“Docket No. 77-1030 SECRETARY OF LABOR, Complainant,v.ECCO HIGH FREQUENCY ELECTRIC CORP., Respondent.OSHRC Docket No. 77-1030DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:The Secretary of Labor (\”Secretary\”) alleges that Ecco HighFrequency Electric Corp.\u00a0 (\”Ecco\”) violated Article 110-17(a) of the 1971National Electrical Code (\”NEC\”), as adopted by 29 C.F.R. ? 1910.309(a), [[1]]by failing to guard certain live electrical parts against accidental contact.\u00a0 In hisfirst decision in this case, Administrative Law Judge Robert P. Weil held that Article110-17(a) did not apply to the electrical installation that was the subject of thecitation.\u00a0 The Commission reversed that ruling and remanded to the judge for adecision on the merits. [[2]]On remand, Judge Weil determined that Ecco had failed to comply with Article110-17(a) but held that the standard, as interpreted by the Commission in its earlierdecision, was invalidly promulgated.\u00a0 On this basis, the judge again vacated thecitation.\u00a0 The Secretary’s petition for review of the judge’s decision was granted byCommissioner Cleary pursuant to 29 U.S.C. ? 661(i).The threshold argument raised in the Secretary’s petition is that JudgeWeil’s decision on remand exceeded the scope of the Commission’s remand order.\u00a0 TheSecretary points out that the Commission specifically remanded for a decision \”on themerits of the allegation that Respondent failed to comply with section 110-17(a) of theNational Electrical Code as adopted by 29 C.F.R. ? 1910.309(a).\”\u00a0 We agree withthe Secretary’s argument.\u00a0 Ecco had not questioned the validity of the standardbefore the judge and therefore the Commission’s remand order, even under the broadestpossible interpretation, could not have contemplated a ruling on that issue.\u00a0 See NewEngland Telephone & Telegraph Co., 78 OSAHRC 40\/A13, 6 BNA OSHC 1613, 1978 CCH OSHD ?22,727 (No. 9627, 1978), rev’d on other grounds, 589 F.2d 81 (1st Cir. 1978) (judge erredin ruling on issue that employer had not previously raised and was outside scope of remandorder).\u00a0 Furthermore, the judge’s conclusion that the standard as interpreted by theCommission was invalidly promulgated was based in part on his assumption that the NEC wasintended by its drafters to have prospective effect only and not to apply to existinginstallations.\u00a0 However, the parties did not present evidence or argument regardingthe actual intent of the NEC on this point.\u00a0 Therefore, the judge’s decision was madewithout any supporting record. Accordingly, the judge’s ruling on the validity of thestandard is set aside.Normally, we would remand this case for the judge to issue a decision inconformity with the original remand order.[[3]]\u00a0 However, because Judge Weil is nolonger with the Commission, and the Commission possesses the authority to make thedeterminations necessary to dispose of the case, we shall rule on the merits.\u00a0 SeeButler Lime & Cement Co., 79 OSAHRC 103\/D12, 7 BNA OSHC 1973, 1974, 1979 CCH OSHD ?24,091 at p. 29,267 (No. 855, 1979).The alleged violation concerns three uninsulated copper bars, energized to110-220 volts, on an electrical test panel.\u00a0 The bars are 5 to 6 feet above the floorand approximately 16 feet long.\u00a0 The panel is used only by trained personnel familiarwith electricity, but the area in which the panel was located had no partitions to keepother employees away.\u00a0 Immediately after the Secretary’s compliance officer pointedout the problem, Ecco covered the exposed copper bars.Because Ecco did not use any of the means of guarding permitted by Article110-17(a), note 1 supra, it violated the standard.[[4]] We conclude that the violation isserious, as alleged by the Secretary.\u00a0 The compliance officer’s testimony thatcontact with the energized copper bars would cause serious electrical shock or flash burnswas unrebutted.\u00a0 We also conclude, however, that only a nominal penalty should beassessed.[[5]]\u00a0 Ecco is a small employer, and it demonstrated good faith byimmediately abating the hazard.Accordingly, the citation alleging a serious violation of Article 110-17(a)of the 1971 NEC, as adopted by 29 C.F.R. ? 1910.309(a), is affirmed.\u00a0 A penalty ofone dollar is assessed.\u00a0 SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 APR 20 1983COTTINE, Commissioner, concurring:The Commission’s earlier remand order did not preclude the judge from rulingon the validity of the cited standard.