“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79?4478 ?GENERAL MOTORS CORPORATION, GM PARTS DIVISION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 23, 1981DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? The issuebefore us is whether the validity of an occupational safety and health standardmay be challenged on the ground that the established federal standard fromwhich it was derived was invalidly amended before its adoption under theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?).We hold that the validity of the procedure by which an ancestor standard wasamended may not be challenged in a Commission proceeding.I??????????? OnAugust 2, 1979, the Secretary of Labor (?the Secretary?) issued to GeneralMotors Corporation (?GM?) a citation alleging that GM had violated section5(a)(2) of the Act, 29 U.S.C. ? 654(a)(2), by failing to comply with theoccupational safety and health standard at 29 C.F.R. ? 1910.132(a). Thecitation alleged that employees handling heavy materials in a warehouse area ofa GM Parts Division facility were not using foot protection. Section1910.132(a) states in part that personal protective equipment for employees?extremities ?shall be provided, used,and maintained. . . wherever it is necessary by reason of hazards . . ..? [1](Emphasis added.) GMcontested the citation.??????????? GM?sanswer to the Secretary?s subsequent complaint alleged, among other things,that the standard was ?improperly promulgated.? Both parties then filed motionsfor summary judgment. Administrative Law Judge J. Paul Brenton granted GM?smotion and vacated the citation. He held that the addition of the word ?used?to 41 C.F.R. ? 50?204.7, the established federal standard from which section1910.132(a) was derived, was invalid because prior, public notice of theamendment was not given and rulemaking procedures were not followed. JudgeBrenton agreed with the decision of another administrative law judge in General Motors Corp., OSHRC Docket No. 78?1443(June 21, 1979), review directed, July 23, 1979, that the addition of the word?used? was not a minor change for which notice and rulemaking proceedings wereunnecessary.??????????? TheSecretary filed a petition for discretionary review of Judge Brenton?s decision,and review was granted by Commissioner Cottine under section 12(j) of the Act,29 U.S.C. ? 661(i).[2]IIA.??????????? Areview of the regulatory background is important to an understanding of thiscontroversy. In 1936, Congress passed the Walsh-Healey Government ContractsAct, 41 U.S.C. ?? 35?45 (?the Walsh-Healey Act?). The Walsh-Healey Act requirescontracts with the federal government for materials in amounts over $10,000 toprovide that ?no part of such contract will be performed . . . under workingconditions which are unsanitary or hazardous or dangerous to the health andsafety of employees engaged in the performance of said contract.?[3] It authorizes theSecretary of Labor to adopt rules and regulations to carry out the statute,[4] and makes the AdministrativeProcedure Act, 5 U.S.C. ?? 551?706 (?the APA?), applicable to the making of rulesunder the Walsh-Healey Act.[5]??????????? Section4(a) of the APA, 5 U.S.C. ? 553(b), requires an agency to publish in theFederal Register a notice of a proposed rulemaking giving the terms orsubstance of a proposed rule, or a description of the subjects and issuesinvolved, unless the agency for good cause finds that ?notice and publicprocedure thereon are impracticable, unnecessary, or contrary to the publicinterest.? The agency?s finding of good cause, and a brief statement of thereasons for the finding, must accompany the publication. Id. Section 4(b) of the APA, 5 U.S.C. ? 553(c), requires that afternotice is given, interested persons be afforded ?an opportunity to participatein the rulemaking? through submission of information, views or arguments.??????????? OnSeptember 20, 1968, the Bureau of Labor Standards of the United StatesDepartment of Labor proposed to revise 41 C.F.R. Part 50?204 by prescribingsafety and health standards for the performance of contracts covered by theWalsh-Healey Act. 33 Fed. Reg. 14258 (1968). One of the standards proposed tobe adopted stated in part as follows:? 50?204.64 Personal protective equipment.?Protective equipment, including personalprotective equipment for . . . extremities, protective clothing, . . . andprotective shields and barriers, shall be providedand maintained . . . wherever it is necessary by reason of hazards . . ..[Emphasis added.]