NORTHWEST AIRLINES, INC.  

OSHRC Docket No. 13649

Occupational Safety and Health Review Commission

September 3, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

David M. Becker, for the employer

Janet R. Stenborg and James A. Abbott, Northwest Orient Airlines, Inc. Minneapolis St. Paul International Airport

E. Carl Uehlein, Jr., for the employer

Charles C. High, Jr. for the employer

W. Lawrence Holler, Office of the Assistant General Counsel for Operations & Legal Counsel, TG-C-10, Department of Transportation

J. A. DePeter, Recording Secretary International Association of Machinists and Aerospace Workers-Local 1894

Linda Heller Kamm, Federal Aviation Administration

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Jerome C. Ditore is before the Commission for review pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).   The issue is whether Judge Ditore correctly vacated a citation issued by the Secretary of Labor ("Secretary") to Respondent, Northwest Airlines, Inc. ("Northwest"), on the basis that the working condition encompassed [*2]   in the citation is exempt from the requirements of the Act pursuant to section 4(b)(1) of the Act, 29 U.S.C. §   653(b)(1). n1 We affirm the judge's decision.

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

n1 Section 4(b)(1) provides:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

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

Respondent employs ground mechanics at John F. Kennedy International Airport in Queens, New York, to service and maintain its Boeing 747 aircraft. When landing lights in the wing of some Boeing 747's are to be serviced or changed, the leading edge or "Krueger" flaps are extended to give the mechanic access to the lights through the flap cavity.   If the electro-pneumatically controlled flaps are activated, they quickly retract and, if the mechanic is in the cavity, the flaps may crush and kill or seriously [*3]   injure him.   A citation issued by the Secretary alleged that Northwest had violated section 5(a)(1) of the Act, 29 U.S.C. §   654(a)(1), n2 by not providing adequate means to protect its ground maintenance employees from this hazard. The Secretary alleged that the proper use of a lock-out/tag-out procedure and the installation of access panels in the wings of "old" 747 aircraft to give direct access to the landing lights n3 are feasible and useful steps that Northwest could but did not take to eliminate the hazard. Access panel kits, approved by the Federal Aviation Administration ("FAA"), are available from Boeing.   The lock-out/tag-out procedure is prescribed by Northwest's maintenance manual, but the Secretary alleges that Northwest did not adequately implement the procedure.

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

n2 Section 5(a)(1) provides:

Sec. 5.(a) Each employer -

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

n3 Boeing equips new 747 aircraft with such panels.

-   [*4]   - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Northwest denied that it had violated section 5(a)(1) and also claimed an exemption under section 4(b)(1). n4 Judge Ditore found that the cited working condition was exempt and vacated the citation.   The Secretary's petition for review of this ruling was granted by Chairman Cleary and submissions were invited on the question of whether Judge Ditore had erred. n5 The Department of Transportation ("DOT") has joined the parties in filing briefs and orally arguing the matter before the Commission. n6

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

n4 See note 1 supra.

n5 Former Commissioner Moran also directed review but did not state any issue.   We reject Northwest's contention that the judge's decision was not timely directed for review by either Commissioner.   Judge Ditore did not "make" his report under section 12(j) until it was received by the Commission.   Gurney Indus., 74 OSAHRC 8/A2, 1 BNA OSHC 1376, 1973-74 CCH OSHD P16,805 (No. 722, 1973).   It is immaterial that he mailed it to the parties or anyone else at an earlier date.   Robert W. Setterlin & Sons Co., 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD P20,682 (No. 7377, 1976); Gulf & Western Food Prod. Co., 77 OSAHRC 72/A2, 4 BNA OSHC 1436, 1976-77 CCH OSHD P20,886 (Nos. 6804 & 6805, 1976).

n6 Oral argument was heard on February 16, 1978.     Commissioner Cottine became a Member of the Commission subsequent to that date.   He has fully reviewed the record in this case, including the verbatim transcript of the oral argument.   Accordingly, consistent with his statutory responsibilities, he is participating in this decision.   Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1978 CCH OSHD P22,772 (No. 13029, 1978) (sep. opin.); see Au Yi Lau v. U.S. Immigration and Naturalization Serv., 555 F.2d 1036, 1042 (D.C. Cir. 1977); Gearhart & Otis, Inc. v. SEC, 348 F.2d 798, 802 & nn. 12 & 13 (D.C. Cir. 1965).

  [*5]  

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

II

Section 4(b)(1) provides that working conditions for which federal agencies other than the Department of Labor "exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health" are exempt from the Act. n7 Accordingly, when a section 4(b)(1) exemption is claimed, our inquiry must begin with an examination of the relevant statutory and regulatory provisions of the other agency that allegedly support examption under the Act.

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

n7 It is well established that the burden of proving that a particular working condition is exempt from the Act pursuant to §   4(b)(1) rests with the employer claiming the exemption. Idaho Travertine Corp., 77 OSAHRC 57/C9, 3 BNA OSHC 1535, 1975-76 CCH OSHD P20,013 (No. 1134, 1975), and cases cited therein.

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

Section 601(a) of the Federal Aviation Act of 1958, n8 49 U.S.C. §   1421(a), requires the Administrator of the FAA to "promote safety of flight of civil [*6]   aircraft in air commerce" by issuing:

(1) Such minimum standards governing the design, materials, workmanship, construction, and performance of aircraft, aircraft engines, and propellers as may be required in the interest of safety;

(2) Such minimum standards governing appliances as may be required in the interest of safety;

(3) Reasonable rules and regulations and minimum standards governing, in the interest of safety, (A) the inspection, servicing, and overhaul of aircraft, aircraft engines, propellers, and applianes; (B) the equipment and facilities for such inspection, servicing, and overhaul; and (C) in the discretion of the Administrator, the periods for, and the manner in, which such inspection, servicing, and overhaul shall be made, including provision for examinations and reports by properly qualified private persons whose examinations or reports the Administrator may accept in lieu of those made by its officers and employees;

(4) Reasonable rules and regulations governing the reserve supply of aircraft, aircraft engines, propellers, appliances, and aircraft fuel and oil, reguired in the interest of safety, including the reserve supply of aircraft fuel and oil which shall [*7]   be carried in flight;

(5) Reasonable rules and regulations governing, in the interest of safety, the maximum hours or periods of service of airmen, and other employees, of air carriers; and

(6) Such reasonable rules and regulations, or minimum standards, governing other practices, methods, and procedure, as the Administrator may find necessary to provide adequately for national security and safety in air commerce.

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

n8 49 U.S.C. § §   1301-1542.

