“SECRETARY OF LABOR,Complainant,v.DEKALB FORGE COMPANY,Respondent.OSHRC Docket No. 83-0299_DECISION_Before: BUCKLEY, Chairman, and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).DeKalb Forge Company operates a forging shop in DeKalb, Illinois. OSHAinspected the shop under a warrant. DeKalb did not refuse to honor thewarrant, and it did not challenge the warrant’s validity in any forumother than the Commission. Following the inspection, OSHA issued acitation alleging that DeKalb violated seven subsections of the hearingconservation amendment to the occupational noise standard, 29 C.F.R. ?1910.95. A second citation arising from the same inspection allegedthat DeKalb had violated two subsections of 29 C.F.R. ? 1910.20,entitled \”Access to employee exposure and medical records.\” Administrative Law Judge Ralph B. Maxwell relied on a decision of apanel of the United States Court of Appeals for the Fourth Circuit thatthe hearing conservation amendment was invalid; he therefore vacated allitems in the first citation. He also vacated the items in the secondcitation, apparently concluding that the invalidity of the hearingconservation amendment relieved DeKalb from its duty to comply with thecited subsections of section 1910.20.The Secretary obtained Commission review of the judge’s decision. Theissues raised by the parties on review involve whether the hearingconservation amendment is invalid, whether evidence should be suppressedbecause the inspection under the warrant was unlawful, and whetherDeKalb was subject to discriminatory enforcement in violation of its dueprocess and equal protection rights. For the reasons that follow, weconclude that the evidence obtained during the inspection should not besuppressed, that DeKalb’s arguments against the validity of the hearingconservation amendment are not pertinent to the violations at issue inthis case, and that DeKalb’s due process and equal protection rightswere not violated.I. _Inspection Issues_The warrant under which DeKalb’s forge shop was inspected was issued onFebruary 4, 1983, by a magistrate of the United States District Courtfor the Northern District of Illinois. According to the warrantapplication, the workplace was chosen for inspection in accordance witha general administrative plan for enforcement of the Act. DeKalb fileda motion before Judge Maxwell to suppress the evidence gathered duringthe inspection on the basis that the warrant was invalid. In apre-hearing ruling, the judge denied DeKalb’s motion.The parties then agreed to waive a hearing on the merits and to submitthe case for disposition upon stipulated facts. The stipulationincorporated by reference the parties’ \”prior controversy\” concerningthe validity of the warrant.[[1]] DeKalb makes five separate argumentsthat the inspection was unlawful.DeKalb argues that OSHA’s inspection program was unlawful because theSecretary’s written procedures that define the scope and the manner inwhich inspections will be conducted, which are set forth in OSHA’s_Field Operations Manual_ (FOM), were not published in compliance withsection 3 of the Administrative Procedure Act (\”APA\”), 5 U.S.C. ?552(a)(1).[[2]] Section 552(a)(1) requires publication of certainagency documents in the Federal Register. DeKalb claims that it wasadversely affected by the Secretary’s failure to follow the APA, sinceunder the FOM it was subject to a wall-to-wall inspection of itsfacility rather than a less intrusive search.In _Phoenix Forging Co_., 85 OSAHRC ______, 12 BNA OSHC 1317, 1321-24,1984-85 CCH OSHD ? 27,256, pp. 35,213-16 (No. 82-398, 1985), theCommission recently rejected the very similar argument that aninspection was unlawful because the Secretary failed to publish an OSHAenforcement directive in compliance with the APA. _Phoenix_ was basedupon the well-established principle of law that an agency need notcomply with the publication requirements of section 552 if its documentdoes not impose obligations or contain matters to which persons mustrefer in formulating their conduct towards the government. Following thesame analysis as in _Phoenix_, we conclude that the FOM falls outside ofthe publication requirement of section 552(a)(1). While the FOMcontains procedural guidelines for the conduct of OSHA inspections, theFOM does not impose any obligations upon employers. Accordingly, wereject DeKalb’s argument that the inspection was unlawful because theSecretary failed to publish the FOM in accordance with section 552(a)(1)of the APA.DeKalb also contends that the warrant is overly broad in scope in tworespects, which we will discuss separately. First, DeKalb points outthat paragraph E.4.e of OSHA Instruction CPL 2.25C, which was attachedto the warrant application, provides that all programmed healthinspections shall be \”conducted within the guidelines . . . in the FieldOperations Manual.