?33 Fed. Reg. at 14270.???????????? OnDecember 28, 1968 mine radiation standards were adopted. 33 Fed. Reg. 19947(1968). On January 17, 1969, the remainder of the revised Part 50?204 wasadopted. 34 Fed. Reg. 788 (1969). The standard on personal protective equipmentwas designated 41 C.F.R. ? 50?204.7. 34 Fed. Reg. at 790.[6] The standards, which weresaid by the Secretary to have been adopted after interested persons had beenafforded opportunities to present oral and written comments, were to becomeeffective 30 days after publication.??????????? OnFebruary 14, 1969, the effective date of the revised Part 50?204 was postponeduntil May 17, 1969, ?to permit a careful review? of the standards by the newSecretary of Labor. 34 Fed. Reg. 7946 (1969) (preamble); 34 Fed. Reg. 2207(1969). After an advisory committee composed of representatives of labor,management and public groups interested in occupational safety and health madeits recommendations, and the public comments received earlier were reviewed,the Secretary amended some of the standards in Part 50?204 without furtherrulemaking and adopted the revised Part 50?204, effective May 20, 1969. 34 Fed.Reg. 7946 (1969). The personal protective equipment standard was unchanged.??????????? OnJanuary 24, 1970, the Secretary published ?miscellaneous amendments? to the newpart. 35 Fed. Reg. 1015 (1970). The Secretary stated:Typographical or clerical corrections andother minor changes are made in [41 C.F.R.] Part 50?204 . . . in the mannerindicated below. To the extent that substantive rules may be made in ??50?204.7 and 50?204.10 [the personal protective equipment and noise standards],notice and public procedure is found unnecessary because only minor amendmentsare involved.???????????? Allbut two of the changes were to take effect at once; the changes to the personalprotective equipment and noise standards were to take effect 30 days afterpublication. The personal protective equipment standard was changed by theaddition of the word ?used?, so that the standard stated: ?Protectiveequipment, including personal protective equipment . . . shall be provided, used, and maintained . . ..? (Emphasisadded.) This is the change to which GM objects.B.??????????? OnApril 28, 1971, the Occupational Safety and Health Act became effective.Section 6(a) of the Act, 29 U.S.C. ? 655(a), required that the Secretary,within two years, adopt as occupational safety and health standards under theAct ?established Federal standards? and ?national consensus standards? withoutfollowing the rulemaking requirements of the APA or of other subsections ofsection 6 of the Act. The Secretary was to do so unless he found that theadoption of a standard would not improve employee safety or health.[7] Established federalstandards are defined in section 3(10), 29 U.S.C. ? 652(10), as ?any operative. . . standard established by any [federal] agency . . . and presently ineffect, or contained in any Act of Congress in force on the date of enactmentof this Act.?[8]The last sentence of section 4(b)(2), 29 U.S.C. ? 653(b)(2), states, however,that ?Standards issued under the laws listed in this paragraph and in effect onor after the effective date of this Act shall be deemed to be occupationalsafety and health standards issued under this Act . . ..? The Walsh-Healey Actis one of the statutes listed.[9]??????????? OnMay 29, 1971, the Secretary, acting under section 6(a) and in conformity withthe congressional direction to adopt established federal standards under theAct, adopted many Walsh-Healey standards as occupational safety and healthstandards. 36 Fed. Reg. 10466 (1971). The Walsh-Healey standard on personalprotective equipment was adopted and was codified as an occupational safety andhealth standard at 29 C.F.R. ? 1910.132(a). Id. at 10590; 29 C.F.R ?\u00a01910.139.III??????????? Onreview, the Secretary argues that the Commission has no authority to pass uponthe validity of occupational safety and health standards. He maintains that thepre-enforcement challenge provision in section 6(f) of the Act, 29 U.S.C. ?655(f), is exclusive, and that, in particular, challenges to the proceduralregularity of a standard?s adoption may not be raised in an enforcementproceeding. For the latter point he cites NationalIndustrial Constructors v. OSHRC, 583 F.2d 1048, 1052 (8th Cir. 1978)(?NIC?).??????????? TheSecretary further argues that ?the propriety of the promulgation of theantecedent Walsh-Healey standard may not be questioned in an OSHA enforcementproceeding.? He maintains that in sections 4(b)(2) and 