ROCKWELL INTERNATIONAL CORPORATION

OSHRC Docket No. 12470

Occupational Safety and Health Review Commission

November 28, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Harry T. Quick, for the employer

James Minor, President, UAW Local 1768, for the employees

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

The issues presented by this case are whether in a proceeding before the Commission an employer may challenge the validity of the promulgation of a standard under the Occupational Safety and Health Act, n1 whether the machine guarding standard at 29 C.F.R. §   1910.212(a)(3)(ii) was validly promulgated, and whether certain machines at Rockwell International Corporation's plant in Marysville, Ohio, violated the provisions of this standard. n2 Administrative Law Judge George Otto considered Rockwell's challenge to the standard and ruled that the standard was validly promulgated, but found Rockwell did not violate the standard.   We affirm.

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n1 29 U.S.C. § §   651-678 ("the "Act").

n2 This case is before the Commission pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).

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I

Rockwell operates a heavy-duty axle assembly plant in Marysville, Ohio.   Following an inspection, the Secretary issued a citation n3 to Rockwell alleging, among other things, failure to guard the point of operation of five types of machines as required by the standard at 29 C.F.R. §   1910.212(a)(3)(ii). n4 The types of machines cited were preload presses, ring gear riveters, bearing yoke sub-assembly presses and bearing checkers.

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n3 The citation characterized the violation as non-serious.   A penalty of $150 was proposed.

n4 The text of the standard states the following:

§   1910.212 General requirements for all machines.

(a) Machine guarding -

(3) Point of operation guarding.

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded.   The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

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The machines operate in a similar fashion.   Four of the five classes of machines are press-type machines whose hydraulic rams press an object, such as a washer, into a larger "piece" mounted on the table below the ram. The other type of machine, the bearing checker, is also similar to a press, but its ram is pneumatically powered and functions merely to hold in place an assembly so that the operator may observe it to see that the outer casing of the assembly rotates freely on its bearings.   To operate one of these machines, the operator stands in front of the machine, fits the object to be pressed snugly on a work rest or location plug below the ram, and depresses a guarded foot pedal which causes the ram to descend.   If the operator stops pressing down on the pedal, the ram immediately begins to ascend without completing the stroke.   Once the ram ascends, it will not "repeat," or begin a new cycle, without the pedal again being depressed.   The rate of descent of the ram is quite slow, 150 inches per minute being the maximum rate of speed of any of the machines. The operator does not hold the piece [*4]   being worked or have cause to place a hand in the point of operation while the ram is in motion.   The rams vary somewhat in shape among the various types of machines but generally are cylindrical, and the end which strike the pieces being worked are flat and broad.   In operation the slow-moving rams resemble the hydraulic cylinders used by auto mechanics to raise automobiles off the ground. n5 There was no evidence of any injury ever being caused by these machines.

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n5 The operation of the machines is well depicted in a motion picture introduced into evidence by Rockwell.

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Judge Otto vacated the citation.   He found that the standard was properly promulgated but that Rockwell did not violate it.   Since the rams descended at a slow speed, there was no history of injuries, and the machine operators maintained complete control over the ram movement and were not required to place their hands in the point of operation or to hold the object being worked on, Judge Otto concluded that the operators were not exposed to injury [*5]   at the point of operation.

II

On review, Rockwell contends there is no violation because the cited standard was improperly promulgated and, therefore, lacks the force and effect of law.   It argues the promulgation was invalid because the standard was adopted as an "established Federal standard" under section 6(a) of the Act, but its language was altered from that of the prior federal standard. Rockwell also argues that even if the standard is valid, it was not violated because the point of operation of Rockwell's machines did not expose any employee to injury.   The Secretary does not address the issue of whether the standard was validly promulgated but argues that the judge erred in finding the operators were not exposed to injury by the machines.