\” Chapter III, ? D.8.d(2) of the FOM in turn providesthat, when an employee complaint is made during the inspection, theinspector \”shall inspect, where possible, for the alleged violation andrecord the findings.\” DeKalb argues that this FOM provision violatesthe Fourth Amendment to the Constitution because it requires theinvestigation of employee complaints made during the inspectionregardless of whether they are supported by probable cause.We reject this argument. DeKalb is arguing that the warrant isoverbroad because of material contained in the application. However, itis the warrant that controls the permissible scope of an inspection, notthe warrant application. DeKalb’s argument amounts to nothing more thanspeculation that an OSHA inspector might conduct a broader inspectionthan a warrant authorizes because instructions in the FOM might be readto expand the permissible scope of an inspection. When and if thisoccurs, an employer may seek appropriate relief from the Commission. _See_ _Pennsylvania Steel Foundry & Machine Co_., 86 OSAHRC _____, 12BNA OSHC 2017, 2025, 1986 CCH OSHD ? 27,671, p. 36,069 (No. 78-638,1986), _pet. for review filed_, No. 86-3546 (3d Cir. Sept. 8, 1986). Wenote also that the warrant authorized a full-scope inspection; it istherefore difficult to imagine how any employee complaint could havecaused a compliance officer to investigate matters beyond the scope ofthe warrant.DeKalb also contends that the warrant was overly broad in scope becauseit was not limited to the civil, remedial aspects of the Act. DeKalbasserts that the warrant should have been so limited, because it wasobtained under an administrative, rather than a criminal, probable causestandard.In ruling on this argument, Chairman Buckley and Commissioner Wall agreethat the Commission ought not to suppress the evidence. However,Chairman Buckley would not reach the merits of the argument because itquestions the judgment of the magistrate in issuing the warrant, ratherthan the conduct of OSHA personnel. In Chairman Buckley’s view, theCommission, as an agency within the executive branch, has no authorityto review the actions of a judicial officer of a court created underArticle III of the Constitution. _E.g_., _Phoenix Forging_, 12 BNA OSHCat 1319, 1985 CCH OSHD at pp. 35,211-12 (view of Chairman Buckley), andcases cited therein.Commissioner Wall does not limit his inquiry in the manner of ChairmanBuckley. In his view, the Commission has the authority to rule onissues concerning the scope of the warrant in determining whetherevidence should be suppressed. _See_ _Pennsylvania Steel_, 12 BNA OSHCat 2023-24, 1986 CCH OSHD at p. 36,067 (view of CommissionerWall)(Commission has authority to determine whether warrant is supportedby probable cause). He therefore rejects DeKalb’s argument because itis without merit. There is no evidence that OSHA personnel suspectedcriminal violations, or were seeking to find evidence of suchviolations. Rather, based on this record, the conclusion must be drawnthat this inspection, like the vast majority of OSHA inspections,focused upon the civil provisions of the Act.[[3]] Probable cause inthe administrative sense was, therefore, all that was necessary. _Michigan v. Tyler_, 436 U.S. 499 (1978); _Donovan v. Wollaston Alloys,Inc_., 695 F.2d 1, 4-5 (1st Cir. 1982). There is also no occasion inthis case to consider whether the warrant precluded the inspector fromobserving evidence of criminal conduct during the inspection. This isnot a criminal prosecution. If evidence were gathered under thiswarrant to support a criminal prosecution against DeKalb, DeKalb couldraise its objection to the warrant and move to suppress the evidence inthe criminal proceeding.DeKalb argues that the inspection was unlawful because, according to thedates listed in the citations and the stipulation, part of theinspection occurred after the warrant’s time limit had expired. DeKalbpoints out that the warrant, which was issued on February 4, 1983,required that a return be made to the court within 10 days showing thatthe inspection had been completed. However, the citations and thestipulation list the inspection dates as February 10 through March 10,1983. DeKalb therefore asserts that this case presents a \”stipulatedviolation\” of its Fourth Amendment rights.DeKalb’s argument is without merit. Although DeKalb’s brief does notmention the fact, the stipulation itself indicates that the warrant’slimits were not exceeded, since it states that DeKalb’s workplace wasinspected \”pursuant to the authority of, and . . . in accordance with,the terms of a warrant issued on February 4, 1983 . . . .