection Association (NFPA) under the anspices of the American National Standards Institute (ANSI). The original code document was developed in 1897 at the behest of various insurance, electrical, architectural, and allied interests. It has been revised periodically since that time. At the time this case was initiated, the code was in a form which had been adopted by NFPA in May 1971 and approved by the American National Standards Institute in June 1971. According to NFPA's 1971 edition: "It supersedes all previous editions of the National Electrical Code, the most recent previous edition being 1968." The Code is purely advisory so far as the NFPA and ANSI are concerned. See NFPA 70-1971, National Electrical Code 1971, 70-i.

[*8]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Even if an employer does manage to secure a copy of the NEC, he is confronted with more difficulties. An introductory note to the Code states that the Code is purely advisory (though offered by its sponsors for use in law and regulatory purposes) and and it is revised periodically. The persons regulated by this Act cannot be expected to know that regulations presented on an advisory basis in actuality have the force and effect of law by virtue of some other regulations located elsewhere. Nor can they be sure that revisions made by unnamed persons without the power to make enforceable law have not changed the regulations currently applicable. A rule of law should be stated with far more certainty, and its text must be published in a form that will make clear its relationship to the body of applicable regulations.

Moreover, the pitfalls for an employer attempting to find out what he must do to comply with the Act do not end once he has secured a copy of the Code and comprehended its legal significance. He must then sift through this lengthy document to determine what provisions might apply to his [*9] worksite. This mammoth task must be performed just to determine what must be done to comply with 1910.308 and 1910.309(a), the two safety standards involved herein. Of course, an employer must in addition examine other occupational safety and health standards, as well as many other standards of private organizations that have been incorporated by reference therein, n3 to find out what they require. A 1973 U.S. Government Printing Office loose-leaf publication of occupational safety and health standards covers some 1,362 pages. Many of the standards printed on these pages incorporate by reference other texts of private safety organizations. This encompasses more than 20,000 standards which would completely fill a five-foot bookshelf. Moreover, these documents would cost hundreds of dollars to purchase, many months to read, and a lifetime to comprehend.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 For example, see the decisions cited in the second paragraph of this opinion which involved standars published by the American Conference of Governmental Industrial Hygienists and ANSI.

- - - - - - - - - - - - - - - - -End Footnotes- [*10] - - - - - - - - - - - - - - - -

The hurdles posed by incorporation by reference to obtaining and comprehending safety standards not only place an oppressive burden on employers, but also impair the effectiveness of the Act. Congress recognized that the effectiveness of the Act is dependent to a large extent on voluntary compliance. 29 U.S.C. 651(b)(1). Essential to the promotion of voluntary compliance is a body of regulations and guidelines which enable the people affected thereby to know - prior to any enforcement procedures - what is expected of them. Where mere acquisition of a printed copy of the regulation is a hardship, n4 any hope of encouraging or stimulating voluntary compliance becomes little more than an idle gesture.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 The majority opinion refers to Judge Gold's apparent acknowledgement of the complainant's contention that the names and addresses of organizations whose standards are incorporated by reference are contained in 29 C.F.R. 1910.331. In his brief on review, the complainant now correctly asserts that this is erroneous and that this section was deleted from his regulations in 1972. Although he points out that the address of NFPA is listed in various places "throughout the 1910 standards," the address is not contained in subpart S which contains the standards here in issue.

[*11]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

A study by the Subcommittee on Environmental Problems Affecting Small Business, entitled The Effects of the Administration of the Occupational Safety and Health Act on Small Business n5 stated that that OSHA

". . . has the obligation to organize its standards in an understandable and utilitarian manner which will serve to assist the employer in location and enforcing those applicable to his particular business." n6

They went on the state that:

". . . the practice of adopting standards by using the methods of incorporation by reference obfuscates their pertinence and consequently delays their effectuation." n7

The subcommittee therefore recommended that OSHA:

"Cease promulgating standards on the basis of incorporation by reference and instead extract the adopted sections and publish them in their entirety." n8

This advice has not been heeded and, as a result, employers throughout the country are encountering difficulties - similar to those experienced by this respondent - in finding out what they are supposed to do to assure a safe and healthful workplace for their employees.

