“SECRETARY OF LABOR,Complainant,v.EAST PENN MANUFACTURING COMPANY,Respondent.OSHRC DOCKET NO. 87-0537_DECISION_Before: BUCKLEY, Chairman, and AREY, Commissioner.BUCKLEY, Chairman:This case requires us to reconsider the Commission’s earlierinterpretation of the medical removal protection (\”MRP\”) provision ofthe OSHA lead standard. The lead standard requires employers to removefrom continued exposure to high lead levels employees who would be atparticular risk of suffering lead-related diseases.[[1\/]] The MRPprovision requires employers to \”maintain the earnings, seniority, andother employment rights and benefits\” of removed employees.[[2\/]] In_Amax Lead Co. of Missouri_, 12 BNA OSHC 1878, 1986-87 CCH OSHD ? 27,629(No. 80-1793, 1986)(\”_Amax_\”), _rev’d_ _sub_ _nom_. _United Steelworkersof America v. Schuylkill Metals Corp._, 828 F.2d 314 (5th Cir. 1987),the Commission held that \”earnings\” did not include overtime and otheramounts beyond the employee’s regular hourly wage rate that the employeemight have earned if not removed. We now overrule _Amax_ for the reasonsstated in this and the concurring opinion. We also conclude, however,that East Penn Manufacturing Company (\”East Penn\”) acted in reasonablereliance on the Commission’s _Amax_ decision, and we therefore vacatethe citation alleging that East Penn violated the MRP standard.The facts are not in dispute. [[3\/]] On July 14, 1986, East Penn placedan employee on medical removal due to pregnancy.[[4\/]] At first, thecompany continued to pay the employee both her base wages and theovertime she would have earned if she had remained in her previousposition. However, in September, 1986, after the Commission issued itsdecision in _Amax_, East Penn changed its policy and discontinued theovertime payments, paying the employee only according to the base rateof her former position. After being cited by the Secretary for violatingthe MRP standard, East Penn moved to dismiss on the basis that the MRPpayments it had made were all that were required by _Amax_.Administrative Law Judge David G. Oringer, being bound to follow theCommission’s decision in _Amax_, granted the motion and vacated thecitation.The Secretary argues, as she did in _Amax_, that the Commission shouldadopted her interpretation of the MRP standard. That interpretation, setforth in an informational appendix to the standard, provides:Earnings includes more than just your base wage; it includes overtime,shift differentials, incentives, and other compensation you would haveearned if you had not been removed.29 C.F.R. ? 1910.1025, Appendix B, Sec. IX. In _Amax_, the Commissionnoted that the term \”earnings . . . is a general term broad enough toencompass the interpretations offered by all of the parties.\” 12 BNAOSHC at 1882, 1986-87 CCH OSHD at p. 35,922. The Commission thereforelooked to the standard’s legislative history to discern the Secretary’sintent when the standard was promulgated. Because the legislativehistory consistently used the terms \”rate of pay\” and \”rate retention\”in discussing MRP benefits, the Commission concluded that the MRPprovision equated \”earnings\” with \”rate of pay\” and therefore did notinclude items, such as overtime, beyond the employee’s base wage rate.12 BNA OSHC at 1884, 1986-87 CCH OSHD at p. 35,924. The Commission alsonoted that, during the notice-and-comment rulemaking proceedings thatculminated in the standard’s adoption, the Secretary had not given thepublic notice that she was considering a broader MRP provision than oneproviding for \”rate retention\” and that the subject of overtime andother premium payments engendered no comment or discussion during therulemaking proceedings. The lack of attention to the subject in therulemaking proceedings buttressed the Commission’s conclusion that theSecretary had not intended for the MRP provision to require overtime andother premium payments. The Commission further concluded that if theSecretary had intended \”earnings\” to have a broader meaning than \”rateof pay,\” she had not given affected persons adequate notice and anopportunity to be heard as required under notice-and-comment rulemakingprocedures. 12 BNA OSHC at 1884-85, 1986-87 CCH OSHD at pp. 35,924-25.The Fifth Circuit reversed the Commission’s decision. _UnitedSteelworkers of America v. Schuylkill Metals Corp._, 828 F.2d 314 (5thCir. 