“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2314 JUHR & SONS \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 13, 1976?DECISIONBEFORE BARNAKO, Chairman;MORAN and CLEARY, Commissioners.BY THE COMMISSION:Thiscase presents the question of whether Commission Judge Garl Watkins erred inruling that both a citation and penalty were properly before the Commission fordisposition when the notice of contest was clearly limited to the penalty. Forthe reasons stated herein, we find that Judge Watkins? ruling was in error.Followingan inspection by one of the Secretary?s representatives, Respondent was citedfor one serious and five non-serious violations of the Occupational Safety andHealth Act of 1970 (29 U.S.C. 651 et seq., hereinafter ?the Act?). Thereafter,Respondent filed a timely notice of contest which stated in relevant part:[1]Weacknowledge receipt of the above citation for Serious Violation for a conditionthat existed at our building project on the University of Oregon campus. We donot deny the violation.Wedo request however, that the proposed penalty in the amount of $550.00 be setaside for reasons as follows:1.The conversion Lit parts to make the saw in question comply with OSHA standardswas ordered by our firm from Chown Hardware & Machinery on July 13, 1972,as per the attached acknowledgement (sic).2.The manufacturer has so far failed to supply Chown Hardware with parts fordelivery to us.\u00a0OnMarch 19, 1973, the Secretary filed his complaint. In response, Respondentfiled an answer in which it stated:In response to theabove complaint, we wish to advise you that we do not deny any portion of it.However, as first requested in our letter of February 23, 1973, and requestedhere again, we do ask that we be given relief from the proposed penalty of $550for the serious violation. (emphasis added).?OnMay 30, 1973, a hearing was conducted in this matter before Judge Watkins.During the course of the hearing, the following exchange took place betweenJudge Watkins and Mr. Juhr, who represented Respondent at the hearing:MR. JUHR: The 5items, we were going to accept that, rather than contest it. The Citation No.1, the Serious Violation, we were asking for relief of the penalty.?JUDGE WATKINS: Andthe penalty only??MR. JUHR: Yes sir.?MR. JUHR: Theintent of the letter (answer to complaint) was to restate our position that wedid not deny that the violation occurred.?JUDGE WATKINS: Andthat?s the Serious Violation as well as the others??MR. JUHR: TheSerious Violation.?JUDGE WATKINS:Okay, But you are asking or you are contesting or protesting,whatever?(interrupted)?MR. JUHR:Protesting, yes.?JUDGE WATKINS:?thepenalty in that??MR. JUHR: Yes,sir.\u00a0Thereafter, Judge Watkinsstated on the record:JUDGE WATKINS: Iwill not accept an admission of the validity of 29 C.F.R. 1910.213, standard orstandards embodied in it . . .I am not sure I doyet, but I know I must go as far as I am going here, at least, in this case,and the reason I am not accepting?and I want the record to show that theRespondent denies the validity of the standard, which I just cited, which wouldbe in Paragraph III of the Complaint, a denial that the Secretary of Labor dulyissued, as an Occupational Safety and Health Standard, 29 C.F.R. 1910.213.In(a) case where there is not counsel in a case, I am sure my duty goes that far,and further, and to what extent, I don?t know. I am sure at this point, atleast, it is my duty to say and to rule that I will not accept an admission ofthe validity of the Standard from you at this point.?In his decision, JudgeWatkins found that both the citation and penalty were in issue. He then vacatedthe citation on the basis that 29 C.F.R. 1910.213 was not a valid enactment bythe Secretary of a national consensus standard, under Section 6(a) of the Act.Wefind that Judge Watkins erred in considering the merits of the citation. Wherea notice of contest is limited solely to the penalties and Respondent?ssubsequent pleadings do not indicate an intent to contest anything other thanthe penalties, the citation becomes a final order of the Commission undersection 10(a) of the Act after 15 working days. Florida East CoastProperties, 6 OSAHRC 404, BNA 1 OSHC 1532, CCH S. & H. Guide para.17,272 (1974); Turnbull Millwork Company, OSAHRC Docket No. 7413(_____). By Turnbull the Commission modified its precedent established byFlorida East Coast Properties. It will now permit amendment of a notice ofcontest which on its face is limited to penalties only to include a contest ofthe citation if an employer demonstrates by a subsequent pleading that it washis intent to contest the citation when he filed the notice.Inthe instant case, however, Respondent has not asked that its contest beenlarged to include the citation. Indeed, the record clearly demonstrates thatthis Respondent has only intended a penalty contest.Notonly is the notice of contest without ambiguity, but Respondent?s answer andstatements at the hearing express a clear intent to contest only the penalty.Accordingly, we will reverse the Judge?s decision vacating the citation.Wenote that at the time Judge Watkins issued his decision, Florida East CoastProperties, supra, was the binding Commission precedent. That decision heldthat where the notice of contest was limited to the penalty, the citationbecame a final order under Section 10(a) of the Act, within 15 days. Despitethe fact that Judge Watkins was bound to follow that precedent, GindyManufacturing Company, 10 OSAHRC 367, BNA 1 OSHC 1717, CCH S. & H.Guide, para. 17,308 (1974), and that Respondent expressed a clear intent tocontest only the citation, Judge Watkins literally forced Respondent intocontesting the citation on the basis of the possible invalidity of thestandard. As Judge Watkins himself states:. . . I have takenit upon myself, rightly or wrongly, to interject this question of the validityof 213.?Webelieve it was improper for Judge Watkins to enlarge the issues beyond thoseraised in the notice of contest, where Respondent repeatedly stated that thenotice of contest expressed his intent. Judge Watkins? action has not onlydelayed the entering of an abatement order, but has caused Respondent to incuradditional and unnecessary expense in briefing the issue of the validity of thestandard before the Commission.Wehave reviewed the penalty factors specified in section 17(j) of the Act andfind that the $550 penalty proposed by the Secretary is excessive. The gravityof the violation is moderate. However, Respondent is a relatively smallemployer, employing approximately 30 employees. Respondent?s good faith isindicated by the fact that he had already ordered the equipment to abate theviolative conditions at the time the citation was issued. In addition,Respondent has no history of prior citations under the Act. In view of theforegoing, we find a $100 penalty to be appropriate.Accordingly,the Judge?s decision vacating the citation is reversed and a $100 penalty isassessed. IT IS SO ORDERED.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATE: JAN 13, 1976?MORAN, Commissioner,Dissenting:Forthe reasons expressed in my opinion in Secretary v. Noblecraft Industries,Inc., OSAHRC Docket No. 3367, November 21, 1975, I would affirm JudgeWatkins? vacation of the citation because the occupational safety standardcodified at 29 C.F.R. ? 1910.213(h)(1) was improperly promulgated. Furthermore,I believe it is wrong for my colleagues to shirk their duty and at the same timecriticize Judge Watkins for his conscientious efforts in correctly carrying outhis judicial responsibilities.JudgeWatkins disregarded the respondent?s admission of liability to consider whetherthe Secretary exceeded the limits of his delegated authority in promulgatingthe aforementioned standard. Therefore, the question in issue pertained tosubject matter jurisdiction. See Secretary v. Stevens Equipment Co., 2OSAHRC 1501 (1973). Jurisdictional issues may be raised by the members of theCommission or the Commission?s trial judges at any time and on their ownmotion. See Clark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939); Hacknerv. Guaranty Trust Company of New York, 117 F.2d 95 (2nd Cir. 1941). Infact, it is their duty to do so for Rule 12(h)(3) of the Federal Rules of CivilProcedure contains the following mandate:?Whenever itappears by suggestion of the parties or otherwise that the court lacksjurisdiction of the subject matter, the court shall dismiss the action.?(Emphasis added.)Seealso United States v. McGee, 464 F.2d 542 (5th Cir. 1972).Finally,the lead opinion?s assertion that Judge Watkins was bound to follow theprecedent established in Secretary v. Florida East Coast Properties, Inc.,6 OSAHRC 404 (1974), is erroneous. That case is not applicable to the instantsituation as it did not involve a jurisdictional issue.?Accordingly, I concludethat the Judge?s disposition was correct and that he properly entertained thejurisdictional issue, particularly since the respondent was represented pro se.Because this decision does not fully state the matters covered in JudgeWatkins? decision, his decision is attached hereto as Appendix A.APPENDIX A\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONThe followingopinion has been transcribed from microfiche toimprove the quality of duplication.\u00a0Any errors or omissions resulting fromthe transcription are unintentional.\u00a0 If you would like to request a copyof this decision in the original microfiche form, please use this link to get instructions about filing a FOIArequest.\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2314 JUHR & SONS \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: May 16,1974?DECISIONAND ORDERAppearances:Jane Ann McKenzieAttorney United States Department of Labor Seattle, Washington For theSecretary\u00a0Robert E. BabcockAttorney at Law Kenneth James Juhr, partner Lay representative Portland, OregonFor Respondent\u00a0At ConsolidatedSupplemental Hearing:\u00a0Robert A. FrielAssociate Regional Solicitor Jane Ann McKenzie United States Department ofLabor Seattle, Washington For the SecretaryDouglas B. M.Ehlke Tacoma, Washington For Respondent Weyerhaeuser Company in Dockets 1231and 1758George J. TichySpokane, Washington For Respondent Konkolville, Lumber Company in Docket 2437\u00a0GARL WATKINS, Judge:Inthis enforcement action under Section 10(c) of the Occupational Safety andHealth Act of 1970, 29 U.S.C.A. 651, et seq., the only question for decision iswhether on January 19, 1973, Respondent was in violation of Section 5(a)(2) ofthe Act because its employees used a radial arm saw without a guard for thelower portion of the blade as required by 29 CFR 1910.213(h)(1); and if so,whether the violation was serious, and the amount of the penalty. Resolution ofthe question will depend upon the decision on the underlying question as to thevalidity of 29 CFR 1910.213(h)(1) and the legality of the acts of the Secretaryof Labor in adopting them.Respondentis a general partnership in Portland, Oregon engaged in business as a generalcontractor. The worksite is the campus of the University of Oregon at Eugenewhere Respondent had one of several prime contracts in the construction of anAdministration Services Building. On the day of inspection, the Respondent hadabout 25 employees on the job. It has a total of about 30 employees.OnJanuary 19, 1973, a Compliance Officer of the Occupational Safety and HealthAdministration, United States Department of Labor, visited and inspected theworksite. Two citations were issued February 16, 1973. One containing fiveitems alleging violations not deemed to be serious was not contested. The otheralleged a serious violation in operating the radial arm saw without a guard forthe lower blade in violation of 29 CFR 1910.213(h)(1) and a $550.00 penalty wasproposed for it. It was contested by letter of February 23, 1973.Afterthe Secretary?s Complaint was filed, Respondent, not represented by counsel,responded by letter of March 26, 1973. The letter was accepted by the trialjudge as an answer to the Complaint. In the letter, Respondent stated, ?Inresponse to the above Complaint, we wish to advise you that we do not deny anyportion of it.? The Secretary moved for summary judgment. The motion was deniedbecause of the balance of the letter and Respondent?s further statement,?However, as first requested in our letter of February 23, 1973, and requestedhere again, we do ask that we be given relief from the proposed penalty of$550.00 for the serious violation.? The letter continued at length, includinginformation on steps taken to abate the violation. It also contained statementswhich could reasonably be construed as a denial of the violation. They were soconstrued.Thefirst hearing was in Eugene, Oregon on May 30, 1973. The record indicatescompliance with the statute and rules of procedure regarding service andposting of notices, and no one