The standard which Rockwell argues is invalid was adopted by the Secretary pursuant to section 6(a) n6 of the Act.   That section authorizes the Secretary of Labor to adopt as an occupational safety or health standard by national consensus standard or any established federal standard without the necessity of complying with the procedural requirements of the Administrative Procedure Act. n7 The procedural requirements thus omitted include:   [*6]   publication in the Federal Register of notice of proposed rule-making, opportunity for interested persons to express their views on the proposed rule, a statement in the rule of its basis and purpose, and publication in the Federal Register of the rule as adopted.   5 U.S.C. §   553. The Secretary's authority to adopt standards without adhering to these procedural requirements expired two years after the effective date of the Act.   In order to promulgate any standard after that period (and in order to promulgate during that period standards other than national consensus standards or established federal standards), the Secretary must comply with the procedural rule-making requirements contained in the APA and in §   6(b) of the Act n8 which include, among other things, notice of proposed rule-making and opportunity for interested persons to comment. n9

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n6 29 U.S.C. §   655(a).

n7 5 U.S.C. § §   551-559, 701-706 (1977), denoted infra as "APA."

n8 29 U.S.C. §   655(b).

n9 AFL-CIO v. Marshall, 617 F.2d 636, 650 n. 54 (D.C. Cir. 1970) (decision upholding cotton dust standard), petition for cert. docketed sub nom. Am. Textile Mfrs. Inst. v. Marshall, No. 79-1429 (March 18, 1980).

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Although the Secretary adopted the standard in issue here, section 1910.212(a)(3)(ii), as an established federal standard under the authority conferred upon him by section 6(a), the wording of the standard differs from the text of the prioer Walsh-Healey Act n10 standard, 41 C.F.R. §   50-204.5, n11 which the Secretary asserted he was adopting.   Since the text of section 1910.212(a)(3)(ii) varies from that of the established federal standard from which it was derived, and section 1910.212(a)(3)(ii) was adopted by the Secretary without advance notice and an opportunity for comment, Rockwell contends that its promulgation is invalid and it has no force and effect.

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n10 41 U.S.C. § §   35-45 (1965).

n11 The Walsh-Healey Act standard provided in relevant part as follows:

§   50-204.5 Machine guarding.

(c) Point of Operation Guarding.

(2) Where existing standards prepared by organizations listed in §   50-204.2 provide for point of operation guarding such standards will prevail.   Other types of machines for which there are no specific standards, and the operation exposes an employee to injury, the point of operation shall be guarded.   The guarding device shall be so designed and constructed so as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

On April 29, 1971, the date the Occupational Safety and Health Act of 1970 became effective, §   50.204.2, the standard referenced in §   50-204.5 stated in pertinent part:

§   50-204.2 General safety and health standards; incorporated by reference.

(a) Every contractor shall protect the safety and health of his employees by complying with applicable standards, specifications, and codes developed and published by the following organizations:

United States of America Standards Institute (American Standards Association).

National Fire Protection Association.

American Society of Mechanical Engineers.

American Society for Tecting and Materials.

United States Government Agencies, including by way of illustration the following publications of the indicated agencies:

  34 Fed. Reg. 788-789 (1969). The standard went on to list certain regulations and publications of six federal agencies.   On May 29, 1971, the Secretary revised §   50-204.2 and deleted the list of private organizations that had appeared in subsection (a).   The revised standard stated in pertinent part:

§   50-204.2 General safety and health standards

(a) Every contractor shall protect the safety and health of his employees by complying with the standards described in the subparagraphs of this paragraph whenever a standard deals with an occupational safety or health subject or issue involved in the performance of a contract.

  36 Fed. Reg. 9868-9869 (1971). The standard then lists certain regulations of four federal agencies.

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In particular, Rockwell notes that the Walsh-Healey standard contained the following provision:

Where existing standards prepared by organizations listed in §   50-204.2 provide for point of operation guarding such standards will prevail.

Rockwell points out that instead of using the language quoted above, section 1910.212(a)(3)(ii) states:

The guarding device shall be in conformity with any appropriate standards therefor. . . .

While the list of organizations referenced in §   50-204.2 was changed shortly after the effective date of the Act, n12 Rockwell does not contend that a standard issued by an organization contained in either version of the list is applicable to the cited machines. Its sole claim is that the alteration of the wording of the standard renders the standard invalid.

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n12 See note 11, supra.

