“SECRETARY OF LABOR,Complainant,v.ECCO HIGH FREQUENCY ELECTRIC CORP.,Respondent.OSHRC Docket No. 77-1030_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:The Secretary of Labor (\”Secretary\”) alleges that Ecco High FrequencyElectric Corp. (\”Ecco\”) violated Article 110-17(a) of the 1971 NationalElectrical Code (\”NEC\”), as adopted by 29 C.F.R. ? 1910.309(a), [[1]] byfailing to guard certain live electrical parts against accidentalcontact. In his first decision in this case, Administrative Law JudgeRobert P. Weil held that Article 110-17(a) did not apply to theelectrical installation that was the subject of the citation. TheCommission reversed that ruling and remanded to the judge for a decisionon the merits. [[2]]On remand, Judge Weil determined that Ecco had failed to comply withArticle 110-17(a) but held that the standard, as interpreted by theCommission in its earlier decision, was invalidly promulgated. On thisbasis, the judge again vacated the citation. The Secretary’s petitionfor review of the judge’s decision was granted by Commissioner Clearypursuant 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 remandorder. The Secretary points out that the Commission specificallyremanded for a decision \”on the merits of the allegation that Respondentfailed to comply with section 110-17(a) of the National Electrical Codeas adopted by 29 C.F.R. ? 1910.309(a).\” We agree with the Secretary’sargument. Ecco had not questioned the validity of the standard beforethe judge and therefore the Commission’s remand order, even under thebroadest possible interpretation, could not have contemplated a rulingon that issue. See New England Telephone & Telegraph Co., 78 OSAHRC40\/A13, 6 BNA OSHC 1613, 1978 CCH OSHD ? 22,727 (No. 9627, 1978), rev’don other grounds, 589 F.2d 81 (1st Cir. 1978) (judge erred in ruling onissue that employer had not previously raised and was outside scope ofremand order). Furthermore, the judge’s conclusion that the standard asinterpreted by the Commission was invalidly promulgated was based inpart on his assumption that the NEC was intended by its drafters to haveprospective effect only and not to apply to existing installations. However, the parties did not present evidence or argument regarding theactual intent of the NEC on this point. Therefore, the judge’s decisionwas made without any supporting record. Accordingly, the judge’s rulingon the validity of the standard is set aside.Normally, we would remand this case for the judge to issue a decision inconformity with the original remand order.[[3]] However, because JudgeWeil is no longer with the Commission, and the Commission possesses theauthority to make the determinations necessary to dispose of the case,we shall rule on the merits. See Butler Lime & Cement Co., 79 OSAHRC103\/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, energizedto 110-220 volts, on an electrical test panel. The bars are 5 to 6 feetabove the floor and approximately 16 feet long. The panel is used onlyby trained personnel familiar with electricity, but the area in whichthe panel was located had no partitions to keep other employees away. Immediately after the Secretary’s compliance officer pointed out theproblem, Ecco covered the exposed copper bars.Because Ecco did not use any of the means of guarding permitted byArticle 110-17(a), note 1 supra, it violated the standard.[[4]] Weconclude that the violation is serious, as alleged by the Secretary. The compliance officer’s testimony that contact with the energizedcopper bars would cause serious electrical shock or flash burns wasunrebutted. We also conclude, however, that only a nominal penaltyshould be assessed.[[5]] Ecco is a small employer, and it demonstratedgood faith by immediately abating the hazard.Accordingly, the citation alleging a serious violation of Article110-17(a) of the 1971 NEC, as adopted by 29 C.F.R. ? 1910.309(a), isaffirmed. A penalty of one dollar is assessed. SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 20 1983COTTINE, Commissioner, concurring:The Commission’s earlier remand order did not preclude the judge fromruling on the validity of the cited standard. However, it was improperfor the judge to consider the issue because it was not raised by Eccoand is not jurisdictional. Despite the impropriety, the judge’s rulingon this issue was dispositive below and his decision is before theCommission for review. Accordingly, the validity issue should beconsidered in the disposition of this case. I conclude that thestandard was validly promulgated for the reasons that follow and concurin the judgment that Ecco violated the standard for the reasons setforth in the lead opinion.IAs the lead opinion notes, the Commission’s original decision in thiscase held that the judge erroneously found the cited standardinapplicable to Ecco’s equipment and remanded for a decision on themerits. The Commission’s ruling on the applicability question was thelaw of the case and could not be reconsidered by the judge on remand. See Bethlehem 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). However,nothing in the remand order precluded the judge from considering adifferent issue that would be dispositive of whether Ecco should befound in violation of the cited standard. Cf. B.F. Goodrich Co., 81OSAHRC 23\/F1, 9 BNA OSHC 1444, 1981 CCH OSHD ? 