\u00a0 However, it was improper for the judge toconsider the issue because it was not raised by Ecco and is not jurisdictional.\u00a0 Despite the impropriety, the judge’s ruling on this issue was dispositive below andhis decision is before the Commission for review. Accordingly, the validity issue shouldbe considered in the disposition of this case.\u00a0 I conclude that the standard wasvalidly promulgated for the reasons that follow and concur in the judgment that Eccoviolated the standard for the reasons set forth in the lead opinion. IAs the lead opinion notes, the Commission’s original decision in this case held that thejudge erroneously found the cited standard inapplicable to Ecco’s equipment and remandedfor a decision on the merits.\u00a0 The Commission’s ruling on the applicability questionwas the law of the case and could not be reconsidered by the judge on remand.\u00a0 SeeBethlehem Steel Corp., 82 OSAHRC 31\/A2, 10 BNA OSHC 1673, 1676 n. 6, 1982 CCH OSHD ?26,083 at p. 32,832 n. 6 (No. 77-1807, 1982).\u00a0 However, nothing in the remand orderprecluded the judge from considering a different issue that would be dispositive ofwhether Ecco should be found in violation of the cited standard.\u00a0 Cf. B.F. GoodrichCo., 81 OSAHRC 23\/F1, 9 BNA OSHC 1444, 1981 CCH OSHD ? 25,261 (No. 2038, 1981)(procedural posture of case on remand from court of appeals required consideration ofissue not strictly encompassed within the court’s remand order).\u00a0 The error in thejudge’s ruling on the validity of the standard was not that the issue was precluded by theremand order, but that the parties had not raised that issue before the judge.The validity of a standard is not a jurisdictional issue that is appropriately raised suasponte.\u00a0 Huber, Hunt & Nichols, Inc, and Blount Brothers Corp., a Joint Venture,76 OSAHRC 71\/A2, 4 BNA OSHC 1406, 1407, 1976-77 CCH OSHD ? 20,837 at p. 25,010 (No. 6007,1976); Juhr & Sons, 76 OSAHRC 1\/A9, 3 BNA OSHC 1871, 1975-76 CCH OSHD ? 20,297 (No.2314, 1976).\u00a0 See Consolidated Pine, Inc., 75 OSAHRC 55\/E14, 3 BNA OSHC 1178, 1974-75CCH OSHD ? 19,597 (No. 5543, 1975).\u00a0 However, after the judge issued his decision,the validity issue was directed for review, and has been fully argued by the parties.\u00a0 This issue is also potentially dispositive of the case.\u00a0 Under thesecircumstances, the issue is properly before the Commission.\u00a0 See Power Systems Div.,United Technologies Corp., 81 OSAHRC 50\/C13, 9 BNA OSHC 1813, 1981 CCH OSHD ? 25,350 (No.79-1552, 1981)(Commission permitted employer to amend its answer to challenge validity ofstandard after judge had ruled on his own motion that standard was invalid).II Section 6(a) of the Act, 29 U.S.C. ? 655(a), authorized the Secretary, for a period of 2years from the effective date of the Act, to summarily adopt national consensus standardsas occupational safety and health standards. [[1\/]] The electrical standards wereinitially adopted under this authority in 1971 from the 1968 edition of the NationalElectric Code (\”NEC\”).\u00a0 36 Fed. Reg. 10699 (1971).\u00a0 After the 1971revisions to the NEC, the Secretary repromulgated the electrical standards, adoptingrelevant provisions of the revised NEC. 37 Fed. Reg. 3432 (1972).\u00a0 Section1910.309(a) incorporated standards that were unchanged from the 1968 to 1971 editions ofthe NEC and remained applicable to all installations.\u00a0 Section 1910.309(b)incorporated revised NEC provisions and contained a grandfather clause for existinginstallations.\u00a0 See lead opinion note 2, supra.A Because section 6(a) permitted adoption of standards without resort to the rulemakingrequirements of the Administrative Procedure Act, 5 U.S.C. ?? 551-559, 701-706 (1977),standards adopted under that section cannot differ substantively from their sourcestandards.\u00a0 See American Can Co., 82 OSAHRC 5\/A2, 10 BNA OSHC 1305, 1982 CCH OSHD ?25,899 (Nos. 76-5162, 77-773, & 78-4478, 1982); Rockwell International Corp., 80OSAHRC 118\/A2, 9 BNA OSHC 1092, 1980 CCH OSHD ? 24,979 (No. 12470, 1980).\u00a0 A section6(a) standard would be invalid to the extent it altered the substantive requirements of asource standard.\u00a0 Id.\u00a0 Ecco’s principal argument on review is that the NEC is abuilding design code, intended to be applied only to new installations, and that theCommission’s application of Article 110-17(a) to an existing installation constitutes asubstantive change from the source NEC.\u00a0 However, nothing in either the NEC or in therecord in this case supports the conclusion that the NECis intended to apply only to new installations.