“Docket No. 87-0537 SECRETARY OF LABOR, Complainant, v. EAST PENN MANUFACTURING COMPANY, Respondent.OSHRC DOCKET NO. 87-0537DECISIONBefore: BUCKLEY, Chairman, and AREY,Commissioner.BUCKLEY, Chairman:This case requires us to reconsider the Commission’s earlier interpretation of the medicalremoval protection (\”MRP\”) provision of the OSHA lead standard. The leadstandard requires employers to remove from continued exposure to high lead levelsemployees who would be at particular risk of suffering lead-related diseases.[[1\/]] TheMRP provision requires employers to \”maintain the earnings, seniority, and otheremployment rights and benefits\” of removed employees.[[2\/]] In Amax Lead Co. ofMissouri, 12 BNA OSHC 1878, 1986-87 CCH OSHD ? 27,629 (No. 80-1793, 1986)(\”Amax\”),rev’d sub nom. United Steelworkers of America v. Schuylkill MetalsCorp., 828 F.2d 314 (5th Cir. 1987), the Commission held that \”earnings\” didnot include overtime and other amounts beyond the employee’s regular hourly wage rate thatthe employee might have earned if not removed. We now overrule Amax for the reasonsstated in this and the concurring opinion. We also conclude, however, that East PennManufacturing Company (\”East Penn\”) acted in reasonable reliance on theCommission’s Amax decision, and we therefore vacate the citation alleging that EastPenn violated the MRP standard.The facts are not in dispute. [[3\/]] On July 14,1986, East Penn placed an employee on medical removal due to pregnancy.[[4\/]] At first,the company continued to pay the employee both her base wages and the overtime she wouldhave earned if she had remained in her previous position. However, in September, 1986,after the Commission issued its decision in Amax, East Penn changed its policy anddiscontinued the overtime payments, paying the employee only according to the base rate ofher former position. After being cited by the Secretary for violating the MRP standard,East Penn moved to dismiss on the basis that the MRP payments it had made were all thatwere required by Amax. Administrative Law Judge David G. Oringer, being bound tofollow the Commission’s decision in Amax, granted the motion and vacated thecitation.The Secretary argues, as she did in Amax,that the Commission should adopted her interpretation of the MRP standard. Thatinterpretation, set forth in an informational appendix to the standard, provides:Earnings includes more than just your base wage; it includes overtime, shiftdifferentials, incentives, and other compensation you would have earned if you had notbeen removed.29 C.F.R. ? 1910.1025, Appendix B, Sec. IX. In Amax, the Commission noted that theterm \”earnings . . . is a general term broad enough to encompass the interpretationsoffered by all of the parties.\” 12 BNA OSHC at 1882, 1986-87 CCH OSHD at p. 35,922.The Commission therefore looked to the standard’s legislative history to discern theSecretary’s intent when the standard was promulgated. Because the legislative historyconsistently used the terms \”rate of pay\” and \”rate retention\” indiscussing MRP benefits, the Commission concluded that the MRP provision equated\”earnings\” with \”rate of pay\” and therefore did not include items,such as overtime, beyond the employee’s base wage rate. 12 BNA OSHC at 1884, 1986-87 CCHOSHD at p. 35,924. The Commission also noted that, during the notice-and-commentrulemaking proceedings that culminated in the standard’s adoption, the Secretary had notgiven the public notice that she was considering a broader MRP provision than oneproviding for \”rate retention\” and that the subject of overtime and otherpremium payments engendered no comment or discussion during the rulemaking proceedings.The lack of attention to the subject in the rulemaking proceedings buttressed theCommission’s conclusion that the Secretary had not intended for the MRP provision torequire overtime and other premium payments. The Commission further concluded that if theSecretary had intended \”earnings\” to have a broader meaning than \”rate ofpay,\” she had not given affected persons adequate notice and an opportunity to beheard as required under notice-and-comment rulemaking procedures. 12 BNA OSHC at 1884-85,1986-87 CCH OSHD at pp. 35,924-25.The Fifth Circuit reversed the Commission’sdecision. United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314(5th Cir. 1987). The court agreed with the Commission that the issue could not be resolvedon the basis of the plain meaning of \”earnings.