“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 2437\t\t\t\t\t\t\t\t\t\tKONKOLVILLE LUMBER CO., INC.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\tThis case is before the Commission pursuant to a sua sponte order for review. The parties\t\t\t\t\t\t\t\t\t\thave filed no objections to the Administrative Law Judge\u2019s decision, either by way of petitions\t\t\t\t\t\t\t\t\t\tfor discretionary review or response to the order for review. Accordingly, there has been no\t\t\t\t\t\t\t\t\t\tappeal to the Commission, and no party has otherwise expressed dissatisfaction with the\t\t\t\t\t\t\t\t\t\tAdministrative Law Judge\u2019s decision.\t\t\t\t\t\t\t\t\t\tIn these circumstances, the Commission declines to pass upon, modify or change the\t\t\t\t\t\t\t\t\t\tJudge\u2019s decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA\t\t\t\t\t\t\t\t\t\tOSHC 2032, 1975\u201376 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC\t\t\t\t\t\t\t\t\t\t1015, 1975\u201376 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc.,\t\t\t\t\t\t\t\t\t\tv. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no\t\t\t\t\t\t\t\t\t\tcompelling public interest issue.\t\t\t\t\t\t\t\t\t\tThe Judge\u2019s decision is accorded the significance of an unreviewed Judge\u2019s decision.\t\t\t\t\t\t\t\t\t\tLeone Constr. Co., 3 BNA OSHC 1979, 1975\u201376 CCH OSHD para. 20,387 (No. 4090, 1976).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt is ORDERED that the decision be affirmed.\t\t\t\t\t\t\t\t\t\tDated: December 22, 1976\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\t(SEAL)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tMORAN, Commissioner, Concurring:\t\t\t\t\t\t\t\t\t\tI would affirm the Judge\u2019s decision for the reasons set forth in his decision which is attached\t\t\t\t\t\t\t\t\t\thereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz\t\t\t\t\t\t\t\t\t\tRoof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority\u2019s\t\t\t\t\t\t\t\t\t\tview regarding the significance of decisions rendered by Review Commission Judges.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 2437\t\t\t\t\t\t\t\t\t\tKONKOLVILLE LUMBER CO., INC.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION ON REMAND\t\t\t\t\t\t\t\t\t\tAppearances:\t\t\t\t\t\t\t\t\t\tCharles G. Preston, Seattle, Washington\t\t\t\t\t\t\t\t\t\tfor Complainant\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tGeorge J. Tichy, Spokane, Washington\t\t\t\t\t\t\t\t\t\tfor Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tGARL WATKINS, Judge:\t\t\t\t\t\t\t\t\t\tBy its decision of December 15, 1975 the Review Commission remanded this\t\t\t\t\t\t\t\t\t\tenforcement proceeding under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651,\t\t\t\t\t\t\t\t\t\tet seq. to determine whether on January 23, 1973 Respondent was in violation of 29 U.S.C.\t\t\t\t\t\t\t\t\t\t654(a)(2) with respect to two fire extinguishers in its sawmill at Orofino, Idaho; for failure to\t\t\t\t\t\t\t\t\t\tcomply with 29 CFR 1910.265(i) and 29 CFR 1910.157(a)(1).\t\t\t\t\t\t\t\t\t\tThe issues arise from Item 13 of Citation No. 1 for nonserious violations issued February\t\t\t\t\t\t\t\t\t\t28, 1973. The proposed penalty is $25.00. In its decision the Review Commission disposed of all\t\t\t\t\t\t\t\t\t\tother issues in the case. Secretary of Labor v. Konkolville Lumber Company, Inc., Docket 2437\t\t\t\t\t\t\t\t\t\t(1975), 3 OSHC 1796, CCH OSHD \u00a7 18,296.\t\t\t\t\t\t\t\t\t\tThat part of the original charge in Item 13 of Citation No. 1 and now before us for\t\t\t\t\t\t\t\t\t\tdecision follows:\t\t\t\t\t\t\t\t\t\tItem No.\t\t\t\t\t\tStandard or regulation\t\t\t\t\t\tDescription of alleged violation\t\t\t\t\t\t\t\t\t\tallegedly violated\t\t\t\t\t\t\t\t\t\t13\t\t\t\t\t\t29 CFR Part 1910\t\t\t\t\t\tJanuary 23, 1973\t\t\t\t\t\t\t\t\t\t1910.265(i)\t\t\t\t\t\t2. Fire extinguisher in the yellow truck at the shop\t\t\t\t\t\t\t\t\t\twas empty.\t\t\t\t\t\t\t\t\t\t3. Fire extinguisher on the wall of the outfeed at\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tPlaner was empty.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe Complaint alleges:\t\t\t\t\t\t\t\t\t\tV.\t\t\t\t\t\t\t\t\t\tOn January 23, 1973, at the aforesaid worksite and place of business and\t\t\t\t\t\t\t\t\t\temployment, the Respondent further violated the safety and health regulations in\t\t\t\t\t\t\t\t\t\tthe following respects:\t\t\t\t\t\t\t\t\t\t1. . . ..\t\t\t\t\t\t\t\t\t\t2. Fire extinguisher in the yellow truck at the shop was empty; and,\t\t\t\t\t\t\t\t\t\t3. Fire extinguisher on the wall of the outfeed at Planer was empty,\t\t\t\t\t\t\t\t\t\tAll contrary to 29 C.F.R. 1910.265(i).\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAt the hearing in Spokane, Washington on July 31, 1973 and during the course of the\t\t\t\t\t\t\t\t\t\ttestimony of the Compliance Officer, the Secretary moved to amend the citation and complaint\t\t\t\t\t\t\t\t\t\tto allege a failure to comply with 29 CFR 1910.157(a)(1) in addition to 29 CFR 1910.265(i). The\t\t\t\t\t\t\t\t\t\tmotion was denied.\t\t\t\t\t\t\t\t\t\tRespondent\u2019s motion for involuntary dismissal for Rule 41(b) of the Federal Rules of\t\t\t\t\t\t\t\t\t\tCivil Procedure conclusion of the Secretary\u2019s case. The same question was raised again on the\t\t\t\t\t\t\t\t\t\tSecretary\u2019s post-hearing motion for reconsideration and I adhered to the previous ruling. The\t\t\t\t\t\t\t\t\t\tReview Commission reversed on both rulings stating:\t\t\t\t\t\t\t\t\t\tWe, therefore, reverse the Judge and grant the Secretary\u2019s motion to amend the\t\t\t\t\t\t\t\t\t\tcomplaint so as to allege a violation of \u00a7 1910.157(a)(1).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSince the Judge erroneously granted respondent\u2019s motion to dismiss the citation at\t\t\t\t\t\t\t\t\t\tthe close of the Secretary\u2019s case, respondent was not afforded an opportunity to\t\t\t\t\t\t\t\t\t\tpresent any defense or rebuttal. We remand this case for a hearing to determine\t\t\t\t\t\t\t\t\t\twhether a violation existed on the date of inspection.\u2019 (CCH \u00a7 18,296, p. 22,406)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAfter the case was set for hearing on remand, the parties were granted permission to\t\t\t\t\t\t\t\t\t\tsubmit the case on the original record and additional stipulated facts. The latter are contained in\t\t\t\t\t\t\t\t\t\t\u2018Stipulation in Lieu of Additional Hearing\u2019. What is now required, therefore, is a decision on\t\t\t\t\t\t\t\t\t\tfacts and law as to \u2018… whether a violation existed on the date of inspection.\u2019 (January 23, 1973)\t\t\t\t\t\t\t\t\t\tunder both 29 CFR 1910.265(i) and 29 CFR 1910.157(a)(1).\t\t\t\t\t\t\t\t\t\tFACTS\t\t\t\t\t\t\t\t\t\tRonald C. Ostrom, the Secretary\u2019s Compliance Officer, Donald J. Konkol, Vice President\t\t\t\t\t\t\t\t\t\tand General Manager of Respondent, and Donald Gilkey, who described his job as \u2018maintenance\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tman\u2019, but whose description of his duties made the job sound like maintenance foreman or\t\t\t\t\t\t\t\t\t\tmillwright, testified at the original hearing. The Stipulation in Lieu of Additional Hearing, after\t\t\t\t\t\t\t\t\t\treference to certain procedural matters and the issues at this juncture of the case, is couched in\t\t\t\t\t\t\t\t\t\tterms of what these three witnesses \u2018would testify\u2019 if the hearing were held now.\t\t\t\t\t\t\t\t\t\tOn the issues still remaining before us the Stipulation is much more detailed than the\t\t\t\t\t\t\t\t\t\ttestimony in the original transcript. Most of the facts to which these witnesses \u2018would testify\u2019 are\t\t\t\t\t\t\t\t\t\tundisputed. Being credible, they become established facts of the case.\t\t\t\t\t\t\t\t\t\tI shall try to keep this summary as brief as possible and still give full consideration to the\t\t\t\t\t\t\t\t\t\ttwo charges remaining. Some matters will be treated as fact because they are established without\t\t\t\t\t\t\t\t\t\tcontradiction either by testimony or by the stipulation that a witness \u2018would testify\u2019. Appropriate\t\t\t\t\t\t\t\t\t\tcomment will be made on collateral matters, including apparent inconsistencies. Actually there\t\t\t\t\t\t\t\t\t\tare no substantial conflicts on material facts.\t\t\t\t\t\t\t\t\t\tRespondent is an Idaho corporation and operates a \u2018typical\u2019 sawmill at Orofino. It\t\t\t\t\t\t\t\t\t\tincludes a planer mill and dry kiln. At the time of Secretary\u2019s inspection on January 23, 1973\t\t\t\t\t\t\t\t\t\tthere were 37 employees. The year (whether calendar or fiscal is not disclosed) previous to the\t\t\t\t\t\t\t\t\t\thearing at the end of July 1973 the company had two million dollars in gross sales.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tExcept as regards the two portable extinguishers identified in the citation evidence about\t\t\t\t\t\t\t\t\t\tfire protection is from the Stipulation and what Respondent\u2019s witnesses would testify. There is\t\t\t\t\t\t\t\t\t\tno evidence or inference to the contrary.\t\t\t\t\t\t\t\t\t\tFor the convenience of discussion we shall consider Respondent\u2019s fire protection system\t\t\t\t\t\t\t\t\t\tas having four parts. First, all \u2018covered areas\u2019 were protected by an automatic sprinkler system.\t\t\t\t\t\t\t\t\t\tWhen the sprinklers were activated at any point, three warning bells sounded\u2014all loud enough\t\t\t\t\t\t\t\t\t\tto be heard throughout the mill.\t\t\t\t\t\t\t\t\t\tSecondly, \u2018A complete system of active fire hydrants was located throughout the plant\t\t\t\t\t\t\t\t\t\tpremises\u2019. To each was attached \u2018. . . at least 150 feet of usable 2\u201d fire hose\u2019 with the hose so\t\t\t\t\t\t\t\t\t\tfolded that it could be drawn away from the hydrant immediately.