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III

Before we address Rockwell's argument that the cited standard was invalidly promulgated, it is appropriate to consider [*9]   whether the Commission has the authority to entertain Respondent's challenge to the procedural validity of the cited standard.   As noted above, Respondent seeks to invalidate the cited standard because it claims the standard was improperly altered from its source.   In an early case, Kennecott Copper Corp., 76 OSAHRC 81/ A2, 4 BNA OSHC 1400 n.3, 1976-77 CCH OSHD P20,860 at 25,041 n.3 (No. 5958, 1976), aff'd, 577 F.2d 1113 (10th Cir. 1977), the Commission addressed whether a change in a standard from its source rendered the standard's promulgation pursuant to section 6(a) invalid. In that case the Commission specifically rejected Respondent's contention that the Commission lacked the authority to review the validity of a standard.   See also Tobacco River Lumber Co., 75 OSAHRC 52/ A2, 3 BNA OSHC 1059, 1974-75 CCH OSHD P19,565 (No. 1694, 1975).   Moreover, in other cases the Commission has reviewed procedural attacks similar in nature to Respondent's here, thereby implicitly holding that it has authority to make such rulings.   E.g., S & H Riggers & Erectors, Inc., 79 OSAHRC 23/ A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979) appeal docketed, No.   [*10]   79-2358 (5th Cir. June 7, 1979); Deering-Milliken, Inc., 78 OSAHRC 101/ A2, 6 BNA OSHC 2143, 1978 CCH OSHD P23,191 (No. 12597, 1978), aff'd, No. 79-1212 (5th Cir. Nov. 19, 1980); Noblecraft Industries, Inc., 75 OSAHRC 5/ A2, 3 BNA 1727, 1975-76 CCH OSHD P20,168 (No. 3367, 1975), vacated on other grounds, 614 F.2d 199 (9th Cir. 1980).

Additionally, in Deering Milliken, Inc. v. OSHRC, supra; Marshall v. Union Oil Co. of California, 616 F.2d 1113 (9th Cir 1980); Noblecraft Industries, Inc. v. Secretary of Labor, supra; and Usery v. Kennocott Copper Corp., supra, the circuit courts passed upon procedural validity challenges in which employers asserted the invalidity of standards becuase the standards had been altered from their source.   In the cases from both the Fifth and Ninth Circuits, the court expressly held that the procedural validity of an OSHA standard may be challenged in an enforcement proceeding. n13

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n13 The Third Circuit in Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541 (3rd Cir. 1976), also addressed whether the Commission could rule upon procedural validity challenges.   It's ruling on this point is somewhat ambiguous.   First it holds: "[W]e must conclude that Sec. 11(a) of OSHA empowers the Commission to deny enforcement to a standard determined by it to have been issued in violation of the Act's substantive or procedural requirements." 534 F.2d at 550. Later in the opinion it appears to draw a distinction between procedural and substantive requirements of standards and rule that procedural grounds alone are insufficient to render a standard invalid. Hence, the court states:

[A] petitioner cannot defend solely on the ground that the procedural requirements established in Synthetic Organic [ Chemical Manufacturers Association v. Brennan, 503 F.2d 1155 (3d Cir. 1974), cert. denied, 420 U.S. 973 (1975)] have been ignored by the Secretary.   To carry its burden the petitioner must produce evidence showing why the standard under review, as applied to it, is arbitrary, capricious, unreasonable or contrary to law.

  534 F.2d at 551-552. Despite this contradiction, based on the reasoning the court sets out in its discussion of this issue, 534 F.2d 550-552, we believe that the intent of the court was to hold that the Commission is empowered to entertain challenges to standards on procedural as well as substantive grounds.   We note that the Ninth Circuit also views the Atlantic & Gulf Stevedores decision as reading to this effect.   Noblecraft Industries, Inc., supra, 614 F.2d at 220.

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Both the Act and its legislative history support the conclusion that the Commission has authority to entertain challenges to the validity of a standard.   The sections of the Act providing for the establishment and delineating the role of the Commission, sections 10 and 12, n14 contain no language foreclosing the Commission from ruling on a challenge to the validity of a standard in an enforcement proceeding. Similarly, the Act's provision for judicial review of Commission decisions, section 11, n15 places no such restriction on the courts.   Nor does the pre-enforcement judicial review provision, section 6(f), n16 state that it is the exclusive means of challenging a standard's validity.

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n14 29 U.S.C. § §   659 & 661.

n15 29 U.S.C. §   660.