\u00a0 The burden is on Ecco to show that asubstantive change was made.\u00a0 In view of the lack of any evidence that either the NECin general or Article 110-17(a) in particular was intended to apply only to newinstallations, Ecco has not carried that burden.[[2\/]]\u00a0 See George C. Christopher& Sons, Inc., 82 OSAHRC 9\/A2, 10 BNA OSHC 1436, 1443, 1982 CCH OSHD ? 25,956 at p.32,531 (No. 76-647, 1982) (burden of proving invalidity of standard rests with partychallenging standard’s validity).B Judge Weil concluded that the 1971 NEC had been invalidly adopted because the Secretarycould not exercise his section 6(a) authority more than once with respect to the same areaof regulation.\u00a0 The judge stated:[T]he purpose of Congress in providing for the promulgation of the interimstandards by the short cut method of ? 6(a) –to quickly get on the books a body of rulesupon which the duties of employers, under ? 5(a), [2]9 U.S.C. ? 654(a)(2), could beenforced — carried with it its own limitation:\u00a0 there would be one exercise of ?6(a) power in a given area of regulation, such as that covered by Subpart S, after whichmodifications would have to be effected by notice and comment rule making under ? 6(b) ofthe Occupational Safety and Health Act and ? 4 of the APA.The Act’s language and legislative history do not support the limitation readby the judge into section 6(a).\u00a0 By its terms, section 6(a) is unequivocal,authorizing the Secretary to promulgate as an occupational safety and health standard anynational consensus standard within the two-year period after the effective date of theAct.\u00a0 See Chlorine Institute, Inc. v. OSHA, 613 F.2d 120 (5th Cir.), cert. den., 449U.S. 826 (1980).\u00a0 There is no question that the 1971 NEC contains this type ofstandard.\u00a0 Moreover, the definition of a national consensus standard, note 1 supra,expressly includes modifications of existing standards by the standards-producingorganization.\u00a0 Read together with section 6(a), this definition suggests thatCongress specifically intended the Secretary to have the authority to adopt modificationsof national consensus standards made within the two-year period by the standards-producingorganization.Interpreting section 6(a) to permit the Secretary to promulgate revisions ofnational consensus standards within the two-year period is also consistent with thecongressional purpose underlying that section:The purpose of this procedure [summary adoption of national consensusstandards] is to establish as rapidly as possible national occupational safety and healthstandards with which industry is familiar.\u00a0 These standards may not be as effectiveor as up-to-date as is desirable, but they will be useful for immediately providing anationwide minimum level of health and safety.S. Rep. No. 1282, 91st Cong., 2d Sess. 6 (1970), reprinted in Subcomm. onLabor, Senate Comm. on Labor & Public Welfare, The Legislative History of theOccupational Safety and Health Act of 1970 at 146(1971).\u00a0 See also NoblecraftIndustries, Inc. v. Secretary of Labor, 614 F.2d 199, 203 (9th Cir. 1980). The expressCongressional concern that certain national consensus standards adopted under section 6(a)would not be as up-to-date as desirable suggests that Congress did not intend to precludethe Secretary from adopting an updated version of a national consensus standard during thetwo-year period of section 6(a) authority simply because the Secretary had previouslypromulgated an earlier version of the same standard.Accordingly, the incorporation of Article 110-17(a) of the 1971 NEC was avalid promulgation and the judge’s ruling is properly reversed.\u00a0 For the reasonsstated in the lead opinion, I concur in finding Ecco in violation of that standard.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES:[[1]] At the time this case arose, 29 C.F.R. ? 1910.309(a) provided thatcertain articles and sections of the 1971 version of the NEC, including Article 110-17(a),applied to all electrical installations and utilization equipment.\u00a0 Article 110-17(a)provided:110-17 Guarding of Live Parts.\u00a0 (Not more than 600 volts)(a) Except as elsewhere required or permitted by this Code, live parts ofelectrical equipment operating at 50 volts or more shall be guarded against accidentalcontact by approved cabinets or other forms of approved enclosures, or any of thefollowing means:(1) By location in a room, vault, or similar enclosure which is accessibleonly to qualified persons.