6(a) of the Act,Congress adopted and authorized the adoption as quickly as possible of allestablished federal standards ?on the books? when the Act became law; that?Congress did not require the Secretary to examine the genealogy of thestandards in order to determine their procedural legitimacy as a prerequisiteto their summary adoption?; and that in section 6(a) Congress required theSecretary to inquire only whether adoption of a standard ?would not result inimproved safety or health for specifically designated employees.???????????? TheSecretary argues also that the word ?used? was properly added to theWalsh-Healey standard because it was a minor, clarifying amendment for whichnotice and rulemaking were unnecessary under 5 U.S.C. ? 553(b). He maintainsthat the purpose of adding the word ?used? to the standard was to ?make explicitwhat was implicit in the word ?provided?.? He views the term ?provided? toimply a requirement of use, citing Cornell& Co., 77 OSAHRC 18\/D10, 5 BNA OSHC 1018, 1020, 1976?77 CCH OSHD?21,532 (No. 9353, 1977); Brennan v.Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974); Marshall v. Southern Industrial Contractors& Riggers, Inc., 576 F.2d 368 (5th Cir. 1978). He also relies on Turnbull Millwork Co., 77 OSAHRC 205\/C8,6 BNA OSHC 1148, 1149, 1977?78 CCH OSHD ? 22,388 (No. 15047, 1977). TheSecretary acknowledges the contrary Commission and court decisions in Kennecott Copper Corp., 76 OSAHRC 81\/A2,4 BNA OSHC 1400, 1976?77 CCH OSHD ? 20, 860 (No. 5958, 1976), aff?d, 577 F.2d 1113 (10th Cir. 1977).??????????? GMargues that the Commission may review the validity of standards, and that theCommission and the courts have so held. It cites the legislative history of theAct and Noblecraft Industries, Inc. v.Secretary of Labor, 614 F.2d 199 (9th Cir. 1980) (?Noblecraft?), for the proposition that the pre-enforcementchallenge procedure provided by section 6(f) is not exclusive. GM argues thatthe distinction drawn by the NIC court, and relied upon by the Secretary,between challenges to a standard?s substantive validity and to the proceduralregularity of its adoption, is unsupportable. Finally, GM maintains that theaddition of the word ?used? to ? 50?204.7 was a substantial change that couldhave been effected under the Walsh-Healey Act only after notice and rulemakingunder the APA.IV??????????? In Rockwell International Corp., 80 OSAHRC___, 9 BNA OSHC 1092, 1094?1097, 1980 CCH OSHD ? 24,979, pp. 30,843?45 (No.12470, 1980), the Commission held that it is generally authorized to considerthe validity of occupational safety and health standards in enforcementproceedings. We rejected the Secretary?s argument that the mere existence ofthe pre-enforcement challenge provision in section 6(f) of the Act indicatesthat Congress intended to bar all challenges to the validity of a standard inenforcement proceedings. We also stated, however, that Congress? rejection of abill containing an exclusive pre-enforcement challenge provision does notindicate necessarily that Congress intended to permit all challenges to astandard?s validity in enforcement proceedings regardless of the circumstances.9 BNA OSHC at 1096, 1980 CCH OSHD at p. 30,844 (majority opinion) and 9 BNAOSHC at 1099, 1980 CCH OSHD at p. 30,847 (concurring opinion). Although weconsidered Rockwell?s argument that the standard at issue in that case isinvalid because it is substantially different from the established federalstandard from which it was derived, we specifically reserved decision onwhether a challenge to the procedural regularity of the adoption of theancestor standard itself would be permitted in an enforcement proceeding. Weobserved that such a question raised ?different considerations? and that theEighth Circuit in NIC had refused toentertain such an attack in an enforcement proceeding. 9 BNA OSHC at 1096 &n. 18, 1980 CCH OSHD at p. 30,845 & n. 18 (lead opinion), and 9 BNA OSHC at1100, 1980 CCH OSHD at p. 30,848 (concurring opinion).[10]??????????? Thelanguage of the Act does not specifically address the issue before us. The onlyprovision that even suggests that GM?s challenge may be considered is thedefinition of ?established Federal standard? in section 3(10) of the Act, 29U.S.C. ? 652(10), which refers to ?any operativeoccupational safety and health standard established by any [federal] agency . .. and presently in effect, or contained in any Act of Congress in force on thedate of enactment of this Act.? (Emphasis added.) To rely upon section 3(10),however, would require us not only to construe ?operative? as meaning?valid??despite its usual meaning of ?operating?, or ?exerting force orinfluence?