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

Subsections (1) through (5) of section 601(a) enumerate specific subjects the Administrator may regulate.   Subsection (6), which is the provision pertinent to this case, is a "catchall" provision that gives the Administrator general authority to issue rules and regulations promoting "national security and safety in air commerce."

The Administrator has promulgated a number of standards and regulations pursuant to section 601(a) and other statutes not relevant here.   Among these is a requirement that "[e]ach domestic and flag air carrier shall prepare and keep current a manual [*8]   for the use and guidance of flight and ground operations personnel in conducting its operations." 14 C.F.R. §   121.133(a).   Such a manual must meet the following requirements that are pertinent to this case:

§   121.135 Contents.

(a) Each manual required by §   121.133 must -

(1) Include instructions and information necessart to allow the personnel concerned to perform their duties and responsibilities with a high degree of safety;

* * *

(b) The manual may be in two or more separate parts, containing together all of the following information, but each part must contain that part of the information that is appropriate for each group of personnel:

* * *

(16) Instructions and procedures for maintenance, preventive maintenance, and servicing.

The Administrator has also adopted rules that generally apply to maintenance work performed on aircraft. Insofar as relevant to this case, 14 C.F.R. §   43.13 provides:

§   43.13 Performance rules (general).

(a) Each person maintaining or altering, or performing preventive maintenance, shall use methods, techniques, and practices acceptable to the Administrator.   He shall use the tools, equipment, and test apparatus necessary to assure   [*9]   completion of the work in accordance with accepted industry practices.   If special equipment or test apparatus is recommended by the manufacturer involved, he must use that equipment or apparatus or its equivalent acceptable to the Administrator.

* * *

(c) Special provision for air carriers and commercial operators. Unless otherwise notified by the Administrator, the methods, techniques, and practices contained in the maintenance manual or the maintenance part of the air carrier manual of a certificated air carrier or commercial operator (that is reguired by its operating certificate or approved operating specifications to provide a continuous airworthiness maintenance and inspection program) constitute acceptable means of compliance with this section.

As part of the manual required by 14 C.F.R. §   121.133(a), Northwest prepares maintenance manuals for each type of aircraft that it operates.   These individual manuals are largely derived from manuals prepared by the manufacturer of the aircraft. FAA employees present in a manufacturer's plant during the manufacture of a particular aircraft oversee the development of the maintenance manual for that type of plane.

When Northwest [*10]   purchased its 747's, it received maintenance manuals from Boeing, which it reviewed prior to placing the planes in service.   If it wanted to follow a procedure different from one specified in the manual, Northwest would notify the FAA of the proposed change and would, pursuant to 14 C.F.R. §   43.13, submit the entire manual with its proposed changes to the FAA.   Unless notified by the FAA, Northwest could assume that its procedures were approved.   Subsequently, Northwest could submit additional changes to the FAA, and these also would become effective unless specifically disapproved. n9

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

n9 The manufacturer might, from time to time, recommend changes in the procedures prescribed in a manual. It would notify all purchances of the aircraft of such recommendations, and the individual purchasers would then decide whether to propose the change to the FAA.

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

The primary purpose of the manual is to assure that the aircraft is properly maintained so as to preserve its airworthiness.   However, the manual also contains some provisions [*11]   for the safety of maintenance employees.   Among the provisions directed at the safety of maintenance workers is a lockout procedure dealing with the possibility that the leading edge flaps could retract and injure an employee who is changing the landing lights.

The FAA monitors air carrier operations and has employees assigned to Northwest on a permanent basis.   Among other things, the FAA employees conduct inspections to determine if the airline is complying with the provisions of its maintenance manual. The FAA can and has issued disciplinary notices, some of which carry monetary fines, to both the airline itself and to individual mechanics.   Although the FAA's inspections have encompassed procedures dealing with the safety of maintenance personnel, neither Northwest nor any of its mechanics have been cited by the FAA for violating any rules dealing solely with the safety of such personnel with respect to the airline's operations at John F. Kennedy Airport.   Additionally, although Northwest's maintenance employees at JFK have suffered some injuries (of unspecified severity), the FAA has not investigated such incidents.

III

The Secretary argues, first, that the FAA's enabling [*12]   legislation is not directed to the occupational safety or health of ground maintenance personnel, but to the safety of aircraft in flight. In his view, the test of Fineberg Packing Co., 74 OSAHRC 14/E12, 1 BNA OSHC 1598, 1973-74 CCH OSHD P17,518 (No. 61, 1974) has not been met with respect to ground maintenance personnel. n10 Second, the Secretary argues that 14 C.F.R. §   43.13 is not directed to the occupational safety and health of ground maintenance personnel, but to the safety of aircraft in flight. Third, he submits that the noted regulations do not speak to the cited working condition, the servicing of the landing lights. Fourth, he maintains that the lock-out/tag-out instruction in Northwest's approved maintenance manual, which does speak to the cited working condition, is not a standard or regulation within the contemplation of section 4(b)(1).   Finally, the Secretary argues that the manual's lock-out/tag-out instructions were neither "prescribed" nor "enforced" by FAA.

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

n10 In Fineberg the Commission held that to be exemptive under §   4(b)(1), the statutory scheme of another federal agency, and standards or regulations prescribed or enforced under it, must have as a policy or purpose the inclusion of employees in the class of persons to be protected.   It is not enough, the Commission added, that the statutory scheme have an incidental effect on employee safety or health.

  [*13]  

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

Northwest argues that the FAA has statutory authority to regulate the occupational safety and health of ground maintenance personnel, and that the FAA has exercised that authority in such a way as to create a section 4(b)(1) exemption in this case.   It first maintains that the Secretary's reliance upon Fineberg is misplaced because the FAA's enabling legislation does give the FAA authority to protect ground maintenance personnel, thus meeting the test of Fineberg. Northwest next argues that the FAA has sufficiently exercised its authority.   It contends that Congress authorized the FAA to regulate all aspects of the airline industry and the FAA has exercised that authority through a comprehensive system of regulation, thereby leaving no room for the Secretary to enforce the Act's requirements in areas touched by the FAA's regulations. Moreover, according to Northwest, the FAA's comprehensive regulation of the industry demonstrates a decision by the FAA that conditions it has not regulated should remain unregulated.   In support of its arguments, Northwest cites Southern Railway Co. v. OSHRC, [*14]   539 F.2d 335, 339 (4th Cir.), cert. denied, 429 U.S. 999 (1976), in which the court interpreted the phrase "working conditions" in section 4(b)(1) to refer to the environmental area in which an employee works, and stated that once another agency exercises its authority to prescribe standards for such an area, the Act is preempted throughout that area.   Northwest also cites Southern Pacific Transportion Co. v. Usery, 539 F.2d 386, 391-92 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977), in which the court stated that another agency can preempt the Act by reaching and articulating a formal decision that a particular condition within its authority to regulate should be left unregulated.