\” The court concluded that\”earnings\” could have either the meaning given it by the Commission or thatadvanced by the Secretary, but it adopted the Secretary’s interpretation because itsprecedents required it to defer to the Secretary’s interpretation of an OSHA standard aslong as that interpretation is a reasonable one. Id. at 319. The court relied onseveral factors in concluding that the Secretary’s interpretation was reasonable: (1) thepreamble to the standard contained references to deficiencies inherent in limited forms ofMRP benefits under other statutes and standards; (2) the preamble indicated an intent thatemployees removed from the standard sustain no economic loss; (3) failure to includepremium payments in MRP benefits would produce a disincentive for employees to cooperatewith the standard’s medical surveillance provision; and (4) a broad interpretation of\”earnings\” was necessary to achieve the standard’s goal of placing the costs ofworker protection on industry rather than the workers themselves. Id. at 320-22.The court further concluded that the Secretary had given adequate notice during therulemaking proceedings that she might adopt an MRP provision of such broad scope. Id.at 323. The Ninth Circuit has also rejected the Commission’s decision in Amax andupheld the Secretary’s interpretation of the standard, relying on much of the samefactors, but concluding that the Commission’s interpretation was unreasonable and thus wasnot entitled to judicial deference. Secretary of Labor v. Asarco, Inc., 841 F.2d1006 (9th Cir. 1988).I have reconsidered our holding in Amax inlight of these court decisions. I note that the interpretive question presented is a closeone. Moreover, the Commission’s Amax decision and the two court decisions readilydemonstrate that differing inferences can be drawn from the standard’s legislativehistory. Justice Brandeis once observed that \”in most matters it is more importantthat the applicable rule of law be settled than that it be settled right.\” Burnetv. 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, the interests thatmotivated Justice Brandeis’s observation–predictability and uniformity in the law’sapplication–are best served by our acquiescence in the adverse court decisions.Accordingly, I agree to overrule Amax and henceforth apply the MRP standard inaccordance with the two Courts’ interpretation. Henceforth, employers including East Pennmust comply with that interpretation.However, the alleged violation in this caseoccurred after the Commission issued its decision in Amax and before that decisionwas reversed by the Fifth Circuit. Moreover, East Penn specifically relied on theCommission’s Amax decision, changing its previous policy to conform to thatdecision. East Penn argues that it would be fundamentally unfair to find it violated thestandard when it acted in reliance on Amax. We agree.Employers are entitled to fair notice of theconduct prohibited or required by OSHA standards. Gates & Fox Co. v. OSHRC, 790F.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 (6thCir. 1978); Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161-62 (3d Cir. 1978); DiamondRoofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). As the Fifth Circuitindicated, both the Secretary’s and the Commission’s interpretations find considerablesupport in the language and legislative history of the standard. Where the language andlegislative history of the standard are ambiguous, as they are here, and the Commissionhas issued an authoritative administrative interpretation of the standard, employers areentitled to rely on that interpretation unless and until further events cast doubt on itsviability.Accordingly, the judge’s decision vacating thecitation is affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: April 27, 1989\u00a0AREY, Commissioner, concurring:In my opinion, the Commission wrongly decided Amax,[[1\/]] and I therefore concur inoverruling that decision. The language of the medical removal protection standard,[[2\/]]read in light of the standard’s purpose and its legislative history, requires employers toassure that employees removed from lead exposure for medical reasons suffer no economicloss. Therefore, East Penn’s failure to pay its employee for overtime she would haveearned it she had not been medically removed from lead exposure was inconsistent with thestandard’s requirement that employers \”maintain the earnings . . . of an employee asthough the employee had not been removed from normal exposure to lead or otherwiselimited.