appeared and asked to assert a party status inthe action.Respondentwas represented by Kenneth James Juhr, one of its partners. After that hearing,Mr. Babcock appeared for Respondent.Thetrial judge held that the issues were the fact of violation of the allegedserious violation citation as well as the penalty. The answer was deemed to bea denial, but Respondent admitted the facts alleged constituting the violation.This admission necessarily included admitting alleged facts showingjurisdiction in the Review Commission. Without considering the standard, thereremained for proof the questions as to whether the violation was serious, andthe amount of the penalty.Asthe trial judge, I pointed out the questions which had arisen regarding thevalidity of 29 CFR 1910.213, and stated I would not accept an admission by anunrepresented Respondent that the standard was valid. I invited a specificdenial of the standard?s validity, or a more specific statement about it. Thiswas forthcoming from counsel in Mr. Babcock?s letter of August 15, 1973.Althoughmy ruling granting Respondent?s motion to amend the answer to deny the validityof the standard was announced, and known to counsel in all related cases; noformal order previous to this was entered.The pertinent language ofthe citation, the Complaint, and the standard are as follows:\u00a0?CITATION FORSERIOUS VIOLATIONCitation Number 1of 1Date IssuedFebruary 16, 1973EMPLOYER Juhr& SonsADDRESS(Street 1339 SESideon(City PortlandState OregonZip 97242??????????? An inspection of aworkplace under your ownership, operation, or control located at 1555 East 13that Eugene, Oregon 97402 and described as follows Construction of administrationbldg. has been conducted. On the basis of the inspection it is alleged that youhave violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, inthe following respects:\u00a0 Standard or regulation allegedly violated 29 CFR 1910 Description of alleged violation January 19, 1973 \u00a0 Date on which alleged violation must be corrected \u00a0 29 CFR 1910.213(h)(1) DeWalt? Radial arm saw in the saw shack, North of the construction site, had no guard covering the lower half of the saw blade.? March 8, 1973 COMPLAINT?IIITheSecretary of Labor, pursuant to the authority vested in him by section 6 of theAct duly issued and promulgated the Occupational Safety and Health Standards(29 C.F.R. Part 1910), hereinafter referred to as the safety and health regulations.V.OnJanuary 19, 1973, at the aforesaid worksite and place of employment describedin paragraph II, the respondent violated the safety and health regulations andthe construction work regulations, in the six respects enumerated in Exhibits Aand B attached hereto and incorporated herein as if fully rewritten. Exhibit Ais a Citation for Serious Violation duly issued to the respondent on February16, 1973 containing one serious violation of 29 C.F.R. 1910.213(h)(1) involvinga radial saw, which is hereinafter referred to as Citation for SeriousViolation, or Exhibit A. Exhibit B is a Citation for Violations duly issued onFebruary 16, 1973 containing five overall violations of 29 C.F.R. Part 1910 and29 C.F.R. Part 1926, all as enumerated therein, and all of a non seriousnature, which collectively is hereinafter referred to as Citation, or ExhibitB.?\u00a0STANDARD29 C.F.R.1910.213(h) Radial saws.?(1) The upperhood shall completely enclose the upper portion of the blade down to a pointthat will include the end of the saw arbor. The upper hood shall be constructedin such a manner and of such material that it will protect the operator fromflying splinters, broken saw teeth, etc., and will deflect sawdust away fromthe operator. The sides of the lower exposed portion of the blade shall beguarded to the full diameter of the blade by a device that will automaticallyadjust itself to the thickness of the stock and remain in contact with stockbeing cut to give maximum protection possible for the operation beingperformed.??Thefacts of the case are rather simple. The saw is shown by Secretary?s Exhibit 1.The amount of use is not clear nor does the record show the exact number ofRespondent?s employees who used it. There were apparently several and all wereexperienced in operation of saws of that type.IfRespondent was charged under a valid standard, there was a violation. It wasnon-serious in character and in view of the continued sincere efforts ofRespondent to comply with the Act, the penalty would be nominal.Ourinquiry will now be into the woodworking machinery guarding standards and thecharge laid under it, specifically into the question of the validity of thestandards themselves.Thisquestion was the subject of a supplemental hearing in Seattle on August 29, 30and 31, 1973, and completed at a continued hearing on September 17. Ten caseswere consolidated in that part of the hearings for the purpose of receivingevidence on the validity of the standards set out in 29 CFR 1910.213 and thelegality of the actions of the Secretary in adopting them. This is one of theten cases. At the conclusion of the session on September 17, an order ofseverance of the cases was entered. Three more cases containing the identicalquestion have since been assigned to me. One has been heard.[2]Perhapsa few words about the background of the inquiry and the reasons for thescrutiny of the standards having to do with machine guarding requirements forwoodworking machinery would be in order.Afterhearing the two consolidated Weyerhaeuser cases (Dockets 1231 and 1758) inKlamath Falls, Oregon on January 16 through 19, 1973, I was in the process ofpreparing decisions in two other cases involving lineal pine moulding plants inPrineville, Oregon for woodworking machinery would and Prineville Mouldings,#1045). The only violation charged in one of those cases and the only seriousviolation alleged in the other was a deficiency in the guard of hand fedcrosscut table saws under 29 CFR 1910.213(d)(1). The facts of both cases werealmost identical.Theguards went completely around the circular saws except for about six inches atthe top of each where the moulding was lowered onto the saws to be trimmed.They are called ?trim saws? in the industry.Thesuperintendents of the two Respondents and of one other similar plant with 30,30 and 20 years respective experience, and broad knowledge of practices in theindustry, testified the use of such saws was uniform in the kind of plants theymanaged. They had never heard of such saws being guarded as required by thecited standard.Ibecame curious about how the guarding requirements could be ?national consensusstandards.? This line of inquiry led me to the Seattle Public Library where Ifound only the 1971 standard 01.1?Revised, of the American National StandardsInstitute (hereinafter ?ANSI?, whether reference is to the organization withits present name, or previous names of American Standards Association or UnitedStates Standards Association). A telephone call to the New York office of ANSIbrought me the source standard?ANSI 01.1 1954, reaffirmed 1961. (29 CFR1910.221 lists the source as ?AMCI.? All parties stipulated this was amisprint. ?ANSI? 01.1 1954 R (?reaffirmed?) 1961 is correct.)Mycuriosity was further aroused by the headnote on Section 4.1 of that standard.This Section includes all substantive material adopted in the OSHA standards inthe cases before me. The headnote is:?NOTE: It isrecognized that the standards for saw guards in 4.1 are not perfectly applicableto all operations for which saws are used. The standards given are those whichwoodworkers have agreed are most generally useful. Since there are aconsiderable number of cases not satisfactorily met by these standards, theenforcing authority should exercise rather wide latitude in allowing the use ofother devices which give promise of affording adequate protection. It may beexpected that by so doing further progress in saw guarding will be encouraged.??Furtherinquiries within the ANSI organization, with a few members of the ANSI ?01?committee which adopted the standard in 1954 and reaffirmed it in 1961, as wellas with Mr. Patrick F. Cestrone, who was Director of the Office of Safety andHealth Standards, United States Department of Labor, when 29 CFR 1910.213 wasadopted as a national consensus standard; convinced me it would be advisable toobtain additional evidence in some areas having to do with the question of thevalidity of the woodworking machine guarding sections of the Occupational Safetyand Health standards.Threerather obvious questions having to do with the validity of the standards seemednot to be answered adequately by the record. They were:(1)The effect of the headnote; which was not adopted by the Secretary and which,in itself, constituted an integral part of the standard,\u00a0(2)Whether the ANSI 01 standard is in fact a national consensus standard asdefined in the Act. Stated more precisely and in the reverse, the real questionhere is whether Congress adopted a definition of a national consensus standardwhich could be met by the ANSI promulgation as one adopted ?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,……..?, (Sec. (Sec. 3(9)(1) of the Act)\u00a0(3)Whether the standards were ?formulated in a manner which afforded anopportunity for diverse views to be considered……..? (Sec. 3(9)(2) of theAct)\u00a0RespondentWeyerhaeuser, and later Konkolville (Docket 2347), squarely raised the questionof legality and validity of the standard from every point of approach necessaryto test it.Inthe meantime, eight more cases (including Konkolville) were assigned to me, allalleging violations of subsections of 29 CFR 1910.213. In some the question ofthe validity of the standard was raised. In some it was not. Two of theRespondents were not represented by counsel.Underthe circumstances it seemed unconscionable to me to make an extensive inquirytending to show whether or not the woodworking machine guarding standards werevalid in a few cases, and reach whatever decision might be forthcoming; withoutgoing into the same question in all the cases. The two Respondents notrepresented by counsel had no way of knowing how to raise the defense ofinvalidity of the standard. Counsel in the others had at best a difficult taskin finding out that their clients might be charged under unenforceableregulations.Consequently,the question was raised at the hearings on the merits in all cases thus farheard. In the case of pro se Respondents, I interpreted their answers toinclude a defense of illegality and invalidity of the standards. Other counselwere given an opportunity to amend their pleadings. The posture of all cases onwhich hearings have been held in now such that the question is properly raisedin all.Beforeproceeding to the three main questions raised, disposition must first be madeof certain preliminary matters.Whilenot arguing the point at length in his briefs, the Secretary has consistentlytaken the position that neither the Review Commission as an independent oradministrative adjudicatory agency, nor I as a judge conducting its hearings,had the right to reopen the cases, call witnesses and consider evidence notproduced by counsel for the parties. (Konkolville was not reopened. The recordwas left open for the supplemental hearing.) I have been told repeatedly that Iam not (and of course the Review Commission is not) a ?court.? Apparently thefeeling is that a ?judicial? adjudicatory body can do what an independent or?administrative? adjudicatory body cannot do.Thequestion is interesting, and it must be resolved contrary to the Secretary?sposition. While most authorities refer to the ?inherent power? of courtsto call witnesses in order to develop the truth in a judicial inquiry; the factis, it is an ?inherent duty.? However far able and competent advocacymay cause us to digress from some fundamental principles involved inadjudicatory proceedings under our system, the fact remains that the primaryresponsibility for developing the record lies with the presiding officer of thetribunal.Brieflyexpressed, ?courts have inherent power to do all things that are reasonably necessaryfor the administration of justice within the scope of their jurisdiction.? (20Am Jur 2d, Courts ? 79)Federal Rule of Evidence614(a) provides? ?CALLING ANDINTERROGATION OF WITNESSES BY JUDGE?(a) Calling byjudge. The judge may, on his own motion or at the suggestion of a party, callwitnesses, and all parties are entitled to cross-examine witnesses thus called.?(b) Interrogationby judge. The judge may interrogate witnesses, whether called by himself or bya party.?(c) Objections.Objections to the calling of witnesses by the the judge or to interrogation byhim may be made at the time or at the next available opportunity when the juryis not present.??McCormick has been ratherwidely quoted. ? 