\” Further, thestipulation contains, in numbered paragraphs, brief descriptions of thefacts underlying each alleged violation; in each of these descriptions,the date listed is either February 10 or February 11, 1983. The listingof those dates creates the strong inference that OSHA gathered itsevidence with respect to the cited items before the warrant’s time limitexpired. Viewing the stipulation as a whole, we conclude that itestablishes that the inspection was conducted in compliance with thewarrant, rather than in an unlawful manner as DeKalb claims.DeKalb’s remaining two suppression arguments concern whether the warrantwas supported by probable cause. Inasmuch as these arguments relatedirectly to the judgment of the magistrate in issuing the warrant,Chairman Buckley concludes that the Commission has no authority toreview them. Although Commissioner Wall would review these issues, hewould not suppress the evidence.DeKalb argues that the warrant was invalid because the issuingmagistrate was not provided with enough information to establishprobable cause. The warrant application stated that employers wereselected and scheduled for administrative plan inspections according toan inspection register prepared in each OSHA Area Office. Theapplication also stated that, in determining which employers would beselected for health inspections, OSHA ranks industries according to thedegree of exposure to potential health hazards, and that DeKalb’sindustry currently ranked eleventh on that list. However, neither theinspection register nor the industry rank list was presented to themagistrate. DeKalb contends that, as a result, the magistrate was notpresented with sufficient information to determine whether DeKalb wasappropriately selected under OSHA’s administrative plan for inspections,or whether the warrant conformed with the plan’s provisions.The Supreme Court in _Marshall v. Barlow’s, Inc_., 436 U.S. 307, 320(1978), held that probable cause for an administrative search may beestablished by a showing that reasonable legislative or administrativestandards for conducting an inspection are satisfied with respect to aparticular establishment. While _Barlow’s_ did not state specificallywhat averments in a warrant application, at a minimum, would meet thatprobable cause standard, the Seventh Circuit was presented with thatissue in _Marshall v. Chromalloy_ _American Corp_., 589 F.2d 1335,1341-43 (7th Cir. 1979). In Chromalloy, the warrant affidavit statedthat an inspection was sought based upon a \”National-Local plan designedto achieve significant reduction in the high incidence of occupationalinjuries and illnesses found in the metal-working and foundryindustry.\” The Seventh Circuit, relying entirely upon the above-quotedlanguage, held that the affidavit was sufficient to establish probablecause for an administrative plan inspection, and therefore the warrantwas valid. The Seventh Circuit specifically rejected the argument thatthe magistrate must be presented with information such as \”a completeset of updated industry statistics, the validity of these statistics,the rationale for applying a particular index factor to the [employer’s]industry, and the reason for inspecting [that industry] in lieu ofanother industry.\” 589 F.2d at 1342. _See_ _also Marshall v. MilwaukeeBoiler Manufacturing Co_., 626 F.2d 1339, 1345-46 (7th Cir.1980)(holding in Chromalloy reaffirmed).Commissioner Wall concludes that the Commission is bound to follow thedecisions of the courts of appeals in cases within the jurisdictions ofthose courts. _Synkote Paint Co_., 86 OSAHRC _____, 12 BNA OSHC 2036,2042-43, 1986 CCH OSHD ? 27,675, p. 36,089 (No. 83-2, 1986). DeKalb islocated in the Seventh Circuit. Commissioner Wall would thereforereject DeKalb’s suppression argument under Chromalloy. Because thewarrant application in this case is much more detailed in describingOSHA’s inspection plan than the warrant application approved inChromalloy, the magistrate was provided with sufficient information tosupport a finding of probable cause.