25,261 (No. 2038, 1981)(procedural posture of case on remand from court of appeals requiredconsideration of issue not strictly encompassed within the court’sremand order). The error in the judge’s ruling on the validity of thestandard was not that the issue was precluded by the remand order, butthat the parties had not raised that issue before the judge.The validity of a standard is not a jurisdictional issue that isappropriately raised sua sponte. Huber, Hunt & Nichols, Inc, and BlountBrothers 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, 76OSAHRC 1\/A9, 3 BNA OSHC 1871, 1975-76 CCH OSHD ? 20,297 (No. 2314,1976). See Consolidated Pine, Inc., 75 OSAHRC 55\/E14, 3 BNA OSHC 1178,1974-75 CCH OSHD ? 19,597 (No. 5543, 1975). However, after the judgeissued his decision, the validity issue was directed for review, and hasbeen fully argued by the parties. This issue is also potentiallydispositive of the case. Under these circumstances, the issue isproperly before the Commission. See Power Systems Div., UnitedTechnologies Corp., 81 OSAHRC 50\/C13, 9 BNA OSHC 1813, 1981 CCH OSHD ?25,350 (No. 79-1552, 1981)(Commission permitted employer to amend itsanswer to challenge validity of standard after judge had ruled on hisown motion that standard was invalid).IISection 6(a) of the Act, 29 U.S.C. ? 655(a), authorized the Secretary,for a period of 2 years from the effective date of the Act, to summarilyadopt national consensus standards as occupational safety and healthstandards. [[1\/]] The electrical standards were initially adopted underthis authority in 1971 from the 1968 edition of the National ElectricCode (\”NEC\”). 36 Fed. Reg. 10699 (1971). After the 1971 revisions tothe NEC, the Secretary repromulgated the electrical standards, adoptingrelevant provisions of the revised NEC. 37 Fed. Reg. 3432 (1972). Section 1910.309(a) incorporated standards that were unchanged from the1968 to 1971 editions of the NEC and remained applicable to allinstallations. Section 1910.309(b) incorporated revised NEC provisionsand contained a grandfather clause for existing installations. See leadopinion note 2, supra.ABecause section 6(a) permitted adoption of standards without resort tothe rulemaking requirements of the Administrative Procedure Act, 5U.S.C. ?? 551-559, 701-706 (1977), standards adopted under that sectioncannot differ substantively from their source standards. See AmericanCan 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). A section 6(a) standard would be invalid to the extent italtered the substantive requirements of a source standard. Id. Ecco’sprincipal argument on review is that the NEC is a building design code,intended to be applied only to new installations, and that theCommission’s application of Article 110-17(a) to an existinginstallation constitutes a substantive change from the source NEC. However, nothing in either the NEC or in the record in this casesupports the conclusion that the NECis intended to apply only to new installations. The burden is on Eccoto show that a substantive change was made. In view of the lack of anyevidence that either the NEC in general or Article 110-17(a) inparticular was intended to apply only to new installations, Ecco has notcarried that burden.[[2\/]] See George C. Christopher & Sons, Inc., 82OSAHRC 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 withparty challenging standard’s validity).BJudge Weil concluded that the 1971 NEC had been invalidly adoptedbecause the Secretary could not exercise his section 6(a) authority morethan once with respect to the same area of regulation. The judge stated:[T]he purpose of Congress in providing for the promulgation of theinterim standards by the short cut method of ? 6(a) –to quickly get onthe books a body of rules upon which the duties of employers, under ?5(a), [2]9 U.S.C. ? 654(a)(2), could be enforced — carried with it itsown limitation: there would be one exercise of ? 6(a) power in a givenarea of regulation, such as that covered by Subpart S, after whichmodifications would have to be effected by notice and comment rulemaking under ? 6(b) of the Occupational Safety and Health Act and ? 4 ofthe APA.The Act’s language and legislative history do not support the limitationread by the judge into section 6(a). By its terms, section 6(a) isunequivocal, authorizing the Secretary to promulgate as an occupationalsafety and health standard any national consensus standard within thetwo-year period after the effective date of the Act. See ChlorineInstitute, Inc. v. OSHA, 613 F.2d 120 (5th Cir.), cert. den., 449 U.S.826 (1980). There is no question that the 1971 NEC contains this typeof standard. Moreover, the definition of a national consensus standard,note 1 supra, expressly includes modifications of existing standards bythe standards-producing organization. Read together with section 6(a),this definition suggests that Congress specifically intended theSecretary to have the authority to adopt modifications of nationalconsensus standards made within the two-year period by thestandards-producing organization.Interpreting section 6(a) to permit the Secretary to promulgaterevisions of national consensus standards within the two-year period isalso consistent with the congressional purpose underlying that section:The purpose of this procedure [summary adoption of national consensusstandards] is to establish as rapidly as possible national occupationalsafety and health standards with which industry is familiar. Thesestandards may not be as effective or as up-to-date as is desirable, butthey will be useful for immediately providing a nationwide minimum levelof health