8, pages 12?13 provides:?8. THE JUDGE MAYEXAMINE AND CALL WITNESSES……….. Not only may the judge examine witnessescalled by the parties, but in his discretion he may also, for the purpose ofbringing out needed facts, call witnesses whom the parties might not havechosen to call.??Whilethe Administrative Procedures Act does not specifically provide for the callingof witnesses by a hearing examiner or administrative law judge, numerous caseshave upheld this right even over the objections of the parties; usually basingit on 5 USCA 556(c)(9).ProfessorDavis in his Administrative Law Treatise takes the position that such power andauthority are present under the quoted section of the Administrative ProceduresAct; and cites authorities encouraging such action in agencies having rules similarto our Rule of Procedure 66, as well as those not having such rules. A clearinference from Davis is that there is a greater need for independent action ofthis kind on the part of an administrative law judge or hearing examiner thanin the case of a judge in the judicial branch of the government. He citesCongressional history in the adoption of the APA:(? 10.02)?…….. that presiding officers have ?the authority and duty?as a courtdoes?to make sure that all necessary evidence is adduced and to keep thehearing orderly and efficient….. The trial examiner shall have authority…..(j) To call, examine and cross-examine witnesses, and to introduce into therecord documentary or other evidence.? The courts have often upheld the activerole of examiners: ?It is the function of an examiner, just as it is therecognized function of a trial judge, to see that facts are clearly and fullydeveloped. He is not required to sit idly by and permit a confused ormeaningless record to be made.???Rule of Procedure 66 ofthe Review Commission provides:?Rule 66 DUTIESAND POWERS OF JUDGES.?It shall be theduty of the Judge to conduct a fair and impartial hearing, to assure that thefacts are fully elicited, to adjudicate all issues and avoid delay. The Judge shallhave authority…….., to:?(h)….. orderhearings reopened…..?(j) Call andexamine witnesses and to introduce into the record documentary or otherevidence;??Theonly United States Court of Appeals case under our Rule 66 which has come to ourattention is: Brennan, Secretary of Labor v. OSAHRC and John J. GordonCompany 2nd Circuit, Feb. 25, 1974?Docket 73?1729.Thesecond preliminary question requiring decision is whether Section 6(f) of theAct provides an exclusive method?the only method which may be used at anytime?to challenge the validity of any standard issued by Secretary.The section provides:SEC. 6. (f) ?Anyperson who may be adversely affected by a standard issued under thissection may at any time prior to the sixtieth day after suchstandard is promulgated file a petition challenging the validity of suchstandard with the United States court of appeals for the circuit wherein suchperson resides or has his principal place of business, for a judicial review ofsuch standard. A copy of the petition shall be forthwith transmitted by theclerk of the court to the Secretary. The filing of such petition shall not,unless otherwise ordered by the court, operate as a stay of the standard. Thedeterminations of the Secretary shall be conclusive if supported by substantialevidence in the record considered as a whole.? (Emphasis supplied)TheSolicitor contends that since a specific section of the Act provides aprocedure to challenge the validity of a standard if the action is startedwithin sixty days after its effective date, this method is exclusive; eventhough the Act doesn?t say so.Respondents,on the other hand, take the position that this is a pre-enforcement remedyonly, and that the validity of any standard may be challenged in an enforcementproceeding.Respondents?position seems fundamentally correct. The words underlined above indicate theaction is optional, not mandatory. There is no express language indicating thisis an exclusive method for attacking a standard. Additionally it would seemthat investing ?any person who may be adversely affected? with a right to testthe validity of a standard, but limiting that right to 60 days from theeffective date indicates an intent on the part of Congress to provide thisas a preliminary pre-enforcement procedure, rather than as the sole procedureby which a standard can be challenged.RespondentWeyerhaeuser quotes from Divesco Roofing & Insulation Company, Docket 345,1 OSHC 1079:?…….. thelegal validity of the standards under the Constitution and Statutes of theUnited States is necessarily involved in the adjudication of enforcementproceedings, and this function has been reserved for the Commission subject tojudicial review.??Admittedlythe language of the entire statute could provide a clearer guide to the answerwe seek here. Perhaps it is ambiguous or unclear and subject to construction.If so, then it is proper to examine the Legislative History for assistance.Twosuch references would seem sufficient. In the final Senate report, No. 91?1282,page 8, as reprinted in the Legislative History, page 148, we find thefollowing:?Judicial Reviewof Standards.?Section 6(f) provides that any person who may be adverselyaffected by a standard may, within 60 days of its issuance, seek judicialreview in an appropriate United States court of appeals. While this would bethe exclusive method for obtaining pre-enforcement judicial review of astandard, the provision does not foreclose an employer from challenging thevalidity of a standard during an enforcement proceeding. Unless otherwiseordered by the court, the filing of the petition would not operate as a stay orthe standard.? (Emphasis supplied)?Inexplaining the real need for a twofold system of standards review, SenatorWilliams stated in a speech on the Senate floor?and in support of the provisionas it was enacted??The bill asreported by the committed provides an opportunity for a person affected by thepromulgation of a standard to seek judicial review within 60 days of thepromulgation of such standard or the standard may also be challenged duringan enforcement proceeding.? This is avery broad-scaled judicial review protection that completely meets any industryconcerns regarding the ability to contest the standards in court.? (Underliningadded)LegislativeHistory, p. 431.Otherreferences in the Legislative History of the Act are to the same effect, buttheir inclusion would only lengthen this decision unnecessarily.Neitherthe Review Commission nor its judges have hesitated to invalidate a standardfor a variety of reasons?but all on the basic ground that the action of theSecretary in adopting the particular standard was in excess of the powergranted him by the Act. A few cases discussing the principle?most holding thestandard invalid?follow:Joseph Bucheit andSons Company,Docket 295, 1 OSHC 3106. (?validity? distinguished from ?wisdom?)\u00a0Oberhelman-RitterFoundry, Inc.,Docket 572, 1 OSHC 3087, (?should? changed to ?shall?. Standard invalidated.)\u00a0Divesco Roofing& Insulation Company, supra.\u00a0Tilo Company, Inc., Docket 211, 1OSHC 1206 (Standard invalid?unenforceably vague)\u00a0Santa Fe TrailTransport Company,Docket 331, 1 OSHC 1457 (whether hospital, infirmary, or clinic; in ?nearproximity to work place.? Invalid as unenforeably vague.)\u00a0Morestandards have been held invalid by the Commission?and judges?on this groundthan on any other.Thethird preliminary question for decision before we may reach the heart of thecase, is whether the Review Commission has the right to pass on the legality orvalidity of a standard at all. Whether this be called a ?right?, ?power?,?authority? or ?jurisdiction? makes no difference. The specific question iswhether the validity and legality of those portions of 29 CFR 1910.213 underreview, as derived from ANSI 01.1 1954, reaffirmed 1961, may be adjudicated bythe Review Commission, an independent of ?administrative? adjudicatorytribunal; or whether they must be left untouched until they come before a?judicial? adjudicatory tribunal.Itis worthy of note in passing that insofar as the precise issues involved inthis case are concerned, the trial judge?s duty, authority and power at thehearing stage of the proceeding, are no different from the Review Commission?sduty, authority and power at its review stage of the proceeding. No contentionhas been made on the part of any party that there in a difference, and noauthority in support of any such position has been cited.Itshould likewise be noted that the questions involved here are sufficientlyclosely related to those last discussed, that some authorities cited arepersuasive to the issues in both. There are more differences than similarities,however, and thus the subjects lend themselves more readily to separate discussion.Wemay start on the assumption that unless the Secretary acts in some mannerauthorized by statute to withdraw his regulation (we call it a ?standard?) orotherwise invalidate it, and if litigation then develops questioning itslegality or validity, the answers can only be determined by ?adjudication.? Thequestion is?in what forum; considering the precise questions raised and allparts of the particular statute?TheSecretary would have us believe the tribunal must be so marked as to indicateit is a ?court? or part of the judicial branch of the government.Ihave read and considered the briefs filed, and the cases cited therein; andhave conducted some independent research. On the basis of this Act, I find noauthority, even persuasive, in support of the Secretary?s position.Forexample, the Secretary?s greatest emphasis as authority for his position?asdetermined by its prominent position and repeated citation in the Solicitor?sbriefs?is on the case of Stark v. Wickard (1944), 321 U.S. 559,88 L.Ed. 733, 64 S.Ct. 559, 571. In that case, the court, speakingthrough Mr. Justice Reed said:?Theresponsibility of determining the limits of statutory grants of authority insuch instances is a judicial function entrusted to the courts by Congress bythe statutes establishing courts and marking their jurisdiction.??Asquoted out of context, this is persuasive language in favor of the position ofthe Secretary here.Thecourt neither says nor implies, however, that Congress cannot adopt a law whereinthe initial adjudication ?to protect justiciable individual rightsagainst administrative action? is by an independent or ?administrative court?,subject to judicial review by the United States Court of Appeals. The realquestion involved in our case is whether Congress did adopt such a law.Notcould the court have so stated or implied, because the holding of the case wassimply that the plaintiffs had standing to sue in Federal District Court toquestion the validity of a milk marketing regulation of the Secretary ofAgriculture.Theauthority cited by Mr. Justice Reed in support of the quoted statement above isU.S. v. Morgan (1939) 307 U.S. 183, 83 L.Ed. 1211, 59 S.Ct. 795?799,800. In the opinion by Mr. Justice Stone may be found language even more favorablein this instance to the position of the Respondent in our case; if we considerit out of context also, and assume the ?agency? to be the Review Commission,and its ?action? adjudicatory.?…….. Inconstruing a statute setting up an administrative agency and providing forjudicial review of its action, court and agency are not to be regarded aswholly independent and unrelated instrumentalities of justice, each acting inthe performance of its prescribed statutory duty without regard to the appropriatefunction of the other in securing the plainly indicated objects of the statute.Court and agency are the means adopted to attain the prescribed end, and so faras their duties are defined by the words of the statute, those words should beconstrued so as to attain that end through coordinated action. Neither bodyshould repeat in this day the mistake made by the courts of law when equity wasstruggling for recognition as an ameliorating system of justice; neithercan rightly be regarded by the other as an alien intruder, to be tolerated ifmust be, but never to be encouraged or aided by the other in the attainment ofthe common aim……..? (Emphasis added)\u00a0Ifthis language could be used literally, it would be decisive of the issue ofthis case. It cannot, however, because the administrative action to whichreference was made was not adjudication. It was the adoption of an order by theSecretary of Agriculture fixing maximum rates to be charged at the Kansas Citystock yards; and the question in the case was the validity of the order.Neithercase can be considered as precedent in the one before us.JudgeBurchmore?s statement in Divesco, supra, warrants repeating:?