[[4]] Accordingly, CommissionerWall concludes that the evidence should not be suppressed.[[5]]Finally, DeKalb contends that the evidence should be suppressed becausethe magistrate was not informed of DeKalb’s inspection history or of thedesired frequency that OSHA would inspect companies listed on theinspection register. DeKalb asserts that, without this information, themagistrate could not know whether DeKalb was being harassed by multipleinspections within a short period of time, or whether the selection ofDeKalb was inconsistent with OSHA procedures concerning the timing ofinspections. DeKalb does not claim, however, that it was actuallyharassed by OSHA, or that OSHA incorrectly followed its procedures.Commissioner Wall concludes that the evidence should not be suppressed. The magistrate was given some assurance that DeKalb would not be subjectto excessively frequent inspections, since the warrant applicationasserted that OSHA instruction CPL 2.25C (which was attached to theapplication) would be followed. Section 1.1.a.(2)(b)(D) of CPL 2.25states that a programmed health inspection of an establishment will notbe conducted if a:[s]ubstantially complete health inspection has been conducted within thecurrent or previous three fiscal years with no serious violations citedor, where serious violations were cited, an acceptable abatement letteror a follow-up inspection has documented \”good faith\” efforts to abateall serious hazards.Commissioner Wall finds that the magistrate was entitled to presume thatthe Secretary was following these criteria.II. _The Validity of the Standards_The parties stipulated before Judge Maxwell that \”violations of thestandards occurred as described in the Citations.\” Those standards arepart of the hearing conservation amendment to the occupational noisestandard, 29 C.F.R ? 1910.95 (1982);[[6]] the amendment is at sections1910.95(c)-(s). The parties reserved, however, the question of thevalidity of the standards for decision by the judge. Judge Maxwell heldthat the standards were invalid, citing a decision on a pre-enforcementchallenge to the standards under section 6(f) of the Act, 29 U.S.C. ?655(f), by a panel of the United States Court of Appeals for the FourthCircuit. _Forging_ _Industry Association v. Secretary of Labor_, 748F.2d 210 (1984). After the Commission granted the Secretary’s petitionfor discretionary review of Judge Maxwell’s decision, the FourthCircuit, sitting en banc, vacated the panel decision and rejected thechallenges mounted against the standard. _Forging Industry Associationv. Secretary of Labor_, 773 F.2d 1436 (1985) (en banc). After this enbanc decision was issued, DeKalb–who is represented by the sameattorney who represented the Forging Industry Association in itschallenge to the amendment in the Fourth Circuit–no longer pressed allthe challenges it had urged before Judge Maxwell. Instead, itmaintained only that the standard is invalid in one respect. Wetherefore shall confine our review accordingly.DeKalb claims that that the hearing conservation amendment is invalidbecause it is directed toward the conservation of employee hearingrather than an occupational hazard such as noise. DeKalb reasons thatwhile noise is a hazard, and therefore may be regulated under the Act,hearing loss is not. Hearing loss, it argues, is a personal infirmitystemming from causes in addition to noise, such as age, injury anddisease. DeKalb also argues that because the standard applies tohearing loss caused by noise outside the workplace, it is outside OSHA’spower to adopt.DeKalb’s argument does not focus on specific subsections of section1910.95 and explain why they are invalid as applied to the facts allegedin specific citation items. It attacks the validity of the hearingconservation amendment in very general terms. DeKalb’s approach is nothelpful to us in deciding this case, for we do not sit to pass uponabstract arguments. _See_, _e.g_., _Equitable_ _Shipyards, Inc_., 85OSAHRC ____, 12 BNA OSHC 1288, 1293, 1984-85 CCH OSHD ? 