(2) By suitable permanent, substantial partitions or screens so arranged thatonly qualified persons will have access to the space within reach of the live parts.\u00a0 Any openings in such partitions or screens shall be so sized and located thatpersons are not likely to come into accidental contact with the live parts or to bringconducting objects into contact with them.(3) By location on a suitable balcony, gallery, or platform so elevated andarranged as to exclude unqualified persons.(4) By elevation at least 8 feet above the floor or other working surface.Since this case arose, the Secretary has promulgated new electrical standards in 29C.F.R., Part 1910 pursuant to 29 U.S.C. ? 655(b).\u00a0 46 Fed. Reg. 4034 (Janu. 16,1981).\u00a0 Included in the new standards is a provision essentially identical to theversion of Article 110-17(a) quoted above.\u00a0 29 C.F.R. ? 1910.303(g)(2)(i).[[2]] In holding that the standard did not apply, the judge relied on 29C.F.R. ? 1910.309(b), which provided that electrical installations or utilizationequipment installed or modified after March 15, 1972 had to comply with the entirety ofthe 1971 NEC. The judge noted that the installation in Ecco’s plant that was the subjectof the citation had been installed prior to March 15, 1972and had not been modified since that date.\u00a0 In reversing the judge’s decision, theCommission held that the particular provisions of the NEC incorporated under ?1910.309(a) were not subject to the \”grandfather clause\” in ? 1910.309(b).\u00a0 Ecco High Frequency Elec. Corp., 80 OSAHRC 51\/A8, 8 BNA OSHC 1418, 1980 CCH OSHD ?24,496 (No. 77-1030, 1980 ).\u00a0 See also Delaware & Hudson Ry. Co., 80 OSAHRC35\/D10, 8 BNA OSHC 1252, 1980 CCH OSHD ? 24,422 (No. 76-787, 1980).[[3]] The judge stated in his decision that Ecco failed to comply with thecited standard but made no findings of fact to support that conclusion.\u00a0 This is notan acceptable decision on the merits.\u00a0 See P & Z Co., 77 OSAHRC 211\/F5, 6 BNAOSHC 1189, 1977-78 CCH OSHD ? 22,413 (No. 76-431, 1977).[[4]] Ecco’s president testified that a railing in front of the panelfunctioned as a guard.\u00a0 However, a railing is not one of the guarding methodspermitted by Article 110-17(a).\u00a0 We note that one purpose of Article 110-17(a) is toprevent persons from contacting live parts with conducting objects.\u00a0 See Article110-17(a)(2).\u00a0 A railing would not serve this purpose as effectively as the means ofguarding required under the standard.[[5]] Assessment of a monetary penalty for a serious violation is mandatory.\u00a0 Section 17(b) of the Act, 29 U.S.C. ? 666(b).[[1\/]] Section 6(a) provides, in pertinent part:Without regard to chapter 5 of title 5, United States Code, or to the othersubsections of this section, the Secretary shall, as soon as practicable during the periodbeginning with the effective date of this Act and ending two years after such date, byrule promulgate as an occupational safety or health standard any national consensusstandard, and any established Federal standard. . . .\”National consensus standard\” is defined in section 3(9) of theAct, 29 U.S.C. ? 652(9), as:any occupational safety and health standard or modification thereof which(1), has been adopted and promulgated by a nationally recognized standards-producingorganization under procedures whereby it can be determined by the Secretary that personsinterested and affected by the scope or provision of the standard have reached substantialagreement on its adoption, (2) was formulated in a manner which afforded an opportunityfor diverse views to be considered and (3) has been designated as such a standard by theSecretary, after consultation with other appropriate Federal agencies.The NEC was adopted by the National Fire Protection Association and meets thedefinition of a national consensus standard.\u00a0 See Newport News Shipbuilding &Drydock Co., 80 OSAHRC 119\/A2, 9 BNA OSHC 1085, 1089, 1980 CCH OSHD ? 25,003 at p. 30,890(No. 76-171, 1980).[[2\/]] Ecco contends that there is a strong presumption against retroactiveapplication of laws in the absence of explicit language providing for such application.\u00a0 The company cites, among other cases, Greene v. United States, 376 U.S. 149 (1964).\u00a0 The presumption that these cases address concerns the application of laws toconduct that occurred before the laws became effective.\u00a0 In this case, the effectivedate of the cited standard preceded the alleged violation.\u00a0 Thus, there is noretroactive application of law as that doctrine is applied in the cases cited by Ecco.”