…….. thelegal validity of the standards under the Constitution and Statutes of theUnited States is necessarily involved in the adjudication of enforcementproceedings, and this function has been reserved for the Commission subject tojudicial review.??Theproblem is to find the intent of Congress?either from the plain language of theAct or from inferences to be drawn from it. If a point is reached where it maybe concluded that the language is not clear and unambiguous, that it may besubject to construction, then?and only then?may we consult the LegislativeHistory for aid in finding an answer to our inquiry.Thereis no specific provision in the Act spelling out in exact words the power ofthe Review Commission to adjudicate the validity of the standards adopted bythe Secretary and the legality of his actions in so adopting them. Ourconsidered conclusion is that this power and authority are so clearly grantedby inferences to be drawn from the Act, there is no reasonable ground fordisagreement about it. Our further conclusion is that the Review Commission isnot only a proper forum for such adjudication, but it is the onlyone where the question may be raised past the pre-enforcement status of thestandard.Supposewe enumerate and explain briefly the reasons for these statements.(1)The Review Commission?s function is adjudicatory; nothing more, nothing less.The basic grant of this power is in Section 2(b) of the Act:?CONGRESSIONALFINDINGS AND PURPOSE?SEC. (2)……….?(b) The congressdeclares it to be its purpose and policy, through the exercise of its powers toregulate commerce among the several States and with foreign nations and toprovide for the general welfare, to assure so far as possible every working manand woman in the Nation safe and healthful working conditions and to preserveour human resources??(3)…….. bycreating an Occupational Safety and Health Review Commission for carrying outadjudicatory functions under the Act;???(2) All findingsof violations and imposition of penalties by default?for failure to contest anaction of the Secretary?are those of the Review Commission. The statuteprovides: ?They shall be deemed a final order of the Commission…..? (Sec.10(a)(3))?(3) With theexception of certain equitable powers to restrain conditions or practices inthe event of imminent danger, vested in the United States District Courts (Sec.13), all civil actions and adjudications under the Act are in the ReviewCommission. All findings of violations of the Act are functions of the ReviewCommission.?UnderSection 10(c), if a proposal of the Secretary is contested, ?the Commissionshall afford an opportunity for a hearing? under the provisions of theAdministrative Procedures Act. Thereafter the Commission must enter an order?based on findings of fact, affirming, modifying, or vacating the Secretary?scitation or proposed penalty, or directing other appropriate relief,…?Wehave referred to a common practice by both the Review Commission and its judgesto hold various standards of the Secretary invalid for a variety of announcedreasons. In each case the challenge to the standard was in the Commissionproceedings and the real basis for the holding was that the Secretary wasacting in excess of his statutory power and authority in adopting the standard.A few examples were given.Ofequal?or greater?importance is the fact that implicit in every finding of aviolation of an occupational safety or health standard under Section 5(a)(2) ofthe Act, is a holding that the standard is valid?that it was enacted by theSecretary in a proper exercise of his legislative power and authority.TheCommission is directed to ?affirm? a citation and proposed penalty in somecases. If a standard is questioned and can be held valid only by a ?judicial?court; the Commission might find itself in the completely untenable position ofbeing required to affirm a penalty without a finding that the standard isvalid.Canthis be the intention of the Congress? We think not.(4)Not only does it have sole power to find violations of the law and standardswith respect to occupational safety and health, but ?The Commission shall haveauthority to assess all civil penalties…..? (Sec. 17(j)). This is not areview?it is the first adjudicatory act with respect to the penalty.(5)Contempt powers are granted as under the National Labor Relations Act (Sec.12(i)).(6)The Chairman is authorized to ?appoint such hearing examiners….. as he deemsnecessary to assist in the performance of the Commission?s functions…..?(Sec. 12(e)). Some of these functions are enumerated (Sec. 12(j)). As statedabove, and for the purpose of this inquiry, the duties and powers of a hearingexaminer (judge) are no greater or less at the hearing level than are those ofthe Review Commission at the review level.(7)A direct method of review is provided of all decisions of the Commission to theUnited States Court of Appeals. Section 11(a) provides:?JUDICIALREVIEWSEC. 11. (a) Anyperson adversely affected or aggrieved by an order of the Commission issuedunder subsection (c) of section 10 may obtain a review of such order in anyUnited States court of appeals for the circuit in which the violation isalleged to have occurred or where the employer has its principal office, or inthe Court of Appeals for the District of Columbia Circuit, by filing in suchcourt within sixty days following the issuance of such order a written petitionpraying that the order be modified or set aside. A copy of such petition shallbe forthwith transmitted by the clerk of the court to the Commission and to theother parties, and thereupon the Commission shall file in the court the recordin the proceeding as provided in section 2112 of title 28, United States Code.Upon such filing, the court shall have jurisdiction of the proceeding and ofthe question determined therein, and shall have power to grant such temporaryrelief or restraining order as it deems just and proper, and to make and enterupon the pleadings, testimony, and proceedings set forth in such record adecree affirming, modifying, or setting aside in whole or in part, the order ofthe Commission and enforcing the same to the extent that such order is affirmedor modified. The commencement of proceedings under this subsection shall not,unless ordered by the court, operate as a stay of the order of the Commission. Noobjection that has not been urged before the Commission shall be considered bythe court, unless the failure or neglect to urge such objection shall beexcused because of extraordinary circumstances. The findings of the Commissionwith respect to questions of fact, if supported by substantial evidence on therecord considered as a whole, shall be conclusive. If any party shall apply tothe court for leave to adduce additional evidence and shall show to thesatisfaction of the court that such additional evidence is material and thatthere were reasonable grounds for the failure to adduce such evidence in thehearing before the Commission, the court may order such additional evidence tobe taken before the Commission and to be made a part of the record. The Commissionmay modify its findings as to the facts, or make new findings, by reason ofadditional evidence so taken and filed, and it shall file such modified or newfindings, which findings with respect to questions of fact, if supported bysubstantial evidence on the record considered as a whole, shall be conclusive,and its recommendations, if any, for the modification or setting aside of itsoriginal order. Upon the filing of the record with it, the jurisdiction of thecourt shall be exclusive and its judgment and decree shall be final, exceptthat the same shall be subject to review by the Supreme Court of the UnitedStates, as provided in section 1254 of title 28, United States Code. Petitionsfiled under this subsection shall be heard expeditiously.?\u00a0Twoprovisions are particularly worthy of note here. First, no objection that hasnot been urged before the Commission can be considered by the Court of Appeals.Thus, if there has been no question, or decision, on the validity of astandard; it cannot be considered by the Court of Appeals on review.Secondly,additional evidence may be ordered in exceptional circumstances. In this caseit is taken ?before the Commission,? which may thereafter modify its findingsor make new ones; and any review thereafter shall be considered as from thebeginning.Theforegoing should show without question the intent of Congress to allow theReview Commission the right to pass on the validity and legality of standardsadopted by the Secretary; and also require that they be challenged inthe Review Commission proceedings. Perhaps viewing the question from a somewhatdifferent angle might be helpful.Asa practical matter, how would an employer test the validity of a standardpromulgated by the Secretary in a ?court? rather than before the ReviewCommission?Hecould not make his first request for a ruling on review to the United StatesCourt of Appeals under Section 11(a) of the Act after a Commission decision.This Section provides: ?No objection thathas not been urged before the Commission shall be considered by thecourt,…..?\u00a0Shouldthe employer then start an action in the United States District Court seekingan injunction? Again, this action would fail. On the state of the record ofevery one of the cases I now have before me, relief would be denied because offailure to exhaust administrative remedies. Perhaps not all decisions would beon exactly the same basis as that of the three judge panel in Lance Roofing Co.vs. Hodgson, Secretary of Labor (1972), 1 OSHC 1012, 343 F.Supp. 685. Goodreasons exist in all for holdings other than on the identical ground. For avariety of holdings involving the principle of exhausting administrativeremedies, see cases cited in Davis-Administrative Law Treatise, Chapter 20.Anaction for declaratory judgment would meet no better fate. The doctrine ofexhaustion of administrative remedies applies alike to such actions. In LanceRoofing, supra, the plaintiffs sought declaratory?as well as injunctive?relief.Thequestion was asked as to how an employer wishing to challenge the validity of astandard now may go about doing it in a ?judicial? court. The obviousanswer is that he has no way of doing it. The first challenge must be madebefore the trial judge at the hearing stage of the Review Commissionproceeding. Failing this, a Respondent will necessarily be held to have failedto exhaust his administrative remedies.Webelieve the implication is so clear that the Review Commission Proceeding isnot only the proper, but the exclusive forum for a currentchallenge to the validity of a standard of the Secretary, there should be noneed to resort to legislative history as an aid in reaching this conclusion.Since the Act does not so provide by its express terms, however, a contentionconsidered by some to be reasonable might be made that it is subject toconstruction to the extent that legislative history may be invoked, and weshall therefore turn in this direction for additional assistance.Inthe Legislative History, there are references carrying a clear implication ofthe Congressional intent that the legality and validity of a regulation(standard) of the Secretary may be tested and decided by the Review Commission.These are in two contexts. First, in reference to the fact that Section 6(f) ofthe Act is a pre-enforcement remedy only and that the standard may be tested inan enforcement proceeding. Secondly, in emphasis on the adjudicatory functionof the Review Commission.Twosuch references have already been cited. Following are additional expressionsof Congressional intent.Forexample, in the Index itself, under ?Standards?, is the following:?Standards,pre-enforcement review. (See Section 6(f) in Section-by-Section Index,?Judicial Review of Standards?)??Ina Section by Section analysis and comparison of the Committee reported BillS.2193?containing the pertinent language of the present Act?and substitute BillS.4044, is this reference to the former:?6. JudicialReview of Standards Judicial review of standards is provided in the variousUnited States Courts of Appeals. This right may be exercised up to 60 daysafter the standard is promulgated. (sec. 6(f)). Judicial review or standardswould also be possible in enforcement proceedings.? (Emphasis supplied)(LegislativeHistory, p. 304)\u00a0RepresentativeSteiger of Wisconsin made the following statement with respect to the specificlanguage of the Bill which became part of the law having to do with the RaviewCommission and its adjudicatory procedures:?Persons aggrievedby a citation of the Secretary of Labor will appeal to the Commission ratherthan to the Secretary, as is the case in the committee bill. We will, with thisamendment, provide for a separation of powers. Standards will be promulgated bythe Secretary of Labor and contested citations will be considered by anindependent court, so to speak, an independent review commission.?