- - - - - - [*12] - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 H.R. Rep. No. 93-1608, 93rd Cong., 2d Sess. (1974).

n6 Id. at 23.

n7 Id. at 24.

n8 Id. at 26.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The majority opinion in this case takes the position that the burden is upon the employers who are regulated by this Act to prove that the regulations which are not printed in the Federal Register are not readily available. I submit that pontifical attitudes such as this are equivalent to the same majority's consistent policy of bending the language used in the standards in order to make them mean what they do not say. In reversing a decision in which the majority of this Commission had ruled that the word "floor" means the same as the word "roof," Chief Judge John R. Brown of the Fifth Circuit set down the following principle which is equally applicable in this case:

"The purpose of OSHA is to obtain safe and healthful working conditions through promulgation of occupational safety and health standards which tell employers what they must do to avoid hazardous conditions. To strain the plain and natural meaning of words [*13] for the purpose of alleviating a perceived safety hazard is to delay the day when the occupational safety and health regulations will be written in clear and concise language so that employers will be better able to understand and observe them." n9

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 Diamond Roofing Co., Inc. v. OSAHRC, 528 F.2d 645 (5th Cir. 1976).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The position taken by Messrs. Barnako and Cleary in the instant case will similarly delay the day when all occupational safety and health regulations - like all other statutes and rules of general application - will be printed in public documents which are readily available in places like St. Albans, Vermont - a community which is just as much a part of the United States as is Washington, D.C. or Boston, Massachusetts.

Finally, I must again as I have done so often in recent cases, register my disagreement with the majority's reliance on party disinterest on review as a valid ground for refusing to address issues which are specified in a valid direction for review. As I have indicated in many decisions, [*14] this is wrong for numerous reasons. At this time I will simply point out that the Circuit Courts of Appeals do not follow such a rule. n10

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 Brennan v. Smoke-Craft, Inc., 530 F.2d 843, 844 n.6 (9th Cir. 1976); Brennan v. OSAHRC and Santa Fe Trail Transport Co., 505 F.2d 869, 871 (5th Cir. 1974); Brennan v. OSAHRC and Hanovia Lamp Div., Canrad Precision Industries, 502 F.2d 946, 948 (3d Cir. 1974).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Since this decision does not discuss all of the matters covered by Judge Gold's decision, the same is attached here as Appendix A.

APPENDIX A

DECISION AND ORDER

John S. Casler, for Complainant

Robert H. Brown, for Respondent

This case arose under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c), and came on for hearing on February 7, 1974, at Burlington, Vermont.

On October 15, 1973, Complainant cited Respondent for 16 violations of a nonserious nature, proposing penalties totaling $220.

Respondent contested only the following items:

6 (penalty only)

12 (penalty only) [*15]

13 (penalty only)

15

16

All uncontested items and uncontested proposed penalties became a final order of the Commission pursuant to Section 10(a) of the Act, 29 U.S.C. 659(a).

The cited violations and proposed penalties involved are:

Standard Allegedly

Description of

Proposed

Item No.

Violated

Alleged Violation

Penalty

 6

29 C.F.R. 1910.157(d)(2)(i)

Failure to inspect portable

$40

fire extinguishers at monthly

or more frequent intervals.

12

29 C.F.R. 1910.215(b)(9)

Failure to properly adjust the

$40

distance between the grinding

wheel periphery and the

adjustable tongue of the guard

at the top which exceeded one-

quarter inch.

13

29 C.F.R. 1910.243(c)(i)

Failure to provide and require

$50

use of safety guards on portable

abrasive wheels.

15

Art. 250-5(b)(1) of NEC;

Failure to ground the interior

29 C.F.R. 1910.308 & 309(a)

A/C wiring system as required.