Northwest also contends that the FAA's requirement that it develop and submit a maintenance manual for FAA approval is an exercise by the FAA of authority to prescribe or enforce the safety requirements contained in the manual. Because the manual contains provisions regulating the environmental area in which Northwest's maintenance employees work, then under its suggested interpretation of "working condition" discussed above, Northwest contends that the Secretary is preempted from [*15]   citing for violations of the Act in such areas.   Northwest further argues that, even under the narrowest approach to the term "working conditions," which it refers to as the "nook and cranny" approach, an exemption exists in this case because its manual contains a provision directed at the very hazard cited by the Secretary: the possibility of inadvertent closure of the leading edge flaps during landing light maintenance.

The Department of Transportation argues that section 601(a) of the Federal Aviation Act, 49 U.S.C. §   1421(a), provides the FAA with the statutory basis for regulating all aspects of aviation safety, including the occupational safety and health of ground maintenance personnel, and therefore meets the test of Fineberg. DOT also maintains that 14 C.F.R. § §   43.13 and 121.135 are valid regulations, and that the provisions of Northwest's maintenance manual are standards or regulations "prescribed pursuant to FAA regulatory requirements [14 C.F.R. § §   43.13, 121.135, and 121.367] and enforced by FAA's statutory and regulatory authority over air carriers." Inasmuch as the cited working condition is dealt with in the manual, the FAA concludes that the cited working condition [*16]   is exempt under section 4(b)(1).

Judge Ditore accepted Northwest's claim of an exemption but only with respect to the working condition cited here.   He rejected what he viewed to be an attack by the Secretary upon the legal authority of the FAA to regulate as it has.   He held that "[t]he authority conferred on the FAA in matters of safety encompasses . . . not only the work of ground maintenance crews as it relates to airworthiness of aircraft, but includes the safe working conditions of the ground crews when performing aircraft maintenance work (49 U.S.C. §   1421)." The judge went on to hold that this authority had been lawfully exercised by the adoption of 14 C.F.R. § §   43.13 and 121.135, among other regulations.

The fundamental dispute in this case is twofold.   First, the parties disagree as to whether the FAA possesses "statutory authority" within the meaning of section 4(b)(1) to regulate the health and safety of airline ground maintenance workers.   Second is the question whether, if such authority exists, the FAA's rule requiring airlines to submit and comply with maintenance manuals is a sufficient exercise of that authority to give rise to a section 4(b)(1) exemption. For [*17]   the reasons that follow, we agree with the judge's resolution of these issues.

IV

We consider first whether the FAA has the requisite statutory authority to regulate the working condition that is the subject of the citation at issue.

Section 4(b)(1) cases concerned with a sister agency's statutory purpose have fallen into four categories.   First are those cases involving statutes that are concerned solely with the safety and health of particular employees.   See Idaho Travertine Corp., 77 OSAHRC 57/C9, 3 BNA OSHC 1535, 1975-76 CCH OSHD P20,013 (No. 1134, 1975) (Department of Interior - mine safety).   The second category involves situations in which another agency acts to regulate employee safety and health, but the statutory authority serving as the basis of the agency's actions pertains to matters other than safety or health.   See Haas & Haynie Corp., 76 OSAHRC 144/E1, 4 BNA OSHC 1911, 1976-77 CCH OSHD P21,351 (No. 11127, 1976) (General Services Administration - procurement statute); Gearhart-Owen Industries, Inc., 2 BNA OSHC 1568, 1974-75 CCH OSHD P19,329 (No. 4263, 1975) (Department to Defense - procurement statute).   Third are situations in which an agency [*18]   is empowered by statute to regulate an aspect of public safety and health, and its regulations directed toward that end incidentally affect the working conditions of employees in a manner unrelated to the statutory purpose.   See Fineberg Packing Co., supra, (Department of Agriculture - Wholesome Meat Act).   Fourth are cases in which a statute authorizes an agency to regulate an aspect of public safety or health, and certain employees directly receive the protection the statute is intended to provide.   See Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161 (D.C. Cir. 1975) (Environmental Protection Agency - Federal Environmental Pesticide Control Act of 1972); Texas Eastern Transmission Corp., 75 OSAHRC 88/D9, 3 BNA OSHC 1601, 1975-76 CCH OSHD P20,092 (No. 4091, 1975) (Department of Transportation Office of Pipeline Safety - Pipeline Safety Act); Mushroom Transportation Co., 73 OSAHRC 51/E10, 1 BNA OSHC 1390, 1973-74 CCH OSHD P16,881 (No. 1588, 1973) (Department of Transportation - Motor Carrier Safety Regulations); Southern Pacific Transportation Co., 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1974-75 CCH OSHD P19,054 (No. 1348, 1974),   [*19]   aff'd, 539 F.2d 386 (5th Cir. 1975), cert. denied, 434 U.S. 874 (1977) (Department of Transportation - Federal Railway Safety Act); American Airlines, Inc., 75 OSAHRC 2/C13, 3 BNA OSHC 1624, 1975-76 CCH OSHD P20,129 (No. 9392, 1975) (Federal Aviation Administration - packaging standards for radioactive material); n11 Magnus Firearms, 75 OSAHRC 44/B11, 3 BNA OSHC 1214, 1974-75 CCH OSHD P19,381 (No. 9342, 1975) (ALJ) (Bureau of Alcohol, Tobacco, and Firearms - regulation of sale and storage of explosives).

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

n1 The parties dispute whether American Airlines is precedent for concluding that the FAA has statutory authority to regulate the health and safety of airline ground personnel. There is no dispute, however, that the FAA has authority to preempt the Act by regulating conditions that affect the health and safety of airline flight crews during flight. Thus, at least to the extent that the FAA's standards for packaging of radioactive materials affect flight crew safety or health, American Airlines serves as an example of a situation in which FAA regulation would preempt the Occupational Safety and Health Act. We address the parties' contentions concerning the applicability of American Airlines to this case later in this opinion.

  [*20]  

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

It is important to distinguish between the third and fourth categories.   In Fineberg Packing, the Department of Agriculture exercised its authority to assure the purity of meat produced in a packing facility by regulating sanitary conditions in the plant.   These regulations "affected" the conditions under which the packing plant employees worked, but whether or not the regulations added to their health and safety was purely fortuitous, for the Department of Agriculture regulations did not address that objective.