[11]?butalso to conclude that because the Walsh-Healey standard at issue was not?operative?, it was not an established federal standard within thecontemplation of section 3(10). Such a construction would simply not reflectcongressional intent. Section 4(b)(2) of the Act states in part thatWalsh-Healey standards ?in effect on or after the effective date of this Actshall be deemed to be occupational safety and health standards issued underthis Act . . ..?[12]The drafters of the Act were aware that the then recently-adopted Walsh-Healeystandards would be the primary source of established federal standards forindustrial working conditions covered by the Act.[13] While section 4(b)(2)cannot be read so literally as to make section 6(a) superfluous,[14] its text and theregulatory background against which section 3(10) must be viewed do indicatethat it was Congress? view that the Walsh-Healey standards would be?established Federal standards? under the Act. Congress? view of the mattercontrols. Cf. Newport News Shipbuilding& Drydock Co., 80 OSAHRC ___, 9 BNA OSHC 1085, 1088?89, 1980 CCH OSHD ?25, 003, pp. 30,889?890 (No. 76?171, 1980), following Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d at 203(ANSI and NFPA standards, intended by Congress to be adopted as nationalconsensus standards under section 6(a), meet the definition of national consensusstandard in section 3 (9)).[15]??????????? Althoughthe text of the Act itself does not specifically answer the question before us,we do have evidence of the guiding congressional purposes. Congress authorizedthe Secretary to summarily adopt established federal standards and nationalconsensus standards ?as soon as practicable? because it found a ?pressing needfor adoption of OSHA standards on an exceedingly broad industrial front withoutundue delay.?[16]As the Senate Subcommittee on Labor stated: ?The purpose of this procedure isto establish as rapidly as possible national occupational safety and healthstandards with which industry is familiar.?[17] Congress also expectedthat, despite their defects, the established federal standards and nationalconsensus standards ?would provide a sound foundation for a national safety andhealth program?[18]and that the summary adoption of established federal standards would be fair toemployers because ?[s]uch standards have already been subjected to theprocedural scrutiny mandated by the law under which they were issued.?[19] For these reasons, and toexpedite the adoption and nationwide enforcement of established federal standards,section 6(a) imposed only a minimal, additional burden upon the task ofadopting them: The Secretary was commanded to adopt established federalstandards unless he found that no improvement in employee safety and healthwould result. As the Secretary puts it, Congress directed the adoption ofestablished federal standards ?on the books? when the Act became effective anddid not require him to ?examine the genealogy of the standards . . . as aprerequisite to their adoption.???????????? Ourtask here is to formulate a rule that best reflects congressional purposes andexpectations. The legitimacy of the procedures by which many establishedfederal standards were adopted has been questioned both here and in the courts.[20] While we are sensitive tothe interests of employers and labor organizations in challenging the validityof standards?and we weighed those interests heavily in Rockwell?we must alsogive weight to countervailing considerations. As we have noted, Congressexpected that the established federal standards would help to provide a soundfoundation for a national safety and health program because the proceduralregularity of their adoption had been subjected to scrutiny at the time oftheir promulgation under other federal legislation. To strike down an occupationalsafety and health standard at this time because of a procedural misstepinvolving its ancestor standard adopted under another federal statute wouldupset this congressional expectation. We also give considerable weight to thefact that freely permitting challenges to the procedural validity of ancestorstandards would substantially undercut the public interests in finality and inavoiding the burden that continuous challenges would impose upon theSecretary?s enforcement program and the Commission?s adjudicative processes. Rockwell International Corp., 9 BNA OSHCat 1096, 1980 CCH OSHD at p. 30,845 (lead opinion) and 9 BNA OSHC at 1099, 1980CCH OSHD at pp. 30,847?48 (concurring opinion). See also National Industrial Constructors v. OSHRC, 583 F.2d at1052.