16

Art. 250-45(d)(3) of NEC;

Failure to ground noncurrent-

$45

29 C.F.R. 1910.308 & 309(a)

carrying metal parts of

portable hand-held, motor-

operated tools, such as drills,

sanders, grinders and others.

In answer to the complaint, Respondent admitted [*16] it is a Vermont corporation with its principal office located at St. Albans, Vermont; that it is engaged in the manufacture of maple sugar evaporators, employing about 20 persons at its manufacturing plant at St. Albans; that its employees regularly receive, handle, and work with goods which have moved and are moving across state lines in interstate commerce; and that Respondent is and was engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

A compliance officer of the Department of Labor inspected the manufacturing facility of Respondent on October 3, 1973 (Tr. 11).

As to items 6, 12 and 13, Respondent contested only the penalties proposed by Complainant. Section 17(c) of the Act, 29 U.S.C. 666(c), states that a civil penalty of up to $1,000 may be assessed for a nonserious violation. Section 17(j), 29 U.S.C. 666(j), authorizes assessment of a penalty by the Commission only after giving consideration to the size of the business of the employer, gravity of the violation, good faith of the employer, and history of previous violations. The employer has a rather small business. There is no evidence of previous violations; and items 6, 12 and [*17] 13 are violations of a low level of gravity. It apruars from the testimony of the manager of Respondent that Respondent is seriously interested in complying with safety and health requirements. On this record, it is found that penalties of $40, $40 and $50 are reasonable for items 6, 12 and 13, respectively.

Items 15 and 16 are contested by Respondent, who contends that 29 C.F.R. 1910.308 and 309(a) are invalid because the Secretary incorporated therein by reference the 1971 edition of the National Electrical Code. Respondent urges that such adoption by reference is not consistent with the requirements of due process of law.

This argument of Respondent is rejected. The authority of the Secretary to prescribe occupational safety and health standards is found in Section 6 of the Act, 29 U.S.C. 655.

Section 6(a) directs that within two years after the effective date of the Act n1 the Secretary shall be rule promulgate as a standard any national consensus standard and any established Federal standard, n2 unless he determines that such standard would not result in improved safety or health. In the event of conflict among such standards, this subsection requires that he promulgate [*18] the standard which assures the greatest protection to employees. Section 6(a) specifically waives adherence to the basic procedural safeguards for rule-making required by Section 6(b) of the Act and the Administrative Procedure Act (5 U.S.C. 553). The usual safeguards include publication of proposed rules in the Federal Register, opportunity for interested persons to present their views, and opportunity for a public hearing.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The Act was approved December 29, 1970, and took effect on April 28, 1971, or 120 days after date of enactment. See Section 34 of P.L. 91-596, set out as a note under 29 U.S.C. 651.

n2 Pertinent definitions in Section 3 of the Act, 29 U.S.C. 652, read:

(9) The term "national consensus standard" means any occupational safety and health standard or modification thereof which (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies.

(10) The term "established Federal standard" means any operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act.

[*19]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Under Section 6(b)(1)-(4) the Secretary may promulgate, modify, or revoke a standard after complying with the safeguards noted above. Whenever the Secretary promulgates, pursuant to Section 6(b), a standard which differs substantially from an existing national consensus standard, Section 6(b)(8), 29 U.S.C. 655(b)(8), requires the Secretary to publish in the Federal Register, at the same time, a statement of the reasons why the adopted standard will better effectuate the purposes of the Act than the national consensus standard.

Section 6(c) permits the Secretary to provide emergency temporary standards, for a period not to exceed six months, without regard to the safeguards required by the Administrative Procedure Act.

The standards cited in items 15 and 16 were originally promulgated by the Assistant Secretary of Labor by publication in the Federal Register on February 16, 1972. n3 The standards were republished on October 18, 1972. n4 Section 1910.308(a) declares that "Section 1910.309 adopts as a national consensus standard the National Electrical Code NFPA 70-1971; ANSI C-1-1971 (Rev. of 1968), [*20] which is incorporated by reference in this subpart."