\” I believe, however, that the Commission’s Amax decision deprivedEast Penn of fair notice of the standard’s requirement for maintaining overtime payments,and that it would be fundamentally unfair to conclude that the company violated thestandard when it reasonably relied on Amax. I therefore concur in the vacating ofthe citation.In this case and the three consolidated casesinvolved in the Amax decision, there is one common fact of overriding importance:employees who were transferred from areas of high lead exposure received smaller paychecksthan they would have received if they had not been transferred. While the employee EastPenn transferred continued to receive her base hourly wage rate for a normal 40-hour week,she did not receive payments overtime she would otherwise have earned.The question under the standard is whether EastPenn maintained the \”earnings\” of the employee it transferred even though herpaycheck was smaller than before. Yet, as I see it, the mere statement of this questionsuggests the correct answer. Giving the term \”earnings\” its most common andordinary meaning, I would conclude that the \”earnings\” of the employee had beenreduced –and therefore not \”maintain(ed)\”–if she had received a smallerpaycheck. And I would reach this conclusion regardless of whether the reduction in thesize of the paycheck represented a reduction in the employee’s base rate of pay or awithholding of those \”premium payments\” that would normally be made, such asovertime compensation, shift differential payments, or vacation leave payments.Of course, it is possible that the Secretary usedthe term \”earnings\” as a \”term of art\” designed to preserve only theemployee’s base rate of pay. However, I would not adopt such a strained interpretation ofthe standard and its language unless the legislative history of the standard clearlyrevealed that this was the Secretary’s intent. Here, in my opinion, the legislativehistory does not show such an intent but rather shows the contrary, i.e., that theSecretary gave the term \”earnings\” its usual and customary meaning when hedrafted this standard.A standard must be interpreted to give effect tothe Secretary’s intent in drafting it insofar as that intent is consistent with thestandard’s language. 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 standard indicates the Secretary’s intent that\”earnings\” encompasses more than an employee’s base wage rate when additionalpayments are necessary to prevent economic loss to the employee:[T]he employer must maintain the earnings, seniority, and other employment rights andbenefits of a worker as though the worker had not been removed . . . In most cases thiswill simply mean that an employer must maintain the rate of pay of a worker transferred .. . The standard, however, uses the all-encompassing phrase \”earnings, seniority, andother employment rights and benefits\” to assure that a removed worker suffersneither economic loss nor loss of employment opportunities due to the removal. 43 Fed. Reg. at 54466 (Nov. 14, 1978) (Emphasis added). An employee whose total paydecreases as a result of medical removal suffers an economic loss. Thus, the Secretaryintended that, in a situation where an employee is normally paid amounts beyond theemployee’s base rate, such amounts must be included in medical removal protectionbenefits.Interpreting the standard to protect employeesagainst economic loss is also necessary to accomplish the standard’s objective. Medicalremoval is a way of protecting employees who have excessive blood lead levels or who areotherwise at special risk of suffering lead-related diseases.[[3\/]] They are protected bybeing removed from lead exposure until either their blood lead level returns to anacceptable concentration or their medical condition improves to the point where additionalexposure will not present an unacceptable risk.[[4\/]]Since medical removal is triggered either by anabnormally high blood-lead level or by other medical information, it can only protectemployees who have their blood tested or are otherwise medically evaluated. However, whenemployee cooperation with medical surveillance creates the possibility of financial lossdue to transfer out of an existing job, employees may well withhold such cooperation,sacrificing their physical health for their economic health.[[5\/]] Medical removalprotection benefits were intended to eliminate such a \”Hobson’s choice.\” Byassuring employees that their \”earnings\” would be maintained, the Secretaryeliminated the need for employees to choose between their paycheck and their health.But the choice is only truly eliminated if amedically removed employee continues to receive the same total amount of pay after removalas before. A worker’s family budget is based on the total amount of money that theemployee is accustomed to bringing home. Any decrease in that amount, even if the decreaseis relatively small, will strain the family budget and create the very disincentive tocooperate with medical surveillance that the Secretary sought to avoid. Therefore, thestandard can only achieve its goal if interpreted to require the employer to pay a removedemployee the same total amount after removal as before. Accordingly, the standardexpressly states that the employee’s earnings must be maintained \”as though theemployee had not been removed . . . or otherwise limited.