27,237, pp.35,163-64 (No. 81-1685, 1985)(controversy about informer’s statementsnot relevant to disputed citation items).We have considered whether DeKalb’s argument relates to the specificcitation items before us and the specific subsections of the standardthat they cite. We find that, on this record, DeKalb’s argument isirrelevant to the citation items before us. We therefore find itunnecessary to pass on the Secretary’s arguments that DeKalb should becollaterally estopped from attacking the standard; that DeKalb should beprecluded from raising the issues now because its trade association, theForging Industry Association, had a full opportunity to do so before theFourth Circuit; and that the Commission should defer to the FourthCircuit’s decision in the pre-enforcement challenge.Some provisions of the hearing conservation amendment require employersto take action only if, as documented by audiometric testing, anemployee has experienced hearing loss. _E.g_., subsections1910.95(j)(8) and (m)(3). Those provision do not make a distinctionbetween hearing loss caused by workplace noise and hearing loss causedby other reasons. If DeKalb had been cited for violations of theseprovisions, its arguments therefore would have been relevant. But itwas not. As we shall discuss in the next paragraph, many citedprovisions of the hearing conservation standard are not triggered byhearing loss but by workplace noise levels above 85 dBA. Others thatare applicable to hearing loss are also applicable if other conditionsobtain, such as workplace noise levels above 85 dBA. DeKalb concedesthat the average noise level in its workplace exceeded 85 dBA. Itagrees with OSHA’s allegation that six of its employees received noisedoses from 390.2 to 999.9 percent of a permissible daily dose; thesedoses are equivalent to receiving eight-hour, time-weighted exposuresranging from 99.8 to 106.6 dBA. See Table A-1 of Appendix A to section1910.95. Further, DeKalb concedes in its brief that excessiveon-the-job noise for long periods of time can be a hazard to employees;it does not argue on review that the Secretary lacks the authority toregulate noise exposure based upon workplace noise levels.We find that none of the citation items before us allege that citedsubsections of the hearing conservation amendment are applicable becauseDeKalb’s employees experienced hearing loss.–Subsection 1910.95(c), cited in item 1A, generally requires a hearingconservation program. It is applicable when average workplace noiselevels equal or exceed 85 dBA.–Subsection (e)(1), cited in item 1B, requires that employees takesteps to monitor workplace noise levels and determine if they exceed 85 dBA.–Subsection (1)(5), cited in item 1C, is triggered by the use ofhearing protectors. They are required by subsections (1)(2)(ii) and(b)(1) when noise levels exceed 90 dBA; as we noted above, however, theaverage noise here exceeded 90 dBA.–Subsection (m)(1), cited in item 1D, requires the employer to evaluatehearing protector attenuation in the specific noise environment in whichhearing protectors will be used; like subsection (1)(5), it isapparently triggered by the use of hearing protectors.–Subsection (m)(2), cited in item 1E, is apparently triggered by eitherthe use of hearing protectors or by noise levels above 90 dBA.–Subsection (n)(1), cited in item 1F, is expressly applicable whenaverage noise levels exceed 85 dBA.–Finally, subsection (o)(1), cited in item 1G, requires that copies ofsection 1910.95 be made available to \”affected employees\” and that theemployer post a copy of the standard in the workplace. Obviously,\”affected employees\” include those exposed to average noise levels above85 dBA.In sum, the citation items before us do not cite provisions of thehearing conservation amendment that are triggered only by hearing loss. They do not allege that a cited provision is applicable becausehearing loss has occurred and they do not attempt to regulatenon-workplace noise. We therefore reject DeKalb’s argument that thecited provisions are invalid on the ground that they regulate hearingloss or non-workplace noise.III. _Discriminatory Enforcement_DeKalb contends that the hearing conservation amendment wasdiscriminatorily enforced against it.