1987). The court agreed with the Commission that the issue couldnot be resolved on the basis of the plain meaning of \”earnings.\” Thecourt concluded that \”earnings\” could have either the meaning given itby the Commission or that advanced by the Secretary, but it adopted theSecretary’s interpretation because its precedents required it to deferto the Secretary’s interpretation of an OSHA standard as long as thatinterpretation is a reasonable one. _Id_. at 319. The court relied onseveral factors in concluding that the Secretary’s interpretation wasreasonable: (1) the preamble to the standard contained references todeficiencies inherent in limited forms of MRP benefits under otherstatutes and standards; (2) the preamble indicated an intent thatemployees removed from the standard sustain no economic loss; (3)failure to include premium payments in MRP benefits would produce adisincentive for employees to cooperate with the standard’s medicalsurveillance provision; and (4) a broad interpretation of \”earnings\” wasnecessary to achieve the standard’s goal of placing the costs of workerprotection on industry rather than the workers themselves. _Id_. at320-22. The court further concluded that the Secretary had givenadequate notice during the rulemaking proceedings that she might adoptan MRP provision of such broad scope. _Id_. at 323. The Ninth Circuithas also rejected the Commission’s decision in _Amax_ and upheld theSecretary’s interpretation of the standard, relying on much of the samefactors, but concluding that the Commission’s interpretation wasunreasonable and thus was not entitled to judicial deference. _Secretaryof Labor v. Asarco, Inc._, 841 F.2d 1006 (9th Cir. 1988).I have reconsidered our holding in _Amax_ in light of these courtdecisions. I note that the interpretive question presented is a closeone. Moreover, the Commission’s _Amax_ decision and the two courtdecisions readily demonstrate that differing inferences can be drawnfrom the standard’s legislative history. Justice Brandeis once observedthat \”in most matters it is more important that the applicable rule oflaw be settled than that it be settled right.\” _Burnet v. Coronodo Oil &Gas Co._, 285 U.S. 393, 406, 52 S.Ct. 443, 447 (1992) (Brandeis, J.,dissenting). I believe that, where the question is this close, theinterests that motivated Justice Brandeis’s observation–predictabilityand uniformity in the law’s application–are best served by ouracquiescence in the adverse court decisions. Accordingly, I agree tooverrule _Amax_ and henceforth apply the MRP standard in accordance withthe two Courts’ interpretation. Henceforth, employers including EastPenn must comply with that interpretation.However, the alleged violation in this case occurred after theCommission issued its decision in _Amax_ and before that decision wasreversed by the Fifth Circuit. Moreover, East Penn specifically reliedon the Commission’s _Amax_ decision, changing its previous policy toconform to that decision. East Penn argues that it would befundamentally unfair to find it violated the standard when it acted inreliance on _Amax_. We agree.Employers are entitled to fair notice of the conduct prohibited orrequired by OSHA standards. _Gates & Fox Co. v. OSHRC_, 790 F.2d 154,156 (D.C. Cir. 1986); _Kropp Forge Co. v. Secretary of Labor_, 657 F.2d119, 122-24 (7th Cir. 1981); _Diebold, Inc. v. Marshall_, 585 F.2d 1327,1335-39 (6th Cir. 1978); _Bethlehem Steel Corp. v. OSHRC_, 573 F.2d 157,161-62 (3d Cir. 1978); _Diamond Roofing Co. v. OSHRC_, 528 F.2d 645, 649(5th Cir. 1976). As the Fifth Circuit indicated, both the Secretary’sand the Commission’s interpretations find considerable support in thelanguage and legislative history of the standard. Where the language andlegislative history of the standard are ambiguous, as they are here, andthe Commission has issued an authoritative administrative interpretationof the standard, employers are entitled to rely on that interpretationunless and until further events cast doubt on its viability.Accordingly, the judge’s decision vacating the citation is affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: April 27, 1989 AREY, Commissioner, concurring:In my opinion, the Commission wrongly decided _Amax_,[[1\/]] and Itherefore concur in overruling that decision. The language of themedical removal protection standard,[[2\/]] read in light of thestandard’s purpose and its legislative history, requires employers toassure that employees removed from lead exposure for medical reasonssuffer no economic loss. Therefore, East Penn’s failure to pay itsemployee for overtime she would have earned it she had not beenmedically removed from lead exposure was inconsistent with thestandard’s requirement that employers \”maintain the earnings . . . of anemployee as though the employee had not been removed from normalexposure to lead or otherwise limited.