\”East Penn argues that an interpretation of thestandard that includes payments beyond an employee’s base wage rate fails to provideemployers fair notice of what \”earnings\” includes. According to East Penn, ifthe standard requires payment of more than an employee’s base wage rate, the only apparentlimitation on the forms of compensation contemplated by the standard would be \”theSecretary’s imagination.\” This argument is without merit. There may be situations inwhich an employee receives overtime or other incentive payments that vary week-by-week, sothat his or her paycheck also varies from week-to-week. However, in most situations, suchpayments are based on some business purpose that is fairly predictable and repetitive, sothat the payments required under the 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. While the amount ofovertime may not be calculable to the penny in all cases, the principle that employees notsuffer economic loss due to removal, coupled with an employee’s earnings history, providesadequate guidance to employers. See United Steelworkers of America v. SchuylkillMetals Corp., 828 F.2d 314, 323 (5th Cir. 1987) (\”Schuylkill\”).East Penn further argues that, if the standard isinterpreted to require MRP payments beyond an employee’s \”rate of pay,\” then theCommission must conclude that the standard was invalidly promulgated. The company arguesthat the Secretary did not give affected persons notice that such a broad MRP provisionwas being contemplated and that this defect in the notice given violated the Act’s noticeand comment rulemaking procedures. East Penn relies on the dissenting opinion of JudgeJones in Schuylkill. However, the majority in Schuylkill and the NinthCircuit in McLaughlin v. Asarco, Inc., 841 F.2d 1006 (9th Cir. 1988), rejected theargument. Despite my own reservations about the adequacy of this issue by the two courtsthat have already considered it. As Chairman Buckley notes in the lead opinion, theobjective of predictability in the law’s application is best served by our adherence toappellate court decisions. Both courts relied on the well-established principle that astandard issued following notice-and-comment rulemaking may differ from the proposedstandard as long as the final rule is a \”logical outgrowth\” of the rulemakingproceedings. Asarco, 841 F.2d at 1010; Schuylkill, 828 F.2d at 317-18. Here,the courts, common conclusion that provision for overtime payments was a logical outgrowthof the rulemaking proceedings seems reasonable because, as stated earlier, any economicloss to an employee would reduce the incentive to cooperate with medical surveillance andcould limit the effectiveness of the entire lead standard.[[6\/]]Although I conclude that the arguments discussedabove should be rejected, 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 theCommission issued its decision in Amax, East Penn paid its employee for overtime,as required under the interpretation I have outlined. After the Commission issued Amax,the company relied on that decision and discontinued the overtime payments.An employer who adheres to its own legal positiondespite adverse adjudicatory decisions does so at its own peril, regardless of whether itholds 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 act at its peril when it followsthe most authoritative decision on a point. See Diebold, Inc. v. Marshall,585 F.2d 1327, 1336-37 (6th Cir. 1978) (citation vacated because employer was deprived offair notice of standard’s requirement by several factors, including rulings favorable toemployer’s position by clear majority of Commission administrative law judges); BethlehemSteel Corp., 82 OSAHRC 19\/C8, 10 BNA 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 in its decisions. Wewould be working at cross-purposes with our own goals if we were to punish employers likeEast Penn that conformed their conduct to comply with a Commission decision.[[7\/]] Itherefore agree that the Commission’s decision in Amax deprived East Penn of fairnotice that the standard required it to pay its employee for overtime she would havereceived if not removed and that the citation should be vacated 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 Solicitor U. S. Department of Labor FOR THE RESPONDENT:Morgan, Lewis & Bockius, EsquiresKenneth D. Kleinman, Esquire, of Counsel Dennis J. Morikawa, Esquire, of Counsel DECISION AND ORDERORINGER, JUDGE: On March 18, 1987, the Secretaryserved a citation upon the respondent for an other than serious violation, allegingtherein that respondent, violated the standard set forth at 29 C.F.R. 1910.1025(k)(2)(i)in that an employee removed from exposure from lead was not provided with medical removalprotection benefits as defined in 29 C.F.R. 1910.1025(k)(2)(ii) on or about January 9,1987 and proposed therefore a $0 penalty. A timely notice of contest was filed by respondent.Thereafter on June 1, 1987, the Secretary filedhis complaint with the Review Commission alleging therein that respondent violated section5(a)(2) of the Act and in particular, the standard set forth at 29 C.F.R. ?1910.1025(k)(2)(i). Complainant further alleged that an employee who was placed on avoluntary medical removal program for lead on August 23, 1986 was not provided medicalprotection benefits as defined in 29 C.F R. ? 