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 37 Fed. Reg. 3432-33.

n4 37 Fed. Reg. 22341-2.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Assistant Secretary of Labor, as delegate of the Secretary, had the authority, under Section 6(a) of the Act, to promulgate and enforce as a safety standard any national consensus standard without complying first with the usual safeguards of rule-making inasmuch as national consensus standards have been adopted and promulgated only after adherence to such basic procedural safeguards. The adoption of the NEC standards by reference did not invalidate Sections 1910.308 and 1910.309(a). The Secretary noted in Section 1910.331 that copies of the referenced materials may be obtained from the issuing organizations, and listed the names and addresses of those organizations. It is found that Sections 1910.308 and 1910.309(a) were validly promulgated. n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 In Wagner Electric Corp. v. Volpe, 466 F.2d 1013 (3 Cir. 1972), the Court tacitly approved the practice of promulgating a standard which incorporates by reference another standard.

[*21]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Item 15 alleges a violation of Article 250-5(b)(1) of the National Electrical Code (NEC) which requires, in relevant part:

250-5. Alternating-Current Circuits and Systems to be Grounded. AC circuits and systems shall be grounded as provided for in (a), (b), or (c) below. Other circuits and systems may be grounded.

* * *

(b) Alternating-Current Systems of 50 Volts and Over. AC systems supplying interior wiring and interior wiring systems shall be grounded under any of the following conditions:

(1) Where the system can be so grounded that the maximum voltage to ground on the ungrounded conductors does not exceed 150 volts.

Item 16 is concerned with Article 250-45(d)(3) of the NEC, which states:

250-45. Equipment Connected by Cord and Plug. Under any of the following conditions, exposed noncurrent-carrying metal parts of cord- and plug-connected equipment, which are liable to become energized, shall be grounded:

* * *

(d) In other than residential occupancies,

* * *

(3) Portable, hand-held, motor-operated tools and appliances of the following types: drills, hedge clippers, lawn mowers, wet [*22] scrubbers, sanders and saws * * *.

In the answer to the complaint, Respondent admitted having a two-wire nongrounded wiring system in its main manufacturing system and two-wire (ungrounded) electrical tools, thus conceding the essential factual elements of items 15 and 16. However, Respondent asserted that it should be granted an abatement date of July 15, 1974, for these items; at the hearing, Complainant moved to amend the citation and complaint accordingly. That motion is hereby granted.

Upon consideration of the factors listed in Section 17(j) of the Act, 29 U.S.C. 666(j), it is found that it is reasonable to assess no penalty for item 15 and a $45 penalty for item 16.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the meaning of Sections 3 and 4(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 652 and 653(a).

2. The standards at 29 C.F.R. 1910.308 and 1910.309(a) have legal effect as standards, having been validly promulgated pursuant to Section 6(a) of the Act, 29 U.S.C. 655(a).

3. On October 3, 1973, Respondent was in violation of Section 5(a)(2) of the [*23] Act, 29 U.S.C. 654(a)(2), for noncompliance with Article 250-5(b)(1) and Article 250-45(d)(3) of the National Electrical Code (NEC); 29 C.F.R. 1910.308 and 309(a).

4. It is reasonable and appropriate, under Sections 17(c) and (j) of the Act, 29 U.S.C. 666(c) and (j), to assess the penalties proposed by Complainant for items 6, 12, 13 and 16 and that no penalty be assessed for item 15.

ORDER

IT IS ORDERED that items 15 and 16 of the amended citation issued on October 15, 1973, be and the same hereby are AFFIRMED; that no penalty be assessed for item 15, and that the following penalties be imposed:

Item 6 - $40

Item 12- $40

Item 13- $50

Item 16- $45

ABRAHAM GOLD, Judge, OSHRC

Dated: April 17, 1976

Boston, Massachusetts