(LegislativeHistory, p. 1074)\u00a0Inpreparing this decision, we are not unmindful of the decision in Secretaryof Labor vs. Boise Cascade Corporation, Docket 2944. By stipulation ofcounsel, Judge Kennedy had before him a transcript of a major portion of theproceedings in our cases, (three of four days of the supplemental hearing), butnone of the 17 exhibits.Thisbrings us to the heart of the case. We are faced squarely with the necessity ofdeciding the merits of Respondents challenge to particular sections of 29 CFR1910.213?and only those sections as they apply to the facts in this record.Perhapsa word of caution?and of limitation?might be appropriate here. Not only havethere been inferences, but also broad sweeping statements that the effect ofthis action may be to establish the validity or invalidity of all parts ofsubsection 213 of Part 1910. These are all the sections having to do withmachine guarding of woodworking machinery. Hopefully such statements wereinadvertent, but at best that show a disregard of the actual effect ofdecisional law.Neitherthis forum nor any other can do more than pass on the precise questions beforeit in a particular case, here the validity or invalidity of enumerated sectionsor subsections of standards; and then only with reference to the record beforeit. The practical effect of some holdings may go much farther; but theadjudications themselves are so limited.Beforegoing into a detailed consideration of the specific sections of the standardsand the grounds on which they are challenged, a brief review of some of theevidence in the record would seem to be in order.Icalled six witnesses who testified at the supplemental hearing. They are:? \u00a0Patrick F.Cestrone, Silver Springs, Maryland; Consultant, Occupational Safety and HealthAssociates. In 1971, Mr. Cestrone was Director of the Office of Safety andHealth Standards, United States Department of Labor. He was charged with theresponsibility of what has been aptly termed a ?crash program? to developnational consensus standards and established Federal standards for theSecretary to ?. . . by rule promulgate as occupational safety or health?standards under Section 6(a) of the Act.\u00a0Nixon deTarnowsky,Scarsdale, New York; Standards Coordinator for Safety and Health Standards,American National Standards Institute, New York City.David Zabriskie,Fairlawn, New Jersey; Manager of Construction Safety Division, Engineering andSafety Services, American Insurance Association, New York City; Secretary ofthe ANSI 01 Committee since June of 1970.\u00a0Lewis R. Morrison,Ardsley, New York, Corporate Safety Manager, ACF Industries, Inc., New YorkCity. As an employee of the Lumbermen?s Mutual Casualty Company of Chicago andas a representative of the National Association of Mutual Casualty Companies,he was a member of the ANSI 01 Committee at the time ANSI 01.1 was adopted in1954.\u00a0A. A. Skonning, Riverside,Illinois; retired Senior Engineer, Western Electric Company; 29 years?-experiencein safety engineering, particularly woodworking; representative of the NationalSafety Council on the ANSI 01 Committee in 1954 and 1961.\u00a0Joseph J.Prabulos, Woodbury, Connecticut; retired Safety Director, National Distillersand Chemical Corporation; member of ANSI 01 Committee in 1954, 1961 and 1971;representative on the committee of a trade association, Associated CooperageIndustries.\u00a0Dan Adair,Portland, Oregon; Vice President of consulting firm, Hearing Conservation andNoise Control, Inc.; representative of National Safety Council on ANSI 01Committee in 1954 and 1961.\u00a0Inaddition, Respondent Weyerhaeuser called Thaden Demas, Assistant Director forthe Division of Products Approval, American Plywood Association, Tacoma,Washington.Thereis no conflict in evidence on any material fact in the case.ANSIdoes not write standards. In case of a consensus standard, one of its primefunctions is to certify that standards presented to it are in factrepresentative of a ?consensus? of those parties who have an interest in thesubject covered.Usuallythe standards are written by committees of the organization, commonly sponsoredby one or more members. There are 160 national organizations and 1,000individual company dues paying members. The areas of activity of theorganization in promulgating standards and approving them are very broad. TheSafety Technical Advisory Board involved with the standard here underconsideration is only one of 26 such advisory boards, each concerned with itsown category of standards.Inthis case, the 01 Committee was sponsored by the Association of Casualty andSurety Companies, a large trade association of the biggest stock casualtycompanies in the country (new a part of the American Insurance Association byreason of merger with the National Board of Fire Underwriters); and theInternational Association of Government Labor Officials.Whena request is made for permission to sponsor a standard, and certain formalitieshave been completed, such as a finding by ANSI of the need for such a standard,approval of its scope, the competence of the proposed sponsors, membership ofthe committee, including competence and comprehensive interests of committeemembers (usually trade associations or other organizations of groups ofcompanies rather than individual companies, along with labor and governmentalorganizations); the committee is pretty much left alone to do its job ofwriting the standard. In the process, technical assistance is supplied by theANSI organization only on request. Committee members are usually highly skilledexperts in the field in which they are working.Whenthe job is completed and the proposed standard. approved by a ?consensus? ofthe committee, it then undergoes further scrutiny. In this case the SafetyTechnical Advisory Board passed on the technical competence of the standard andthe Board of Standards Review on whether it represented a ?consensus.? Involvedin the process now is a public review and comment period following distributionof the proposed standard to recipients of ?ANSI Resporter.? This has acirculation of 10,000, including The Bureau of National Affairs, CommerceClearing House, National Safety Council, and other publishers of tradeperiodicals.Earlyin 1971, Patrick F. Cestrone had completed about 31 years of government serviceas a professional safety engineer, most of it in supervisory capacities. He wasDirector of the Office of Safety and Health Standards, United States Departmentof Labor. For more than 2 years, Cestrone and those under his supervision hadworked on planning for the Labor Department in anticipation of some type ofcomprehensive Federal occupational safety and health law.The?crash program? to which reference was made was principally the preparation ofa comprehensive set of occupational safety and health standards promulgated bythe Secretary of Labor under Section 6(a) of the Occupational Safety and HealthAct of 1970. These were published on May 29, 1971 in 36 Federal Register,commencing at page 10466.Adoptionof these standards by the Secretary was mandated by Section 6(a) of the Act.They were of two kinds, ?national consensus standards? and ?established Federalstandards.? As the man primarily responsible for ?putting together the package?Cestrone was familiar with all the details of the project.Cestronedoes not remember specifically the details of rewriting ANSI 01.1 and itsadoption as 29 CFR 1910.213 and 214. Nor does he have a definite recollectionof considering and eliminating the headnote previously quoted at the beginningof Section 4, ?Woodworking Machinery?, on page 9 of the ANSI printed standard(Respondent?s Exhibits S?1 and S?3); or the reason for its omission fromSection 213 of Part 1910. He does recall ANSI 01.1, and that it was adopted asa national consensus standard.Amongthe objectives of the group headed by Mr. Cestrone was to make no changes ineither the scope or the substance of any national consensus standard. Part of thejob also was to eliminate any consensus standards that were advisory, orrecommended. No provision was intended to be included in the final productunless its requirements were mandatory.NeitherCestrone nor, so far as he knew, anyone else engaged in the project took anysteps to insure the legality of the standards being adopted; for example, todetermine whether the national consensus standards met the statutorydefinitions of Section 3 (9) of the Act. As to ANSI 01.1 there were two reasonsfor this.First,the Secretary was not only under a mandate of the statute (Section 6(a)) toadopt national consensus standards produced by ANSI and the National FireProtection Association (NFPA); but the legislative history of the Act containednumerous committee reports and other comments urging speed and purporting toexplain why the standards, having already met the ?consensus principle?, couldand should be adopted without further ado.Furtherscrutiny will show that the language of the legislative history tending to showcompliance of the ANSI standards with the statutory definition of a nationalconsensus standard was in error.Inhis testimony, Mr. Cestrone referred to several such passages from thelegislative history:?Q. What part ofthe legislative history, and to what part of the legislative history do yourefer there, if you know??A. May I sit andrefer and to my notes??Q. Yes, yes, referto any notes you have.?A. With respect tosupport of the legislative history and support of interim standards, myreference is to report 21?82, starting on page 141, which accompanied theSenate version of the bill S 2193, particularly legislative history starting onpage 146?6.?Q. Is that in thelegislative history??A. It?s in thegreen June book, and I can read to you if you want me.?Q. If you have thepertinent language it might be good to put it in the record.?A. Senate Report91?1282, page 141, calendar number 1300; Accompanying Senate Bill S 2193, page146?6. ?The purpose of this procedure is to establish as rapidly as possibleNational Occupational Safety and Health standards with which industry isfamiliar. These standards may not be as effective or up to date as isdesirable, but they will be useful for immediately providing a nation wideminimal level of safety and health. Two private organizations are the majorsources of consensus standards; the American National Standards Institute,Incorporated and the National Fire Protection Association. By the Act?sdefinition a consensus standard is one which has been adopted under procedureswhich have given diverse views an opportunity to be considered, and whichindicated interested and affected persons have reached substantial agreement onits adoption.??Q. Pardon me, sir.I?m interested in the part before ?affected persons.??A. Which indicatethat interested and affected persons have reached substantial agreement on itsadoption.?Q. This is sayingwhat has been done and the statute says it must be done, is that correct, sir??A. Yes, sir, andif I may finish this last phrase, the point I wanted to make here. I don?t knowwhether I left what I thought was non-applicable language out but it followsthat, ?It is appropriate to permit the Secretary to promulgate such standardswithout regard to the provisions of the Administrative Procedures Act. The billalso provides for the issuance in similar fashion of those standards??Q. Are you guotingnow??A. Yes, sir. ?. .. which have been issued under other federal standards and which under this Actmay be applicable to additional employees who are not under the protection ofsuch other federal laws. Such standards have already been subjected to theprocedural scrutiny mandated by law under which they were issued. Suchstandards moreover in large part represent the incorporation of voluntaryindustrial standards.??Your Honor, in theHouse Report 911291 which accompanied HR 16785 starting on page 831, but thepages of specific reference are page 847. The intent of this interim standardsprovision is to give the Secretary of Labor a speedy mechanism to promulgatestandards with which industry is familiar. These may not be as effective as thecurrent standards promulgated under formal procedures but they will be usefulfor immediately providing a nation-wide minimum level of health and safety.?Section 6??Q. Does that referto the reference or standards referred to by the terms of the statementelsewhere? Did those include ANSI national consensus standards??A. Yes.?