[21] We therefore hold thatthe validity of an occupational safety and health standard may not bechallenged on the ground that the established federal standard from which itwas derived was invalidly amended before its adoption under the Act.?Accordingly, the judge?s decision is reversed, and thecase is remanded for further proceedings consistent with this opinion.?FOR THE COMMISSION:?RAY H. DARLING, JR.,EXECUTIVE SECRETARYDATED: FEB 23, 1981\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79?4478 GENERAL MOTORS CORPORATION, GM PARTS DIVISION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 February 7, 1980DECISION AND ORDER ON MOTION FOR SUMMARYJUDGMENTAPPEARANCESBobbye D. Spears, Regional Solicitor,Larry A. Auerbach, Esquire, U.S. Department of Labor, Office of the Solicitor, Atlanta,Georgia, On behalf of Complainant.\u00a0Michael J. Connolly, Esquire, Ms. M. AliceMcCann, Esquire, General Motors Corporation, Detroit, Michigan, On behalf ofRespondent.\u00a0Brenton, JudgeSTATEMENT OF THE CASE??????????? OnAugust 2, 1979, complainant cited respondent for a ? 5(a)(2) violation of theOccupational Safety and Health Act of 1970. After respondent timely filed itsnotice of contest, a complaint was filed and served upon respondent to whichrespondent filed its answer.??????????? OnNovember 2, 1979, a hearing on the merits was scheduled to commence on December21, 1979. On December 3, 1979, respondent filed a motion for summary judgmentto which complainant responded on January 8, 1980. Complainant?s responseincludes a cross-motion for summary judgment in his favor. Respondent respondedto that cross-motion on January 14, 1980.??????????? At anearly date, the parties orally indicated that neither would request a hearingon the motion, and neither made such request on or before December 18, 1979,having been extended that opportunity on December 7, 1979.??????????? Therespective motions of the parties are based soley upon the pleadings exceptrespondent submitted the decision and order of Judge Weil in Secretary of Labor v. General MotorsCorporation, OSHRC Docket No. 78?1443, in support of its motion.??????????? Noaffected employee or union representative of affected employees claimed partystatus or objected at any time to the proceedings in this case.THE CHARGE??????????? Thatcheckers in the warehouse area handling heavy materials were not required towear foot protection in violation of a specific standard [promulgated under theAct] (29 C.F.R. 1910.132(a)).THE ISSUE??????????? Whetherthe pleadings, admissions, if any, and extraneous material on file show thatthere is no genuine issue as to any material fact and that one of the movingparties is entitled to a judgment as a matter of law.LAW AND OPINION??????????? Respondentby its answer concedes that it is engaged in a business affecting commerce,therefore the Review Commission has jurisdiction to hear and decide the issuepresented; unless ? 6(f) of the Act establishes exclusive jurisdiction in theUnited States Court of Appeals to hear and decide challenges to the validity ofthe Secretary?s promulgated regulations and standards.??????????? Respondent?sanswer denies the alleged violation and affirmatively avers the invalidity of ?132(a).??????????? Complainantconcedes that in promulgating the standard under attack, he did not adopt thepre-existing federal standard verbatim. That pre-existing standard provided:?Protective equipment . . . shall beprovided and maintained . . .? (34 FR 788 at 790)\u00a0??????????? Complainant,without a rule-making proceeding on public notice, changed the standard,adopted and promulgated it to read:?Protective equipment . . . shall beprovided, used, and maintained . . .? (35 FR 1015).???????????? Theaddition of the word ?used? in the standard as promulgated is the underlyingthrust of respondent?s case for summary judgment in its favor.??????????? Thepleadings and the extraneous material judicially noticed clearly present thequestion of law.??????????? Theposture of this case at this stage of the proceedings clearly shows that thefact of change upon adoption of ? 132(a) is indisputable, which in turnpresents the issue of its validity and enforceability.??????????? Thevalidity of the cited standard is, of course, a material fact and the heart ofcomplainant?s enforcement action here.??????????? JudgeWeil?s decision and order appended to respondent?s memorandum in support of itsmotion properly declared ? 