\” I believe, however, that theCommission’s _Amax_ decision deprived East Penn of fair notice of thestandard’s requirement for maintaining overtime payments, and that itwould be fundamentally unfair to conclude that the company violated thestandard when it reasonably relied on _Amax_. I therefore concur in thevacating of the citation.In this case and the three consolidated cases involved in the _Amax_decision, there is one common fact of overriding importance: employeeswho were transferred from areas of high lead exposure received smallerpaychecks than they would have received if they had not beentransferred. While the employee East Penn transferred continued toreceive her base hourly wage rate for a normal 40-hour week, she did notreceive payments overtime she would otherwise have earned.The question under the standard is whether East Penn maintained the\”earnings\” of the employee it transferred even though her paycheck wassmaller than before. Yet, as I see it, the mere statement of thisquestion suggests the correct answer. Giving the term \”earnings\” itsmost common and ordinary meaning, I would conclude that the \”earnings\”of the employee had been reduced –and therefore not \”maintain(ed)\”–ifshe had received a smaller paycheck. And I would reach this conclusionregardless of whether the reduction in the size of the paycheckrepresented a reduction in the employee’s base rate of pay or awithholding of those \”premium payments\” that would normally be made,such as overtime compensation, shift differential payments, or vacationleave payments.Of course, it is possible that the Secretary used the term \”earnings\” asa \”term of art\” designed to preserve only the employee’s base rate ofpay. However, I would not adopt such a strained interpretation of thestandard and its language unless the legislative history of the standardclearly revealed that this was the Secretary’s intent. Here, in myopinion, the legislative history does not show such an intent but rathershows the contrary, i.e., that the Secretary gave the term \”earnings\”its usual and customary meaning when he drafted this standard.A standard must be interpreted to give effect to the Secretary’s intentin drafting it insofar as that intent is consistent with the standard’slanguage. _Phelps Dodge Corp._, 83 OSAHRC 29\/A2, 11 BNA OSHC 1441, 1444,1983-84 CCH OSHD ? 26,552, pp. 33,920-21 (No. 80-3203, 1983), _aff’d_,725 F.2d 1237 (9th Cir. 1984). Here, the preamble to the standardindicates the Secretary’s intent that \”earnings\” encompasses more thanan employee’s base wage rate when additional payments are necessary toprevent economic loss to the employee:[T]he employer must maintain the earnings, seniority, and otheremployment rights and benefits of a worker as though the worker had notbeen removed . . . In most cases this will simply mean that an employermust maintain the rate of pay of a worker transferred . . . Thestandard, however, uses the all-encompassing phrase \”earnings,seniority, and other employment rights and benefits\” _to assure that aremoved worker suffers neither economic loss_ nor loss of employmentopportunities due to the removal.43 Fed. Reg. at 54466 (Nov. 14, 1978) (Emphasis added). An employeewhose total pay decreases as a result of medical removal suffers aneconomic loss. Thus, the Secretary intended that, in a situation wherean employee is normally paid amounts beyond the employee’s base rate,such amounts must be included in medical removal protection benefits.Interpreting the standard to protect employees against economic loss isalso necessary to accomplish the standard’s objective. Medical removalis a way of protecting employees who have excessive blood lead levels orwho are otherwise at special risk of suffering lead-relateddiseases.