Section 6(f), 29 U.S.C. §   655(f), stated as follows:

Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard.   A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary.   The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay of the standard.   The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.

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Indeed, statements in the legislative history concerning section 6(f) make it clear that pre-enforcement review is not exclusive.   The version of the Act which originally was passed by the Senate, S.2193, 91st Cong., 2nd Sess. (1970), contained section 6(f) in the form in which it ultimately was enacted by Congress. n17 In its discussion of section 6(f), the Senate Committee on Labor and Public Welfare report on S.2193 stated:

While [section 6(f)] would be the exclusive method for obtaining pre-enforcement judicial review of a standard, the provisions does not foreclose an employer from challenging the validity of a standard during the enforcement proceeding.

S. Rep. No. 91-1282, 91st Cong., 2d Sess. 8 (1970), reprinted in [1970] U.S. CODE CONG. & AD. NEWS 5177, 5184.   This point also was made during the Senate debate of the Act.   In opposing a motion to substitute another bill, S.4404, in place of S.2193, Senator Harrison Williams, the author of S.2193, noted that one of the defects of S.4404 was that it provided for pre-enforcement review of standards as the exclusive means for testing the validity [*13]   of a standard.   He described this shortcoming, stating:

[T]he substitute bill provides for exclusive judicial review within 30 days of the promulgation of a standard, and forecloses any possibility of obtaining judicial review of a standard in an enforcement proceeding.

The practical effect of this exclusive review procedure would be that trade associations and the giant corporations, having an abundance of legal manpower, would monopolize the right of review and thereby deny small employers and companies their day in court.

116 CONG. REC. 37340 (daily ed. Nov. 16, 1970), reprinted in SENATE COMM. ON LABOR AND PUBLIC WELFARE, 92d CONG., 1st SESS., LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, at 432 (1971).   The fact that the Senate, after hearing Senator Williams' arguments, rejected the substitute containing the exclusive pre-enforcement review section further underscores Congress' intent that parties may challenge the validity of standards in enforcement proceedings before the Commission.   116 CONG. REC. 37347 (daily ed. Nov. 16, 1976).

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n17 The last sentence of §   6(f), which provides that the determinations of the Secretary shall be conclusive if supported by substantial evidence, was not included in §   6(f) of S.2193.   However, the rest of §   6(f) is identical to the §   6(f) which appeared in the Senate version, including the provision for obtaining pre-enforcement review of a standard within sixty days of its promulgation.

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It should be noted, however, that Congress did not consider whether all challenged to a standard's validity should be permitted in enforcement proceedings, regardless of the circumstances.   Congress had before it a bill which would have made section 6(f) the exclusive avenue for challenges to a standard's validity.   Although Congress rejected this approach, it does not necessarily follow that all challenges to a standard's validity are permissible in enforcement proceedings.

In National Industrial Constructors, Inc. v. OSHRC, 583 F.2d 1048 (8th Cir. 1978), the Eighth Circuit concluded that challenges to the validity of standards based upon procedural grounds could not be raised in enforcement proceedings although it ruled that substantive challenges could be raised in those proceedings.   In distinguishing between procedural and substantive challenges the Eighth Circuit reasoned that it may not become apparent that a standard is unreasonable until after a period during which an employer has attempted to comply with it, while procedural defects in a standard should be detectable as soon as a standard [*15]   is issued.   The court also noted that the Secretary has an interest in finality of his standards and continuous procedural challenges to standards would place a burden on him.

Considerations in finality and in avoiding the burden that continuous challenges would impose upon the Secretary's enforcement abilities raise policy issues which should be balanced against an employer's right to challenge the validity of a standard.   In National Industrial Constructors, Inc., the employer challenged the procedural validity of the underlying established federal standards on which certain occupational safety and health standards were based. n18 The right of persons to challenge the procedural validity of underlying established federal standards involves different considerations than those at issue here.   Not only was the procedural validity of the underlying established federal standard subject to attack when the standard was promulgated under the prior statute but Congress intended that certain established federal standards be deemed to be occupational safety and health standards under the Act.   29 U.S.C. §   653(b)(2).   These considerations may weigh heavily against permitting challenges [*16]   to the procedural validity of an underlying established federal standard in an enforcement proceeding before the Commission.