\t\t\t\t\t\t\t\t\t\tThird, an intercom system had its base station in Respondent\u2019s office where at least one\t\t\t\t\t\t\t\t\t\temployee was throughout the plant (the exact number and distance apart is not shown). All\t\t\t\t\t\t\t\t\t\tsupervisors and most employees knew that from any outlet a call was to be made immediately to\t\t\t\t\t\t\t\t\t\tthe office to report a fire or any other emergency. The mill was covered by two fire departments,\t\t\t\t\t\t\t\t\t\tone rural and one city. Fire stations of both are within two and one-half miles of the mill.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tFourthly, before installation of the portable fire extinguisher system throughout the mill,\t\t\t\t\t\t\t\t\t\ta survey of it was made by the American Fire Equipment Company of Lewiston, Idaho; working\t\t\t\t\t\t\t\t\t\twith Respondent. This company now has an oral agreement under which it inspects, tests, repairs\t\t\t\t\t\t\t\t\t\tand recharges the portable fire extinguishers regularly and monthly. (The service is not always\t\t\t\t\t\t\t\t\t\tthat frequent. A representative of the company visited the mill the day after the Secretary\u2019s\t\t\t\t\t\t\t\t\t\tinspection.)\t\t\t\t\t\t\t\t\t\tBefore installation the fire equipment company and Respondent agreed on positioning of\t\t\t\t\t\t\t\t\t\tportable fire extinguishers throughout the mill. Each place where one was to be put was painted\t\t\t\t\t\t\t\t\t\tred for an area considerably larger than the extinguisher. The brackets and extinguishers were\t\t\t\t\t\t\t\t\t\tthen installed by the fire equipment company. a panel truck without rear doors, used only for\t\t\t\t\t\t\t\t\t\tmaintenance on the premises. Although the red \u2018designation\u2019 on the yellow background was on\t\t\t\t\t\t\t\t\t\tthe outside of the panel, the portable fire extinguisher was mounted inside. It was high on the left\t\t\t\t\t\t\t\t\t\tpanel and within two feet of the back of the truck.\t\t\t\t\t\t\t\t\t\tWith the reservation noted, Ostrom, the Secretary\u2019s Compliance Officer, knew nothing of\t\t\t\t\t\t\t\t\t\tthe fire protection system of Respondent except for the two fire extinguishers forming the basis\t\t\t\t\t\t\t\t\t\tof the charges against Respondent. He did say,\t\t\t\t\t\t\t\t\t\t\u2018A. I checked the fire extinguishers in the shop.\u2019(TR 131)\t\t\t\t\t\t\t\t\t\tIn context he was probably referring to the mechanic\u2019s shop. He may have been referring to the\t\t\t\t\t\t\t\t\t\tcarpenter\u2019s shop.\t\t\t\t\t\t\t\t\t\tHe knew nothing of the location of any extinguisher (except the two) and did not recall\t\t\t\t\t\t\t\t\t\tthe red paint under and around fire extinguishers where they were mounted, including the red\t\t\t\t\t\t\t\t\t\tpaint on the maintenance truck.\t\t\t\t\t\t\t\t\t\tWhile testifying affirmatively that he knew nothing of the fire hydrants and attached\t\t\t\t\t\t\t\t\t\thoses, the sprinkler system and the inter-communication system and its use in the event of fire or\t\t\t\t\t\t\t\t\t\tother emergency he did say,\t\t\t\t\t\t\t\t\t\t\u2018Q. Did you check into the fire protection system that was employed by the\t\t\t\t\t\t\t\t\t\tKonkolville Lumber Company?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. No, sir. The only thing I checked was the fire extinguisher that was on the\t\t\t\t\t\t\t\t\t\ttruck. It was sitting on the truck, and that\u2019s what I looked at, and I found it was\t\t\t\t\t\t\t\t\t\tempty.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. Did you make any attempt to determine what the fire hydrant and fire hose\t\t\t\t\t\t\t\t\t\tsituation was on these premises?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. I believe at the opening conference I asked what type of fire inspection he had,\t\t\t\t\t\t\t\t\t\tand I was told that he had\u2014I\u2019d have to look at my notes again, what type of fire\t\t\t\t\t\t\t\t\t\textinguisher\u2014\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. Well, I would say I asked about the fire inspection, but I don\u2019t recall going into\t\t\t\t\t\t\t\t\t\tthe whole system, what was the procedure.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. (By Mr. Tichy) Or the location of the fire hydrants?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. You are right.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. Did you go into\u2014was anything said about the fire intercommunication system\t\t\t\t\t\t\t\t\t\tas it exists on these premises?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. No, sir, not to my recollection.\u2019\t\t\t\t\t\t\t\t\t\t(TR 133\u2013134)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOn the floor of the maintenance truck was a 2 1\/2 pound empty portable fire extinguisher\t\t\t\t\t\t\t\t\t\t(Ostrom thought it was \u201c\u2026approximately a four pound one\u2026\u201d\t\t\t\t\t\t\t\t\t\tNo one knows why it was empty except that Ostrom \u2018would testify\u2019 \u2018That the fire\t\t\t\t\t\t\t\t\t\textinguisher in the yellow truck was empty because it had been used;\u2019 (Stipulation, 8E). There is\t\t\t\t\t\t\t\t\t\tinsufficient foundation to give this evidence any credibility.\t\t\t\t\t\t\t\t\t\tNo one knows how long the empty tire extinguisher had been in the bed of the truck,\t\t\t\t\t\t\t\t\t\twhere it came from, who put it there, whether there was a tag attached showing when or whether\t\t\t\t\t\t\t\t\t\tit had been charged or what happened to it thereafter. Ostrom picked it up and put it down, but\t\t\t\t\t\t\t\t\t\tdecided it was empty solely from the pressure gauge.\t\t\t\t\t\t\t\t\t\tIt is established that \u2018This was a fire extinguisher which the Company had at no time\t\t\t\t\t\t\t\t\t\tprepared or directed a designated place.\u2019. (Stipulation, 7C) There was no one besides the\t\t\t\t\t\t\t\t\t\tcompany to \u2018designate\u2019.\t\t\t\t\t\t\t\t\t\tNeither at the hearing nor in the Stipulation almost three years later did Ostrom recall the\t\t\t\t\t\t\t\t\t\tother fire extinguisher mounted on brackets inside the maintenance truck. Konkol and Gilkey,\t\t\t\t\t\t\t\t\t\tbased on their failure to notice its absence, \u2018believe\u2019 that a fully charged 2 1\/2 pound fire\t\t\t\t\t\t\t\t\t\textinguisher was in its usual place mounted in brackets on the left inner wall of the panel\t\t\t\t\t\t\t\t\t\tmaintenance of the outfeed at the planer was in fact fully charged. A faulty gauge showed it to be\t\t\t\t\t\t\t\t\t\tempty. The parties stipulated that Konkol and Gilkey \u2018would testify\u2019:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u2018H. The portable fire extinguisher on the wall of the outfeed at the Planer was, in\t\t\t\t\t\t\t\t\t\tfact, fully charged and in an operable condition at the time of the inspection on\t\t\t\t\t\t\t\t\t\tJanuary 23, 1973. The Respondent examined this extinguisher and had the fire\t\t\t\t\t\t\t\t\t\textinguisher in question examined by an employee of the American Fire\t\t\t\t\t\t\t\t\t\tEquipment Company, Lewiston, Idaho. A malfunction existed in the gauge on\t\t\t\t\t\t\t\t\t\tthat fire extinguisher. It was a faulty gauge. The examination of the cited fire\t\t\t\t\t\t\t\t\t\textinguishers in the planer showed that the seal had not been broken, that it was\t\t\t\t\t\t\t\t\t\tfully charged and in an immediately operable condition. The faulty gauge in no\t\t\t\t\t\t\t\t\t\tmanner impaired its operability.\u2019\t\t\t\t\t\t\t\t\t\t(Stipulation, 7H)\t\t\t\t\t\t\t\t\t\tOstrom testified at the hearing:\t\t\t\t\t\t\t\t\t\t\u2018Q. Do you know whether this extinguisher was empty?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. I just know what the guage says.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. Is there any standard that compels a fire extinguisher to have a gauge?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. No, sir. They say they will be monthly and periodically checked to insure that\t\t\t\t\t\t\t\t\t\tthey are full.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. But there\u2019s nothing that requires you to have a gauge on a fire extinguisher?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. Not that I am aware of.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. There are other methods by which a fire extinguisher can be tested to\t\t\t\t\t\t\t\t\t\tdetermine whether or not it\u2019s full. Can it not?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. This is correct.\u2019\t\t\t\t\t\t\t\t\t\t(TR 136)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAttention should be drawn to the language of the Stipulation: \u2018The seal had not been\t\t\t\t\t\t\t\t\t\tbroken. . . .\u2019 in light of the following testimony of Ostrom at the hearing:\t\t\t\t\t\t\t\t\t\t\u2018Q. Your judgment that the fire extinguisher was empty was solely by examining\t\t\t\t\t\t\t\t\t\tthe gauge which indicated it to be empty?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. This is correct.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. There was no other effort made to determine whether the extinguisher was\t\t\t\t\t\t\t\t\t\tempty?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. I did look to see if the pin was pulled, and this helps in my determination, but\t\t\t\t\t\t\t\t\t\tat the time I don\u2019t recall whether the pin was pulled.\u2019\t\t\t\t\t\t\t\t\t\t(TR 157)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tWe interpret both to refer to one of several types of devices designed to show whether an\t\t\t\t\t\t\t\t\t\textinguisher had any use at all after it was last charged (or recharged). We interpret the language\t\t\t\t\t\t\t\t\t\tto mean that the stipulation says there had been no such use and that Ostrom didn\u2019t know.