[[3\/]] They are protected by being removed from lead exposureuntil either their blood lead level returns to an acceptableconcentration or their medical condition improves to the point whereadditional exposure will not present an unacceptable risk.[[4\/]]Since medical removal is triggered either by an abnormally highblood-lead level or by other medical information, it can only protectemployees who have their blood tested or are otherwise medicallyevaluated. However, when employee cooperation with medical surveillancecreates the possibility of financial loss due to transfer out of anexisting job, employees may well withhold such cooperation, sacrificingtheir physical health for their economic health.[[5\/]] Medical removalprotection benefits were intended to eliminate such a \”Hobson’s choice.\”By assuring employees that their \”earnings\” would be maintained, theSecretary eliminated the need for employees to choose between theirpaycheck and their health.But the choice is only truly eliminated if a medically removed employeecontinues to receive the same total amount of pay after removal asbefore. A worker’s family budget is based on the total amount of moneythat the employee is accustomed to bringing home. Any decrease in thatamount, even if the decrease is relatively small, will strain the familybudget and create the very disincentive to cooperate with medicalsurveillance that the Secretary sought to avoid. Therefore, the standardcan only achieve its goal if interpreted to require the employer to paya removed employee the same total amount after removal as before.Accordingly, the standard expressly states that the employee’s earningsmust be maintained \”as though the employee had not been removed . . . orotherwise limited.\”East Penn argues that an interpretation of the standard that includespayments beyond an employee’s base wage rate fails to provide employersfair notice of what \”earnings\” includes. According to East Penn, if thestandard requires payment of more than an employee’s base wage rate, theonly apparent limitation on the forms of compensation contemplated bythe standard would be \”the Secretary’s imagination.\” This argument iswithout merit. There may be situations in which an employee receivesovertime or other incentive payments that vary week-by-week, so that hisor her paycheck also varies from week-to-week. However, in mostsituations, such payments are based on some business purpose that isfairly predictable and repetitive, so that the payments required underthe MRP standard can be easily calculated. In this case, for example,East Penn has not disputed the Secretary’s calculation that the companywithheld from the removed employee $1,150.85 in overtime payments. Whilethe amount of overtime may not be calculable to the penny in all cases,the principle that employees not suffer economic loss due to removal,coupled with an employee’s earnings history, provides adequate guidanceto employers. _See_ _United Steelworkers of America v. Schuylkill MetalsCorp._, 828 F.2d 314, 323 (5th Cir. 1987) (\”Schuylkill\”).East Penn further argues that, if the standard is interpreted to requireMRP payments beyond an employee’s \”rate of pay,\” then the Commissionmust conclude that the standard was invalidly promulgated. The companyargues that the Secretary did not give affected persons notice that sucha broad MRP provision was being contemplated and that this defect in thenotice given violated the Act’s notice and comment rulemakingprocedures. East Penn relies on the dissenting opinion of Judge Jones in_Schuylkill_. However, the majority in _Schuylkill_ and the NinthCircuit in _McLaughlin v. Asarco, Inc._, 841 F.2d 1006 (9th Cir. 1988),rejected the argument. Despite my own reservations about the adequacy ofthis issue by the two courts that have already considered it. AsChairman Buckley notes in the lead opinion, the objective ofpredictability in the law’s application is best served by our adherenceto appellate court decisions. Both courts relied on the well-establishedprinciple that a standard issued following notice-and-comment rulemakingmay differ from the proposed standard as long as the final rule is a\”logical outgrowth\” of the rulemaking proceedings. _Asarco_, 841 F.2d at1010; _Schuylkill_, 828 F.2d at 317-18. Here, the courts, commonconclusion that provision for overtime payments was a logical outgrowthof the rulemaking proceedings seems reasonable because, as statedearlier, any economic loss to an employee would reduce the incentive tocooperate with medical surveillance and could limit the effectiveness ofthe entire lead standard.