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n18 Respondent asserted that in promulgating standards under the Contract Work Hours and Safety Standards Act, 40 U.S.C. §   333 (1969), the Secretary had failed to comply procedurally with the publication requirements of section 4 of the APA, 5 U.S.C. §   553 (1977).

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The challenge here, however, is of a different type.   It addresses the very essence of the Secretary's authority to promulgate standards under the Act.   Here, the Secretary, without affording notice or an opportunity for comment and without adhering to the other procedural requirements of section 6(b) and the APA, adopted as an "established federal standard" a standard whose wording is dissimilar from the prior standard which the Secretary purported to be reissuing.   If the changes were substantive, then the Secretary, as Respondent notes, had no authority to promulgate the standard without following formal rulemaking procedures.    [*17]   See, e.g., Deering Milliken, Inc. v. OSHRC, supra.

The Secretary promulgated the standard in question, section 1910.212(a)(3)(ii), on May 29, 1971, as part of 248 pages of standards which comprised at that time 29 C.F.R. Part 1910, 36 Fed. Reg. 10466-10714 (1971). At the same time, the Secretary by reference adopted as occupational safety and health standards pre-existing maritime and construction safety standards, which occupied 291 pages in the Code of Federal Regulations. 36 Fed. Reg. 10468-10469 (1971), recodified as 29 C.F.R. Parts 1915-1918 and 1926 in 36 Fed. reg. 25232 (1971).   It is unreasonable to require all persons who may have an interest in these standards to examine within sixty days of their issuance this large volume of regulations and ascertain whether the standards had been adopted without any substantial alteration as required under section 6(a) of the Act.   As Senator Williams stated, the effect of such a requirement is to "deny smalt employers and companies their day in court," as they lack the legal resources to thoroughly review the validity of standards within a short time after their adoption.   116 CONG. REC. 37340 (daily ed. Nov. 16, 1970).   [*18]   As a practical matter, large corporations and labor organizations would be hard pressed to review within sixty days standards packages of the magnitude that the Secretary adopted in 1971.   Considerations as to finality and the burden of continuous procedural challenges should not preclude employers from raising attacks of the type involved here.

Accordingly, Respondent's challenge may properly be raised in an enforcement proceeding before the Commission.

IV

As previously noted, the crux of Rockwell's invalidity claim is that section 1910.212(a)(3)(iii) is worded differently than its predecessor standard, section 50-204.5.   It is readily apparent, however, that section 1910.212(a)(3)(ii) may be read to convey the same meaning as section 50-204.5.   The phrase "any appropriate standards therefor" contained in section 1910.212(a)(2)(ii) may be easily interpreted as referring to the standards prepared by organizations listed in section 50-204.2. n19 Nor does the meaning of the rest of section 1910.212(a)(3)(ii), which Rockwell does not specifically challenge, vary from that of the remaining sentences of section 50-204.5, despite the difference in language between the two.   In accordance [*19]   with the principle that a regulation, if susceptible of an interpretation which will uphold its validity, should be so interpreted, Northern National Gas Co. v. O'Malley, 277 F.2d 128, 134 (8th Cir. 1960), we read section 1910.212(a)(3)(ii) to be consistent with section 50-204.5 and, as so construed, to be validly promulgated.

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n19 The question of which version of §   50-204.2 properly constituted the "established federal standard" from which §   1910.212(a)(3)(ii) in part was derived was not raised by the parties and need not be resolved here.

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V

The Secretary argues that Rockwell violated 29 C.F.R. §   1910.212(a)(3)(ii) because the five types of cited machines, which undisputedly lacked point of operation guarding, exposed their operators to injury.   The Secretary contends that because an operator stands close to the machine and it is possible for him to place his hands beneath the descending ram, exposure to injury is shown.   He suggests that the slow descent of the ram might lull an operator into a false sense of [*20]   security and tempt him to insert his hand to straighten the object being worked while the ram is descending.   He argues that the major concern of the standard is not merely to prevent employees from being required to insert their hands into the point of operation but rather to make it impossible for employees to place their hands in the point of operation. Rockwell argues that no violation occurred because the points of operation of the machines in question do not expose any employee to injury; therefore, under the terms of the standard, no guarding is required.   Examination of the machines in issue persuades us that Rockwell's view is correct.