1910.1025(k)(2)(ii) on or about January 9,1987.The Secretary failed to describe either in itscitation or in its complaint 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, in subparagraph (d)of his complaint stated:\”respondent’s employees were exposed or had access to this violation in that anemployee was not paid according to the same wages that she had been making whileperforming the enveloping job\”.Subsequent to the complaint being filed, in lieu of filing an answer, the respondentotherwise pleaded by filing a motion to dismiss the complaint. The motion to dismiss readas follows:\”The citation issued in this case alleges that East Penn failed to pay appropriatemedical removal protection benefits under the occupational exposure to lead standard, 29C.F.R ? 1910.1025(k)(2)(ii), because East Penn failed to include the overtime earnings ofthe position from which the employee was removed in the medical removal protectionrate\”.The respondent’s motion was predicated upon the Commission decision in Secretary of Laboragainst Amax Lead Company of Missouri 12 BNA OSHC 1878 (docket no. 80-1793) (1986)which decision held that medical removal protection benefits need not include overtimepayments.The problem with the original motion was thatnowhere in either the Secretary’s citation or complaint was it revealed that the citationwas based upon the fact that the medical removal protection benefits paid to the employeedid not include overtime or incentive payments.Normally this would have made the motionpremature in that an answer should have been filed. and interrogatories or requests foradmissions directed to the Secretary to show that its violation was based upon the failureto pay overtime payments, however, the Secretary’s response in opposition torespondent’s motion to dismiss the complaint removed any doubt as to what the violationwas based upon. Page one of the Secretary’s memorandum in support of complainant’sresponse in opposition to respondent’s motion to dismiss the complaint, states inpertinent part, as follows:\”…The factual basis for the issuance of this citation was that respondent failed topay to an employee, subject to medical renewal (sic) protection (\”MRP\”)benefits, the overtime payments the employee would have reviewed (sic) but for theremoval. Respondent does not dispute that it failed to pay this employee overtime paymentsthat he (sic) would have earned but for the removal. Respondent defends its position onthe grounds that, the Review Commission in Secretary of Labor v. Amex Lead Company OfMissouri [[1\/]] held that such payments are not included within the definition of\”earnings\” maintained for MRP employees.\” (footnote omitted) The remainder of the memorandum of law arguedthat the Commission decision was incorrect, urged that the complaint should not bedismissed and that respondent should be ordered to answer the complaint. The Secretarydescribed the Commission’s approach as characterized by \”tortuous construction of theterm ‘earnings’ and a misreading of the rule-making history\”.Accordingly, while the Secretary was avoiding inits citation and complaint the impact of the decision in Amax and, as a result, the motionto dismiss by respondent was in fact premature, his admission in his memorandum of lawthat the citation was based upon the failure to pay overtime benefits cures the defect andmakes this question ripe for decisional purposes at this time.Both parties, in their briefs, cite the ReviewCommission decision in Amax Lead Company of Missouri, the respondent relying on itin its motion to dismiss and the Secretary taking issue with it in its affidavit inopposition to the motion to dismiss.Wherefore, the sole salient issue indetermination of this case is whether or not employees who are receiving medical removalbenefits as a result of excessive lead levels determined from blood tests would beentitled to overtime pay. This specific issue was addressed in Amax Lead Company ofMissouri, Schuylkill Metals Corp., and St. Joseph Resources Co., OSHRCdocket numbers 80-1793, 81-0856 and 81-2267, all found at 12 BNA OSHC 1878, decided inJune of 1986. In those decisions, the Commission clearly and unequivocally ruled thatemployees are not entitled to overtime benefits as part of medical removal benefits.It has been long settled Commission law thatadministrative law judges must follow Commission rules and