\t\t\t\t\t\t\t\t\t\tDISCUSSION\t\t\t\t\t\t\t\t\t\tFirst of all since we vacate both items of the citation, we do not reach the interesting\t\t\t\t\t\t\t\t\t\tquestion raised by counsel for Respondent in his letter of April 27, 1976 (submitted in lieu of a\t\t\t\t\t\t\t\t\t\tmore formal brief) as to whether in this specific case the fire protection standards apply to\t\t\t\t\t\t\t\t\t\temployee safety at all. Obviously the primary purpose of such standards is the protection of\t\t\t\t\t\t\t\t\t\tproperty. In some cases a secondary purpose may be found in the protection of workmen.\t\t\t\t\t\t\t\t\t\tHere however we have a little sawmill, few workmen and almost unlimited means of\t\t\t\t\t\t\t\t\t\tingress and egress. There is no evidence of the use of flammable materials, liquids or anything\t\t\t\t\t\t\t\t\t\telse on which to base a finding of more than the most remote possibility of the workmen\u2019s\t\t\t\t\t\t\t\t\t\tclothing being on fire. Respondent invites such scrutiny of the standard in light of those facts.\t\t\t\t\t\t\t\t\t\tHowever, since decision on this point is unnecessary to our disposition of the case, it will not be\t\t\t\t\t\t\t\t\t\tmade.\t\t\t\t\t\t\t\t\t\tUnder 29 CFR 1910.157(a)(1) the employer is required to do two things with portable\t\t\t\t\t\t\t\t\t\tfire extinguishers: (1) maintain them fully charged and in operable condition, and (2) keep them\t\t\t\t\t\t\t\t\t\tin their designated places. In what way has the Secretary met his burden of proving that\t\t\t\t\t\t\t\t\t\tRespondent has failed to meet the duties imposed by the standard? For convenience we shall\t\t\t\t\t\t\t\t\t\tdiscuss the two charges in reverse order, starting with the fire extinguisher mounted on the wall\t\t\t\t\t\t\t\t\t\tof the outfeed at the planer.\t\t\t\t\t\t\t\t\t\tWe suppose our imagination is not stretched too far to find that when Respondent, in\t\t\t\t\t\t\t\t\t\tconsultation with fire extinguisher experts, chose certain positions for the location of portable\t\t\t\t\t\t\t\t\t\tfire extinguishers; and then painted each area red, it was establishing a \u2018designated\u2019 place within\t\t\t\t\t\t\t\t\t\tthe contemplation of the standard.\t\t\t\t\t\t\t\t\t\tCounsel is not being frivolous when he asks whether this \u2018designated place\u2019 would be\t\t\t\t\t\t\t\t\t\t\u2018dedesignated\u2019 if the extinguisher is then removed. Since the standard imposes duties with\t\t\t\t\t\t\t\t\t\trespect to the fire extinguishers and not to the places, if another extinguisher were then placed in\t\t\t\t\t\t\t\t\t\tthe bracket from which the first had been removed, there would certainly be a \u2018redesignation\u2019.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe question then would seem to be whether the fully charged, portable fire extinguisher\t\t\t\t\t\t\t\t\t\tcapable of functioning as such, is in \u2018operable condition\u2019 when it has an unbroken seal showing\t\t\t\t\t\t\t\t\t\tno use after its last charge and a faulty gauge showing no pressure.\t\t\t\t\t\t\t\t\t\t\u2018Operable\u2019 is defined in Webster\u2019s Unabridged Dictionary, Third Edition, as \u2018working\u2019\t\t\t\t\t\t\t\t\t\tand as \u2018fit, possible or desirable to use\u2019.\t\t\t\t\t\t\t\t\t\tRandom House, College Edition, defines the word as \u2018capable of being put into use,\t\t\t\t\t\t\t\t\t\toperation or practice\u2019.\t\t\t\t\t\t\t\t\t\tIt seems to us the word \u2018operable\u2019 means \u2018function\u2019 or \u2018ability to function\u2019; not \u2018indicated\t\t\t\t\t\t\t\t\t\tmeasurement of ability to function\u2019. This is the plain, ordinary meaning of the word.\t\t\t\t\t\t\t\t\t\tThat the standard does not denote a contrary meaning is evidenced by the fact that there\t\t\t\t\t\t\t\t\t\tis no requirement for a pressure gauge on any portable fire extinguisher. Ostrom so testified and\t\t\t\t\t\t\t\t\t\tour limited research tends to verify his conclusion.\t\t\t\t\t\t\t\t\t\tIs an automobile with a full gasoline tank less \u2018operable\u2019 because it has a faulty gasoline\t\t\t\t\t\t\t\t\t\tguage showing the tank to be empty. We think not. The defective gauge may make one less\t\t\t\t\t\t\t\t\t\tlikely to want to operate the car, but it in no way impairs the function of the vehicle.\t\t\t\t\t\t\t\t\t\tWe therefore hold that the fully charged fire extinguisher with a defective gauge was in\t\t\t\t\t\t\t\t\t\t\u2018operable condition\u2019 and thus this portion of the citation must be vacated.\t\t\t\t\t\t\t\t\t\tRemaining for decision is \u2018The Case of the Unwanted Stray\u2019, about which next to nothing\t\t\t\t\t\t\t\t\t\tis known.\t\t\t\t\t\t\t\t\t\tThe only facts proved about this extinguisher is its capacity (2 1\/2 pounds) and that it was\t\t\t\t\t\t\t\t\t\tempty and lying in the back of the maintenance truck. We don\u2019t know the kind of extinguisher or\t\t\t\t\t\t\t\t\t\tof contents previously in it. It was within arm\u2019s reach of another mounted extinguisher of similar\t\t\t\t\t\t\t\t\t\tcapacity. A ten pound extinguisher was less than ten feet from the driver\u2019s seat of the truck.\t\t\t\t\t\t\t\t\t\tA simple answer to the question presented is that the standard imposes two obligations on\t\t\t\t\t\t\t\t\t\tRespondent. The second is to keep portable extinguishers \u2018… in their designated places …\u2019. The\t\t\t\t\t\t\t\t\t\tfacts establish that at no time did Respondent have \u2018a designated place\u2019 for this one. There was\t\t\t\t\t\t\t\t\t\tno one besides Respondent to do the \u2018designating.\u2019\t\t\t\t\t\t\t\t\t\tThe two duties imposed are not in the alternative. Both are required for compliance. It is\t\t\t\t\t\t\t\t\t\timpossible for Respondent to meet the second requirement. It is therefore not in violation of the\t\t\t\t\t\t\t\t\t\tstandard.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tLaying aside for the moment the niceties (or \u2018technicalities\u2019, if you will) of construction\t\t\t\t\t\t\t\t\t\tof the words used, it simply makes no sense that Congress in enacting the Act, or the Secretary\t\t\t\t\t\t\t\t\t\tof Labor in adopting the standards; could intend the result the Solicitor would have us reach.\t\t\t\t\t\t\t\t\t\tCounsel for Respondent is correct when he says that under the construction sought by the\t\t\t\t\t\t\t\t\t\tSolicitor there is no \u2018… logical and reasonable manner in which to recharge an expended fire\t\t\t\t\t\t\t\t\t\textinguisher, so that there is a violation by reason of the simple act of utilizing the extinguisher.\u2019\t\t\t\t\t\t\t\t\t\tTo be more precise\u2014extreme though it may be\u2014violation of the Act immediately after\t\t\t\t\t\t\t\t\t\tthe use of the extinguisher under the interpretation sought by the Solicitor could be avoided only\t\t\t\t\t\t\t\t\t\tif the extinguisher were immediately thrown off the premises.\t\t\t\t\t\t\t\t\t\tSpecifically there is no evidence as to where this fire extinguisher came from or when; or\t\t\t\t\t\t\t\t\t\twhere it went or when. Nor is there evidence as to how, when, where or whether it was used\t\t\t\t\t\t\t\t\t\teither before or after the Secretary\u2019s inspector saw it lying in the back of the truck. Under these\t\t\t\t\t\t\t\t\t\tcircumstances I am unwilling to find the Respondent in violation of the Act as charged.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tThe findings of fact and conclusions of law having heretofore been made and stated in\t\t\t\t\t\t\t\t\t\tthe preceding decision.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt is hereby ORDERED:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThat Citation No. 1, Item 13, subitems 2) and 3) issued to Respondent February 28, 1973\t\t\t\t\t\t\t\t\t\tgrowing out of an inspection by the Secretary of Respondent\u2019s sawmill at Orofino, Idaho on\t\t\t\t\t\t\t\t\t\tJanuary 23, 1973, be and the same are hereby VACATED along with the proposed penalty in the\t\t\t\t\t\t\t\t\t\tamount of $25.00.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDATED: July 6, 1976\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tGARL WATKINS\t\t\t\t\t\t\t\t\t\tJudge\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 2437\t\t\t\t\t\t\t\t\t\tKONKOLVILLE LUMBER CO., INC.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\tBEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\tCLEARY, Commissioner:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tI. Introduction\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOn February 28, 1973, respondent employer, Konkolville Lumber Co., Inc., was issued\t\t\t\t\t\t\t\t\t\tcitations alleging three \u2018serious\u2019 and seventeen \u2018other than serious\u2019 violations of section 5(a)(2)\t\t\t\t\t\t\t\t\t\tof the Occupational Safety and Health Act of 1970, 29 U.S.C. \u00a7 651 et seq. [hereinafter cited as\t\t\t\t\t\t\t\t\t\t\u2018the Act\u2019]. The citations were issued following an inspection of the employer\u2019s sawmill by a\t\t\t\t\t\t\t\t\t\tcompliance\t\t\t\t\t\tofficer\t\t\t\t\t\tof\t\t\t\t\t\tthe\t\t\t\t\t\tDepartment\t\t\t\t\t\tof\t\t\t\t\t\tLabor\u2019s\t\t\t\t\t\tOccupational\t\t\t\t\t\tSafety\t\t\t\t\t\tand\t\t\t\t\t\tHealth\t\t\t\t\t\t\t\t\t\tAdministration.\t\t\t\t\t\t\t\t\t\tBy notice of contest dated March 14, 1973, the employer contested the three citations\t\t\t\t\t\t\t\t\t\talleging serious violations and one item of the citation alleging other violations. One citation for\t\t\t\t\t\t\t\t\t\tserious violation alleged a failure to comply with the standards at 29 CFR \u00a7 1910.213(g)(1) &\t\t\t\t\t\t\t\t\t\t(h)(1). The other two citations for serious violations alleged non-compliance with the standards\t\t\t\t\t\t\t\t\t\tat 29 CFR \u00a7 1910.219(c)(5) & (f)(3). The contested other than serious item alleged a failure to\t\t\t\t\t\t\t\t\t\tcomply with the safety standard at 29 CFR \u00a7 1910.265(i).\t\t\t\t\t\t\t\t\t\tFollowing a hearing, Administrative Law Judge Garl Watkins issued a decision vacating\t\t\t\t\t\t\t\t\t\tthe contested citations and their corresponding proposed penalties, except for the citation for\t\t\t\t\t\t\t\t\t\tserious violation alleging non-compliance with 29 CFR \u00a7 1910.219(f)(3). Regarding this citation,\t\t\t\t\t\t\t\t\t\tJudge Watkins reduced the nature of the violation to non-serious and assessed a $50 penalty.