“Docket No. 83-0299 SECRETARY OF LABOR, Complainant, v. DEKALB FORGE COMPANY, Respondent.OSHRC Docket No. 83-0299DECISION Before:\u00a0 BUCKLEY, Chairman, and WALL,Commissioner.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration.\u00a0 It was established to resolvedisputes arising out of enforcement actions brought by the Secretary of Labor under theAct and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C.? 659(c).DeKalb Forge Company operates a forging shop inDeKalb, Illinois.\u00a0 OSHA inspected the shop under a warrant.\u00a0 DeKalb did notrefuse to honor the warrant, and it did not challenge the warrant’s validity in any forumother than the Commission.\u00a0 Following the inspection, OSHA issued a citation allegingthat DeKalb violated seven subsections of the hearing conservation amendment to theoccupational noise standard, 29 C.F.R. ? 1910.95.\u00a0 A second citation arising fromthe same inspection alleged that DeKalb had violated two subsections of 29 C.F.R. ?1910.20, entitled \”Access to employee exposure and medical records.\”\u00a0Administrative Law Judge Ralph B. Maxwell relied on a decision of a panel of theUnited States Court of Appeals for the Fourth Circuit that the hearing conservationamendment was invalid; he therefore vacated all items in the first citation.\u00a0 He alsovacated the items in the second citation, apparently concluding that the invalidity of thehearing conservation amendment relieved DeKalb from its duty to comply with the citedsubsections of section 1910.20.The Secretary obtained Commission review of thejudge’s decision.\u00a0 The issues raised by the parties on review involve whether thehearing conservation amendment is invalid, whether evidence should be suppressed becausethe inspection under the warrant was unlawful, and whether DeKalb was subject todiscriminatory enforcement in violation of its due process and equal protection rights.For the reasons that follow, we conclude that the evidence obtained during the inspectionshould not be suppressed, that DeKalb’s arguments against the validity of the hearingconservation amendment are not pertinent to the violations at issue in this case, and thatDeKalb’s due process and equal protection rights were not violated.I.\u00a0 Inspection IssuesThe warrant under which DeKalb’s forge shop wasinspected was issued on February 4, 1983, by a magistrate of the United States DistrictCourt for the Northern District of Illinois.\u00a0 According to the warrant application,the workplace was chosen for inspection in accordance with a general administrative planfor enforcement of the Act.\u00a0 DeKalb filed a motion before Judge Maxwell to suppressthe evidence gathered during the inspection on the basis that the warrant was invalid.\u00a0In a pre-hearing ruling, the judge denied DeKalb’s motion.The parties then agreed to waive a hearing on the merits and to submit the case fordisposition upon stipulated facts.\u00a0 The stipulation incorporated by reference theparties’ \”prior controversy\” concerning the validity of the warrant.[[1]] \u00a0DeKalb makes five separate arguments that the inspection was unlawful.DeKalb argues that OSHA’s inspection program wasunlawful because the Secretary’s written procedures that define the scope and the mannerin which inspections will be conducted, which are set forth in OSHA’s Field OperationsManual (FOM), were not published in compliance with section 3 of the AdministrativeProcedure Act (\”APA\”), 5 U.S.C. ? 552(a)(1).[[2]]\u00a0 Section 552(a)(1)requires publication of certain agency documents in the Federal Register.\u00a0 DeKalbclaims that it was adversely affected by the Secretary’s failure to follow the APA, sinceunder the FOM it was subject to a wall-to-wall inspection of its facility rather than aless intrusive search.In Phoenix Forging Co., 85 OSAHRC ______, 12BNA 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 an inspection was unlawfulbecause the Secretary failed to publish an OSHA enforcement directive in compliance withthe APA.\u00a0 Phoenix was based upon the well-established principle of law that anagency need not comply with the publication requirements of section 552 if its documentdoes not impose obligations or contain matters to which persons must refer in formulatingtheir conduct towards the government. Following the same analysis as in Phoenix, weconclude that the FOM falls outside of the publication requirement of section 552(a)(1).\u00a0While the FOM contains procedural guidelines for the conduct of OSHA inspections,the FOM does not impose any obligations upon employers.