132(a) invalid. The parties there are identicalhere. The issues presented and decided there are the same as presented and tobe decided here. Complainant here has presented no new or differentpropositions of law and authorities.??????????? Thistribunal is aware that Judge Weil?s decision and order in OSHRC Docket No.78?1443 has been directed for review by the Review Commission and to date isnot Commission precedent.??????????? Nevertheless,this tribunal is in complete agreement with his analysis of the issue of thevalidity of the cited standard. If the Commission has precisely decided theissue as presented there and here, this tribunal by research is unaware of sucha decision.??????????? Thistribunal has been over this territory before in Secretary v. Duriron Company, 78 OSAHRC 46\/E6, 6 BNA 1701, 1978 CCHOSHD ? 22,819 (Docket No. 77?3177). There, as here, a substantial change insubstance occurred upon the promulgation of the respective standards andinvalid in the absence of compliance with APA safeguards (5 U.S.C. ? 553).??????????? JudgeWeil?s decision in OSHRC Docket No. 78?1443 is incorporated herein by referenceand adopted by this tribunal as if fully rewritten. His conclusions reached inthat decision are equally valid here.??????????? Therebeing no genuine issue as to the essential material fact put in issue byrespondent?s motion, respondent is entitled to judgment as a matter of law; andcomplainant?s cross motion is denied and dismissed.??????????? Respondent?smotion here is functionally equivalent to a motion to dismiss for failure tostate a claim or a motion for judgment on the pleadings. In those kind ofcases, the movant denies the sufficiency of the truth of his adversary?sallegations. Thus having found that ? 132(a) is invalid in law, the citationshould be vacated.ORDER??????????? Citation1 and its correlative penalty are vacated.?J. PAUL BRENTONJUDGEDated: February 7, 1980?Atlanta, Georgia[1] Section 1910.132states in its entirety:? 1910.132 General requirements.(a) Application. Protective equipment,including personal protective equipment for eyes, face, head, and extremities,protective clothing, respiratory devices, and protective shields and barriers,shall be provided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazards of processes or environment,chemical hazards, radiological hazards, or mechanical irritants encountered ina manner capable of causing injury or impairment in the function of any part ofthe body through absorption, inhalation or physical contact.(b) Employee-owned equipment. Whereemployees provide their own protective equipment, the employer shall beresponsible to assure its adequacy, including proper maintenance, andsanitation of such equipment.(c) Design. All personal protectiveequipment shall be of safe design and construction for the work to beperformed.[2] We sever this casefrom No. 78?1443, with which it had been consolidated. Commission Rule 10, 29C.F.R ? 2200.10.[3] Section 1(e), 41U.S.C. ? 35(e).[4] Section 4, 41U.S.C. ? 38.[5] Section 10 asamended in 1952, 41 U.S.C. ? 43a. Section 4(2) of the APA, 5 U.S.C ? 553(a)(2),makes APA rulemaking procedures inapplicable to government contract matters.[6] The final standardincluded a sentence that did not appear in the proposed standard. The newsentence stated that ?All personal protective equipment shall be of safe designand construction for the work to be performed.? Some changes were also made inanother sentence dealing with employee-provided equipment.[7] Section 6(a)states:Without regard to chapter 5 of title 5,United States Code, or to the other subsections of this section, the Secretaryshall, as soon as practicable during the period beginning with the effectivedate of this Act and ending two years after such date, by rule promulgate as anoccupational safety or health standard any national consensus standard, and anyestablished Federal standard, unless he determines that the promulgation ofsuch a standard would not result in improved safety or health for specificallydesignated employees. In the event of conflict among any such standards, theSecretary shall promulgate the standard which assures the greatest protectionof the safety or health of the affected employees.[8] National consensusstandards are defined in section 3 (9) of the Act, 29 U.S.C. ? 