[[7]] It notes the Secretary didnot move to withdraw in this case, while other employers had the benefitof a moratorium on the enforcement of that standard. On December 5,1984, shortly after the panel in the _Forging Industry_ case held thatthe hearing conservation amendment was invalid, OSHA temporarily haltedenforcement of that standard. Under this self-imposed moratorium, OSHAannounced that, until further notice, it would not cite employers underthe hearing conservation amendment, and it would withdraw all citationsunder that standard where the 15-day notice of contest period had notyet expired. However, for cases that had been contested, and thus werepending before the Commission, OSHA determined that it would seek staysof the hearing dates, rather than withdraw the citations. On April 19,1985, after the Fourth Circuit granted the Secretary’s petition for ahearing en banc in the _Forging Industry_ case, OSHA ended theenforcement moratorium and resumed full enforcement of the hearingconservation amendment. DeKalb asserts that, during the five-monthperiod when the enforcement moratorium was in effect, it was treateddifferently from all employers who were not cited under the hearingconservation amendment, or who had citations withdrawn as a result ofthe moratorium. For this reason, DeKalb claims that its constitutionalrights of due process and equal protection were violated, and it seeksdismissal of the items cited under the standard.As a general rule, prosecutors have broad discretion as to whom toprosecute. _Wayte v. United States_, 105 S.Ct. 1524, 1531 (1985). Thisbroad prosecutorial discretion applies to the authority of the Secretaryto prosecute violations of the Act. _Cuyahoga_ _Valley Railway v.United Transportation Union_, 106 S.Ct. 286 (1985). Moreover, theconscious exercise of some selectivity in enforcement by itself is not aconstitutional violation. _Oyler v. Boles_, 368 U.S. 488, 506 (1962). Rather, a claim of selective prosecution is judged by ordinary equalprotection standards,[[8]] under which it must be shown that the allegedselective enforcement had a discriminatory effect and was motivated by adiscriminatory purpose. _Wayte_, 105 S.Ct. at 1531; _United States_ v.Mitchell, 778 F.2d 1271, 1277 (7th Cir. 1985). In particular, thedecision to prosecute may not be \”deliberately based upon anunjustifiable standard such as race, religion, or other arbitraryclassification.\” _Wayte_, 105 S.Ct. at 1531 (citation omitted).In this case, there is no evidence that OSHA’s enforcement moratoriumwas arbitrary or based upon an unjustifiable standard, such as race orreligion. Therefore, DeKalb’s claim is insufficient to establish anequal protection violation. _Wayte_, 105 S.Ct. at 1531-32. Further,employers such as DeKalb, whose cases were on review before theCommission during the moratorium, did not face disproportionateobligations under the Act as compared to other employers. Undersection 10 of the Act, 29 U.S.C. ? 659, an employer is not required tocorrect violations of the Act or pay penalties until after the entry ofa final Commission order. Further, the only action taken by theSecretary during the moratorium period was to petition the Commissionfor review of a judge’s decision that was rendered during that period. This was fully consistent with the treatment afforded other employers incases in which a notice of contest had been filed and the case heard: the petition had the effect of staying a final decision in the casewithout prejudice to the Secretary. Failure to have done so would havebeen the equivalent of withdrawing the citation, which would havechanged rather than preserved the status quo. Therefore, the moratoriumhad no discriminatory effect upon DeKalb. Accordingly, we conclude thatDeKalb’s constitutional rights were not violated._IV. The ? 1910.20 Record-Access Citation; Penalties_Item 1A of citation 2 alleges that DeKalb violated 29 C.F.R. ?1910.20(e)(3)(i) because, during the inspection, DeKalb denied theinvestigating industrial hygienist access to employee noise exposurerecords. Item 1B of citation 2 alleges that DeKalb violated 29 C.F.R. ?1910.20(g)(2) because it did not make readily available to employeescopies of that standard.[[9]] The stipulation provides that \”violationsof the standards occurred as described in the Citations.\”DeKalb argues that, if the Commission concludes that the monitoringrequirements under the hearing conservation standard at section1910.95(e)(1) are invalid, it should not be found in violation ofsection 1910.20(e)(3)(i). It asserts that employers should not berequired to provide access to records compiled under an invalidstandard. However, since we ruled above that DeKalb’s invalidityargument is infirm with respect to the monitoring requirements ofsection 1910.95(e)(1), we also conclude that DeKalb was properly citedunder section 1910.20(e)(3)(i) for failure to provide OSHA with accessto employee exposure records required under the hearing conservationamendment.Finally, DeKalb contends that the inspection warrant did not authorizeOSHA to obtain employee exposure records, since the warrant was limitedto \”a review of records required by the Act.