\u00a0 Accordingly, we rejectDeKalb’s argument that the inspection was unlawful because the Secretary failed to publishthe FOM in accordance with section 552(a)(1) of the APA.DeKalb also contends that the warrant is overly broadin scope in two respects, which we will discuss separately.\u00a0 First, DeKalb points outthat paragraph E.4.e of OSHA Instruction CPL 2.25C, which was attached to the warrantapplication, provides that all programmed health inspections shall be \”conductedwithin the guidelines . . . in the Field Operations Manual.\” \u00a0Chapter III, ?D.8.d(2) of the FOM in turn provides that, when an employee complaint is made during theinspection, the inspector \”shall inspect, where possible, for the alleged violationand record the findings.\”\u00a0 DeKalb argues that this FOM provision violates theFourth Amendment to the Constitution because it requires the investigation of employeecomplaints made during the inspection regardless of whether they are supported by probablecause.We reject this argument.\u00a0 DeKalb is arguing thatthe warrant is overbroad because of material contained in the application. However, it isthe warrant that controls the permissible scope of an inspection, not the warrantapplication.\u00a0 DeKalb’s argument amounts to nothing more than speculation that an OSHAinspector might conduct a broader inspection than a warrant authorizes becauseinstructions in the FOM might be read to expand the permissible scope of an inspection.\u00a0When and if this occurs, an employer may seek appropriate relief from theCommission.\u00a0 See Pennsylvania Steel Foundry & Machine Co., 86OSAHRC _____, 12 BNA 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).\u00a0 We notealso that the warrant authorized a full-scope inspection; it is therefore difficult toimagine how any employee complaint could have caused a compliance officer to investigatematters beyond the scope of the warrant.DeKalb also contends that the warrant was overlybroad in scope because it was not limited to the civil, remedial aspects of the Act.DeKalb asserts that the warrant should have been so limited, because it was obtained underan administrative, rather than a criminal, probable cause standard.In ruling on this argument, Chairman Buckley andCommissioner Wall agree that the Commission ought not to suppress the evidence. \u00a0However, Chairman Buckley would not reach the merits of the argument because it questionsthe judgment of the magistrate in issuing the warrant, rather than the conduct of OSHApersonnel.\u00a0 In Chairman Buckley’s view, the Commission, as an agency within theexecutive branch, has no authority to review the actions of a judicial officer of a courtcreated under Article III of the Constitution.\u00a0 E.g., Phoenix Forging,12 BNA OSHC at 1319, 1985 CCH OSHD at pp. 35,211-12 (view of Chairman Buckley), and casescited therein.Commissioner Wall does not limit his inquiry in themanner of Chairman Buckley.\u00a0 In his view, the Commission has the authority to rule onissues concerning the scope of the warrant in determining whether evidence should besuppressed.\u00a0 See Pennsylvania Steel, 12 BNA OSHC at 2023-24, 1986 CCHOSHD at p. 36,067 (view of Commissioner Wall)(Commission has authority to determinewhether warrant is supported by probable cause).\u00a0 He therefore rejects DeKalb’sargument because it is without merit.\u00a0 There is no evidence that OSHA personnelsuspected criminal violations, or were seeking to find evidence of such violations. \u00a0Rather, based on this record, the conclusion must be drawn that this inspection, like thevast majority of OSHA inspections, focused upon the civil provisions of theAct.[[3]]\u00a0 Probable cause in the administrative sense was, therefore, all that wasnecessary.\u00a0 Michigan v. Tyler, 436 U.S. 499 (1978); Donovan v. WollastonAlloys, Inc., 695 F.2d 1, 4-5 (1st Cir. 1982).\u00a0 There is also no occasion in thiscase to consider whether the warrant precluded the inspector from observing evidence ofcriminal conduct during the inspection.\u00a0 This is not a criminal prosecution.\u00a0 Ifevidence were gathered under this warrant to support a criminal prosecution againstDeKalb, DeKalb could raise its objection to the warrant and move to suppress the evidencein the criminal proceeding.DeKalb argues that the inspection was unlawfulbecause, according to the dates listed in the citations and the stipulation, part of theinspection occurred after the warrant’s time limit had expired.