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tOn July 26, 1974, the Secretary of Labor filed a petition for discretionary review taking\t\t\t\t\t\t\t\t\t\texception to the Judge\u2019s rulings resulting in the vacating of citations. This petition was granted\t\t\t\t\t\t\t\t\t\tand review before the Commission was directed pursuant to section 12(j) of the Act.\t\t\t\t\t\t\t\t\t\tII. Issues on review\t\t\t\t\t\t\t\t\t\tThe issues raised by the Secretary\u2019s petition include the following:\t\t\t\t\t\t\t\t\t\t1. Whether the Judge erred in vacating the alleged serious violation of 29 CFR \u00a7\t\t\t\t\t\t\t\t\t\t1910.213(g)(1) and (h)(1) [hereinafter \u00a7 1910.213(g)(1) & (h)(1)] by holding:\t\t\t\t\t\t\t\t\t\t(a) That section 6(f) of the Act was not the exclusive method for challenging a\t\t\t\t\t\t\t\t\t\tstandard.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(b) That the Commission was a proper forum for determining the validity of a\t\t\t\t\t\t\t\t\t\tstandard.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(c) That headnote 4 of American National Standards Institute (ANSI) standard\t\t\t\t\t\t\t\t\t\t01.1 1954 (R-1961) was an integral part of the standard and was adopted through\t\t\t\t\t\t\t\t\t\tthe language of 29 CFR \u00a7 1926.304(f).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(d) That ANSI 01.1 1954 (R-1961) was not a \u2018national consensus standard\u2019 within\t\t\t\t\t\t\t\t\t\tthe meaning of section 3 (9) of the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. Whether, assuming the validity of \u00a7 1910.213(g)(1) & (h)(1), the Judge erred in\t\t\t\t\t\t\t\t\t\tholding that there was insufficient evidence to prove employee exposure to the\t\t\t\t\t\t\t\t\t\tsaws allegedly in violation of these standards.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3. Whether the Judge erred in denying the Secretary\u2019s motion to amend his\t\t\t\t\t\t\t\t\t\tcomplaint alleging non-compliance with 29 CFR \u00a7 1910.265(i) so as to allege a\t\t\t\t\t\t\t\t\t\tfailure to comply with 29 CFR \u00a7 1910.157(a)(1).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4. Whether the Judge erred in holding that there was insufficient employee\t\t\t\t\t\t\t\t\t\texposure to the cable drum alleged to be in serious violation of 29 CFR \u00a7\t\t\t\t\t\t\t\t\t\t1910.219(c)(5).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIII. Decision\t\t\t\t\t\t\t\t\t\t1. The Judge\u2019s invalidation of \u00a7 1910.213(g)(1) & (h)(1)\t\t\t\t\t\t\t\t\t\tThe hearing on the merits of this case was held on July 31 and August 1 and 2, 1973, in\t\t\t\t\t\t\t\t\t\tSpokane, Washington. At the close of this hearing, however, the record was left open to receive\t\t\t\t\t\t\t\t\t\tfurther evidence relating to the asserted invalidity of \u00a7 1910.213(g)(1) & (h)(1). The reception of\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tfurther evidence took the form of a \u2018supplemental hearing\u2019 held before Judge Watkins on August\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\t28-31 and September 17, 1973.\t\t\t\t\t\t\t\t\t\tFollowing the \u2018supplemental hearing,\u2019 Judge Watkins issued his decision in this case, a\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tportion of which addressed itself to the issue of the validity of \u00a7 1910.213 and attendant issues.\t\t\t\t\t\t\t\t\t\tThe Judge concluded that: (1) section 6(f) of the Act was not the exclusive method for\t\t\t\t\t\t\t\t\t\tchallenging a standard; (2) the Commission was a proper forum for determining the validity of a\t\t\t\t\t\t\t\t\t\tstandard; (3) the ANSI headnote was an integral part of the standard and was adopted through\t\t\t\t\t\t\t\t\t\tthe language of 29 CFR \u00a7 1926.304(f); and (4) the ANSI 01.1 1954 (R-1961) standard was not a\t\t\t\t\t\t\t\t\t\t\u2018national consensus standard\u2019 within the meaning of section 3 (9) of the Act.\t\t\t\t\t\t\t\t\t\tInasmuch as the above conclusions of the Judge were common to this case and nine other\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tcases, all ten cases were consolidated for review purposes on August 29, 1974. In addition,\t\t\t\t\t\t\t\t\t\tJudge Watkins\u2019 decision in Noblecraft Industries, Inc., No. 3367 (August 8, 1974), which\t\t\t\t\t\t\t\t\t\tincorporated the above conclusions, was consolidated for review purposes with the other ten\t\t\t\t\t\t\t\t\t\tcases on September 26, 1974.\t\t\t\t\t\t\t\t\t\tIn Noblecraft Industries, Inc., No. 3367 (November 21, 1975), we addressed ourselves to\t\t\t\t\t\t\t\t\t\tthe Judge\u2019s conclusions regarding the validity of \u00a7 1910.213 and attendant issues. We held that\t\t\t\t\t\t\t\t\t\t\u00a7 1910.213 is a valid and enforceable standard. Our holding in Noblecraft Industries, Inc., supra\t\t\t\t\t\t\t\t\t\tapplies here.\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\t2. Alleged serious violation of \u00a7 1910.213(g)(1) & (h)(1)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\t1 This \u2018supplemental hearing\u2019 was held pursuant to Judge Watkins\u2019 order in this case and the\t\t\t\t\t\t\t\t\t\tfollowing nine cases: Weyerhauser Co., Nos. 1231 & 1758; Acme Metal, Inc., Nos. 1811 &\t\t\t\t\t\t\t\t\t\t1931; Brady Hamilton Stevedore Co., No. 2265; Thunderbird Coos Bay, Inc., No. 2270; Jones\t\t\t\t\t\t\t\t\t\tOregon Stevedoring Co., No. 2271; Juhr & Sons, No. 2314 and Continental Kitchens, Inc., No.\t\t\t\t\t\t\t\t\t\t2920.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThese cases were pending before Judge Watkins and each involved at least one citation alleging\t\t\t\t\t\t\t\t\t\tnon-compliance with a paragraph of 29 CFR \u00a7 1910.213.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\t2 See Konkolville Lumber Co., Inc., No. 2437 (July 18, 1974) (Administrative Law Judge)\t\t\t\t\t\t\t\t\t\t(slip op. at 7-56) for Judge Watkins\u2019 treatment of the validity issue and attendant issues. This\t\t\t\t\t\t\t\t\t\ttreatment occurs in this case and the other nine cases referred to in note 1 supra.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFor a statement of the \u00a7 1910.213 validity issue and attendant issues, see 1.(a)-(d) at p.2, supra.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tSee note 1 supra.\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\tThese standards provide:\t\t\t\t\t\t\t\t\t\t\u00a7 1910.213 Woodworking machinery requirements.\t\t\t\t\t\t\t\t\t\t(g) Swing cutoff saws.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tAlthough Judge Watkins based his decision to vacate the citation for serious violation of\t\t\t\t\t\t\t\t\t\t\u00a7 1910.213(g)(1) & (h)(1) primarily upon the asserted invalidity of the standards, he also stated\t\t\t\t\t\t\t\t\t\tthat the citations should be vacated because there was insufficient proof of employee exposure to\t\t\t\t\t\t\t\t\t\teither of the cited saws.\t\t\t\t\t\t\t\t\t\tRegarding the citation for a serious violation of \u00a7 1910.213(h)(1), the Secretary alleged\t\t\t\t\t\t\t\t\t\tthat the radial arm saw in respondent\u2019s carpentry shop was not equipped with a guard completely\t\t\t\t\t\t\t\t\t\tenclosing the sides and the full diameter of the blade. There was no question that the radial arm\t\t\t\t\t\t\t\t\t\tsaw was not equipped with the guards required by the standard. Judge Watkins held, however,\t\t\t\t\t\t\t\t\t\tthat there was insufficient proof of employee exposure to the unguarded saw. This was error.\t\t\t\t\t\t\t\t\t\tDonald Gilkey, one of respondent\u2019s employees, testified that the cited saw was operable\t\t\t\t\t\t\t\t\t\tbut only used two or three times a month. This unrebutted testimony clearly establishes\t\t\t\t\t\t\t\t\t\temployee use of the unguarded saw. The mere fact that the saw was infrequently used does not\t\t\t\t\t\t\t\t\t\tnegate the existence of a violation. The respondent is required to afford protection to its\t\t\t\t\t\t\t\t\t\temployees on those occasions when the saw is used. Infrequent use is only relevant in\t\t\t\t\t\t\t\t\t\tdetermining the gravity of a violation for penalty assessment purposes. See Pack River Lumber\t\t\t\t\t\t\t\t\t\tCo., No. 1728 (February 18, 1975).\t\t\t\t\t\t\t\t\t\tAccordingly, we hold that the evidence establishes a violation of \u00a7 1910.213(h)(1).\t\t\t\t\t\t\t\t\t\tMoreover, inasmuch as serious lacerations and possible amputations may result in the event of\t\t\t\t\t\t\t\t\t\tan accident, we hold that the violation was \u2018serious\u2019 within the meaning of section 17(k) of the\t\t\t\t\t\t\t\t\t\tAct.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(1) Each swing cutoff saw shall be provided with a hood that will completely\t\t\t\t\t\t\t\t\t\tenclose the upper half of the saw, the arbor end, and the point of operation at all\t\t\t\t\t\t\t\t\t\tpositions of the saw. The hood shall be constructed in such a manner and of such\t\t\t\t\t\t\t\t\t\tmaterial that it will protect the operator from flying splinters the lower portion of\t\t\t\t\t\t\t\t\t\tthe blade, so that when the saw is returned to the back of the table the hood will\t\t\t\t\t\t\t\t\t\trise on top of the fence, and when the saw is moved forward the hood will drop on\t\t\t\t\t\t\t\t\t\ttop of and remain in contact with the table or material being cut.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(h) Radial saws.