(Tr.S54, S55, S56 and S57)?Asto the adoption of ANSI 01.1 as a national consensus standard, Cestronerecalled believing the legality of the standard was protected not only by thecongressional mandate of the statute and congressional urgency in reports anddebates, but also by the fact that the Labor Department?s Solicitor advisedthat the standard had been adopted ?by reference under the Walsh-Healy Act.Thereis some question as to was intended by the witness when he referred to adoption?by reference.?Cestronereferred specifically to the provisions of Section 4(b)(2) of the Act. Thissimply purported to ?blanket in? all existing Walsh-Healy regulations?as wellas those under other safety Acts?as Occupational Safety and Health standards;by ?deeming? all such?without further identification or reference?to beoccupational safety and health standards.Thewitness may have been referring to the adoption ?by reference? in 41 CFR50.204?2. This reference applies to the general machine guarding requirementsfor all machines and states that all standards on this subject produced by thefour named major standards-producing organizations are effective under theWalsh-Healy Act; without specific reference to any such privately producedstandards, their provisions, or their application.Thissection was mentioned by the Solicitor at the beginning of the supplementalhearing on the Secretary?s Motion for Summary Judgment on the pleadings. It wasnot urged thereafter by the Solicitor except in connection with his argumentthat 29 CFR 1910.213 is in fact a national consensus standard.Thefact is ANSI 01.1954 (R 1961) was taken apart and reassembled, under thedirection of Mr. Cestrone, to become 29 CFR 1910.213 and 214. (See Respondent?sExhibit G?3, showing details of the dismantling and reassembling job.) It wasthen adopted as a national consensus standard. In the process theheadnote at the beginning of Section 4 was removed and appears nowhere in theOccupational Safety and Health standards.Therewas no intent or effort to adopt any standard in the alternative, or asboth a national consensus standard and an established Federal standard.?The new Part 1910contains Occupational Safety and Health standards which are either nationalconsensus standards or established Federal standards.?36Fed. Reg. 10466, May 29, 1971)?TheSecretary?s own regulation showing source?29 CFR 1910.221?shows that bothSections 213 and 214 were derived from ?ANSI?01.1?1954?(R?1961)?Safety Code forWoodworking Machinery.?Thereis no statutory authority to promulgate the standard except as one or theother.Thus,the standard under scrutiny in this case?or portions of it?is either a validgeneral industry occupational safety and health standard adopted as anational consensus standard; or so far as we are here concerned, it has norelevance.Wenow come to consideration of the three principal questions to be answered bythis decision.Thefirst is the effect of deleting the headnote to Section 4.0 ?WoodworkingMachinery?, page 9, ANSI 01.1 1954 (R 1961). It is as follows:?NOTE:It is recognized that the standards for saw guards in 4.1 are not perfectlyapplicable to all operations for which saws are used. The standards given arethose which woodworkers have agreed are most generally useful. Since there area considerable number of cases not satisfactorily met by these standards, theenforcing authority should exercise rather wide latitude in allowing the use ofother devices which give promise of affording adequate protection. It may beexpected that by so doing further progress in saw guarding will be encouraged.?\u00a0Therecord shows a similar note to have been part of the 01.1 standard in 1944.Another is a part of the 1971 revision.Therecord further shows that at a meeting in the summer of 1973, for the firsttime the ANSI 01 Committee considered removing the text of the note as it hasappeared and placing its provisions as part of the text of the various sectionsapplicable. (See Secretary?s Exhibit S?2.)Anumber of undisputed facts should be considered.First,all of the provisions of 29 CFR 1910.213 are mandatory. The headnote is not.Thenote is not ?explanatory?, ?preliminary?, ?a suggestion?, ?a recommendation?,?for informational purposes?, or even an ?exhortation.? It is an integral partof the standard itself.?JUDGE WATKINS:Mr. Ehlke, I forgot to ask Mr. deTarnowsky something. If you want to cover it,okay; if not, ?I?ll ask him again.I want to makesure he testified as to whether the headnote that we?ve been talking about is apart of the standard. Would you cover that??Mr. EHLKE: That?smy next question.?Q. (By Mr. Ehlke)Turn to page 9 of that document, sir. Is there a note at the beginning ofsection 4 entitled ?Woodworking Machinery???A. Yes, it is.?Q. What type ofnote would that be, sir??A. We call it aheadnote.?Q. Are headnotesan integral part of the standards??A. Yes.?Q. Is thisheadnote an integral part of that standard??A. Yes, it is.?(Tr.S172)\u00a0Thereis considerably more evidence in the record to the same effect. There is no evidenceto the contrary.Thesaws covered by Section 213 of Part 1910 simply cannot be used for many jobsthey are designed to do while guarded as required by the standard. Thisevidence is also undisputed and from expert and technically competent witnesses?membersof the Committee.AllCommittee members stated that ANSI 01.1 would not be?and could not be?a?consensus? standard with the headnote removed. Those asked stated they wouldnot have voted for it as a consensus standard in the absence of the headnote.Itis interesting to note the difference in the method used by the Secretary inadopting ANSI 01.1 in the Construction. Standards, from the used here in theGeneral Industry Standards.SubpartI of the Construction Standards covers ?Tools?Hand and Power?, and includes 29CFR 1926.300 ?General Requirements?, through Section 305: Section 304 of Part1926, entitled ?Woodworking Tools?, has some specific requirements forportable, power driven circular saws (subparagraph (d)); and then provides:?(f) Otherrequirements. All woodworking tools and machinery shall meet other applicablerequirements of American National Standards. Institute, 01.1?1961. Safety Codefor Woodworking Machinery.??Leavingaside other questions for the purpose of discussion; the result is the adoptionof ANSI 01.1 with its headnote. This is a procedure?and the result?intendedby Congress in Sec. 6(a) of the Act.Whatevermay be the good or bad things about mandatory standards, or the validity orinvalidity of adoption by reference; this was the enactment of what appeared onits face to be a national consensus standard?as such; not as changed. With theheadnote still a part of the standard, enforcement of Construction standardsmust consider that all parts of Section 4.1 of ANSI 01.1 are optional?notmandatory.Inadopting Part 1910, including Section 213, on the other hand, the Secretarystates in Volume 36, No. 105, Federal Register, page 10466, May 29, 1971:?The nationalconsensus standards contain only mandatory provisions of the standardspromulgated by those two organizations. The standards of ANSI and NFPA may alsocontain advisory provisions and recommendations, the adoption of which byemployers is encouraged, but they are not adopted in Part 1910.?\u00a0Perhapsthe Secretary made a mistake in including Section 213 of Part 1910. With theheadnote, provisions of Section 4.1 of ANSI 01.1: ?are not perfectly applicableto all operations for which saws are used.? The standards are only those ?whichwoodworkers have agreed are most generally useful.? ?…….. there are aconsiderable number of cases not satisfactorily met by these standards.?Withthe headnote, ANSI 01.1 is not mandatory. Without the headnote, allprovisions as they appear in 29 CFR 1910.213 are mandatory. The answeris that simple.TheSecretary exceeded his statutory authority in failing to retain the headnote asit was?an integral part of the standard.Thesecond and third questions for consideration are whether, in two respects, ANSI01.1 1954 (R 1961) meets the statutory definition of national consensusstandard.TheAct provides:?SEC.3. For thepurposes of this Act?(9) The term?national consensus standard? means any occupational safety and health standardor modification thereof which (1), has been adopted and promulgated by anationally recognized standards-producing organization under procedures wherebyit can be determined by the Secretary that persons interested and affected bythe scope or provisions of the standard have reached substantial agreement onits adoption, (2) was formulated in a manner which afforded an opportunity fordiverse views to be considered and (3) has been designated as such a standardby the Secretary, after consultation with other appropriate Federal agencies.??AlthoughSection 3 (9) of the Act contains only three numbered subsections, as we viewit two requirements are contained in the first. There are therefore, fourrequirements for a standard to meet this statutory definition.(1)It must have been ?adopted and promulgated by a nationally recognizedstandards-producing organization.?(2)?Under procedures whereby it can be determined by the Secretary that personsinterested and affected by the scope or provisions of the standard have reachedsubstantial agreement on its adoption.?(3)?Was formulated in a manner which afforded an opportunity for diverse views tobe considered.?(4)?Has been designated as such a standard by the Secretary, after consultationwith other appropriate Federal agencies.?\u00a0RespondentKonkolville argues in its brief that the first and fourth requirements are notmet. We find it unnecessary to decide these questions because we hold that ANSI01.1 does not meet the statutory definition of a national consensus standardunder the second.Aword about the fourth (has been designated, etc.) is in order, however, becauseit has significance in our holding that the standard under discussion wasadopted as a national consensus standard. It was designated as such, and asnothing else. Further, it was ?. . . by rule promulgated? as such by theSecretary, as provided by Section 6(a) of the Act.Inthe Federal Register adopting Part 1910, ?Occupational Safety and HealthStandards? (36 Fed. Reg. 10466, May 29, 1971), the Secretary states:?The nationalconsensus standards are occupational safety and health standards adopted andpromulgated either by the American National Standards Institute (ANSI) or bythe National Fire Protection Association (NFPA) under procedures whereby it canbe determined that persons interested and affected by the scope or provisionsof the standards have reached substantial agreement on their adoption. I havedetermined that those standards have been adopted and promulgated under suchprocedures. Accordingly, pursuant to this determination, after consultationwith other appropriate Federal agences, and in accordance with section 3 (9) ofthe Act, I do hereby designate as national consensus standards thosestandards in Part 1910 which are standards adopted and promulgated by eitherthe American National Standards Institute or the National Fire ProtectionAssociation.? (Emphasis added)?Thefirst question which must be decided under this statutory definition (thesecond of the principal questions in the case) is whether the standard waspromulgated?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.??Assumingfirst of all that the ?procedures? are those of ANSI?the standards-producingorganization?a number of other unanswered questions are immediately apparent.For example,(1)Who are persons interested and affected by the scope or provisions of thestandards?(2)How many such persons are there?(3)How many must ?have reached substantial agreement on its adoption?(4)What is ?substantial agreement on its adoption??Itmight be pointed out there is no requirement that the Secretary find or?determine? that the persons contemplated have reached substantial agreement.Rather the requirement is that the circumstances of adoption of the standard besuch that these things ?can be determined by the Secretary.?TheSecretary does purport to so find in the Federal Register cited. His statementto this effect is in the last quotation from it.Wemay assume the Secretary cannot find that which is untrue. He cannot?determine? that something happened when in fact it did not happen. Thus,although the statute does not require the Secretary to ?determine? the specificfacts regarding the adoption of the standard by ANSI; those facts must exist sothat the Secretary could so determine them. Those facts are ?thatpersons interested and affected by the scope or provisions of the standard havereached substantial agreement on its adoption,?Whoare ?persons interested and affected by the scope or provisions of thestandard?? Little time need be spent in answering this question. The recordshows so many thousands of persons who are clearly within this class we neednot concern ourselves with the niceties of deciding in a borderline casewhether or not a particular person or class of persons is within it.Forexample, these are shown by the record:Workmenwho operate the machineryLabororganizations to which the workmen belongEmployerswho hire the workmenTradeassociations of those employersWorkmenscompensation or industrial insurance carriers who insure the employers andworkmen, both by reason of their financial interest in the safety of theworkmen and the insurance companies? traditional interest in safety.Tradeassociations of the workmens compensation insurance carriersGovernmentalorganizations with an interest in employee safetyPrivatesafety organizations, for example, the National Safety CouncilProducersof safety standards, such as ANSIThelast two questions posed above present greater difficulties of solution. Howmany ?persons interested and affected? must have agreed on the adoption of anANSI standard? The literal language of the statute would be satisfied if theanswer were either ?two? or ?all.? Either answer is ridiculous.Might the answer be ?arepresentative number?; or ?a substantial number?; whatever either of theseexpressions means? I have been unable to find anything in the LegislativeHistory helpful in trying to answer this question.Itwould rather seem from numerous passages in the history that Congress becameenamored of its own definition and began to assume that both ANSI and NFPAstandards met it. At the same time, from some of the testimony, one might drawthe inference that ANSI began to believe its standards met the Congressionaldefinition.Aswill be shown, the answer to the question is academic. Since we are talkingabout ?consensus? standards, however, would it not be sensible to believeCongress intended that ?a consensus? of ?persons interested and affected?agreed to the adoption of the standard???????????? Consensus means?Generalagreement.? ?Collective opinion. The judgment arrived at by most of thoseconcerned.?