\” DeKalb points out thatthe requested records were not required by the Act, but rather bysection 1910.95. The argument is without merit. In promulgatingsection 1910.95(q)(1), which requires that noise exposure records bemaintained, the Secretary acted under the authority of section 8(c)(1)of the Act, 29 U.S.C. ? 657(c)(1), which grants the Secretary theauthority to issue recordkeeping regulations. Thus, the employer’sobligation to maintain such records flows from the Act, and the warranttherefore authorized OSHA to examine them.The parties stipulated that the appropriate penalty for citation No. 1is $450, and that no penalty should be assessed for citation No. 2. Theparties did not offer any argument concerning the penalty. We assessthe penalty amounts agreed to in the stipulation.Accordingly, citation no. 1 is affirmed, and we assess a $450 penalty. Citation no. 2 is affirmed without penalty.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAR 17 1987————————————————————————SECRETARY OF LABOR,Complainantv.DEKALB FORGE COMPANY,a Corporation,Respondent.OSHRC DOCKET NO. 83-0229_DECISION_The respondent is charged with violating the Federal safety standardrelating to occupational noise exposure. There are two citations. Oneis a seven-item \”Serious\” citation. The second is a two-item \”Other\”citation.The facts are not in dispute. They have all been stipulated. The onlyissues are legal ones. They relate to the validity of the hearingconservation standard under which the respondent is charged.The standard here challenged is 29 CFR 1910.95. This standard waspromulgated by complainant in its present form in 1983 as an amendmentto a previously existing hearing conservation regulation. Respondentcontends that the amended version is invalid because it exceeds theauthority granted the Secretary of Labor under the Occupational Safetyand Health Act.The main thrust of respondent’s challenge is that the standard \”attemptsto go far beyond regulation of workplace hazard.\” (Resp. bf. p. 7)Respondent points out that the Act grants authority to regulate possiblesources of injury and illness only in the workplace. However, accordingto respondent, the standard requires employers \”to take actions whichare triggered by subjective physical conditions of individual employeeseven when those conditions do not result from employment hazards.\” (Resp. bf. p. 4)As a threshold matter, the Secretary argues that respondent may notchallenge the validity of a standard in an enforcement action. Such achallenge, he contends, may only be made in the U.S. Court of Appealswithin 60 days after a standard is promulgated. See Sec. 6(f) of the Act.Commission precedent does not agree with the Secretary’s position. In_Kennecott Copper Corp_., the Commission stated, \”Complainant’scontention that the Commission lacks authority to review the validity ofa standard is rejected.\” 4 OSHC (1976) affirmed 577 F2d 1113 (10th Cir.1977). See also _Rockwell International Corp_., 9 OSHC 1092 (1980);_Weatherby Engineering_ _Co_., 9 OSHC 1292 (1981).Thus we reach the principal question: Does the 1983 hearingconservation amendment exceed the scope of OSHA’s authority?Until last month, this question had never been ruled on, either by theCommission or in the courts. On November 7, however, the Fourth CircuitU.S. Court of Appeals struck down the new standard. _Forging IndustryAssociation v. Secretary of Labor_ No. 83-1420.The Fourth Circuit Court, upon examining the language of the Act, foundthat Congress had permitted OSHA to adopt \”only those standards whichrelate to health and safety _at the workplace_.\” (Emphasis by thecourt) The revised standard, according to the court, would improperlyrequire an employer to take action relating to hazards existing outsidethe workplace. The Circuit Court said:A standard is invalid if it requires an employer to take actions inregard to hazards existing outside the workplace. It is clear from thelanguage of the hearing conservation amendment, as well as the recordbefore this court, that under the amendment employers may be subjectedto requirements and penalties may be imposed as a result ofnon-workplace hazards. The amendment’s requirements are triggeredwhenever an employee suffers a standard threshold shift loss in hearing. It is obvious that such