\u00a0 DeKalb points outthat the warrant, which was issued on February 4, 1983, required that a return be made tothe court within 10 days showing that the inspection had been completed.\u00a0 However,the citations and the stipulation list the inspection dates as February 10 through March10, 1983.\u00a0 DeKalb therefore asserts that this case presents a \”stipulatedviolation\” of its Fourth Amendment rights.DeKalb’s argument is without merit.\u00a0 Although DeKalb’s brief does not mention thefact, the stipulation itself indicates that the warrant’s limits were not exceeded, sinceit states that DeKalb’s workplace was inspected \”pursuant to the authority of, and .. . in accordance with, the terms of a warrant issued on February 4, 1983 . . . .\”Further, the stipulation contains, in numbered paragraphs, brief descriptions of the factsunderlying each alleged violation; in each of these descriptions, the date listed iseither February 10 or February 11, 1983.\u00a0 The listing of those dates creates thestrong inference that OSHA gathered its evidence with respect to the cited items beforethe warrant’s time limit expired.\u00a0 Viewing the stipulation as a whole, we concludethat it establishes that the inspection was conducted in compliance with the warrant,rather than in an unlawful manner as DeKalb claims.DeKalb’s remaining two suppression arguments concernwhether the warrant was supported by probable cause.\u00a0 Inasmuch as these argumentsrelate directly to the judgment of the magistrate in issuing the warrant, Chairman Buckleyconcludes that the Commission has no authority to review them. \u00a0Although CommissionerWall would review these issues, he would not suppress the evidence.DeKalb argues that the warrant was invalid becausethe issuing magistrate was not provided with enough information to establish probablecause.\u00a0 The warrant application stated that employers were selected and scheduled foradministrative plan inspections according to an inspection register prepared in each OSHAArea Office.\u00a0 The application also stated that, in determining which employers wouldbe selected for health inspections, OSHA ranks industries according to the degree ofexposure to potential health hazards, and that DeKalb’s industry currently ranked eleventhon that list.\u00a0 However, neither the inspection register nor the industry rank listwas presented to the magistrate.\u00a0 DeKalb contends that, as a result, the magistratewas not presented with sufficient information to determine whether DeKalb wasappropriately selected under OSHA’s administrative plan for inspections, or whether thewarrant 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 administrative standards forconducting an inspection are satisfied with respect to a particular establishment.\u00a0While Barlow’s did not state specifically what averments in a warrantapplication, at a minimum, would meet that probable cause standard, the Seventh Circuitwas presented with that issue in Marshall v. Chromalloy American Corp., 589F.2d 1335, 1341-43 (7th Cir. 1979).\u00a0 In Chromalloy, the warrant affidavit stated thatan inspection was sought based upon a \”National-Local plan designed to achievesignificant reduction in the high incidence of occupational injuries and illnesses foundin the metal-working and foundry industry.\”\u00a0 The Seventh Circuit, relyingentirely upon the above-quoted language, held that the affidavit was sufficient toestablish probable cause for an administrative plan inspection, and therefore the warrantwas valid.\u00a0 The Seventh Circuit specifically rejected the argument that themagistrate must be presented with information such as \”a complete set of updatedindustry statistics, the validity of these statistics, the rationale for applying aparticular index factor to the [employer’s] industry, and the reason for inspecting [thatindustry] in lieu of another industry.\”\u00a0 589 F.2d at 1342.\u00a0 See alsoMarshall v. Milwaukee Boiler 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 the decisions of thecourts of appeals in cases within the jurisdictions of those courts.\u00a0 SynkotePaint Co., 86 OSAHRC _____, 12 BNA OSHC 2036, 2042-43, 1986 CCH OSHD ? 27,675, p.36,089 (No. 83-2, 1986).\u00a0 DeKalb is located in the Seventh Circuit. \u00a0Commissioner Wall would therefore reject DeKalb’s suppression argument underChromalloy.\u00a0 Because the warrant application in this case is much more detailed indescribing OSHA’s inspection plan than the warrant application approved in Chromalloy, themagistrate was provided with sufficient information to support a finding of probablecause.