By its terms the standard's guarding requirements apply only when the point of operation exposes an employee to injury.   In the instant case there has been no showing that Rockwell's machines exposed the operators to injury.   The mere fact that it was not impossible for an employee to insert his hands under the ram of a machine does not itself prove that the point of operation exposes him to injury.   Whether the point of operation exposes an employee to injury must be determined based on the manner in which the machine functions and how it [*21]   is operated by the employees.   In this case the operators did not hold the pieces being worked and had no cause to place their hands under the descending ram. The pieces being worked were held in place by work rests or location plugs, so the Secretary's contention that employees might insert their hands to straighten a piece being worked is highly improbable and wholly speculative.   The rams descended so slowly that an operator who nevertheless placed his hand into the point of operation would be able to withdraw it or to reverse the descent of the ram before it contacted the hand by simply ceasing to press down on the foot pedal.   Additionally, while the occurrence of an injury is not a necessary predicate for establishing a violation, the absence of any injuries here buttresses Rockwell's contention of no exposure to injury.   Although the facts here are in some respects similar to those in Central Steel and Tank Co., 75 OSAHRC 9/ A2, 3 BNA OSHC 1711, 1975-76 CCH OSHD P20,172 (No. 2346, 1975), in which a violation was found, there the employees held the material being processed.   Moreover, here the excellent depiction by Rockwell's film of the machines and their operation clearly [*22]   demonstrates that these machines do not expose their operators to injury.   The Secretary's contention that the major concern of the standard is to require guarding so as to make it impossible for employees to place their hands in the point of operation begs the question.   Before guarding is required, the point of operation must expose an employee to injury.   As no such showing has been made, we hold that Rockwell did not violate the standard and affirm the judge's vacation of the citation. n20

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n20 Commissioner Cottine joins in Parts I - IV of this opinion, but dissents from the disposition of the citation in Part V.   In his view, Rockwell's employees are exposed to the same hazards of accidental contact with an unguarded point of operation that this Commission repeatedly has found to be violative of OSHA machine guarding requirements.   See, e.g., Mayhew Steel Products, Inc.    OSAHRC   , 8 BNA OSHC 1919, 1980 CCH OSHD P24,678 (No. 77-3970, 1980); H.B. Zachry Company,    OSAHRC   , 8 BNA OSHC 1669, 1980 CCH OSHD P24,588 (No. 76-2617, 1980); Pass & Seymour, Inc., 79 OSAHRC 101/ C13, 7 BNA OSHC 1961, 1979 CCH OSHD P24,074 (No. 76-4520, 1979), appeal dismissed, No. 80-4013 (2d Cir. March 21, 1980); Boonville Div. of Ethan Allen, Inc., 78 OSHARC 105/ B4, 6 BNA OSHC 2169, 1979 CCH OSHD P23,219 (No. 76-2419, 1978).   The speed of the ram's descent in this case does not eliminate employee exposure to the hazard of contact with the unguarded point of operation. The majority states that an operator who nevertheless placed his hand into the point of operation would be able to withdraw it or reverse the descent of the ram before the ram contacted the hand.   This speculation assumes that the operator who inadvertently placed his hand in the danger zone would become aware of its placement and be able to react in time to prevent the injury.   The Commission has consistently rejected reliance on employee behavior to prevent occupational injury in machine guarding cases.   In H.B. Zachry Company, supra, the unanimous Commission stated,

[t]he point of operation of the machine is unguarded and it is possible for either of the operator or his helper to place a hand or finger in the point of operation during the operating cycle. The hazard, though remote, exists.   The standard "requires physical methods of guarding rather than methods of guarding that depend on human behavior." Pass and Seymour, Inc., 79 OSAHRC 101/ C13, 7 BNA OSHC 1961, 1979 CCH OSHD P24,074 (No. 76-4520, 1979), appeal dismissed, No. 80-4013 (2d Cir. Mar. 21, 1980), and cases cited therein.   As we stated in Signode Corp., 76 OSAHRC 43/ A2, 4 BNA OSHC 1078, 1079, 1975-76 CCH OSHD P20,575 at p. 24.595 (No. 3527, 1976), "[A]lthough there is little chance of an injury if the machines are operated properly, the standard is plainly intended to eliminate danger from unsafe operating procedures, poor training, or employee inadvertence." We do not agree with Respondent that only a deliberate effort by the employees could cause injury.   We find that the unguarded point of operation posed a hazard that could result in injury in the event of employee carelessness or inadvertence.