Texas Eastern Transmission is illustrative of the fourth category.   There, Congress was concerned with accidents resulting from the transmission and storage of natural gas.   Such accidents had affected both members of the public and employees working in the natural gas industry.   Thus, in giving the DOT authority to regulate pipeline safety, Congress intended to protect both employees and the general public.   Because employees were in the class the statute intended to benefit, the Commission concluded that DOT had the requisite authority to give rise to a section 4(b)(1) exemption.   [*21]  

The Secretary argues that this case falls within the third, or Fineberg, category.   He contends that the FAA's enabling legislation is solely concerned with safety of aircraft in flight. The Secretary does not dispute that the FAA can regulate the maintenance procedures used on a plane to achieve this end and that the FAA can therefore "affect" the working conditions of maintenance employees.   However, the Secretary argues that the FAA's statutory authority to regulate maintenance procedures is limited to assuring the safety of the aircraft in flight and does not extend to the protection of maintenance workers while performing maintenance activities.

Northwest, on the other hand, argues that the FAA's statutory authority does encompass the authority to regulate the safety and health of maintenance personnel, and the FAA also takes this position.   Northwest and the FAA contend that American Airlines, supra, is dispositive of this issue.   In that case, an airline was cited for allegedly violating certain of the Secretary's standards governing exposure of employees in its cargo terminal to radiation.   The FAA had promulgated standards governing the packaging of radioactive [*22]   material to be transported in air commerce. The Commission held that, as a result of these FAA standards, the working conditions at issue were exempt from the Act pursuant to section 4(b)(1).   The Commission reasoned that the FAA's packaging standards were intended to protect all persons who might come near packaged radioactive material and thus directly affected the safety and health of the employees in the airline's cargo facility.   The Commission did not, however, address the particular issue involved here of whether ground employees were within the class of persons the FAA's enabling legislation intended to protect.   The Secretary had not raised or argued that issue, essentially conceding it for purposes of that case.

Inasmuch as the FAA's statutory authority was not disputed in American Airlines, the Commission decision cannot be considered binding precedent on that point.   In general, the Commission relies on a party that has been aggrieved by an administrative law judge's decision to present its exceptions to the Commission and, with rare exceptions, the Commission addresses only those issues raised by a party.   This policy is now codified in Rule 92 of our Rules of Procedure.   [*23]   n12 But even before that rules became effective, the Commission had announced that issues decided by an administrative law judge but not explicitly addressed by the Commission could not be considered binding precedent.   Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976). n13

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

n12 Rule 92 was originally designated Rule 91a and codified in 29 C.F.R. §   2200.91(a).   It was redesignated Rule 92 at 44 Fed. Reg. 70,106, 70,111 (1979), and will be codified in 29 C.F.R. §   2200.92.

n13 We also note that the facts of American Airlines did not present the issue of the FAA's statutory authority as sharply as does the present case.   In American airlines, the FAA regulations, if complied with, would protect any persons who came into proximity with packaged radioactive material.   Thus, passengers, flight crews, and ground employees would receive similar protection.   Here, however, the provisions in the Northwest maintenance manual governing the working condition cited by the Secretary are expressly designed to protect maintenance employees; passengers and flight crew members will not be endangered by premature retraction of the leading edge flaps during maintenance.   Since the FAA's regulations in American Airlines were not directed explicitly at maintenance workers, the parties may well have overlooked the issue of whether the FAA's statutory authority encompasses the safety and health of maintenance workers.

  [*24]  

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

In determining whether the FAA has the statutory authority to regulate the health and safety of airline maintenance personnel, we must give considerable weight to the fact that the FAA interprets its enabling legislation to give it such authority.   see NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131 (1944). Even if another agency claims authority not explicity granted by statute, the agency's interpretation is nonetheless controlling if the authority can be reasonably implied from the statute.   See Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 1721 (1979), citing National Broadcasting Co. v. U.S., 319 U.S. 190 (1954). see Batterton v. Francis, 432 U.S. 416 (1977). Thus, our task is not to determine do novo the proper scope of the FAA's enabling legislation, but to determine whether the FAA's conclusion that it has authority to regulate the health and safety of airline maintenance personnel is reasonably supported by its enabling legislation. n14

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

n14 The deference shown by the Supreme Court to an agency's interpretation of its enabling legislation, see Udall v. Tallman, 380 U.S. 1 (1965), is rightfully extended by another administrative agency as well.

  [*25]  

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

The Secretary argues, in effect, that the FAA's interpretation is not reasonable because its enabling legislation clearly limits the FAA to regulating "safety of flight." n15 We do not agree that the Federal Aviation Act precludes the FAA from regulating the safety of ground personnel. Undoubtedly, prevention of airplane crashes was Congress' primary consideration in enacting the legislation in question.   But to recognize that prevention of crashes was Congress' primary concern does not mean that it was Congress' sole concern.   The statute reflects the other concerns of Congress.   While section 1421(a) speaks of "safety of flight in air commerce," subsection 6 of section 1421(a) authorizes the FAA to establish standards and regulations "as the Administrator may find necessary to provide adequately for national security and safety in air commerce." If, as the Secretary argues, the scope of section 1421(a)(6) is limited to "safety of flight in air commerce," this reads out of the statute entirely the reference to national security.   Rather than adopt such an interpretation, the FAA concluded that Congress [*26]   did not intend section 1421(a)(6) to be limited to safety of flight. This interpretation is consistent with "the well-settled rule of statutory construction that all parts of a statute, if at all possible, are to be given effect." n16 Moreover, it was not unreasonable for the FAA to conclude that the phrase "safety in air commerce" in section 1421(a)(6) encompasses more than safety of flight and includes the ground safety of airline personnel who are an integral part of air commerce. We therefore accept the FAA's interpretation that section 1421(a)(6) authorizes it to regulate the working conditions of an airline's maintenance personnel to assure their safety.

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

n15 The relevant parts of 49 U.S.C. §   1421(a) are quoted supra.

n16 Weinberger v. Hynson, Westcott, and Dunning, Inc., 412 U.S. 609, 633 (1973).