(Webster?3rdUnabridged)??Majority ofopinion.?(RandomHouse?College Edition)\u00a0DeTarnowskyquoted from one of ANSI?s principal publications, ?Consensus implies much morethan a concept of a simple majority, not necessarily unanimity.?Perhapsit would be helpful to delve slightly deeper into ANSI procedures, particularlyin its method of ?obtaining a consensus.? There is reference to the question inthe testimony of Mr. deTarnowsky:?Q. (By Judge) Theother day when we had?well, that was Tuesday?and we had this meeting with allof us there, I asked, I believe, if there is an ANSI?if ANSI defines consensusanywhere. I didn?t ask then, but I meant it, of course, as a guide. You thenconsulted your files, and would you tell us what you found about that??A. The term?consensus in standardization practice is achieved when substantial agreementis reached by concerned interests according to the judgment of duly appointedauthority.??Q. Then we oughtto identify it. I?m reading in a different place.?A. I?m readingfrom the ?Guide of the Development of American National Standards?, datedNovember 2, 1972, page 6, the third paragraph, ?Consensus Principle.? I betterread the whole paragraph.?Q. Go ahead, sir.?A. The title ofthis paragraph is ?Consensus Principle?, ?The basic principle underlying ANSIapproval of a standard is that a consensus must be reached of those havingsubstantial concern with its scope and provisions. In standardization practicea consensus is achieved when substantial agreement is reached by concerned interestsaccording to the judgment of a duly appointed authority. Consensus implies muchmore than a concept of a simple majority, not necessarily unanimity.?(Tr. S164?165)\u00a0Fromthe record it is not clear who is the ?duly appointed authority? whose judgmentis used to determine when a ?consensus is achieved? by ?substancial agreement.?Although the Board of Standards Review of ANSI is charged with only onefunction?to determine whether or not the standard ?represents aconsensus??other procedures of ANSI apparently also go into the determination.Firstthere is the selection and approval of the committee which is to write thestandard and the determination that it was as broad a base in the particularfield as possible. One factor not considered at length in testimony is the theoryof planning somewhat unusual duties and responsibilities on members of ANSI,and their individual committee members, to keep the member organizationinformed of the work of ANSI committees in writing standards. At the same timethe individual is charged with the responsibility of interpreting the attitudeof the organization he represents?and its members?in the development of thestandards work.Testimonyof Committee members does not disclose any particular attention having been paidto these responsibilities.Thefollowing quotation from ?The ASA System? (Secretary?s Exhibit S?1) is ofinterest in this connection.?These principlesrequire thoroughgoing responsibility on the part of cooperating bodies andtheir representatives?responsibility in three senses, viz:(a) Responsibilityin representation. It is the duty of a representative (1) to keep sufficientlyin touch with his organization so that he can correctly interpret its attitudein the development of the work and can participate in decisions in committees;(2) to keep his organization informed of developments; (3) to act as a leader inthe formulation of the policies of his organization in regard to the matterswith which he is dealing; and (4) to refer back to his organization questionsupon which he feels unauthorized to speak for it;…..??Thestatement was made above that the number of ?persons interested and affected?who reach ?substantial agreement? on the adoption of the standard is academic.The fact is, nobody reaches substantial agreement?or any otherkind of agreement?on the adoption of an ANSI consensus standard except theindividual committee members writing the standard and the organizationsthey represent.Theorganizations are usually not the employers but trade or other associations, orthe like. ?Substantial agreement? could also be said to be reached bysubsequent reviewing authorities within the ANSI organization itself.Itis not only a matter of common knowledge, but it is the uncontradicted evidencein this record; that except in unusual circumstances not here shown, no memberof a trade association or similar organization allows the organization to actfor it, agree to anything for it, to speak for it, to express an opinion forit, or to commit it in any way.Theevidence in this record does not include all the 13 or 14 organizationsconstituting the ANSI 01 committee in 1954 and 1961. It does, however, includethe following:??????????? Nixon deTarnowsky testified that ANSI?s members do notauthorize the organization to make any decision for them involving judgment orto speak for them on any matter involving the technical content of a standard.He is familiar with the operation and practices of trade associations and hasrepresented at least one. With respect to the representative and in connectionwith ANSI procedures, he testified:?Q. But henormally speaks for the association and industry or the trade association only,not for individual members??A. That?s right.He?s a representative of the association. This is his function.?Q. I wonder if itisn?t usually the practice for a trade association representative to be verycareful not to speak in the names of the individual members??A. That iscorrect, they do. They must remember they are speaking for an association andnot for their company or themselves.?(Tr. S166?167)??????????? DavidZabriskie is an employee of the American Insurance Association and Secretary ofthe ANSI Committee. ?Roughly? all company members who subscribe to theengineering and safety services of the Association write workmens compensationinsurance. These are the largest stock casualty companies in the country(formerly constituting the Association of Casualty and Surety Companies).Zabriskie testified that there are some mutual companies who are now members.Thereare 150 to 160 of these companies writing workmen?s compensation insurance. Therecord does not show how many million policy holders they have or how many suchpolicy holders own or operate saws of the type covered by the woodworkingmachine guarding standards in question. A fair inference can be drawn thenumber is very large.??????????? Neither Zabriskie nor any other representative of theAmerican Insurance Association has authority from any member company to ?agree?to anything, to speak for it, or to make any decision or express an opinion onthe question of the adoption of any safety standard. If the committee member isa company employee, he is authorized to speak and vote for the Associationonly, not for his company. This situation is often the case. Nelson, thecurrent chairman of the ANSI 01 Committee, is an employee of St. Paul Fire andMarine. Steinman, the previous Chairman, was an employee of the United StatesFidelity and Guaranty Company.Nocompany member of the American Insurance Association has authority from anypolicy holder to speak for it, ?agree? for it, take any position for it orexpress any opinion for it on any matter having to do with a safety standard.Every policy holder (in case of its insurance company) and every company (incase of its trade association) jealously guards its own right to ?agree?,?assent?, ?take a position?, ?take action?, or withhold it, and in all respectsto form its own opinions and conclusions and to express them on allmatters?including safety.LewisR. Morrision was a representative of the National Association of MutualCasualty Companies on the ANSI 01 Committee in 1954. He was an employee of theLumbermens Mutual Casualty Company of Chicago. The trade association herepresented was made up of the large mutual companies writing workmenscompensation insurance.Thesame facts are true with respect to Mr. Morrison as with Mr. Zabriskie. Hespoke for?voted for?only the trade association?not his employer or any othercompany. No company member of the trade association had authority to take anyaction or position or express any view on behalf of any of its policy holders.A.A. Skonning, Senior Engineer, Western Electric Company, was a representative onthe committee in 1954 and 1961 for the National Safety Council. Dan Adair, anemployee of the Safety Council, was also a representative. Both were active inthe work of the committee for a considerable number of years.In1970, the National Safety Council had 9,000 members, 8,000 of them industrial concerns.Others included labor unions and insurance companies. In 1963, a listing wasdeveloped of 28,000 industrial plants involved in memberships of the NationalSafety Council.Nomember of the National Safety Council authorized either Skonning or Adair tospeak for it, act for it, or do anything else in connection with safety. As amember of the committee, Mr. Skonning voted only on behalf of the NationalSafety Council, not on behalf of Western Electric.JosephJ. Prabulos represented the Associated Cooperage Industries, a tradeassociation, on the committee in its work resulting in the revision of thestandard in 1954, its reaffirmation in 1961 and its further revision in 1971.He was employed as Safety Director of the National Distillers and ChemicalCorporation.Prabulos?recollection was that the trade association had about 130 member companies. Asa committee member, he spoke and voted only for the trade association, not forhis employer. In other respects his testimony is the same as that of the witnessesjust mentioned except that, in addition, he had no specific instructions orauthorization from the trade association on how to cast any vote with respectto the standard.Aswith the other witnesses, Mr. Prabulos had no contact or communication with themember companies of his trade association, or with his own company, withrespect to the work of the ANSI committee.Infact, each committee member who testified was an expert in his field, and usedhis own judgment in casting his vote in a manner that caused the committee tobe in substantial agreement.Itwould serve no useful purpose to speculate on the precise meaning of?substantial agreement? to the extent of framing a definition. Certainly itmeans much less than formal and recorded agreement, either written or oral. Itmight be inferred from inaction?with knowledge of essential facts?rather thanfrom any positive action.Ata minimum there must be some communication?or chance to communicate?by a personheld to be in ?substantial agreement.? In any event, to hold that manythousands of people are in ?substantial agreement? means more than the bestjudgment of safety experts about what they are thinking; when the experts havereceived no communications from them as to what they are thinking, and noauthority from anyone to take or withhold any action.Atthe conclusion of the first three days of testimony and at the request ofcounsel for Respondent, the case was continued to September 17. Although not solimited, this was principally for the purpose of obtaining further evidencetending to improve the record as to the number of ?persons interested andaffected by the scope or provisions of the standard.?Mostof the evidence we have is general?some of it vague. From the total, however,certain valid inferences may be drawn, particularly with respect to minimumnumbers of persons who may be so interested and affected.Anumber of documents, or portions of them, were introduced in evidence. With thebackground record