  8 BNA OSHC at 1674-5, 1980 CCH OSHD P24,588 at p. 30,166. Moreover, in Mayhew Steel Products, supra, the unanimous Commission stated

[t]he Commission has consistently rejected contentions that the existence of a hazard is negated by evidence that an operator's hands and fingers are not placed within the point of operation during the operating cycle if the machine is operated properly.   See, e.g., H. B. Zachry Company (International), supra; F.H. Lawson Co., supra; Pass & Seymour, Inc., 79 OSAHRC 101/ C13, 7 BNA OSHC 1961, 1979 CCH OSHD P24,074 (No. 76-4520, 1979), pet. filed, No. 80-4013 (2d Cir. Jan. 25, 1980).

  8 BNA OSHC at 1920, 1980 CCH OSHD P24,678 at p. 30,286. In Commissioner Cottine's view, consistent interpretation and application of Commission precedent requires affirmance of the citation in this case.

  [*23]  

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CONCURBY: CLEARY

CONCUR:

CLEARY, Chairman, Concurring:

I agree for the reasons stated in Parts IV and V of the lead opinion that the standard at 29 C.F.R. §   1910.212(a)(3)(ii) is valid and that it was not violated in this case.   I also conclude that it is proper to consider the particular validity argument that Rockwell has presented with respect to this standard -- that the Secretary impermissibly altered the established federal source standard when he adopted it under section 6(a) of the Act.   My approach, like that of my colleagues, is cautious.   With them I have reexamined our authority to resolve validity arguments in the light of recent, conflicting court decisions.   As my colleagues recognize, however, this case presents only one aspect of the problem and consequently does not require us to consider the matter in its entirety.   My acceptance of the view that the Commission may consider the validity of a standard therefore goes no further than the particular presented here.

The Act, unfortunately, is nearly silent on our authority to consider challenges to the validity of standards during the enforcement process.   [*24]   Section 6(f) n21 touches upon it, but speaks only of the authority of the courts of appeals and then only in pre-enforcement actions.   I agree with my colleagues that the legislative history of the Act, while relevant, should be read with caution.   It is important to remember that Congress had before it only a rather broad proposal to make section 6(f) the exclusive avenue for raising all validity attacks; there is no indication that Congress considered and rejected less far-reaching alternatives.   It therefore cannot be said from the brief passages in the legislative history that Congress intended to permit employers to attack freely OSHA standards in enforcement proceedings regardless of the circumstances of the particular challenge.   Instead, all that reliably can be gathered from the legislative history, and indeed all that the legislative history actually says, is that the mere existence of section 6(f) does not prohibit all challenges to OSHA standards during enforcement proceedings. Whether the Commission or the courts could properly decline on other grounds to entertain a particular validity challenge is therefore still an open question.

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n21 29 U.S.C. §   655(f).

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I nevertheless now share the view that in general the Commission should consider validity arguments.   The legislative history does indicate, despite its narrow focus, that this is a sound general rule.   The experience we have gained in the many cases in which validity arguments have been considered persuades me that there also are prudential considerations favoring Commission review.

Congress established the Commission to adjudicate uniformly and expertly occupational health and safety controversies for the Nation as a whole.   Farmers Export Co., 80 OSAHRC    , 8 BNA OSHC 1655, 1656 n.4, 1980 CCH OSHD P24,569 (No. 78-1708, 1980).   If the Commission were to decline to adjudicate a validity argument, but one or more courts of appeals were to consider it, there might well be no nationally applicable precedent to guide the Secretary and interested employers and employees.   Moreover, the Commission's considerable experties in occupational safety and health matters would be lost to the courts of appeals.   This would be particularly [*26]   unfortunate where the validity of standard is intimately tied to its proper interpretation.   See, e.g., United States Steel Corp., 77 OSAHRC 64/ C8, 5 BNA OSHC 1289, 1293 & n.5, 1977-78 CCH OSHD P21,795 (Nos. 10825 & 10849, 1977); S & H Riggers & Erectors, Inc., 79 OSAHRC 23/ A2, 7 BNA OSHC 1260, 1262-1266, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir., 1979).   Finally, as my colleagues note here, and as the Ninth Circuit observed in Marshall v. Union Oil of California, 616 F.2d 1113, 1118 (9th Cir. 1980), the Secretary adopted a large number of interim standards under section 6(a) n22 of the Act within a very short time period.   To require all persons who may have had an interest in the standards to have examined them from procedural irregularities within sixty days of their issuance would, even for large employers or large labor organizations, be unreasonable.   Accord, Deering-Milliken, Inc. v. OSHRC, No. 79-1212 (5th Cir. Nov. 19, 1980).