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

V

The next question is whether the FAA has exercised its statutory authority in such a manner as to exempt the cited working condition from the Act.   For the reasons stated below, we conclude that another [*27]   agency preempts the Act only by issuing standards or regulations having the force and effect of law. n17 We further conclude that the provisions of Northwest's maintenance manual fulfill this criterion.   Because the manual addresses the specific hazard for which northwest was cited, we conclude that the Act does not apply to that working condition. n18

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

n17 The standards or regulations must also meet the Fineberg criterion of having the protection of occupational safety and health as a policy or purpose.   We reject the Secretary's argument that 14 C.F.R. §   43.13 does not evidence such a policy or purpose.   Section 43.13, which requires an airline to comply with the manual it has developed, must be read in conjunction with 14 C.F.R. §   121.135, which provides that a manual must contain provisions to enable personnel to perform their work with a high degree of safety.   This clearly reflects an intent to protect workers while they are performing maintenance work, and this intent is further demonstrated by the inclusion in Northwest's manual of a number of provisions directed exclusively at the safety of maintenance workers.

n18 Because of this conclusion, we do not address Northwest's broader arguments to the effect that the cited working condition would be preempted even in the absence of a provision in its manual directed at the cited hazard.

  [*28]  

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

Not all requirements that administrative agencies impose under the guise of standards or regulations have the force and effect of law.   To have the force and effect of law, a rule n19 must have two characteristics: there must be statutory authority for the agency to regulate the subject and, in adopting the rule, the agency must follow whatever procedural requirements Congress has imposed by statute.   Chrysler Corp. v. Brown, supra, 99 S.Ct. at 1718.

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

n19 As used in the Act, a "standard" is a substantive rule containing a requirement "reasonably necessary or appropriate to provide safe or healthful employment." 29 U.S.C. §   652(8).   A "regulation" is a rule governing matters such as posting of notices, recordkeeping, and conduct of inspections. E.g., 29 U.S.C. § §   657(c)(1)-(3), 657(e), and 657(g)(2).   We shall use the word "rule" to refer to both "standards" and "regulations."

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

The Occupational Safety and Health Act authorizes [*29]   the Secretary to promulgate rules affecting occupational safety and health, specifies procedures for the promulgation of such rules, and provides for penalties for employers who violate the rules.   29 U.S.C. § §   654(a)(2), 655(a) and (b), and 666(a)-(d).   Standards that are properly promulgated under the Act therefore have the force and effect of law.   Thus, when Congress used the words "standards" and "regulations" in the Act, it meant rules having the force and effect of law.   As words used in a statute normally should be read to have the same meaning throughout, n20 this strongly suggests that, in using "standards or regulations" in section 4(b)(1), Congress contemplated only rules having the force and effect of law.   Indeed, since only rules issued pursuant to appropriate statutory authority have the force and effect of law, Congress' very use of the phrase "statutory authority" in section 4(b)(1) suggests it intended that only rules having the force and effect of law could preempt the Act under section 4(b)(1).

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

n20 United States v. Cooper Corp., 312 U.S. 600, 606-7 (1941).

- - - - - -   [*30]   - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The same conclusion follows from an examination of the purposes of the Act.   The Act represents Congress' first attempt to comprehensively regulate the entire field of occupational safety and health. n21 Congress provided that employers generally would have to comply with mandatory rules issued by the Secretary of Labor.   Congress was also aware that other agencies had already issued, or had authority to issue, rules governing limited areas of occupational safety and health and, in enacting section 4(b)(1), Congress obviously intended to leave such rules in place and to give them priority over OSHA regulation. It would be inconsistent with this carefully wrought system to conclude that binding rules issued under the Act could be preempted by provisions of other agencies lacking the force and effect of law.   It is more reasonable to assume that Congress intended that provisions having no legal effect would not operate to preempt mandatory rules pursuant to section 4(b)(1).

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

n21 116 Cong. Rec. 37325 (1970) (remarks of Sen. Williams), reprinted in Legislative History of the Occupational Safety and Health Act of 1970 at 414 (1971) [hereinafter cited as Legislative History]; see also 116 Cong. Rec. 41762 (1970) (remarks of Sen. Williams), reprinted in Legislative History at 1146 (Act provides first comprehensive program); S. Rep. No. 91-1282, 91st Cong., 2d Sess. 4 (1970), reprinted in [1970] U.S. Code Cong. & Ad. News 5177, 5180; H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 15-16, reprinted in Legislative History at 831, 845-846.

  [*31]  

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

By the same token, however, if another agency's rule having the force and effect of law does regulate a particular working condition, then it preempts regulation of that condition under the Act.   Although Congress intended to comprehensively regulate occupational safety and health, Congress enacted section 4(b)(1) to avoid having the Secretary duplicate work that was being done by other agencies.   Taylor v. Moore-McCormack Lines, Inc., 8 BNA OSHC 1277, 1279 (4th Cir. May 1, 1980); American Petroleum Institute v. OSHA, 581 F.2d 493, 510 (5th Cir. 1978), aff'd sub nom. Industrial Union Department v. American Petroleum Institute, 48 U.S.L.W. 5022 (U.S. July 2, 1980); Marshall v. Northwest Orient Airlines, Inc., 574 F.2d 119, 122 (2d Cir. 1978); Organized Migrants in Community Action, supra, 520 F.2d at 1167; see also 29 U.S.C. §   653(b)(3).   Just as it would be unreasonable to conclude that Congress intended to leave gaps in coverage, it would be similarly unreasonable to conclude that section 4(b)(1) permits that Act to apply to a working condition which is governed by [*32]   the rules of another agency issued pursuant to statutory authority having the purpose of protecting employees.   That is the exact situation that section 4(b)(1) seeks to avoid.

The Secretary argues, however, that despite the language of section 4(b)(1), which says that the Act is preempted if another agency "prescribes or enforces" rules affecting occupational safety and health, an exemption only arises if the other agency both prescribes and enforces such rules.   Thus, in the Secretary's view, regardless of the legal effect of the other agency's regulations, the Commission must determine that the other agency is actively enforcing its rules before it can find a section 4(b)(1) exemption.

This argument must be addressed in the context of our conclusion that the Act is only preempted by rules of another agency that have the force and effect of law.   Such rules must necessarily be associated with some mechanism for enforcement, whether by the promulgating agency or by other means. n22 Thus, once such rules have been issued, for the Commission to base a section 4(b)(1) exemption on the manner in which the rules are enforced would necessarily involve the Commission's passing [*33]   judgment either on the efficacy of the enforcement mechanism Congress has provided or on the adequacy with which another agency is using the enforcement powers at its disposal.   As to the former, section 4(b)(1) does not permit an inquiry into the stringency of the enforcement powers that Congress has established for enforcing the rules of another agency.   Organized Migrants in Community Action, supra, 520 F.2d at 1169-70.   Concerning the latter, section 4(b)(1) does not permit the Commission to oversee the adequacy of another agency's enforcement efforts.   Pennsuco Cement and Aggregates, Inc., 80 OSAHRC    , 8 BNA OSHC 1378, 1381, 1980 CCH OSHD P24,478 at 29,890 (No. 15642, May 8, 1980).   Accordingly, once the Commission determines that a rule promulgated by another agency has the force and effect of law, we need not inquire further into the manner in which that rule is enforced.