[[6\/]]Although I conclude that the arguments discussed above should berejected, I agree with East Penn’s contention that it would be unfair tofind it in violation of the standard in the circumstances of this case.Before the Commission issued its decision in _Amax_, East Penn paid itsemployee for overtime, as required under the interpretation I haveoutlined. After the Commission issued _Amax_, the company relied on thatdecision and discontinued the overtime payments.An employer who adheres to its own legal position despite adverseadjudicatory decisions does so at its own peril, regardless of whetherit holds its position in good faith. _RSR Corp. v. Brock_, 764 F.2d 355,363 (5th Cir. 1985). An employer should not, however, be required to actat its peril when it _follows_ the most authoritative decision on apoint. _See_ _Diebold, Inc. v. Marshall_, 585 F.2d 1327, 1336-37 (6thCir. 1978) (citation vacated because employer was deprived of fairnotice of standard’s requirement by several factors, including rulingsfavorable to employer’s position by clear majority of Commissionadministrative law judges); _Bethlehem Steel Corp._, 82 OSAHRC 19\/C8, 10BNA OSHC 1470, 1473, 1982 CCH OSHD ? 25,982 (No. 79-310, 1982)(same).The Commission issues its decisions with the hope and the intent thatemployers will conform their conduct to the legal principles stated inits decisions. We would be working at cross-purposes with our own goalsif we were to punish employers like East Penn that conformed theirconduct to comply with a Commission decision.[[7\/]] I therefore agreethat the Commission’s decision in _Amax_ deprived East Penn of fairnotice that the standard required it to pay its employee for overtimeshe would have received if not removed and that the citation should bevacated on that basis.————————————————————————SECRETARY OF LABOR,Complainant,v.EAST PENN MANUFACTURING CO., INC.Respondent.OSHRC DOCKET No. 87- 0537Appearances:_FOR THE COMPLAINANT:_Marshall H. Harris, Esquire, Regional Solicitor;Covette Rooney, Esquire, of Counsel,Office of the SolicitorU. S. Department of Labor_FOR THE RESPONDENT:_Morgan, Lewis & Bockius, EsquiresKenneth D. Kleinman, Esquire, of CounselDennis J. Morikawa, Esquire, of Counsel_DECISION AND ORDER_ORINGER, JUDGE: On March 18, 1987, the Secretary served a citation uponthe respondent for an other than serious violation, alleging thereinthat respondent, violated the standard set forth at 29 C.F.R.1910.1025(k)(2)(i) in that an employee removed from exposure from leadwas not provided with medical removal protection benefits as defined in29 C.F.R. 1910.1025(k)(2)(ii) on or about January 9, 1987 and proposedtherefore a $0 penalty.A timely notice of contest was filed by respondent.Thereafter on June 1, 1987, the Secretary filed his complaint with theReview Commission alleging therein that respondent violated section5(a)(2) of the Act and in particular, the standard set forth at 29C.F.R. ? 1910.1025(k)(2)(i). Complainant further alleged that anemployee who was placed on a voluntary medical removal program for leadon August 23, 1986 was not provided medical protection benefits asdefined in 29 C.F R. ? 1910.1025(k)(2)(ii) on or about January 9, 1987.The Secretary failed to describe either in its citation or in itscomplaint in what manner the respondent had violated the standard setforth at 29 C.F.R. ? 1910.1025(k)(2)(ii). The Secretary, on page 3, insubparagraph (d) of his complaint stated:\”respondent’s employees were exposed or had access to this violation inthat an employee was not paid according to the same wages that she hadbeen making while performing the enveloping job\”.Subsequent to the complaint being filed, in lieu of filing an answer,the respondent otherwise pleaded by filing a motion to dismiss thecomplaint. The motion to dismiss read as follows:\”The citation issued in this case alleges that East Penn failed to payappropriate medical removal protection benefits under the occupationalexposure to lead standard, 29 C.F.R ? 