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n22 29 U.S.C. §   655(a).

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There are, however, countervailing factors that could make it inappropriate to consider validity attacks under certain circumstances.   As my colleagues recognize, it is proper, for example, to give weight to the degree to which considering a validity attack would undercut the public interests, recognized by the Eighth Circuit in National Industrial Constructors, Inc. v. OSHRC, 583 F.2d 1048 (8th Cir. 1978) ("NIC"), in finality and in avoiding the burden that continuous challenges would impose upon the Secretary's enforcement program and the Commission's adjudicative processes.   The Third Circuit for example, in determining the contours of an employer's right to challenge the validity of standards during enforcement, has considered whether the usefulness of section 6(f) would be "effectively nullified." Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 552 (3d Cir. 1976). The Ninth Circuit in Union Oil also was careful to consider the prudential aspects of the problem.   616 F.2d at 1118.

These considerations may be particularly strong where the standard under attack is a permanent standard adopted under section 6(b) n23 of the Act, and where the arguments [*28]   raised by the parties, such as substantial evidence arguments, are essentially the same as those more properly raised in a section 6(f) proceeding. n24 Section 6(f) was designed, after all, primarily to permit pre-enforcement challenges to permanent standards.   It is with respect to permanent standards that the public interests in repose and in the conservation of the resources of the courts of appeals, the Commission, and the Secretary may be greatest.   Under such circumstances, it may well be appropriate for the Commission to decline to entertain validity attacks.

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n23 29 U.S.C. §   655(b).

n24 It is worth noting that none of the court decisions that my colleagues rely upon involve an attack upon a permanent standard adopted under section 6(b).

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It also may be proper to decline to entertain validity attacks that would upset settled congressional expectations in the validity of promulgation under previous federal legislation of established federal standards.   The legislative history of sections 4(b)(2) n25 and 6(a)   [*29]   indicates, for example, that Congress expected the Secretary to be able to adopt established federal standards without lengthy rulemaking proceedings because "[s]uch standards have already been subjected to the procedural scrutiny mandated by the law under which they were issued. . . ." S.Rep. No. 91-1282, 91st Cong., 2d Sess. 6 (1970), reprinted in Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 141, 146 (1971) ("Leg. Hist."). See remarks of Representative Steiger, Leg. Hist. at 995, and the discussion of this point in the lead opinion.

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n25 29 U.S.C. §   653(b)(2).

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With these reservations in mind, I turn to this case.   It is my view that the interests favoring Commission review of the validity argument in this case outweigh those opposing it.   While I share the Eighth Circuit's view that there are public interests in finality and in avoiding repeated challenges to the Secretary's standards, there are [*30]   present here countervailing considerations that the court does not appear to have considered and that necessarily require a different balance to be struck.   As I have said, I agree with my colleagues that it is not reasonable to expect even a large employer or a large labor organization to have scrutinized every aspect of the many interim standards that the Secretary adopted under section 6(a) of the Act.   The prudential concerns that I have noted and the interest in repose that properly concerned the Eighth Circuit have less force here because 29 C.F.R. §   1910.212(a)(3)(ii) is not a permanent standard adopted under section 6(b).   Unlike NIC, this case also does not raise the possibility of upsetting congressional expectations in the validity of the procedures under which established federal standards were adopted under other federal legislation.   In short, to decline to consider Rockwell's validity argument would have the practical effect of denying Rockwell a reasonable opportunity to be heard and would serve few public interests.   I therefore join my colleagues in considering Rockwell's validity challenge.