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

n22 The Federal Aviation Act provides several machanisms by which rules issued by the Administrator pursuant to 49 U.S.C. §   1421(a) may be either directly or indirectly enforced.   The Secretary of Transportation is given the authority to assess civil penalties for violation of the rules.   49 U.S.C. §   1471. see U.S. v. Garrett, 296 F.Supp. 1302 (N.D. Ga. 1969), aff'd, 418 F.2d 1250 (5th Cir. 1969), cert. denied, 300 U.S. 927 (1970). The Administrator of the FAA is authorized to modify, suspend, or revoke an air carrier's operating certificate if he determines that such action is required by "safety in air commerce or air transportation and the public interest." 49 U.S.C. §   1429. Furthermore, whenever "an emergency requiring immediate action exists in respect of safety in air commerce," the Administrator may, without notice or hearing, issue such orders, rules, or regulations, "as may be essential in the interest of safety in air commerce to meet such emergency." 49 U.S.C. §   1485(a).

The Federal Aviation Act also provides for criminal penalties for violations of the Administrator's rules, 49 U.S.C. §   1472, an enforcement mechanism that is outside the control of the DOT or FAA.

  [*34]  

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

Our inquiry thus reduces to whether the provisions in Northwest's maintenance manual have the force and effect of law.   As discussed above, to have the force and effect of law, an agency rule must meet two requirements: the agency must have statutory authority to regulate the particular subject, and the rule must be issued in accordance with congressionally established procedures.   As we have concluded that the FAA has statutory authority to regulate the safety of airline ground personnel, the remaining guestion is whether the FAA complied with proper procedures.

The FAA's enabling legislation involved in this case, 49 U.S.C. §   1421, does not specify procedures by which the regulations authorized in the statute must be promulgated. Therefore, the rulemaking provisions of the Administrative Procedure Act, 5 U.S.C. §   551-706 ("the APA"), apply.   Chrysler Corp. v. Brown, supra, 99 S.Ct. at 1718. The APA generally requires that an agency give public notice of, and an opportunity for interested persons to comment on, a proposed rule before it is adopted.   5 U.S.C. § §   553(b) and (c).   Here, the   [*35]   FAA followed these procedures with respect to the rule, codified at 14 C.F.R. §   43.13, n23 that requires each airline to comply with its maintenance manual, but it did not follow these procedures with respect to the provisions contained in the manual. The question is whether the FAA can validly use such a procedure to make the manual itself legally binding on an airline.

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

n23 29 Fed. Reg. 5449, 5453 (April 23, 1964) (final rulemaking action); 28 Fed. Reg. 12096 (Nov. 13, 1963) (notice of proposed rulemaking).

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

The Secretary's principal argument against the validity of the FAA's manual procedure is that the requirements contained in a manual are not rules of general applicability, approved by the FAA after notice and an opportunity to comment, but are drafted by each individual airline and become effective without any prior FAA approval.   According to the Secretary:

where, as here, each airline controls its own safety matters, subject to disapproval by FAA, there is no guiding force to assure that safety, and not employer [*36]   interests, are paramount in writing the manual. . . .   Clearly a company acting on its own initiative and prerogative should not be able to decide when and to what extent OSHA is preempted. n24

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

n24 The Secretary stated that he does not contend the manual procedure is invalid vis-a-vis the FAA, but only that it is not a sufficient exercise of the FAA's authority to preempt the Act under §   4(b)(1).   We have concluded, however, that the dispositive question is whether the manual has the force and effect of law, and this in turn depends on whether the FAA has satisfied APA procedures.   Thus, if the procedures the FAA follows are inadequate to preempt the Act as to specific working conditions addressed by a manual, they are also inadequate to have any provisions of a manual bind an airline. In this respect, the Secretary's argument for finding the FAA's manual approval procedure inadequate to preempt the Act - that it allows each airline to control its own safety matters - applies with the same strength to matters of flight safety as it does to the safety of workers performing maintenance on an airplane.

  [*37]  

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

Under the Secretary's position, in order for a maintenance manual to legally bind airlines, the FAA would have to issue rules for each aircraft that apply uniformly throughout the airline industry.   It would have to develop its own manual, presumably using the manufacturer's manual as a starting point, publish or incorporate this manual by reference in the Federal Register, seek comments from interested persons concerning the content of the manual, determine whether the proposed manual should be modified, and ultimately promulgate a final version of the manual before the airplane could be put into service.

There are obvious drawbacks to this approach.   Perhaps the most serious is that it would inhibit the very objective the APA seeks to achieve through notice and comment rulemaking proceedings: an opportunity for affected persons to have a meaningful input into rules that affect them.   If a manual was promulgated through APA rulemaking proceedings, it could be changed only by similar rulemaking proceedings. n25 Thus, after an aircraft is put into service and airlines and their employees become familiar [*38]   with the aircraft and the manual on a day-to-day basis, they would be required to comply with procedures that were developed before they had gained any experience with the aircraft. It is likely that their experience would show that some of these procedures should be modified.   If, however, a rulemaking proceeding is necessary before any such change could be instituted, it appears probable that few such changes would ever be implemented; at the very least, an airline would face a substantial delay in implementing a potentially superior procedure. n26 Thus, the industry would tend to be "locked-in" to procedures developed before the persons best able to judge whether better procedures exist have gained the experience necessary to form a judgment.   On the other hand, the FAA's manual procedure permits each airline to benefit from its experience with a plane in actual service and to quickly implement the changes to the manufacturer's manual it thinks are necessary, subject only to FAA disapproval.   This tends to promote input into an airline's maintenance procedures by those most knowledgeable with the problems and peculiarities of each type of aircraft: the airline's own employees.   [*39]   As one court has stated in rejecting the argument that an airline's manual was not legally binding: "Based on years of experience with the methods of certificated carriers, the regulation is reasonable and practical in substituting the carrier's procedures for the minutiae of individual FAA approval." United States v. Garrett, 296 F.Supp. 1302, 1304 (N.D. Ga. 1969), aff'd, 418 F.2d 1250 (5th Cir. 1969), cert. denied, 300 U.S. 927 (1970).