1910.1025(k)(2)(ii), because EastPenn failed to include the overtime earnings of the position from whichthe employee was removed in the medical removal protection rate\”.The respondent’s motion was predicated upon the Commission decision inSecretary of Labor against _Amax Lead Company of Missouri_ 12 BNA OSHC1878 (docket no. 80-1793) (1986) which decision held that medicalremoval protection benefits need not include overtime payments.The problem with the original motion was that nowhere in either theSecretary’s citation or complaint was it revealed that the citation wasbased upon the fact that the medical removal protection benefits paid tothe employee did not include overtime or incentive payments.Normally this would have made the motion premature in that an answershould have been filed. and interrogatories or requests for admissionsdirected to the Secretary to show that its violation was based upon thefailure to pay _overtime_ payments, however, the Secretary’s response inopposition to respondent’s motion to dismiss the complaint removed anydoubt as to what the violation was based upon. Page one of theSecretary’s memorandum in support of complainant’s response inopposition to respondent’s motion to dismiss the complaint, states inpertinent part, as follows:\”…The factual basis for the issuance of this citation was thatrespondent failed to pay to an employee, subject to medical renewal(sic) protection (\”MRP\”) benefits, the overtime payments the employeewould have reviewed (sic) but for the removal. Respondent does notdispute that it failed to pay this employee overtime payments that he(sic) would have earned but for the removal. Respondent defends itsposition on the grounds that, the Review Commission in Secretary ofLabor v. Amex Lead Company Of Missouri [[1\/]] held that such paymentsare not included within the definition of \”earnings\” maintained for MRPemployees.\” (footnote omitted)The remainder of the memorandum of law argued that the Commissiondecision was incorrect, urged that the complaint should not be dismissedand that respondent should be ordered to answer the complaint. TheSecretary described the Commission’s approach as characterized by\”tortuous construction of the term ‘earnings’ and a misreading of therule-making history\”.Accordingly, while the Secretary was avoiding in its citation andcomplaint the impact of the decision in Amax and, as a result, themotion to dismiss by respondent was in fact premature, his admission inhis memorandum of law that the citation was based upon the failure topay overtime benefits cures the defect and makes this question ripe fordecisional purposes at this time.Both parties, in their briefs, cite the Review Commission decision in_Amax Lead Company of Missouri_, the respondent relying on it in itsmotion to dismiss and the Secretary taking issue with it in itsaffidavit in opposition to the motion to dismiss.Wherefore, the sole salient issue in determination of this case iswhether or not employees who are receiving medical removal benefits as aresult of excessive lead levels determined from blood tests would beentitled to overtime pay. This specific issue was addressed in _AmaxLead Company of Missouri_, _Schuylkill Metals Corp._, and _St. JosephResources Co._, OSHRC docket numbers 80-1793, 81-0856 and 81-2267, allfound at 12 BNA OSHC 1878, decided in June of 1986. In those decisions,the Commission clearly and unequivocally ruled that employees are notentitled to overtime benefits as part of medical removal benefits.It has been long settled Commission law that administrative law judgesmust follow Commission rules and that they also must follow precedentsestablished by the Commission. _Continental Steel Corporation_ 1 BNAOSHC 1726 (1974) Accordingly, the judge is constrained to follow theCommission precedent annunciated in _Amax_ in the instant cause.Wherefore, in accordance with Commission precedent, as above related,the citation is VACATED.It is SO ORDERED.DAVID G. ORINGER,JUDGE, OSHRCDated: _September 9, 1987_Boston, MassachusettsFOOTNOTES:[[1\/]] The lead standard requires that an employee whose blood leadlevel exceeds a specified concentration be removed from a work areawhere the airborne lead concentration is more than a certain amount.Since the expiration of the initial phase-in period during which higherconcentrations were permitted, the standard has required that anemployee with a blood lead level at or above 50 ?g\/100g of whole bloodbe removed from work having a daily eight hour time-weighted-averageexposure to airborne lead at or above 30 ?g\/m?. 29 C.F.R. ?1910.1025(k)(1)(i). The standard also requires removal if a \”finalmedical determination\” establishes that an employee has a \”detectedmedical condition which places the employee at increased risk ofmaterial impairment to health from exposure to lead.