[[4]]\u00a0 Accordingly, Commissioner Wall concludes that the evidence should not besuppressed.[[5]]Finally, DeKalb contends that the evidence should besuppressed because the magistrate was not informed of DeKalb’s inspection history or ofthe desired frequency that OSHA would inspect companies listed on the inspectionregister.\u00a0 DeKalb asserts that, without this information, the magistrate could notknow whether DeKalb was being harassed by multiple inspections within a short period oftime, or whether the selection of DeKalb was inconsistent with OSHA procedures concerningthe timing of inspections. DeKalb does not claim, however, that it was actually harassedby OSHA, or that OSHA incorrectly followed its procedures.Commissioner Wall concludes that the evidence shouldnot be suppressed.\u00a0 The magistrate was given some assurance that DeKalb would not besubject to excessively frequent inspections, since the warrant application asserted thatOSHA instruction CPL 2.25C (which was attached to the application) would be followed.\u00a0Section 1.1.a.(2)(b)(D) of CPL 2.25 states that a programmed health inspection of anestablishment will not be conducted if a:[s]ubstantially complete health inspection has beenconducted within the current or previous three fiscal years with no serious violationscited or, where serious violations were cited, an acceptable abatement letter or afollow-up inspection has documented \”good faith\” efforts to abate all serioushazards.Commissioner Wall finds that the magistrate wasentitled to presume that the Secretary was following these criteria.II.\u00a0 The Validity of the StandardsThe parties stipulated before Judge Maxwell that\”violations of the standards occurred as described in the Citations.\” \u00a0Those standards are part 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).\u00a0 The parties reserved, however, the question of the validity of thestandards for decision by the judge.\u00a0 Judge Maxwell held that the standards wereinvalid, citing a decision on a pre-enforcement challenge to the standards under section6(f) of the Act, 29 U.S.C. ? 655(f), by a panel of the United States Court of Appeals forthe Fourth Circuit.\u00a0 Forging Industry Association v. Secretary of Labor,748 F.2d 210 (1984).\u00a0 After the Commission granted the Secretary’s petition fordiscretionary review of Judge Maxwell’s decision, the Fourth Circuit, sitting en banc,vacated the panel decision and rejected the challenges mounted against the standard.\u00a0 Forging Industry Association v. Secretary of Labor, 773 F.2d 1436 (1985) (enbanc). After this en banc decision was issued, DeKalb–who is represented by the sameattorney who represented the Forging Industry Association in its challenge to theamendment in the Fourth Circuit–no longer pressed all the challenges it had urged beforeJudge Maxwell.\u00a0 Instead, it maintained only that the standard is invalid in onerespect.\u00a0 We therefore shall confine our review accordingly.DeKalb claims that that the hearing conservationamendment is invalid because it is directed toward the conservation of employee hearingrather than an occupational hazard such as noise.\u00a0 DeKalb reasons that while noise isa hazard, and therefore may be regulated under the Act, hearing loss is not.\u00a0 Hearingloss, it argues, is a personal infirmity stemming from causes in addition to noise, suchas age, injury and disease.\u00a0 DeKalb also argues that because the standard applies tohearing loss caused by noise outside the workplace, it is outside OSHA’s power to adopt.DeKalb’s argument does not focus on specificsubsections of section 1910.95 and explain why they are invalid as applied to the factsalleged in specific citation items.\u00a0 It attacks the validity of the hearingconservation amendment in very general terms.\u00a0 DeKalb’s approach is not helpful to usin deciding this case, for we do not sit to pass upon abstract arguments.\u00a0 See,e.g., Equitable Shipyards, Inc., 85 OSAHRC ____, 12 BNA OSHC 1288,1293, 1984-85 CCH OSHD ? 27,237, pp. 35,163-64 (No. 81-1685, 1985)(controversy aboutinformer’s statements not relevant to disputed citation items).We have considered whether DeKalb’s argument relatesto the specific citation items before us and the specific subsections of the standard thatthey cite.\u00a0 We find that, on this record, DeKalb’s argument is irrelevant to thecitation items before us.