\t\t\t\t\t\t\t\t\t\t(1) The upper hood shall completely enclose the upper portion of the blade down\t\t\t\t\t\t\t\t\t\tto a point that will include the end of the saw arbor. The upper hood shall be\t\t\t\t\t\t\t\t\t\tconstructed in such a manner and of such material that it will protect the operator\t\t\t\t\t\t\t\t\t\tfrom flying splinters, broken saw teeth, etc., and will deflect sawduct away from\t\t\t\t\t\t\t\t\t\tthe operator. The sides of the lower exposed maximum protection possible for the\t\t\t\t\t\t\t\t\t\toperation being performed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe citation for serious violation of \u00a7 1910.213(g)(1) alleged that the swing cutoff saw at\t\t\t\t\t\t\t\t\t\tthe rip saw station did not have a guard completely enclosing the saw blade at the point of\t\t\t\t\t\t\t\t\t\toperation. Evidence showed that the cited saw was not equipped with the guard required by the\t\t\t\t\t\t\t\t\t\tstandard. There was, however, unrebutted proof that the saw was inoperable at the time of\t\t\t\t\t\t\t\t\t\tinspection. Indeed, it was shown that the saw would have to be rewired in order to be operated.\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\tUnder this circumstance, we agree with the Judge that the citation should be vacated.\t\t\t\t\t\t\t\t\t\tAccordingly, we affirm the vacating of the alleged serious violation of \u00a7 1910.213(g)(1).\t\t\t\t\t\t\t\t\t\tThe Secretary proposed an aggregate penalty of $550 for the alleged serious violation of\t\t\t\t\t\t\t\t\t\t\u00a7 1910.213(g)(1) & (h)(1). Respondent conducts a moderately sized business with approximately\t\t\t\t\t\t\t\t\t\ttwo million dollars in annual gross sales. There is no history of previous violations and no reason\t\t\t\t\t\t\t\t\t\tto doubt respondent\u2019s good faith. Moreover, inasmuch as the evidence showed infrequent use of\t\t\t\t\t\t\t\t\t\tthe cited radial saw by only one employee, we deem the gravity of the serious violation of \u00a7\t\t\t\t\t\t\t\t\t\t1910.213(h)(1) to be moderate. See Pack River Lumber Co., supra. Accordingly, we assess a\t\t\t\t\t\t\t\t\t\t$100 penalty for this serious violation.\t\t\t\t\t\t\t\t\t\t3. Vacation of the citation alleging non-compliance with 29 CFR \u00a7 1910.265(i) and\t\t\t\t\t\t\t\t\t\trefusal to amend it to allege non-compliance with 29 CFR \u00a7 1910.157(a)(1)\t\t\t\t\t\t\t\t\t\tThe standard at 29 CFR \u00a7 1910.265(i) [hereinafter \u00a7 1910.265(i)] provides:\t\t\t\t\t\t\t\t\t\t\u00a7 1910.265 Sawmills\t\t\t\t\t\t\t\t\t\t(i) Fire protection.\t\t\t\t\t\t\t\t\t\tThe requirements of Subpart L of this part shall be complied with in providing the\t\t\t\t\t\t\t\t\t\tnecessary fire protection for sawmills.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSubpart L (Fire Protection) includes the standard at 29 CFR \u00a7 1910.157(a)(1) [hereinafter \u00a7\t\t\t\t\t\t\t\t\t\t1910.157(a)(1)] which provides:\t\t\t\t\t\t\t\t\t\t\u00a7 1910.157 Portable fire extinguishers\t\t\t\t\t\t\t\t\t\t(a) General requirements.\t\t\t\t\t\t\t\t\t\t(1) Operable condition. Portable extinguishers shall be maintained in a fully\t\t\t\t\t\t\t\t\t\tcharged and operable condition, and kept in their designated places at all times\t\t\t\t\t\t\t\t\t\twhen they are not being used.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn the citation the Secretary described the alleged violation of \u00a7 1910.265(i) as follows:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\tAlthough the Secretary petitioned for review of the Judge\u2019s decision insofar as it vacated the\t\t\t\t\t\t\t\t\t\talleged \u00a7 1910.213(g)(1) serious violation, in his brief on review he has withdrawn his exception\t\t\t\t\t\t\t\t\t\tto the vacation of this item.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t1.\t\t\t\t\t\tThere was no fire extinguisher in the shop area where there was flammable\t\t\t\t\t\t\t\t\t\tmaterial and electric equipment. 2. Fire extinguisher in the yellow truck at the\t\t\t\t\t\t\t\t\t\tshop was empty. 3. Fire extinguisher in the wall of the outfeed at planer was\t\t\t\t\t\t\t\t\t\tempty.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNeither the citation nor the complaint cited the specific standard within Subpart L that\t\t\t\t\t\t\t\t\t\trespondent had allegedly violated. Subpart L contains three sections, two of which contain\t\t\t\t\t\t\t\t\t\tsubstantive provisions\u2014sections 1910.157 and .158.\t\t\t\t\t\t\t\t\t\tAt the hearing, the Secretary, without objection from respondent, offered evidence\t\t\t\t\t\t\t\t\t\ttending to establish the three conditions alleged in the citation. Moreover, during his case in\t\t\t\t\t\t\t\t\t\tchief, the Secretary moved to amend the citation and complaint to allege a violation of\t\t\t\t\t\t\t\t\t\t\u00a7 1910.157(a)(1). This motion was denied. At the close of the Secretary\u2019s evidence, the Judge\t\t\t\t\t\t\t\t\t\tgranted respondent\u2019s motion for an involuntary dismissal under Rule 43(b) of the Federal Rules\t\t\t\t\t\t\t\t\t\tof Civil Procedure. Judge Watkins reasoned that the citation \u2018was faulty from the time of\t\t\t\t\t\t\t\t\t\tissuance because it did not meet the test of \u2018particularity\u2019 required by section 9 of the Act.\u2019 We\t\t\t\t\t\t\t\t\t\tdisagree with both rulings of the Judge.\t\t\t\t\t\t\t\t\t\tEven without any reference to \u00a7 1910.157(a)(1), both the citation and complaint afforded\t\t\t\t\t\t\t\t\t\trespondent fair notice of the nature of the alleged violation. Although the citations and complaint\t\t\t\t\t\t\t\t\t\tdid not expressly refer to \u00a7 1910.157(a)(1), they did allege facts that would constitute non-\t\t\t\t\t\t\t\t\t\tcompliance with that standard. Under these circumstances it was error for the Judge to rule that\t\t\t\t\t\t\t\t\t\tthe citation did not comport with the particularity requirements of \u00a7 9(a) of the Act.\t\t\t\t\t\t\t\t\t\tIt was also error for the Judge to refuse to amend the complaint so as to allege a violation\t\t\t\t\t\t\t\t\t\tof \u00a7 1910.265(i) in conjunction with \u00a7 1910.157(a)(1). The purpose of the amendment was\t\t\t\t\t\t\t\t\t\tmerely to specify what standard was violated by the conduct alleged in the citation. This was\t\t\t\t\t\t\t\t\t\tessentially a technical clarification inasmuch as the citation identified section 1910.265 and\t\t\t\t\t\t\t\t\t\tinformed respondent of the alleged violation. In this regard, the following statements of the court\t\t\t\t\t\t\t\t\t\tin Nat\u2019l Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973) are\t\t\t\t\t\t\t\t\t\tparticularly applicable to this case:\t\t\t\t\t\t\t\t\t\tMoreover, any ambiguities surrounding the Secretary\u2019s allegations could have\t\t\t\t\t\t\t\t\t\tbeen cured at the hearing itself. So long as fair notice is afforded, an issue\t\t\t\t\t\t\t\t\t\tlitigated at an administrative hearing may be decided by the hearing agency even\t\t\t\t\t\t\t\t\t\tthough the formal pleadings did not squarely raise the issue. This follows from the\t\t\t\t\t\t\t\t\t\tfamiliar rule that administrative pleadings are very liberally construed and very\t\t\t\t\t\t\t\t\t\teasily amended. The rule has particular pertinence here, for citations under the\t\t\t\t\t\t\t\t\t\t1970 Act are drafted by non-legal personnel, acting with necessary dispatch.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tEnforcement of the Act would be crippled if the Secretary were inflexibly held to\t\t\t\t\t\t\t\t\t\ta narrow construction of citations issued by his inspectors (footnotes omitted).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t489 F.2d at 1264.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWe, therefore, reverse the Judge and grant the Secretary\u2019s motion to amend the complaint so as\t\t\t\t\t\t\t\t\t\tto allege a violation of \u00a7 1910.157(a)(1).\t\t\t\t\t\t\t\t\t\tSince the Judge erroneously granted respondent\u2019s motion to dismiss the citation at the\t\t\t\t\t\t\t\t\t\tclose of the Secretary\u2019s case, respondent was not afforded an opportunity to present any defense\t\t\t\t\t\t\t\t\t\tor rebuttal. We remand this case for a hearing to determine whether a violation existed on the\t\t\t\t\t\t\t\t\t\tdate of inspection.\t\t\t\t\t\t\t\t\t\t4. Alleged serious violation of 29 CFR \u00a7 1910.219(c)(5)\t\t\t\t\t\t\t\t\t\tJudge\t\t\t\t\t\tWatkins\t\t\t\t\t\tvacated\t\t\t\t\t\tthe\t\t\t\t\t\tcitation\t\t\t\t\t\talleging\t\t\t\t\t\ta\t\t\t\t\t\tserious\t\t\t\t\t\tviolation\t\t\t\t\t\tof\t\t\t\t\t\t29\t\t\t\t\t\tCFR\t\t\t\t\t\t\t\t\t\t\u00a7 1910.219(c)(5) on the ground that the Secretary failed to establish that any of respondent\u2019s\t\t\t\t\t\t\t\t\t\temployees were exposed to the unguarded power transmission equipment. The Secretary took\t\t\t\t\t\t\t\t\t\texception to this holding in his petition for discretionary review.\t\t\t\t\t\t\t\t\t\tIn his brief on review, however, the Secretary has withdrawn his exception to the\t\t\t\t\t\t\t\t\t\tvacating of the 29 CFR \u00a7 1910.219(c)(5) item. We will, therefore, affirm the Judge\u2019s disposition\t\t\t\t\t\t\t\t\t\tof this item.\t\t\t\t\t\t\t\t\t\tIV. Order\t\t\t\t\t\t\t\t\t\tIt is ORDERED that:\t\t\t\t\t\t\t\t\t\t(1) The citation for serious violation of \u00a7 1910.213(h)(1) is affirmed and a $100\t\t\t\t\t\t\t\t\t\tpenalty is assessed.\t\t\t\t\t\t\t\t\t\t(2) The citation for serious violation of \u00a7 1910.213(g)(1) is vacated.\t\t\t\t\t\t\t\t\t\t(3) The vacating of the citation alleging a violation of \u00a7 1910.265(i) is reversed.\t\t\t\t\t\t\t\t\t\tThe citation and complaint are amended to allege a violation of \u00a7 1910.157(a)(1)\t\t\t\t\t\t\t\t\t\tin conjunction with \u00a7 1910.265(i) and the case is remanded for further\t\t\t\t\t\t\t\t\t\tproceedings consistent with this decision.\t\t\t\t\t\t\t\t\t\t(4) The citation for serious violation of 29 CFR \u00a7 1910.219(c)(5) is vacated.