652(9), as:. . . any occupational safety and healthstandard or modification thereof which (1), has been adopted and promulgated bya nationally recognized standards-producing organization under procedureswhereby it can be determined by the Secretary that persons interested andaffected by the scope or provisions of the standard have reached substantialagreement on its adoption, (2) was formulated in a manner which afforded anopportunity for diverse views to be considered and (3) has been designated assuch a standard by the Secretary, after consultation with other appropriateFederal agencies.[9] The other laws arethe Service Contract Act of 1965, 41 U.S.C. ?? 351?358; the Contract Work Hoursand Safety Standards Act, 40 U.S.C. ? 333 (usually known as the ConstructionSafety Act); the Longshoremen?s and Harbor Workers? Compensation Act, 33 U.S.C.?? 901?950 (?the LHWCA?); and the National Foundation on Arts and HumanitiesAct of 1965, 20 U.S.C. ??\u00a0951?960. Section 4(b)(2) is reproduced in itsentirety at note 12, infra.[10] UnlikeRockwell, this case does not presentthe question of whether a standard is invalid because it is substantiallydifferent from its source standard. Seealso Kennecott Copper Corp., 76 OSAHRC 81\/A2, 4 BNA OSHC 1400, 1976?77 CCHOSHD ? 20,860 (No. 5958, 1976), aff?d,577 F.2d 1113 (10th Cir. 1977) (change in national consensus standard). We alsodo not have before us a claim that ? 1910.132(a) is invalid because it is vagueor otherwise violates the due process clause of the Fifth Amendment. See, e. g., Owen Corning Fiberglas Corp.,79 OSAHRC 26\/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ?23, 509 (No. 76?4990, 1979)(vagueness of ? 1910.132(a)), appealfiled, No. 79?2516 (5th Cir. June 26, 1979).[11] Webster?s ThirdNew International Dictionary, at 1581 (1971) lists the following meanings:?producing an appropriate or designed effect?, ?efficacious?, ?having theeffect of acting: exerting force or influence?, and ?operating?. The RandomHouse Dictionary, at 1009 (1971) lists ?operating, or exerting force or influence?,?having force; being in effect or operation: [e. g.,] laws operative in thiscity? (exemplary italics omitted), and ?effective or efficacious?.[12] Section 4(b)(2)states in its entirety:The safety and health standardspromulgated under the Act of June 30, 1936, commonly known as the Walsh-HealeyAct (41 U.S.C. 35 et seq.), the Service Contract Act of 1965 (41 U.S.C. 351 etseq.), Public Law 91?54, Act of August 9, 1969 [the Construction Safety Act](40 U.S.C. 333), Public Law 85?742, Act of August 23, 1958 [the LHWCA] (33U.S.C. 941), and the National Foundation on Arts and Humanities Act (20 U.S.C.951 et seq.) are superseded on the effective date of corresponding standards,promulgated under this Act, which are determined by the Secretary to be more effective.Standards issued under the laws listed in this paragraph and in effect on orafter the effective date of this Act shall be deemed to be occupational safetyand health standards issued under this Act, as well as under such other Acts.[13] Former Secretaryof Labor Shultz, the first witness to testify before the Senate Subcommittee onLabor, testified that ?[t]he only Federal laws not confined to a specificindustry are the Walsh-Healey Public Contracts Act and its companionlegislation, the McNamara-O?Hara Service Contract Act.? Occupational Safety andHealth Act, 1970: Hearings on S.2193 and S.2788 Before the Subcomm. on Labor ofthe Senate Comm. on Labor & Public Welfare, 91st Cong., 1st & 2d Sess.80 (1969?1970). Senators Williams and Javits, two of the drafters of the Act,were also aware of the adoption and coverage of the Walsh-Healey standards. id.at 402?403 (Senator Javits), and at 808?809 (Senator Williams) (remarks onnoise standards). See also, e.g., id. at 1003 (remarks of Mr. Mittelman minoritycounsel, on noise standard); at 150 (Dr. Key, Director of Bureau ofOccupational Safety and Health, Dept. of HEW); at 630?631 (Mr. Ralph Nader); at834 (Mr. Veneri, Electrical Workers); and at 1313 (final Walsh-Healey standardsreproduced verbatim).[14] That Congress didnot intend ? 4(b)(2) to make ? 6(a) superfluous or impair the Secretary?srulemaking authority under ? 6(a) is clear. See remarks of RepresentativeSteiger of Wisconsin, reprinted in Senate Committee on Labor and PublicWelfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safetyand Health Act of 1970, at 1217 (1971) (?Leg. Hist.?); see also Atlantic & Gulf Stevedores, Inc., 75 OSAHRC 47\/A2, 3BNA OSHC 1003, 1008 & n.8, 1974?75 CCH OSHD ?19,526, pp. 23,301?23,302& n.8 (No. 2818 etc. 1975), aff?d,534 F.2d 541 (3d Cir. 1976).Section4(b)(2), in addition to indicating that Walsh-Healey standards would beestablished federal standards within the contemplation of ? 