\u00a0 We therefore find it unnecessary to pass on theSecretary’s arguments that DeKalb should be collaterally estopped from attacking thestandard; that DeKalb should be precluded from raising the issues now because its tradeassociation, the Forging Industry Association, had a full opportunity to do so before theFourth Circuit; and that the Commission should defer to the Fourth Circuit’s decision inthe pre-enforcement challenge.Some provisions of the hearing conservation amendmentrequire employers to take action only if, as documented by audiometric testing, anemployee has experienced hearing loss.\u00a0 E.g., subsections 1910.95(j)(8) and(m)(3).\u00a0 Those provision do not make a distinction between hearing loss caused byworkplace noise and hearing loss caused by other reasons.\u00a0 If DeKalb had been citedfor violations of these provisions, its arguments therefore would have been relevant.\u00a0But it was not.\u00a0 As we shall discuss in the next paragraph, many citedprovisions of the hearing conservation standard are not triggered by hearing loss but byworkplace noise levels above 85 dBA.\u00a0 Others that are applicable to hearing loss arealso applicable if other conditions obtain, such as workplace noise levels above 85 dBA.\u00a0 DeKalb concedes that the average noise level in its workplace exceeded 85 dBA.\u00a0It agrees with OSHA’s allegation that six of its employees received noise doses from390.2 to 999.9 percent of a permissible daily dose; these doses are equivalent toreceiving eight-hour, time-weighted exposures ranging from 99.8 to 106.6 dBA.\u00a0 SeeTable A-1 of Appendix A to section 1910.95.\u00a0 Further, DeKalb concedes in its briefthat excessive on-the-job noise for long periods of time can be a hazard to employees; itdoes not argue on review that the Secretary lacks the authority to regulate noise exposurebased upon workplace noise levels.We find that none of the citation items before usallege that cited subsections of the hearing conservation amendment are applicable becauseDeKalb’s employees experienced hearing loss.–Subsection 1910.95(c), cited in item 1A, generallyrequires a hearing conservation program.\u00a0 It is applicable when average workplacenoise levels equal or exceed 85 dBA.–Subsection (e)(1), cited in item 1B, requires thatemployees take steps to monitor workplace noise levels and determine if they exceed 85dBA.–Subsection (1)(5), cited in item 1C, is triggeredby the use of hearing protectors.\u00a0 They are required by subsections (1)(2)(ii) and(b)(1) when noise levels exceed 90 dBA; as we noted above, however, the average noise hereexceeded 90 dBA.–Subsection (m)(1), cited in item 1D, requires theemployer to evaluate hearing protector attenuation in the specific noise environment inwhich hearing protectors will be used; like subsection (1)(5), it is apparently triggeredby the use of hearing protectors.–Subsection (m)(2), cited in item 1E, is apparentlytriggered by either the use of hearing protectors or by noise levels above 90 dBA.–Subsection (n)(1), cited in item 1F, is expresslyapplicable when average noise levels exceed 85 dBA.–Finally, subsection (o)(1), cited in item 1G,requires that copies of section 1910.95 be made available to \”affectedemployees\” and that the employer post a copy of the standard in the workplace.\u00a0Obviously, \”affected employees\” include those exposed to average noiselevels above 85 dBA.In sum, the citation items before us do not citeprovisions of the hearing conservation amendment that are triggered only by hearing loss.\u00a0 They do not allege that a cited provision is applicable because hearing loss hasoccurred and they do not attempt to regulate non-workplace noise.\u00a0 We thereforereject DeKalb’s argument that the cited provisions are invalid on the ground that theyregulate hearing loss or non-workplace noise.III.\u00a0 Discriminatory EnforcementDeKalb contends that the hearing conservationamendment was discriminatorily enforced against it.[[7]]\u00a0 It notes the Secretary didnot move to withdraw in this case, while other employers had the benefit of a moratoriumon the enforcement of that standard.\u00a0 On December 5, 1984, shortly after the panel inthe Forging Industry case held that the hearing conservation amendment was invalid,OSHA temporarily halted enforcement of that standard.\u00a0 Under this self-imposedmoratorium, OSHA announced that, until further notice, it would not cite employers underthe hearing conservation amendment, and it would withdraw all citations under thatstandard where the 15-day notice of contest period had not yet expired.