\t\t\t\t\t\t\t\t\t\t(5) The Judge\u2019s decision, insofar as it is consistent with the above, is in all other\t\t\t\t\t\t\t\t\t\trespects affirmed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDATED: DEC 15, 1975\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMORAN, Commissioner, Concurring in Part, Dissenting in Part:\t\t\t\t\t\t\t\t\t\tI agree with vacating the charges which allege noncompliance with the occupational\t\t\t\t\t\t\t\t\t\tsafety standards codified at 29 C.F.R. \u00a7\u00a7 1910.213(g)(1) and 1910.219(c)(5). However, my\t\t\t\t\t\t\t\t\t\tagreement with the lead opinion\u2019s disposition of the latter charge is based on the conclusion that\t\t\t\t\t\t\t\t\t\tthe Judge correctly found that the evidence failed to establish employee exposure to the alleged\t\t\t\t\t\t\t\t\t\thazard, not on the complainant\u2019s withdrawal of his assignment of error.\t\t\t\t\t\t\t\t\t\tAlthough I agree with the disposition of the \u00a7 1910.213(g)(1) charge, I believe that it and\t\t\t\t\t\t\t\t\t\talso the \u00a7 1910.213(h)(1) charge should be vacated because all of the standards codified within \u00a7\t\t\t\t\t\t\t\t\t\t1910.213 were improperly promulgated. The rationale for this conclusion is set forth in my\t\t\t\t\t\t\t\t\t\tdissenting opinion in Secretary v. Noblecraft Industries, Inc., OSAHRC Docket No. 3367,\t\t\t\t\t\t\t\t\t\tNovember 21, 1975.\t\t\t\t\t\t\t\t\t\tI agree with Judge Watkins\u2019 refusal to allow amendment of the remaining charge for the\t\t\t\t\t\t\t\t\t\treasons stated in his opinion. Furthermore, it is senseless and unfair to remand the case to allow\t\t\t\t\t\t\t\t\t\tthe respondent to present evidence. The Judge has already determined that the complainant failed\t\t\t\t\t\t\t\t\t\tto establish a violation of the amended charge. The inspection which initiated this case was\t\t\t\t\t\t\t\t\t\tconducted almost three years ago and the case has been pending before the Commission for well\t\t\t\t\t\t\t\t\t\tover a year. A penalty of $25.00 was proposed for this alleged violation. Under these\t\t\t\t\t\t\t\t\t\tcircumstances, it is clear that this case should be finally disposed of at this time. I am sure that\t\t\t\t\t\t\t\t\t\tthe respondent and the average taxpayer will cringe over the additional monetary expenditures\t\t\t\t\t\t\t\t\t\twhich will be caused by a continuance of the litigation in this case, and rightfully so.\t\t\t\t\t\t\t\t\t\tSince I rely on the Judge\u2019s decision on two matters and my colleagues refer in their\t\t\t\t\t\t\t\t\t\tfootnote 2 to his decision, I am attaching the Judge\u2019s decision hereto as Appendix A to insure\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t\t\t\t\tthat readers of this opinion are provided with the referenced decision.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t\t\t\t\tIt seems peculiar to me that the lead opinion would refer its readers to a decision which might\t\t\t\t\t\t\t\t\t\tnot ever be published. In regard to the present controversy within the Commission concerning\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tthe publication of its decisions, see 5 BNA Occupational Safety & Health Reporter 865-866, 896\t\t\t\t\t\t\t\t\t\t(1975).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 2437\t\t\t\t\t\t\t\t\t\tKONKOLVILLE LUMBER CO., INC.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION AND ORDER\t\t\t\t\t\t\t\t\t\tAppearances:\t\t\t\t\t\t\t\t\t\tCharles G. Preston Attorney Office of the Solicitor United States Department of\t\t\t\t\t\t\t\t\t\tLabor Seattle, Washington For the Secretary\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tGeorge J. Tichy Attorney Spokane, Washington For the Respondent\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAt Consolidated Supplemental Hearing:\t\t\t\t\t\t\t\t\t\tRobert A. Friel Associate Regional Solicitor Jane Ann McKenzie Attorney United\t\t\t\t\t\t\t\t\t\tStates Department of Labor Seattle, Washington For the Secretary\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDouglas B. M. Ehlke Tacoma, Washington For Respondent Weyerhaeuser\t\t\t\t\t\t\t\t\t\tCompany in Dockets 1231 and 1758\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tGeorge J. Tichy Spokane, Washington For Respondent Konkolville Lumber\t\t\t\t\t\t\t\t\t\tCompany\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tGARL WATKINS, Judge:\t\t\t\t\t\t\t\t\t\tThis is an enforcement proceeding under the Occupational Safety and Health Act of\t\t\t\t\t\t\t\t\t\t1970, 29 U.S.C. 651, et seq.\t\t\t\t\t\t\t\t\t\tRespondent operates a \u2018typical\u2019 sawmill at Orofino, Idaho. It includes a planer mill and\t\t\t\t\t\t\t\t\t\tdry kiln. At the time of the Secretary\u2019s inspection on January 23, 1973 there were 37 employees.\t\t\t\t\t\t\t\t\t\tThe previous year, the company, an Idaho corporation, had two million dollars in gross sales.\t\t\t\t\t\t\t\t\t\tThe citations and notifications of proposed penalties were issued February 28, 1973. At\t\t\t\t\t\t\t\t\t\tissue here are alleged violations of Section 5(a)(2) of the Act in failing to comply with standards\t\t\t\t\t\t\t\t\t\tcovering machine guarding of radial power-driven saws and power transmission equipment; as\t\t\t\t\t\t\t\t\t\twell as one violation, charged and not alleged to be serious, having to do with fire extinguishers.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tTwo claimed serious violations\u2014grouped in one citation\u2014state that a radial arm saw and\t\t\t\t\t\t\t\t\t\ta swing cutoff saw were not equipped with guards for the lower portion of the blades as required\t\t\t\t\t\t\t\t\t\tby 29 CFR 1910.213(h)(1) and (g)(1) respectively.\t\t\t\t\t\t\t\t\t\tThe second alleged serious violation cites the absence of a protective guard rail or other\t\t\t\t\t\t\t\t\t\tbarricade at the cable drum located on the first floor of the mill and operating the band saw\t\t\t\t\t\t\t\t\t\tcarriage, in violation of 29 CFR 1910.219(c)(5).\t\t\t\t\t\t\t\t\t\tThe third cites an unguarded sprocket and chain at the pony rig allegedly in violation of\t\t\t\t\t\t\t\t\t\t29 CFR 1910.219(f)(3).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe charge not alleged to be serious has to do with fire protection. It is Item 13 of\t\t\t\t\t\t\t\t\t\tCitation No. 1 (Non-Serious) and alleges failure to comply with 29 CFR 1910.265(i).\t\t\t\t\t\t\t\t\t\tThe allegations of the citations, the language of the Secretary\u2019s complaint with respect to\t\t\t\t\t\t\t\t\t\teach, the standards with which Respondent is alleged not to have complied and proposed\t\t\t\t\t\t\t\t\t\tpenalties as to each are included in the Appendix which is attached and made a part of this\t\t\t\t\t\t\t\t\t\tdecision.\t\t\t\t\t\t\t\t\t\tThe first part of the hearing was held in Spokane, Washington on July 31 and August 1\t\t\t\t\t\t\t\t\t\tand 2, 1973. The record was left open to receive further evidence regarding the validity of the\t\t\t\t\t\t\t\t\t\tstandards and legality of the action of the Secretary in adopting them. Further hearing was in\t\t\t\t\t\t\t\t\t\tSeattle, Washington on August 29, 30 and 31 and September 17, 1973. At no point did anyone\t\t\t\t\t\t\t\t\t\tother than named parties appear and ask to assert a party status in the action.\t\t\t\t\t\t\t\t\t\tAt the hearing and during the Secretary\u2019s case in chief, the Solicitor moved to amend the\t\t\t\t\t\t\t\t\t\tCitation for Non-Serious Violation and his Complaint to add as an additional fire protection\t\t\t\t\t\t\t\t\t\tstandard alleged to be violated, 29 CFR 1910.157(a)(1). The motion to amend was denied.\t\t\t\t\t\t\t\t\t\tThe standard originally alleged is 29 CFR 1910.265(i) which requires \u2018(i) Fire Protection.\t\t\t\t\t\t\t\t\t\tThe requirements of Subpart L of this Part shall be complied with in providing the necessary fire\t\t\t\t\t\t\t\t\t\tprotection for sawmills.\u2019\t\t\t\t\t\t\t\t\t\tSubpart L is headed \u2018Fire Protection.\u2019 It contains Sections 156 through 162 of Part 1910.\t\t\t\t\t\t\t\t\t\tExclusive of definitions and statements of source standards, there are about 150 sections or\t\t\t\t\t\t\t\t\t\tsubsections within the Subpart.\t\t\t\t\t\t\t\t\t\tThus the Citation was faulty from the time of its issuance because it did not meet the test\t\t\t\t\t\t\t\t\t\tof \u2018particularity\u2019 required by Section 9 of the Act. No motion was directed against the charge\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tuntil the close of the Secretary\u2019s evidence when a motion for involuntary dismissal under Rule\t\t\t\t\t\t\t\t\t\t43(b) of the Federal Rules of Civil Procedure was granted.\t\t\t\t\t\t\t\t\t\tWe have made no attempt to determine how many of the approximately 150 sections and\t\t\t\t\t\t\t\t\t\tsubsections might be applicable to the particular language of the citation. It seems clear that no\t\t\t\t\t\t\t\t\t\temployer should be required to make such a search to determine what he might possibly be\t\t\t\t\t\t\t\t\t\tcharged with violating.\t\t\t\t\t\t\t\t\t\tEven if the motion had been granted and if we consider 29 CFR 157(a)(1), the proof was\t\t\t\t\t\t\t\t\t\tstill faulty. The evidence is that two fire extinguishers in a shop\u2014one in a vehicle\u2014had gauges\t\t\t\t\t\t\t\t\t\tthat showed no pressure. Thus there is insufficient proof to make a prima facie case that\t\t\t\t\t\t\t\t\t\t\u2018portable designated places at all times when they are not being used. (Emphasis supplied). Proof\t\t\t\t\t\t\t\t\t\tof a gauge reading alone is suspect\u2014although it might get by a motion for non-suit. There is no\t\t\t\t\t\t\t\t\t\tproof of a \u2018designated\u2019 place; and it is difficult for us to imagine how there could be such proof.\t\t\t\t\t\t\t\t\t\tThe Secretary\u2019s motion for reconsideration, reciting as two of its grounds the failure to\t\t\t\t\t\t\t\t\t\tgrant the motion to amend, and the granting of the motion for non-suit, is therefore denied as to\t\t\t\t\t\t\t\t\t\tthese two portions.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe third ground for the motion for reconsideration was error in sustaining an objection\t\t\t\t\t\t\t\t\t\tto a question directed to one of Respondent\u2019s employees about whether he had been injured on\t\t\t\t\t\t\t\t\t\tthe radial arm saw some time before 1964 when the saw was sold to the company by Donald\t\t\t\t\t\t\t\t\t\tKonkol, Respondent\u2019s Vice President and General Manager. On further consideration we find no\t\t\t\t\t\t\t\t\t\terror in this ruling and the motion of the Secretary for reconsideration is therefore denied in its\t\t\t\t\t\t\t\t\t\tentirety.