3(10), also madethose standards ineffective under the Walsh-Healey Act only after they, orcorresponding national consensus standards found to be more effective, had beenadopted under ? 6(a). Until then, the Walsh-Healey standards could have beenenforced against government contractors under the Walsh-Healey Act or theOccupational Safety and Health Act. See Atlantic & Gulf Stevedores, 3 BNAOSHC at 1007?1008, 1974?75 CCH OSHD at pp. 23,301?23,302; S. Rep. No. 91?1282,91st Cong., 2d Sess., at 22 and 27 (1970) (?S. Rep.?), reprinted in Leg. Hist.at 141, 162 and 167; H.R. Conf. Rep. No. 91?1765, 91st Cong., 2d Sess., at 33(1970) (?Conf. Rep.?), reprinted in Leg. Hist. at 1154, 1186; Leg. Hist. at1204 (remarks of Representive Perkins), and at 1216?1217 (remarks ofRepresentive Steiger).[15] We have consideredalso whether the words ?in effect? in the phrase ?in effect on or after theeffective date of this Act? in ? 4(b)(2) could be construed to mean ?valid?. Weconclude, however, that ?in effect? refers simply to the effective date of thestandards.[16] Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d at 203;accord, Deering Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1096 (5th Cir. 1980)(Congress adopted abbreviated procedure because it ?perceived the industrialsafety problem to be severe?).[17] S. Rep. at 5?6,Leg. Hist. at 145?146. The Senate committee stated:Consensus Standards, Established FederalStandards, Proprietary Standards.?Within two years after enactment, theSecretary would be required by section 6(a), to promulgate all nationalconsensus standards and all established Federal standards unless he determinesthat a standard would not result in improved safety or health for all or someof the affected employees. If there is a conflict among standards, theSecretary shall promulgate that which assures the greatest protection for theaffected employees.The purpose of this procedure is toestablish as rapidly as possible national occupational safety and healthstandards with which industry is familiar. These standards may not be aseffective or as up-to-date as is desirable, but they will be useful forimmediately providing a nationwide minimum level of health and safety.Two private organizations are the majorsources of consensus standards: the American National Standards Institute,Inc., and the National Fire Protection Association. Since, by the Act?sdefinition, a ?consensus standard? is one which has been adopted underprocedures which have given diverse views an opportunity to be considered andwhich indicate that interested and affected persons have reached substantialagreement on its adoption, it is appropriate to permit the Secretary topromulgate such standards without regard to the provisions of theAdministrative Procedure Act.The bill also provides for the issuance insimilar fashion of those standards which have been issued under other Federalstatutes and which under this act may be made applicable to additionalemployees who are not under the protection of such other Federal laws. Suchstandards have already been subjected to the procedural scrutiny mandated bythe law under which they were issued; such standards, moreover, in large part,represent the incorporation of voluntary industrial standards.Promulgation, Revision and Revocation ofStandards.?The consensus and other standards issued under section 6(a) wouldprovide a sound foundation for a national safety and health program.Id. See also Conf.Rep. at 33?34, Leg. Hist. at 1186?1187.[18] S. Rep. at 6, Leg.Hist. at 146.[19] See also Leg.Hist. at 995 (remarks of Rep. Steiger).[20] For example, in NIC it was claimed that nearly all of 29C.F.R. Part 1926 was invalidly adopted under the Construction Safety Actbecause, contrary to the APA, it was published in the Federal Register lessthan 30 days before its effective date.[21] NIC is the only court decision to haveconfronted the narrow question we examine here. Although recently two courts ofappeals have expressly declined to follow NIC,neither of those cases concerned the validity of ancestor standards. Deering-Milliken Inc. v. OSHRC, supranote 16 (modification under the Act of Walsh-Healey standard without following? 6(b) rulemaking procedures); Marshallv. Union Oil Co., 616 F.2d 1113 (9th Cir. 1980) (same as to nationalconsensus standard). Despite the breadth of its reasoning, we read NIC in light of the particular challengeposed before the court.”