\u00a0 However, forcases that had been contested, and thus were pending before the Commission, OSHAdetermined that it would seek stays of the hearing dates, rather than withdraw thecitations. On April 19, 1985, after the Fourth Circuit granted the Secretary’s petitionfor a hearing en banc in the Forging Industry case, OSHA ended the enforcementmoratorium and resumed full enforcement of the hearing conservation amendment. \u00a0DeKalb asserts that, during the five-month period when the enforcement moratorium was ineffect, it was treated differently from all employers who were not cited under the hearingconservation amendment, or who had citations withdrawn as a result of themoratorium.\u00a0 For this reason, DeKalb claims that its constitutional rights of dueprocess and equal protection were violated, and it seeks dismissal of the items citedunder the standard.As a general rule, prosecutors have broad discretionas to whom to prosecute.\u00a0 Wayte v. United States, 105 S.Ct. 1524, 1531(1985).\u00a0 This broad prosecutorial discretion applies to the authority of theSecretary to prosecute violations of the Act.\u00a0 Cuyahoga Valley Railway v.United Transportation Union, 106 S.Ct. 286 (1985).\u00a0 Moreover, the consciousexercise of some selectivity in enforcement by itself is not a constitutional violation.\u00a0 Oyler v. Boles, 368 U.S. 488, 506 (1962).\u00a0 Rather, a claim of selectiveprosecution is judged by ordinary equal protection standards,[[8]] under which it must beshown that the alleged selective enforcement had a discriminatory effect and was motivatedby a discriminatory purpose.\u00a0 Wayte, 105 S.Ct. at 1531; United Statesv. Mitchell, 778 F.2d 1271, 1277 (7th Cir. 1985).\u00a0 In particular, the decision toprosecute may not be \”deliberately based upon an unjustifiable standard such as race,religion, or other arbitrary classification.\”\u00a0 Wayte, 105 S.Ct. at 1531(citation omitted).In this case, there is no evidence that OSHA’senforcement moratorium was arbitrary or based upon an unjustifiable standard, such as raceor religion.\u00a0 Therefore, DeKalb’s claim is insufficient to establish an equalprotection violation.\u00a0 Wayte, 105 S.Ct. at 1531-32.\u00a0 Further, employerssuch as DeKalb, whose cases were on review before the Commission during the moratorium,did not face disproportionate obligations under the Act as compared to other employers.\u00a0 Under section 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 of a final Commissionorder.\u00a0 Further, the only action taken by the Secretary during the moratorium periodwas to petition the Commission for review of a judge’s decision that was rendered duringthat period.\u00a0 This was fully consistent with the treatment afforded other employersin cases in which a notice of contest had been filed and the case heard:\u00a0 thepetition had the effect of staying a final decision in the case without prejudice to theSecretary.\u00a0 Failure to have done so would have been the equivalent of withdrawing thecitation, which would have changed rather than preserved the status quo.\u00a0 Therefore,the moratorium had no discriminatory effect upon DeKalb.\u00a0 Accordingly, we concludethat DeKalb’s constitutional rights were not violated.IV.\u00a0 The ? 1910.20 Record-Access Citation;PenaltiesItem 1A of citation 2 alleges that DeKalb violated 29C.F.R. ? 1910.20(e)(3)(i) because, during the inspection, DeKalb denied the investigatingindustrial hygienist access to employee noise exposure records.\u00a0 Item 1B of citation2 alleges that DeKalb violated 29 C.F.R. ? 1910.20(g)(2) because it did not make readilyavailable to employees copies of that standard.[[9]]\u00a0 The stipulation provides that\”violations of the standards occurred as described in the Citations.\”DeKalb argues that, if the Commission concludes thatthe monitoring requirements under the hearing conservation standard at section1910.95(e)(1) are invalid, it should not be found in violation of section1910.20(e)(3)(i).\u00a0 It asserts that employers should not be required to provide accessto records compiled under an invalid standard.\u00a0 However, since we ruled above thatDeKalb’s invalidity argument is infirm with respect to the monitoring requirements ofsection 1910.95(e)(1), we also conclude that DeKalb was properly cited under section1910.20(e)(3)(i) for failure to provide OSHA with access to employee exposure recordsrequired under the hearing conservation amendment.Finally, DeKalb contends that the inspection warrantdid not authorize OSHA to obtain employee exposure records, since the warrant was limitedto \”a review of records required by the Act.