a hearing loss can result from non-occupationalnoise exposure just as easily as it can from occupational exposure. Airplanes, hunting rifles, loud music and a myriad of other sourcesproduce noise potentially as damaging as any at the workplace. Yet theAmendment makes no distinction between hearing loss caused by workplacesources and loss caused by non-workplace sources. The rule-makingrecord clearly provides that once a hearing loss is found, the amendmentrequires the _same_ actions by the employer \”whether or not the (loss)is work-related,\” 48 Fed. Reg. 9764\/2, and that the subject rulecontains no requirement that there be \”a determination of workrelatedness.\” Id. at 9678\/1. (Emphasis by the court)The soundness of this view, as well as the constraints of the salutaryrule of stare decisis oblige me to adopt the same course in the instantcase. I therefore conclude that 29 C.F.R. 1910.95 is invalid, and thatthe citations herein should be vacated.ORDER Serious Citation No. 1 and Other Citation No. 2 are hereby in allthings vacated.Ralph B. MaxwellJudge, OSHRCDated: January 9, 1985 FOOTNOTES:[[1]] We take this to mean that all evidence possessed by the Secretaryin support of the alleged violations was gathered pursuant to thewarrant and that suppression of that evidence would require that thecitations be vacated.[[2]] The 1983 version of OSHA’s _Field Operations Manual_ is reproducedin CCH Employment Safety & Health Guide, _OSHA_ _Field Operations Manualand Industrial Hygiene Field Operations Manual_ (1983). DeKalb refersto the FOM generally, without stating which particular provisions of theFOM should have been published. We note that Chapter III of the FOM istitled \”General inspection Procedures,\” and section D of that chapter istitled \”Conduct of the Inspection.\” As DeKalb notes in its brief, theFOM is incorporated by reference within OSHA instruction 2.25C, and thatinstruction was attached to the warrant application.[[3]] Commissioner Wall also notes that criminal prosecution under theAct is extremely rare.[[4]] DeKalb cites _Brock v. Gretna Machine & Ironworks_, 769 F.2d 1110(5th Cir. 1985), where the Fifth Circuit held that a warrant wasdefective because it did not contain an adequate description of themanner in which the employer was selected for a programmed healthinspection. While the holding in _Gretna_ is consistent with DeKalb’sargument here, there is no indication that this case is appealable tothe Fifth Circuit. Therefore, Commissioner Wall will not apply _Gretna_to this case.[[5]] DeKalb also argues that the magistrate was not presented withsufficient information to inform him of the scope of the inspection andthe manner in which it would be conducted. Commissioner Wall concludesthat this argument is without merit, since the warrant applicationclearly indicated that a full-scope OSHA inspection was requested, andadequately described the manner in which it would be performed. _Cf_._Chromalloy_, 589 F.2d at 1343-44 (warrant’s language sufficientlyapprised employer of inspection’s scope and purpose). Further, becausethe warrant application was sufficiently specific in describing OSHA’sinspection procedures, Commissioner Wall also rejects DeKalb’s argumentthat the warrant was defective because the magistrate was not presentedwith the pages of the Field Operations Manual that described how theinspection would be conducted.[[6]] All citations are to the 1982 edition of the Code of FederalRegulations, which contains the version of the hearing conservationamendment that DeKalb is alleged to have violated.[[7]] The parties’ stipulation did not expressly reserve this issue fordecision. We review it here because the events of which DeKalbcomplains arose after the stipulation was entered into.[[8]] The equal protection clause of the Fourteenth Amendment to theConstitution applies only to the states. However, equal protection maybe implicitly required under the due process clause of the FifthAmendment, which applies to the federal government. _See_ _generally__Bolling v. Sharpe_, 347 U.S. 497, 499 (1954).[[9]] With respect to this item, the stipulation provides that DeKalbdid not make readily available to employees copies of section 1910._95_. This reference to section 1910.95 appears to be, inadvertent. Weconclude, based on the wording of the citation and of ? 1910.20(g)(2)that the parties intended to stipulate that copies of section 1910._20_were not made readily available to employees.”