of the insurance and cooperage industries, the NationalSafety Council, and the ANSI members, perhaps reference to one and astipulation in connection with it would be sufficient for our present purpose.Mr.George J. Tichy, counsel for Konkolville, did not testify. By stipulation,however, the equivalent of his testimony was received.Itwas stipulated that, based on Respondent?s Exhibit S?8, that portion having todo with lumber, sawmills and wood products, Mr. Tichy would testify if he werecalled as a witness, and based upon his experience in the industry, not only ascounsel but also including extensive experience as a workman; that in 1954,1961, 1971 and 1973 there were no less than 30,000 industrial users of thetypes of saws found in Section 4.1 of ANSI 01.1 1954 (R 1961) and adoptedthereafter as 29 CFR 1910.213. The stipulation was further that on each of thedates the number of such saws in use was no less than 50,000.Itwas further agreed that the stipulation might be accepted in lieu of Mr.Tichy?s testimony, that he was qualified to testify to the facts stated, andthat the stipulation might be so used even though Tichy was in court and couldhave taken the witness stand.Itis of interest to note that so far as all the logging and sawmill, as well asthe Northwest Plywood industries are concerned; there was norepresentative?either company or trade association?on the ANSI 01 Committee.One of the reasons assigned for this was that at the time a ?vertical? standardfor sawmills was being considered and prepared. (29 CFR 1910.265)Fromthe foregoing it is abundantly clear that the ANSI national consensus standardhere under consideration does not meet the definition of Section 3(9)(1) of theAct, as having been adopted ?under procedures whereby it can be determined bythe Secretary that persons interested and affected by the scope or provisionsof the standard have reached substantial agreement on its adoption.?Onecan but conclude that Congress mandated the use of national consensus standardsas occupational safety and health standards under the Act, espoused theiradoption as interim regulations and under abbreviated procedures, sought tospeed their promulgation and implementation; and at the same time adopted astatutory definition that no national consensus standard could meet. At leastthe standard here under consideration does not meet it.Thethird question for decision is whether the ANSI 01.1 1954 (R 1961) standard?was formulated in a manner which afforded an opportunity for diverse views tobe considered…..?.?Inan earlier explanation of the working of ANSI, reference was made to ?a publicreview and comment period.? References to this procedure under the same orsimilar language are in several places in the Legislative History.NixondeTarnowsky testified the present system started in 1969. Previous efforts,while not haphazard, were much less complete.?The old ASAsystem did not include a public review and comment period such as we have now.The old system relied exclusively on the membership of the ASA system. It waspublished in the Magazine of Standards, however, which was given generaldistribution, and was subscribed to by a great many more companies, but as Iunderstand it the public review and comment, as we have it today, did not existat the time 01 was promulgated.?(Tr. S154?155)?TheMagazine of Standards was published by ANSI. Its circulation is not shown.Other trade publications reproduced proposals with respect to the adoption ofstandards.Mr.Cestrone testified he had no difficulty in knowing of any ANSI actioncontemplated in which he was interested over the years. At the same time, however,it appears that for many years he was active in ANSI and served on many of itscommittees and bodies.Ingeneral, the record indicates dissemination of information about proposedactions regarding standards before the change in 1969. The change brought abouta much wider and more selective distribution of information, and also broughtinto effect a number of new procedures with respect to comments received.Thestatute does not designate whose ?diverse views? are to be considered;or who must be ?afforded an opportunity.? If the ?opportunity? and?diverse views? are limited to safety professionals, there would be compliancewith the statute.Noris there a specific provision about who is to do the ?considering.? Byimplication, however, this would be some part of the ANSI organization.Thereis no indication Congress intended that a procedure such as that provided bySection 6(b) of the Act was thought to be required of privatestandards-producing organizations. No attempt is made to spell out times, places,manners of publication or other dissemination of information or methods used.Underall the circumstances, we feel there was no failure on the part of ANSI to meetthe requirements of Section 3(9)(2) in its adoption or promulgation of thestandard here under consideration.Inorder that there may be no misunderstanding, I should like to make it clearthere is no intention in this decision to criticize anybody.First,the Secretary of Labor was required by Section 6(a) of the Act to adoptnational consensus standards as occupational safety and health standards?unless he determines that the promulgation of such a standard would not resultin improved safety or health for specifically designated employees.?Thereare numerous references in the Legislative History to the assumption?stated asfact?that national consensus standards of ANSI and NFPA met the tests of thedefinition Section of the Act; even though the ANSI standard here under reviewdid not. All the Congressional views were known to the people in the LaborDepartment charged with the responsibility of developing the program.Mr.Cestrone and his organization of about 60 people did a monumental job in about34 days in putting together the package. There must have been many other peoplein the Department of Labor under similar pressure. It just happens theiridentities and efforts have not come to our attention.Leastof all do we consider this decision any criticism of the American NationalStandards Institute; its philosophies, its procedure or its results. Theprocedures have been tested by time and found to be in the public interest, andspecifically in the interest of occupational safety and health. Nothing hereshould be construed as in any way reflecting on the integrity or effectivenessof ANSI or of any of its procedures or results. It simply has a statutorydefinition of ?consensus? that its procedures cannot meet?nor could those ofany other private organization setting out to do the same job.[3]TheCitation and Proposed Penalty must be vacated and the Complaint of theSecretary dismissed with prejudice.Basedupon a review of the entire record in this case, the undersigned hereby makesthe followingFINDINGSOF FACTIRespondentJuhr & Sons is a general partnership with its principal place of businessin Portland, Oregon. It is engaged in the contracting business. On January 19,1973, it was one of several general contractors constructing an AdministrativeServices Building on the campus of the University of Oregon at Eugene. At itsworksite there it had 25 employees and in its entire organization, about 30.IIAtall times material to this case Respondent used building materials, machineryand other goods brought into the state of Oregon from points outside the state.It used the mails, telephone and other facilities in interstate commerce. Itwas engaged in a business affecting commerce.IIIOnJanuary 19, 1973 Respondent?s worksite at Eugene, Oregon was inspected by aCompliance Officer of the Occupational Safety and Health Administration, UnitedStates Department of Labor. As a result a citation was issued on February 16,1973 alleging Respondent was in violation of Section 5(a)(2) of theOccupational Safety and Health Act of 1970 by failing to comply with themachine guarding standard for woodworking machinery set out in 29 CFR1910.213(h)(1), in having its employees use at the worksite a radial arm sawwith no guard covering the lower portion of the blade. Respondent gaveComplainant timely notice of contest of the citation and of the proposedpenalty in the amount of $550.00.IVOnJanuary 19, 1973 the radial arm saw described was at Respondent?s worksite,available for use by its employees. There is no evidence it was used that day,but by admitting the facts constituting the violation, such use is admitted.There is some evidence it was used other times, but no evidence as to when, byhow many employees or in what manner. The employees who used it wereexperienced and well trained in its use.VTheSecretary purported to promulgate 29 CFR 1910.213 as a national consensusstandard by publication on May 29, 1971 in 34 Fed. Reg. 10466. The sourcestandard is one of the American National Standards Institute, adopted in 1954and reaffirmed in 1961, commonly known as ANSI 01.1 1954 (R 1961).VIAheadnote to ANSI 01.1 1954 (R 1961) at the beginning of Section 4.1 thereofprovides:?NOTE: It isrecognized that the standards for saw guards in 4.1 are not perfectlyapplicable to all operations for which saws are used. The standards given arethose which woodworkers have agreed are most generally useful. Since there area considerable number of cases not satisfactorily met by these standards, theenforcing authority should exercise rather wide latitude in allowing the use ofother devices which give promise of affording adequate protection. It may beexpected that by so doing further progress in saw guarding will be encouraged.??Section213(h)(1) of Part 1910 was derived from Section 4.1.9 RADIAL SAWS (a) Hoods andGuards of ANSI 01.1 1954 (R 1961). The headnote is an integral part of Sec. 4.1and every sub-section and part thereof. Section 4.1.9(a) with the headnoteproduces the result that the use of lower blade guards for radial arm saws isoptional. Section 213(h)(1) of Part 1910 has the effect of requiring the use oflower blade guards for all radial arm saws, at all times used. Its requirementsare mandatory. The meaning, scope and application of the source standard arethereby materially changed.VIIANSI01.1 1954 (R 1961) before its purported adoption by the Secretary, had not beenadopted and promulgated by a nationally recognized standards-producingorganization under procedures whereby it could be determined by the Secretarythat persons interested and affected by the scope or provisions of the standardhad reached substantial agreement on its adoption. In fact, only the 13 or 14organizational members of the committee writing the standard?not thecorporations or other persons constituting such organizations?and theindividuals representing them, along with members of the Safety TechnicalAdvisory Board and the Board of Standards Review of ANSI had reached suchsubstantial agreement.VIIIANSI01.1 1954 (R 1961) was formulated in a manner which afforded an opportunity fordiverse views to be considered.Basedupon the foregoing and upon all facts admitted, stipulated, or proved byuncontradicted substantial credible evidence, the undersigned hereby makes thefollowing:CONCLUSIONSOF LAWIRespondentis engaged in a business affecting commerce within the provisions of 3(3) ofthe Occupational Safety and Health Act of 1970. The Review Commission hasjurisdiction of the parties and subject matter of this action.IIANSI01.1 1954 (R 1961) was not enacted in part as 29 CFR 1910.213(h)(1) because theSecretary was acting in excess of his statutory authority in the deletion ofthe headnote to Sec. 4.1.IIIANSI01.1 1954 (R 1961) is not a national consensus standard as defined in Sec. 3(9) of the Act.IV29CFR 1910.213(h)(1) was not a valid enactment by the Secretary of a nationalconsensus standard, under Sec. 6(a) of the Act. 29 CFR 1910.213(h)(1) isinvalid and unenforceable.TheRespondent is entitled to an Order vacating the citation and proposed penalty,and dismissing the Complaint of the Secretary with prejudice.ORDERBasedupon the foregoing:IITIS HEREBY ORDERED:Thatthe Citation for Serious Violation issued by Complainant to Respondent February16, 1973 and reciting therein the operation of a radial arm saw in Eugene, Oregonon January 19, 1973 in violation of 29 CFR 1910.213(h)(1) and the proposedpenalty in the amount of $550.00 be and the same hereby are Vacated.IIITIS FURTHER ORDERED:Thatthe Complaint of the Secretary be and the same hereby is dismissed with prejudice.Dated: April 16, 1976GARL WATKINS, Judge[1] Respondent?snotice of contest did not contest the non-serious citation or penalties. JudgeWatkins so found and we agree.[2] Wording of thedecision from this point will probably be identical to that covering the samequestions in the decisions of the other cases.?Footnotes will point out the start and finish of the decisional languagerepeated in each case.[3] This end thatpart of the decision which is the same as a number of others, as mentioned infootnote 1.”