\”\u00a0 DeKalb points out that therequested records were not required by the Act, but rather by section 1910.95. \u00a0 Theargument is without merit.\u00a0 In promulgating section 1910.95(q)(1), which requiresthat noise exposure records be maintained, the Secretary acted under the authority ofsection 8(c)(1) of the Act, 29 U.S.C. ? 657(c)(1), which grants the Secretary theauthority to issue recordkeeping regulations.\u00a0 Thus, the employer’s obligation tomaintain such records flows from the Act, and the warrant therefore authorized OSHA toexamine them.The parties stipulated that the appropriate penalty for citation No. 1 is $450, and thatno penalty should be assessed for citation No. 2.\u00a0 The parties did not offer anyargument concerning the penalty.\u00a0 We assess the penalty amounts agreed to in thestipulation.Accordingly, citation no. 1 is affirmed, and weassess a $450 penalty.\u00a0 Citation no. 2 is affirmed without penalty.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED:\u00a0 MAR 17 1987SECRETARY OF LABOR, Complainant v. DEKALB FORGE COMPANY, a Corporation, Respondent.OSHRC DOCKET NO. 83-0229DECISIONThe respondent is charged with violating the Federalsafety standard relating to occupational noise exposure.\u00a0 There are twocitations.\u00a0 One is a seven-item \”Serious\” citation.\u00a0 The second is atwo-item \”Other\” citation.The facts are not in dispute.\u00a0 They have allbeen stipulated.\u00a0 The only issues are legal ones.\u00a0 They relate to the validityof the hearing conservation standard under which the respondent is charged.The standard here challenged is 29 CFR 1910.95.\u00a0This standard was promulgated by complainant in its present form in 1983 as anamendment to a previously existing hearing conservation regulation.\u00a0 Respondentcontends that the amended version is invalid because it exceeds the authority granted theSecretary of Labor under the Occupational Safety and Health Act.The main thrust of respondent’s challenge is that the standard \”attempts to go farbeyond regulation of workplace hazard.\”\u00a0 (Resp. bf. p. 7) Respondent points outthat the Act grants authority to regulate possible sources of injury and illness only inthe workplace. However, according to respondent, the standard requires employers \”totake actions which are triggered by subjective physical conditions of individual employeeseven when those conditions do not result from employment hazards.\”\u00a0 (Resp. bf.p. 4)As a threshold matter, the Secretary argues thatrespondent may not challenge the validity of a standard in an enforcement action. Such achallenge, he contends, may only be made in the U.S. Court of Appeals within 60 days aftera standard is promulgated.\u00a0 See Sec. 6(f) of the Act.Commission precedent does not agree with theSecretary’s position.\u00a0 In Kennecott Copper Corp., the Commission stated,\”Complainant’s contention that the Commission lacks authority to review the validityof a standard is rejected.\”\u00a0 4 OSHC (1976) affirmed 577 F2d 1113 (10th Cir.1977).\u00a0 See also Rockwell International Corp., 9 OSHC 1092 (1980); WeatherbyEngineering Co., 9 OSHC 1292 (1981).Thus we reach the principal question:\u00a0 Does the1983 hearing conservation amendment exceed the scope of OSHA’s authority?Until last month, this question had never been ruledon, either by the Commission or in the courts.\u00a0 On November 7, however, the FourthCircuit U.S. Court of Appeals struck down the new standard.\u00a0 Forging IndustryAssociation v. Secretary of Labor No. 83-1420.The Fourth Circuit Court, upon examining the language of the Act, found that Congress hadpermitted OSHA to adopt \”only those standards which relate to health and safety atthe workplace.\”\u00a0 (Emphasis by the court)\u00a0 The revised standard,according to the court, would improperly require an employer to take action relating tohazards existing outside the workplace.\u00a0 The Circuit Court said:A standard is invalid if it requires an employer totake actions in regard to hazards existing outside the workplace.\u00a0 It is clear fromthe language of the hearing conservation amendment, as well as the record before thiscourt, that under the amendment employers may be subjected to requirements and penaltiesmay be imposed as a result of non-workplace hazards.\u00a0 The amendment’s requirementsare triggered whenever an employee suffers a standard threshold shift loss in hearing.