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

n25 Section 4 of the APA, 5 U.S.C. §   553, prescribes procedures that an agency must follow in rule making.   The APA defines "rule making" as "agency process for formulating, amending, or repealing a rule." (Emphasis added).   5 U.S.C. §   551(5).   Thus, the procedures set forth in 5 U.S.C. §   553 apply equally to amending a rule as to formulating one in the first instance.   See United States Steel Corp., 77 OSAHRC 12/D14, 2 BNA OSHC 1343, 1974-75 CCH OSHD P19,047 (No. 2975, 1974).

n26 The record shows that Northwest submitted some 600 changes in its 747 manual to the FAA over a "representative," but unspecified, period of time.   Even if all of these changes were ultimately implemented after FAA rulemaking proceedings, the necessity to conduct such a number of rulemaking proceedings would obviously place a considerable administrative burden on the FAA.

  [*40]  

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

The effectiveness of the FAA's manual system depends on the airlines acting in good faith and proposing only those changes to the manufacturer's manual that they think will achieve benefits in safety.   The Secretary suggests that an airline could follow an entirely different path, scrapping the manufacturer's manual and writing its own so as to promote its own interests over those of its employees and the general public.

The Secretary's argument assumes that an airline would think it beneficial to follow a deliberate course of trying to deceive the government agency responsible for regulating virtually all aspects of the company's operations.   It further assumes that the FAA would fail either to recognize if an airline was submitting changes to its manual that were detrimental to safety, or to take appropriate action if it discovered that an airline was doing this.   Neither assumption is particularly compelling.   But even if there is potential for abuse in the regulatory system that the FAA has chosen, the fact that a procedure may not be ideal is no reason to reject that procedure entirely.   As discussed [*41]   above, there would also be a serious drawback to the FAA's use of APA procedures to promulgate all of the detailed requirements appearing in airline manuals. Moreover, no system that the FAA might follow would guarantee that airlines would always follow safe procedures.   Employers have been known to violate even OSHA standards.

It is also noteworthy that the Secretary himself has adopted certain rules that produce substantially the same effect as the FAA's manual approval procedure, that is, allow employers themselves to develop certain requirements with which they must comply. n27 The Secretary has promulgated other standards that do not impose rules that apply uniformly to all employers but require employers to comply with requirements developed or approved by third parties, requirements that did not exist when the Secretary promulgated his standards. n28 The existence of such standards demonstrates the Secretary's recognition that an effective regulatory scheme need not contain only uniform requirements established by a government agency, but must allow room for modifications that experience may show are desirable.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - -   [*42]   - - - - - - - - - - -

n27 The following are examples of such standards:

29 C.F.R. §   1926.24: The employer shall be responsible for the development and maintenance of an effective fire protection and prevention program at the job site throughout all phases of the construction, repair, alteration, or demolition work. . . .

29 C.F.R. §   1910.178(1): Only trained and authorized operators shall be permitted to operate a powered industrial truck.   Methods shall be devised to train operators in the safe operation of powered industrial trucks. (Emphasis supplied).

29 C.F.R. §   1910.178(n)(1): All traffic regulations shall be observed, including authorized plant speed limits . . . .   (Emphasis supplied).

n28 Significantly, this latter group generally involves, as does this case, specialized equipment for which modifications made after the equipment has been in use may make different safety requirements appropriate.   Examples are:

29 C.F.R. §   1910.178(a)(4): Modifications and additions (to powered industrial trucks) which affect capacity and safe operation shall not be performed by the customer or user without manufacturer's prior written approval. . . .

29 C.F.R. 1910.178(q)(6): . . .   Additional counterweighting of fork trucks shall not be done unless approved by the truck manufacturer.

29 C.F.R. §   1910.179(b)(3): Cranes may be modified and rerated provided such modifications and the supporting structure are checked thoroughly for the new rated load by a qualified engineer or the equipment manufacturer. . . .

29 C.F.R. §   1926.550(a)(1): The employer shall comply with the manufacturer's specifications and limitations applicable to the operation of any and all cranes and derricks.   Where manufacturer's specifications are not available, the limitations assigned to the equipment shall be based on the determinations of a qualified engineer competent in this field and such determinations will be appropriately documented and recorded. Attachments used with cranes shall not exceed the capacity, rating, or scope recommended by the manufacturer. (Emphasis supplied).

  [*43]  

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

In summary, we conclude that the FAA possesses the statutory authority to regulate the health and safety of airline maintenance personnel and that the FAA has validly exercised this authority through duly promulgated rules that require airlines to develop, subject to FAA disapproval, manuals that include provisions designed to further the safety of such personnel. Since Northwest's manual requires the airline to comply with a procedure to lock out the wing flaps while an employee is changing the landing lights on a Boeing 747, then section 4(b)(1) of the Act precludes the Secretary from citing Northwest with respect to any hazards allegedly arising out of such activities.

Accordingly, the judge's decision vacating the citation is affirmed.   SO ORDERED.  

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

I join in the lead opinion's rejection of the Secretary's assertion that the FAA lacks the statutory authority to regulate the occupational safety and health of the affected employees in this case.   The FAA's interpretation of its enabling legislation had a reasonable basis in law, see NLRB v. Hearst    [*44]   Publications, Inc., 322 U.S. 111 (1944), and it reasonably may be concluded that the FAA's statutory grant of authority contemplates the issuance of regulations affecting the safety and health of ground maintenance employees.   In addition, I concur in holding that the FAA has exercised its authority in this case within the meaning of section 4(b)(1) of the Act, 29 U.S.C. §   653(b)(1). n1

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

n1 Section 4(b)(1) states in pertinent part:

(b)(1) Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

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

I

The FAA has not promulgated "standards or regulations" specifically related to the cited working condition. Only the provisions of Northwest's maintenance manual address the hazard to which maintenance employees are exposed when servicing or changing landing lights on Northwest's Boeing 747 aircraft. Thus, the issue in this case is whether these [*45]   provisions are "standards or regulations" within the meaning of section 4(b)(1) of the Act.   The maintenance manual is a document originally prepared by the aircraft manufacturer and submitted to the FAA for approval.   The certificated carrier operating the aircraft may then modify the manufacturer's maintenance manual before the carrier submits its manual for FAA approval. n2 As a matter of law it is unclear whether the provisions of the manual are properly considered governmental regulations. Compare Roberts v. TransWorld Airlines, 225 Cal. App. 2d 344, 37 Cal. Rptr. 291, 299 (Dist. Ct. App. 1964) with U.S. v. Garrett, 296 F.Supp. 1302 (N.D. Ga. 1969), aff'd, 418 F.2d 1250 (5th Cir. 1969), cert. denied, 399 U.S. 927 (1970).