\” 29 C.F.R. ?1910.1025(k)(1)(ii)(A).[[2\/]] Insofar as is relevant here, the MRP provision states:? 1910.1025 _Lead_* * *(k) _Medical Removal Protection_* * *(2) _Medical removal protection benefits_–(i) _Provision of medical removal protection benefits_. The employershall provide to an employee up to eighteen (18) months of medicalremoval protection benefits on each occasion that an employee is removedfrom exposure to lead or otherwise limited pursuant to this section.(ii) _Definition of medical removal protection benefits_. For thepurposes of this section, the requirement that an employer providemedical removal protection benefits means that the employer shallmaintain the earnings, seniority and other employment rights andbenefits of an employee as though the employee had not been removed fromnormal exposure to lead or otherwise limited.[[3\/]] After the Secretary filed a complaint, East Penn moved to dismissthe complaint. Attached to the motion was the affidavit of StevenBurgert, East Penn’s Director of Regulatory Compliance. The Secretarydoes not dispute any facts stated in Mr. Burgert’s affidavit and,indeed, bases her own arguments on those facts. The facts stated in Mr.Burgert’s affidavit are sufficient to resolve all issues presented bythe case.[[4\/]] Pregnancy is not a mandatory basis for removal. _See_ note 1_supra_. However, the standard requires that MRP payments be made whenan employer voluntarily removes an employee from lead exposure \”due tothe effects of lead exposure on the employee’s medical condition.\” 29C.F.R. ? 1910.1025(k)(2)(vii).v [[1\/]] _Amax Lead Co. of Missouri_, 12 BNA OSHC 1878, 1986-87 CCH OSHD ?27,629 (No. 80-1793, 1986). _rev’d_ _sub_ _nom_. _United Steelworkers ofAmerica v. Schuylkill Metals Corp._, 828 F.2d 314 (5th Cir. 1987).[[2\/]] See note 2 of the lead opinion.[[3\/]] See note 1 of the lead opinion.[[4\/]] 29 C.F.R. ? 1910.1025(k)(1)(iii). In extreme cases, a person’smedical condition may make it unreasonably dangerous for the person tobe exposed to any amount of lead. If a \”final medical determination ismade that the employee is incapable of ever safely returning to his orher former job status,\” the employer may discontinue paying medicalremoval protection benefits. 29 C.F.R. ? 1910.1025(k)(2)(vi)(C).[[5\/]] The Secretary’s finding to this effect, 43 Fed. Reg. 54354, 54422(Nov. 21, 1978), based on his review of the rulemaking record, isentitled to deference by the Commission in interpreting and applying thestandard. _See_ _United Steelworkers of America v. Schuylkill MetalsCorp._, 825 F.2d 314, 322-23 (5th Cir. 1987) (rejection of argument thatpayments are not necessary to induce employee cooperation).[[6\/]] The Commission, in _Amax_, placed great emphasis on theSecretary’s use of the terms \”rate of pay\” and \”rate retention\” in therulemaking proceedings to conclude that the Secretary intended thestandard to only require the employer to maintain the employee’s hourlywage rate. However, language used in the proposed rule or insupplementary notices issued for the purpose of soliciting informationthat will help shape the final rule are at best uncertain guides to theintent underlying the final rule. Indeed, since the purpose of a noticeof proposed rulemaking is to solicit a wide range of views as to thecontent of the final standard, it is inappropriate to place too muchemphasis on the words used such a notice. Whatever the Secretary wasthinking when soliciting comments on an MRP provision, the words of thefinal standard, read in conjunction with the preamble and the standard’spurpose, make it clear that the Secretary intended the _final_ standardto protect employees against _any_ economic loss.[[7\/]] I do not see any _remedial_ purpose that would be served byupholding this particular citation under the novel circumstances of thiscase.”