\u00a0It is obvious that such a hearing loss can result from non-occupational noiseexposure just as easily as it can from occupational exposure.\u00a0 Airplanes, huntingrifles, loud music and a myriad of other sources produce noise potentially as damaging asany at the workplace.\u00a0 Yet the Amendment makes no distinction between hearing losscaused by workplace sources and loss caused by non-workplace sources.\u00a0 Therule-making record clearly provides that once a hearing loss is found, the amendmentrequires the same actions by the employer \”whether or not the (loss) iswork-related,\” 48 Fed. Reg. 9764\/2, and that the subject rule contains no requirementthat there be \”a determination of work relatedness.\”\u00a0 Id. at 9678\/1.(Emphasis by the court)The soundness of this view, as well as the constraints of the salutary rule of staredecisis oblige me to adopt the same course in the instant case.\u00a0 I therefore concludethat 29 C.F.R. 1910.95 is invalid, and that the citations herein should be vacated.ORDER Serious Citation No. 1 and Other Citation No. 2are hereby in all things vacated.Ralph B. Maxwell Judge, OSHRCDated:\u00a0 January 9, 1985\u00a0FOOTNOTES: [[1]] We take this to mean that all evidencepossessed by the Secretary in support of the alleged violations was gathered pursuant tothe warrant and that suppression of that evidence would require that the citations bevacated.[[2]] The 1983 version of OSHA’s Field OperationsManual is reproduced in CCH Employment Safety & Health Guide, OSHA FieldOperations Manual and Industrial Hygiene Field Operations Manual (1983). \u00a0DeKalbrefers to the FOM generally, without stating which particular provisions of the FOM shouldhave been published.\u00a0 We note that Chapter III of the FOM is titled \”Generalinspection Procedures,\” and section D of that chapter is titled \”Conduct of theInspection.\”\u00a0 As DeKalb notes in its brief, the FOM is incorporated by referencewithin OSHA instruction 2.25C, and that instruction was attached to the warrantapplication.[[3]] Commissioner Wall also notes that criminalprosecution under the Act 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 warrantwas defective because it did not contain an adequate description of the manner in whichthe employer was selected for a programmed health inspection.\u00a0 While the holding in Gretnais consistent with DeKalb’s argument here, there is no indication that this case isappealable to the Fifth Circuit.\u00a0 Therefore, Commissioner Wall will not apply Gretnato this case.[[5]] DeKalb also argues that the magistrate was notpresented with sufficient information to inform him of the scope of the inspection and themanner in which it would be conducted.\u00a0 Commissioner Wall concludes that thisargument is without merit, since the warrant application clearly indicated that afull-scope OSHA inspection was requested, and adequately described the manner in which itwould be performed.\u00a0 Cf. Chromalloy, 589 F.2d at 1343-44 (warrant’slanguage sufficiently apprised employer of inspection’s scope and purpose).\u00a0 Further,because the warrant application was sufficiently specific in describing OSHA’s inspectionprocedures, Commissioner Wall also rejects DeKalb’s argument that the warrant wasdefective because the magistrate was not presented with the pages of the Field OperationsManual that described how the inspection would be conducted.[[6]] All citations are to the 1982 edition of theCode of Federal Regulations, which contains the version of the hearing conservationamendment that DeKalb is alleged to have violated.[[7]] The parties’ stipulation did not expresslyreserve this issue for decision.\u00a0 We review it here because the events of whichDeKalb complains arose after the stipulation was entered into.[[8]] The equal protection clause of the FourteenthAmendment to the Constitution applies only to the states.\u00a0 However, equal protectionmay be implicitly required under the due process clause of the Fifth Amendment, whichapplies to the federal government.\u00a0 See generally Bolling v. Sharpe,347 U.S. 497, 499 (1954).[[9]] With respect to this item, the stipulationprovides that DeKalb did not make readily available to employees copies of section 1910.95.\u00a0 This reference to section 1910.95 appears to be, inadvertent.\u00a0 We conclude,based on the wording of the citation and of ? 1910.20(g)(2) that the parties intended tostipulate that copies of section 1910.20 were not made readily available toemployees.”