that they also must followprecedents established by the Commission. Continental Steel Corporation 1 BNA OSHC1726 (1974) Accordingly, the judge is constrained to follow the Commission precedentannunciated in Amax in the instant cause.Wherefore, in accordance with Commissionprecedent, as above related, the citation is VACATED.It is SO ORDERED.DAVID G. ORINGER, JUDGE, OSHRCDated: September 9, 1987Boston, MassachusettsFOOTNOTES: [[1\/]] The lead standard requires that an employee whose blood lead level exceeds aspecified concentration be removed from a work area where the airborne lead concentrationis more than a certain amount. Since the expiration of the initial phase-in period duringwhich higher concentrations were permitted, the standard has required that an employeewith a blood lead level at or above 50 ?g\/100g of whole blood be removed from work havinga daily eight hour time-weighted-average exposure 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 \”detected medicalcondition which places the employee at increased risk of material impairment to healthfrom exposure to lead.\” 29 C.F.R. ? 1910.1025(k)(1)(ii)(A).[[2\/]] Insofar as is relevant here, the MRPprovision states: ? 1910.1025 Lead*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(k) Medical Removal Protection*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(2) Medical removal protection benefits–(i) Provision of medical removal protection benefits. The employer shall provide toan employee up to eighteen (18) months of medical removal protection benefits on eachoccasion that an employee is removed from exposure to lead or otherwise limited pursuantto this section.(ii) Definition of medical removal protection benefits. For the purposes of thissection, the requirement that an employer provide medical removal protection benefitsmeans that the employer shall maintain the earnings, seniority and other employment rightsand benefits of an employee as though the employee had not been removed from normalexposure to lead or otherwise limited.[[3\/]] After the Secretary filed a complaint,East Penn moved to dismiss the complaint. Attached to the motion was the affidavit ofSteven Burgert, East Penn’s Director of Regulatory Compliance. The Secretary does notdispute any facts stated in Mr. Burgert’s affidavit and, indeed, bases her own argumentson those facts. The facts stated in Mr. Burgert’s affidavit are sufficient to resolve allissues presented by the case.[[4\/]] Pregnancy is not a mandatory basis forremoval. See note 1 supra. However, the standard requires that MRP paymentsbe made when an employer voluntarily removes an employee from lead exposure \”due tothe effects of lead exposure on the employee’s medical condition.\” 29 C.F.R. ?1910.1025(k)(2)(vii).v\u00a0\u00a0\u00a0 [[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 of America 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). Inextreme cases, a person’s medical condition may make it unreasonably dangerous for theperson to be exposed to any amount of lead. If a \”final medical determination is madethat the employee is incapable of ever safely returning to his or her former jobstatus,\” the employer may discontinue paying medical removal protection benefits. 29C.F.R. ? 1910.1025(k)(2)(vi)(C).[[5\/]] The Secretary’s finding to this effect, 43Fed. Reg. 54354, 54422 (Nov. 21, 1978), based on his review of the rulemaking record, isentitled to deference by the Commission in interpreting and applying the standard. SeeUnited Steelworkers of America v. Schuylkill Metals Corp., 825 F.2d 314, 322-23(5th Cir. 1987) (rejection of argument that payments are not necessary to induce employeecooperation).[[6\/]] The Commission, in Amax, placedgreat emphasis on the Secretary’s use of the terms \”rate of pay\” and \”rateretention\” in the rulemaking proceedings to conclude that the Secretary intended thestandard to only require the employer to maintain the employee’s hourly wage rate.However, language used in the proposed rule or in supplementary notices issued for thepurpose of soliciting information that will help shape the final rule are at bestuncertain guides to the intent underlying the final rule. Indeed, since the purpose of anotice of proposed rulemaking is to solicit a wide range of views as to the content of thefinal standard, it is inappropriate to place too much emphasis on the words used such anotice. Whatever the Secretary was thinking when soliciting comments on an MRP provision,the words of the final standard, read in conjunction with the preamble and the standard’spurpose, make it clear that the Secretary intended the final standard to protectemployees against any economic loss.[[7\/]] I do not see any remedial purposethat would be served by upholding this particular citation under the novel circumstancesof this case.”