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

N2 14 C.F.R. § §   43.13 and 121.133.

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

Avoidance of duplicative governmental regulation is the intended purpose of section 4(b)(1). n3 In general, federal standards and regulations that are recognized under section 4(b)(1) have attributes not shared by Northwest's manual.   [*46]   Substantively, they are officially promulgated or adopted by a federal agency in accordance with specific statutory criteria.   In addition, the federal agency action follows a specific procedure that includes rulemaking with public notice, n4 published agency promulgation or adoption, n5 codification in the Code of Federal Regulations, n6 and an opportunity for judicial review. n7

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

n3 See Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161, 1167 (D.C. Cir. 1975); Southern Pacific Transportation Co., 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1316, 1974-75 CCH OSHD P19,054 at p. 22,787 (No. 1348, 1974), aff'd, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); see also 29 U.S.C. §   653(b)(3).

n4 5 U.S.C. § §   553(b) and (c).

n5 5 U.S.C. §   552.

n6 44 U.S.C. §   1505. This codification may take the form of an incorporation by reference.   However, incorporations by reference are restricted as a matter of law.   1 C.F.R. Part 51.

n7 5 U.S.C. § §   701-706.

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

The rulemaking [*47]   provisions of the Administrative Procedure Act, 5 U.S.C. §   553, n8 are designed "to guarantee to the public an opportunity to participate in the rule making process . . . and to grant interested persons an opportunity to present their views [on proposed substantive rules]." U.S. Department of Justice, Attorney General's Manual on The Administrative Procedure Act 26 (1947).   The FAA's procedure for approving the manual apparently lacks public participation and an opportunity to be heard by interested parties, a factor relied on by the Secretary in asserting that the maintenance manual is neither a standard nor a regulation under section 4(b)(1).   There is no indication in this record that those individuals most directly affected by the safety requirements contained in Northwest's manual -- the employees -- have the opportunity at any time to review and comment upon the proposed requirements.   Nevertheless, the FAA has been granted the authority to regulate the safety and health of employees engaged in air commerce. Maintenance manuals of certificated carriers undergo a dual review process, and the FAA's manual approval procedure set forth in 14 C.F.R. §   43.13(c) has been upheld in [*48]   the face of an assertion that it is an improper delegation of authority by the FAA to an individual carrier. U.S. v. Garrett, supra at 1304. If another agency's exercise is authorized by law, the Commission may not further inquire into the sufficiency of that exercise. n9 See Mushroom Transportation Co., Inc., 73 OSAHRC 51/E10, 1 BNA OSHC 1390, 1973-74 CCH OSHD P16,881 (No. 1588, 1974), appeal dismissed, No. 74-1014 (3d Cir. April 17, 1974).

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

n8 See note 25 of lead opinion.

n9 There is neither an assertion nor proof in this record that the FAA approval of the maintenance manual is merely a procedural formality without substantive review.

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

An approved maintenance manual was received by Northwest from the aircraft manufacturer. Northwest prepared its own manual and submitted it to the FAA for approval pursuant to the requirements set forth at 14 C.F.R. §   43.13 and §   121.133.   Although the manual is unlike the standards and regulations prescibed or enforced under the several statutes to which [*49]   Congress referred during its examination of the exemption question, n10 the manual has the force and effect of law and its provisions are enforced by the FAA.   See, e.g., U.S. v. Garrett, supra. Accordingly, in this case the FAA has exercised its authority to "prescribe . . . standards or regulations" within the meaning of section 4(b)(1).

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

n10 For example, the legislative debates involve discussions of the Federal Metal and Non-Metallic Mine Safety Act of 1966, 30 U.S.C. § §   721-740; the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § §   801-960; and the Federal Railway Safety Act of 1970, 45 U.S.C. § §   421-441.   The first two of these statutes have recently been superseded by the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § §   801-962.   Senate Committee on Labor & Public Welfare, 92d Cong, 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, 1018-1020, 1037 (Comm. Print 1971).

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

II

The majority relies on Pennsuco Cement and Aggregates, Inc., [*50]   80 OSAHRC    , 8 BNA OSHC 1378, 1980 CCH OSHD P24,478 (No. 15642, 1980) for the proposition that section 4(b)(1) "does not permit the Commission to oversee the adequacy of another agency's enforcement efforts." n11 In determining whether another agency's regulatory activity with respect to a particular working condition results in a section 4(b)(1) exemption, the Commission will not inquire into whether the other agency exercises its authority "in the same manner or in an equally stringent manner" as OSHA.   Mushroom Transportation Co., supra, 1 BNA OSHC at 1392, 1973-74 CCH OSHD P16,881 at p. 21,591. With respect to enforcement, an interpretation of section 4(b)(1) that "allows for the creation of a significant vacuum in the protection for American workers" is inconsistent with the preventive purposes of the Act.   Pennsuco Cement and Aggregates, Inc., supra, 8 BNA OSHC at 1383, 1980 CCH OSHD P24,478 at p. 29,892 (concurring opinion).   A section 4(b)(1) exemption is established only when at the time of the claimed exemption another agency is actually exercising its authority.   Indiana Harbor Belt Railroad Co., 77 OSAHRC 13/A2, 4 BNA OSHC 2006, 1976-77 CCH OSHD   [*51]   P21,473 (No. 12420, 1977); Southern Pacific Transportation Co., supra; Texas Eastern Transmission Corp., 75 OSAHRC 88/D9, 3 BNA OSHC 1601, 1605 n. 9a, 1975-76 CCH OSHD P20,092 at p. 23,902 n. 9a (No. 4091, 1975).   The record in this case satisfies that test and the citation must be vacated.

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

n11 The relevent issue regarding agency authority in Pennsuco was not whether the Mine Enforcement Safety Administration (MESA) had exercised its authority in an adequate manner but whether MESA had exercised its authority at all.   MESA had promulgated safety standards dealing with the cited conditions but had suspended all enforcement activities with respect to the standards.   Accordingly, MESA was not exercising its authority over the cited working conditions at the time of the inspection in that case and Pennsuco was not entitled to an exemption under section 4(b)(1).   I joined the majority in vacating the citation in Pennsuco because, under the unique facts presented, basic principles of due process dictated against penalizing Pennsuco for failing to comply with OSHA standards.   Specifically, it was reasonable for Pennsuco to conclude, in the context of overlapping agency jurisdiction, that MESA had enforcement authority, in light of MESA's history of enforcement and its failure to publish or otherwise notify regulated employers of its suspension of enforcement activity.

  [*52]  

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