and safety.S. Rep. No. 1282, 91st Cong., 2d Sess. 6 (1970), reprinted in Subcomm.on Labor, Senate Comm. on Labor & Public Welfare, The LegislativeHistory of the Occupational Safety and Health Act of 1970 at 146(1971). See also Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d199, 203 (9th Cir. 1980). The express Congressional concern that certainnational consensus standards adopted under section 6(a) would not be asup-to-date as desirable suggests that Congress did not intend topreclude the Secretary from adopting an updated version of a nationalconsensus standard during the two-year period of section 6(a) authoritysimply because the Secretary had previously promulgated an earlierversion of the same standard.Accordingly, the incorporation of Article 110-17(a) of the 1971 NEC wasa valid promulgation and the judge’s ruling is properly reversed. Forthe reasons stated in the lead opinion, I concur in finding Ecco inviolation of that standard.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386). FOOTNOTES:[[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, includingArticle 110-17(a), applied to all electrical installations andutilization equipment. Article 110-17(a) provided:110-17 Guarding of Live Parts. (Not more than 600 volts)(a) Except as elsewhere required or permitted by this Code, live partsof electrical equipment operating at 50 volts or more shall be guardedagainst accidental contact by approved cabinets or other forms ofapproved enclosures, or any of the following means:(1) By location in a room, vault, or similar enclosure which isaccessible only to qualified persons.(2) By suitable permanent, substantial partitions or screens so arrangedthat only qualified persons will have access to the space within reachof the live parts. Any openings in such partitions or screens shall beso sized and located that persons are not likely to come into accidentalcontact with the live parts or to bring conducting objects into contactwith them.(3) By location on a suitable balcony, gallery, or platform so elevatedand arranged 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 electricalstandards in 29 C.F.R., Part 1910 pursuant to 29 U.S.C. ? 655(b). 46Fed. Reg. 4034 (Janu. 16, 1981). Included in the new standards is aprovision essentially identical to the version of Article 110-17(a)quoted above. 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 orutilization equipment installed or modified after March 15, 1972 had tocomply with the entirety of the 1971 NEC. The judge noted that theinstallation in Ecco’s plant that was the subject of the citation hadbeen installed prior to March 15, 1972and had not been modified since that date. In reversing the judge’sdecision, the Commission held that the particular provisions of the NECincorporated under ? 1910.309(a) were not subject to the \”grandfatherclause\” in ? 1910.309(b). Ecco High Frequency Elec. Corp., 80 OSAHRC51\/A8, 8 BNA OSHC 1418, 1980 CCH OSHD ? 24,496 (No. 77-1030, 1980 ). See also Delaware & Hudson Ry. Co., 80 OSAHRC 35\/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 withthe cited standard but made no findings of fact to support thatconclusion. This is not an acceptable decision on the merits. See P &Z Co., 77 OSAHRC 211\/F5, 6 BNA OSHC 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. However, a railing is not one of the guardingmethods permitted by Article 110-17(a). We note that one purpose ofArticle 110-17(a) is to prevent persons from contacting live parts withconducting objects. See Article 110-17(a)(2). A railing would notserve this purpose as effectively as the means of guarding requiredunder the standard.[[5]] Assessment of a monetary penalty for a serious violation ismandatory. 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 theother subsections of this section, the Secretary shall, as soon aspracticable during the period beginning with the effective date of thisAct and ending two years after such date, by rule promulgate as anoccupational safety or health standard any national consensus standard,and any established Federal standard. . . .\”National consensus standard\” is defined in section 3(9) of the Act, 29U.S.C. ? 652(9), as:any occupational safety and health standard or modification thereofwhich (1), has been adopted and promulgated by a nationally recognizedstandards-producing organization under procedures whereby it can bedetermined by the Secretary that persons interested and affected by thescope or provision of the standard have reached substantial agreement onits adoption, (2) was formulated in a manner which afforded anopportunity for diverse views to be considered and (3) has beendesignated as such a standard by the Secretary, after consultation withother appropriate Federal agencies.The NEC was adopted by the National Fire Protection Association andmeets the definition of a national consensus standard. See Newport NewsShipbuilding & 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 againstretroactive application of laws in the absence of explicit languageproviding for such application. The company cites, among other cases,Greene v. United States, 376 U.S. 149 (1964). The presumption thatthese cases address concerns the application of laws to conduct thatoccurred before the laws became effective. In this case, the effectivedate of the cited standard preceded the alleged violation. Thus, thereis no retroactive application of law as that doctrine is applied in thecases cited by Ecco.”