\t\t\t\t\t\t\t\t\t\tWe shall discuss separately each of the three alleged serious violations.\t\t\t\t\t\t\t\t\t\tSAWS\t\t\t\t\t\t\t\t\t\tFirst of all, we question the authority of the Secretary to group two alleged serious\t\t\t\t\t\t\t\t\t\tviolations in one citation. The same practice was followed in the Weyerhaeuser cases appropriate\t\t\t\t\t\t\t\t\t\tto this case. We note also the comments of Judge Winters in Allstate Trailer Sales, Inc., Docket\t\t\t\t\t\t\t\t\t\t2446.\t\t\t\t\t\t\t\t\t\tBoth are applicable to this case, but it is unnecessary to base our decision on what\t\t\t\t\t\t\t\t\t\tappears to be a practice directly contrary to the statute, because of our holding on the validity of\t\t\t\t\t\t\t\t\t\tthe standards involved.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tAs the record reflects, shortly after the hearing on the Weyerhaeuser cases, I became\t\t\t\t\t\t\t\t\t\tconcerned about the question of the validity of the saw guarding standard and the authority of the\t\t\t\t\t\t\t\t\t\tSecretary in enacting it. This led to several conferences and to the supplemental hearing on\t\t\t\t\t\t\t\t\t\tAugust 29, 30 and 31 and September 17, 1973, following a prehearing conference on August 28.\t\t\t\t\t\t\t\t\t\tIn the supplemental hearing ten cases were consolidated for the purpose of receiving\t\t\t\t\t\t\t\t\t\tevidence on the validity of the standards set out in 29 CFR 1910.213 and the legality of the\t\t\t\t\t\t\t\t\t\tactions of the Secretary in adopting them. This is one of the ten cases. At the conclusion of the\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tsession on September 17, an order of severance of the cases was entered.\t\t\t\t\t\t\t\t\t\tPerhaps a few words about the background of the inquiry and the reasons for the scrutiny\t\t\t\t\t\t\t\t\t\tof the standards having to do with machine guarding requirements for woodworking machinery\t\t\t\t\t\t\t\t\t\twould be in order.\t\t\t\t\t\t\t\t\t\tAfter hearing the two consolidated Weyerhaeuser cases (Dockets 1231 and 1758) in\t\t\t\t\t\t\t\t\t\tKlamath Falls, Oregon on January 16 through 19, 1973, I was in the process of preparing\t\t\t\t\t\t\t\t\t\tdecisions in two other cases involving lineal pine moulding plants in Prineville, Oregon\t\t\t\t\t\t\t\t\t\t(Consolidated Pine, Docket #945 and Prineville Mouldings, #1045). The only violation charged\t\t\t\t\t\t\t\t\t\tin one of those cases and the only serious violation alleged in the other was a deficiency in the\t\t\t\t\t\t\t\t\t\tguard of hand fed crosscut table saws under 29 CFR 1910.213(d)(1). The facts of both cases\t\t\t\t\t\t\t\t\t\twere almost identical.\t\t\t\t\t\t\t\t\t\tThe guards went completely around the circular saws except for about six inches at the\t\t\t\t\t\t\t\t\t\ttop of each where the moulding was lowered onto the saws to be trimmed. They are called \u2018trim\t\t\t\t\t\t\t\t\t\tsaws\u2019 in the industry.\t\t\t\t\t\t\t\t\t\tThe superintendents of the two Respondents and of one other similar plant with 30, 30\t\t\t\t\t\t\t\t\t\tand 20 years respective experience, and broad knowledge of practices in the industry, testified\t\t\t\t\t\t\t\t\t\tthe use of such saws was uniform in the kind of plants they managed. They had never heard of\t\t\t\t\t\t\t\t\t\tsuch saws being guarded as required by the cited standard.\t\t\t\t\t\t\t\t\t\tI became curious about how the guarding requirements could be \u2018national consensus\t\t\t\t\t\t\t\t\t\tstandards.\u2019 This line of inquiry led me to the Seattle Public Library where I found only the 1971\t\t\t\t\t\t\t\t\t\tstandard 01.1\u2014Revised, of the American National Standards Institute (hereinafter \u2018ANSI\u2019,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tWording of the decision from this point will probably be identical to that covering the same\t\t\t\t\t\t\t\t\t\tquestion in the decisions of the other courts. Footnotes will point out the start and finish of the\t\t\t\t\t\t\t\t\t\tdecisional language in each case.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\twhether reference is to the organization with its present name, or previous names of American\t\t\t\t\t\t\t\t\t\tStandards Association or United States Standards Association). A telephone call to the New\t\t\t\t\t\t\t\t\t\tYork office of ANSI brought me the source standard\u2014ANSI 01.1 1954, reaffirmed 1961. (29\t\t\t\t\t\t\t\t\t\tCFR 1910.221 lists the source as \u2018AMCI.\u2019 All parties stipulated this was a misprint. \u2018ANSI\u2019 01.1\t\t\t\t\t\t\t\t\t\t1954 R (\u2018reaffirmed\u2019) 1961 is correct.)\t\t\t\t\t\t\t\t\t\tMy curiosity was further aroused by the headnote on Section 4.1 of that standard. This\t\t\t\t\t\t\t\t\t\tSection includes all substantive material adopted in the OSHA standards in the cases before me.\t\t\t\t\t\t\t\t\t\tThe headnote is:\t\t\t\t\t\t\t\t\t\tNOTE: It is recognized that the standards for saw guards in 4.1 are not perfectly\t\t\t\t\t\t\t\t\t\tapplicable to all operations for which saws are used. The standards given are\t\t\t\t\t\t\t\t\t\tthose which woodworkers have agreed are most generally useful. Since there are\t\t\t\t\t\t\t\t\t\ta considerable number of cases not satisfactorily met by these standards, the\t\t\t\t\t\t\t\t\t\tenforcing authority should exercise rather wide latitude in allowing the use of\t\t\t\t\t\t\t\t\t\tother devices which give promise of affording adequate protection. It may be\t\t\t\t\t\t\t\t\t\texpected that by so doing further progress in saw guarding will be encouraged.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFurther inquiries within the ANSI organization, with a few members of the ANSI \u201801\u2019\t\t\t\t\t\t\t\t\t\tcommittee which adopted the standard in 1954 and reaffirmed it in 1961, as well as with Mr.\t\t\t\t\t\t\t\t\t\tPatrick F. Cestrone, who was Director of the Office of Safety and Health Standards, United\t\t\t\t\t\t\t\t\t\tStates Department of Labor, when 29 CFR 1910.213 was adopted as a national consensus\t\t\t\t\t\t\t\t\t\tstandard; convinced me it would be advisable to obtain additional evidence in some areas having\t\t\t\t\t\t\t\t\t\tto do with the question of the validity of the woodworking machine guarding sections of the\t\t\t\t\t\t\t\t\t\tOccupational Safety and Health standards.\t\t\t\t\t\t\t\t\t\tThree rather obvious questions having to do with the validity of the standards seemed not\t\t\t\t\t\t\t\t\t\tto be answered adequately by the record. They were:\t\t\t\t\t\t\t\t\t\t(1)\t\t\t\t\t\tThe effect of the headnote; which was not adopted by the Secretary and\t\t\t\t\t\t\t\t\t\twhich, in itself, constituted an integral part of the standard,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(2) Whether the ANSI 01 standard is in fact a national consensus standard as\t\t\t\t\t\t\t\t\t\tdefined in the Act. Stated more precisely and in the reverse, the real question here\t\t\t\t\t\t\t\t\t\tis whether Congress adopted a definition of a national consensus standard which\t\t\t\t\t\t\t\t\t\tcould be met by the ANSI promulgation as one adopted \u2018under procedures\t\t\t\t\t\t\t\t\t\twhereby it can be determined by the Secretary that persons interested and affected\t\t\t\t\t\t\t\t\t\tby the scope or provisions of the standard have reached substantial agreement on\t\t\t\t\t\t\t\t\t\tits adoption,……..\u2019, (Sec. 3 (9)(1) of the Act)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(3) Whether the standards were \u2018formulated in a manner which afforded an\t\t\t\t\t\t\t\t\t\topportunity for diverse views to be considered……..\u2019 (Sec. 3 (9)(2) of the Act)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tFirst Weyerhaeuser and then this case raised squarely the question of legality and validity\t\t\t\t\t\t\t\t\t\tof the standard from every point of approach necessary to test it.\t\t\t\t\t\t\t\t\t\tIn the meantime, eight more cases (including Konkolville) were assigned to me, all\t\t\t\t\t\t\t\t\t\talleging violations of subsections of 29 CFR 1910.213. In some the question of the validity of\t\t\t\t\t\t\t\t\t\tthe standard was raised. In some it was not. Two of the Respondents were not represented by\t\t\t\t\t\t\t\t\t\tcounsel.\t\t\t\t\t\t\t\t\t\tUnder the circumstances it seemed unconscionable to me to make an extensive inquiry\t\t\t\t\t\t\t\t\t\ttending to show whether or not the woodworking machine guarding standards were valid in a\t\t\t\t\t\t\t\t\t\tfew cases, and reach whatever decision might be forthcoming; without going into the same\t\t\t\t\t\t\t\t\t\tquestion in all the cases. The two Respondents not represented by counsel had no way of\t\t\t\t\t\t\t\t\t\tknowing how to raise the defense of invalidity of the standard. Counsel in the others had at best a\t\t\t\t\t\t\t\t\t\tdifficult task in finding out that their clients might be charged under unenforceable regulations.\t\t\t\t\t\t\t\t\t\tConsequently, the question was raised at the hearings on the merits in all cases thus far\t\t\t\t\t\t\t\t\t\theard. In the case of pro se Respondents, I interpreted their answers to include a defense of\t\t\t\t\t\t\t\t\t\tillegality and invalidity of the standards. Other counsel were given an opportunity to amend their\t\t\t\t\t\t\t\t\t\tpleadings. The posture of all cases on which hearings have been held is now such that the\t\t\t\t\t\t\t\t\t\tquestion is properly raised in all.\t\t\t\t\t\t\t\t\t\tBefore proceeding to the three main questions raised, disposition must first be made of\t\t\t\t\t\t\t\t\t\tcertain preliminary matters.\t\t\t\t\t\t\t\t\t\tWhile not arguing the point at length in his briefs, the Secretary has consistently taken the\t\t\t\t\t\t\t\t\t\tposition that neither the Review Commission as an independent or administrative adjudicatory\t\t\t\t\t\t\t\t\t\tagency, nor I as a judge conducting its hearings, had the right to reopen the cases, call witnesses\t\t\t\t\t\t\t\t\t\tand consider evidence not produced by counsel for the parties. (This case was not reopened. The\t\t\t\t\t\t\t\t\t\trecord was left open for the supplemental hearing.) I have been told repeatedly that I am not (and\t\t\t\t\t\t\t\t\t\tof course the Review Commission is not) a \u2018court.\u2019 Apparently the feeling is that a \u2018judicial\u2019\t\t\t\t\t\t\t\t\t\tadjudicatory body can do what an independent or \u2018administrative\u2019 adjudicatory body cannot do.\t\t\t\t\t\t\t\t\t\tThe question is interesting, and it must be resolved contrary to the Secretary\u2019s position.\t\t\t\t\t\t\t\t\t\tWhile most authorities refer to the \u2018inherent power\u2019 of courts to call witnesses in order to\t\t\t\t\t\t\t\t\t\tdevelop the truth in a judicial inquiry; the fact is, it is an \u2018inherent duty.\u2019 However far able and\t\t\t\t\t\t\t\t\t\tcompetent advocacy may cause us to digress from some fundamental principles involved in\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tadjudicatory proceedings under our system, the fact remains that the primary responsibility for\t\t\t\t\t\t\t\t\t\tdeveloping the record lies with the presiding officer of the tribunal.\t\t\t\t\t\t\t\t\t\tBriefly expressed, \u2018courts have inherent power to do all things that are reasonably\t\t\t\t\t\t\t\t\t\tnecessary for the administration of justice within the scope of their jurisdiction.\u2019 (20 Am Jur 2d,\t\t\t\t\t\t\t\t\t\tCourts \u00a7 79)\t\t\t\t\t\t\t\t\t\tFederal Rule of Evidence 614(a) provides\t\t\t\t\t\t\t\t\t\t\u2018CALLING AND INTERROCATION OF WITNESSES BY JUDGE\t\t\t\t\t\t\t\t\t\t(a) Calling by judge. The judge may, on his own motion or at the suggestion of a\t\t\t\t\t\t\t\t\t\tparty, call witnesses, and all parties are entitled to cross-examine witnesses thus\t\t\t\t\t\t\t\t\t\tcalled.\t\t\t\t\t\t\t\t\t\t(b) Interrogation by judge. The judge may interrogate witnesses, whether called\t\t\t\t\t\t\t\t\t\tby himself or by a party.\t\t\t\t\t\t\t\t\t\t(c) Objections. Objections to the calling of witnesses by the judge or to\t\t\t\t\t\t\t\t\t\tinterrogation by him may be made at the time or at the next available opportunity\t\t\t\t\t\t\t\t\t\twhen the jury is not present.\u2019\t\t\t\t\t\t\t\t\t\tMcCormick has been rather widely quoted. \u00a7 8, pages 12\u201313 provides:\t\t\t\t\t\t\t\t\t\t\u20188. THE JUDGE MAY EXAMINE AND CALL WITNESSES……….. Not only\t\t\t\t\t\t\t\t\t\tmay the judge examine witnesses called by the parties, but in his discretion he\t\t\t\t\t\t\t\t\t\tmay also, for the purpose of bringing out needed facts, call witnesses whom the\t\t\t\t\t\t\t\t\t\tparties might not have chosen to call.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWhile the Administrative Procedure Act does not specifically provide for the calling of\t\t\t\t\t\t\t\t\t\twitnesses by a hearing examiner or administrative law judge, numerous cases have upheld this\t\t\t\t\t\t\t\t\t\tright even over the objections of the parties; usually basing it on 5 USCA 556(c)(9).\t\t\t\t\t\t\t\t\t\tProfessor Davis in his Administrative Law Treatise takes the position that such power\t\t\t\t\t\t\t\t\t\tand authority are present under the quoted section of the Administrative Procedure. Act; and\t\t\t\t\t\t\t\t\t\tcites authorities encouraging such action in agencies having rules similar to our Rule of\t\t\t\t\t\t\t\t\t\tProcedure 66, as well as those not having such rules. A clear inference from Davis is that there is\t\t\t\t\t\t\t\t\t\ta greater need for independent action of this kind on the part of an administrative law judge or\t\t\t\t\t\t\t\t\t\thearing examiner than in the case of a judge in the judicial branch of the government. He cites\t\t\t\t\t\t\t\t\t\tCongressional history in the adoption of the APA:\t\t\t\t\t\t\t\t\t\t(\u00a7 10.02)…….. that presiding officers have \u2018the authority and duty\u2014as a court\t\t\t\t\t\t\t\t\t\tdoes\u2014to make sure that all necessary evidence is adduced and to keep the hearing\t\t\t\t\t\t\t\t\t\torderly and efficient….. The trial examiner shall have authority….. (j) To call,\t\t\t\t\t\t\t\t\t\texamine and cross-examine witnesses, and to introduce into the record\t\t\t\t\t\t\t\t\t\tdocumentary or other evidence.\u2019 The courts have often upheld the active role of\t\t\t\t\t\t\t\t\t\texaminers: \u2018It is the function of an examiner, just as it is the recognized function\t\t\t\t\t\t\t\t\t\tof a trial judge, to see that facts are clearly and fully developed. He is not required\t\t\t\t\t\t\t\t\t\tto sit idly by and permit a confused or meaningless record to be made.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tRule of Procedure 66 of the Review Commission provides:\t\t\t\t\t\t\t\t\t\t\u2018Rule 66 DUTIES AND POWERS OF JUDGES.\t\t\t\t\t\t\t\t\t\tIt shall be the duty of the Judge to conduct a fair and impartial hearing, to assure\t\t\t\t\t\t\t\t\t\tthat the facts are fully elicited, to adjudicate all issues and avoid delay. The Judge\t\t\t\t\t\t\t\t\t\tshall have authority…….., to:\t\t\t\t\t\t\t\t\t\t(h)….. order hearings reopened…..\t\t\t\t\t\t\t\t\t\t(j) Call and examine witnesses and to introduce into the record documentary or\t\t\t\t\t\t\t\t\t\tother evidence;\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe only United States Court of Appeals case under our Rule 66 which has come to our attention\t\t\t\t\t\t\t\t\t\tis: Brennan, Secretary of Labor v. OSAHRC and John J. Gordon Company 2nd Circuit, Feb. 25,\t\t\t\t\t\t\t\t\t\t1974\u2014Docket 73\u20131729, 492 F.2d 1027.\t\t\t\t\t\t\t\t\t\tThe second preliminary question requiring decision is whether Section 6(f) of the Act\t\t\t\t\t\t\t\t\t\tprovides an exclusive method\u2014the only method which may be used at any time\u2014to challenge\t\t\t\t\t\t\t\t\t\tthe validity of any standard issued by the Secretary.\t\t\t\t\t\t\t\t\t\tThe section provides:\t\t\t\t\t\t\t\t\t\tSEC. 6. (f) \u2018Any person who may be adversely affected by a standard issued\t\t\t\t\t\t\t\t\t\tunder this section may at any time prior to the sixtieth day after such standard is\t\t\t\t\t\t\t\t\t\tpromulgated file a petition challenging the validity of such standard with the\t\t\t\t\t\t\t\t\t\tUnited States court of appeals for the circuit wherein such person resides or has\t\t\t\t\t\t\t\t\t\this principal place of business, for a judicial review of such standard. A copy of\t\t\t\t\t\t\t\t\t\tthe petition shall be forthwith transmitted by the clerk of the court to the\t\t\t\t\t\t\t\t\t\tSecretary. The filing of such petition shall not, unless otherwise ordered by the\t\t\t\t\t\t\t\t\t\tcourt, operate as a stay of the standard. The determinations of the Secretary shall\t\t\t\t\t\t\t\t\t\tbe conclusive if supported by substantial evidence in the record considered as a\t\t\t\t\t\t\t\t\t\twhole.\u2019 (Emphasis supplied).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe Solicitor contends that since a specific section of the Act provides a procedure to\t\t\t\t\t\t\t\t\t\tchallenge the validity of a Standard if the action is started within sixty days after the effective\t\t\t\t\t\t\t\t\t\tdate, this method is exclusive; even though the Act doesn\u2019t say so.\t\t\t\t\t\t\t\t\t\tRespondents, on the other hand, take the position that this is a pre-enforcement remedy\t\t\t\t\t\t\t\t\t\tonly, and that the validity of any standard may be challenged in an enforcement proceeding.\t\t\t\t\t\t\t\t\t\tRespondent\u2019s position seems fundamentally correct. The words underlined above indicate\t\t\t\t\t\t\t\t\t\tthe action is optional, not mandatory. There is no express language indicating this is an exclusive\t\t\t\t\t\t\t\t\t\tmethod for attacking a standard. Additionally it would seem that investing \u2018any person who may\t\t\t\t\t\t\t\t\t\tbe adversely affected\u2019 with a right to test the validity of a standard, but limiting that right to 60\t\t\t\t\t\t\t\t\t\tdays from the effective date indicates an intent on the part of Congress to provide this as a\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tpreliminary pre-enforcement procedure, rather than as the sole procedure by which a standard\t\t\t\t\t\t\t\t\t\tcan be challenged.\t\t\t\t\t\t\t\t\t\tRespondent Weyerhaeuser quotes from Divesco Roofing & Insulation Company, Docket\t\t\t\t\t\t\t\t\t\t345, 1 OSHC 1079:\t\t\t\t\t\t\t\t\t\t\u2018…….. the legal validity of the standards under the Constitution and Statutes of the\t\t\t\t\t\t\t\t\t\tUnited States is necessarily involved in the adjudication of enforcement\t\t\t\t\t\t\t\t\t\tproceedings, and this function has been reserved for the Commission subject to\t\t\t\t\t\t\t\t\t\tjudicial review.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAdmittedly the language of the entire statute could provide a clearer guide to the answer we seek\t\t\t\t\t\t\t\t\t\there. Perhaps it is ambiguous or unclear and subject to construction. If so, then it is proper to\t\t\t\t\t\t\t\t\t\texamine the Legislative History for assistance.\t\t\t\t\t\t\t\t\t\tTwo such references would seem sufficient. In the final Senate report, No. 91\u20131282, page\t\t\t\t\t\t\t\t\t\t8, as reprinted in the Legislative History, page 148, we find the following:\t\t\t\t\t\t\t\t\t\tJudicial Review of Standards.\u2014Section 6(f) provides that any person who may be\t\t\t\t\t\t\t\t\t\tadversely affected by a standard may, within 60 days of its issuance, seek judicial\t\t\t\t\t\t\t\t\t\treview in an appropriate United States court of appeals. While this would be the\t\t\t\t\t\t\t\t\t\texclusive method for obtaining pre-enforcement judicial review of a standard, the\t\t\t\t\t\t\t\t\t\tprovision does not foreclose an employer from challenging the validity of a\t\t\t\t\t\t\t\t\t\tstandard during an enforcement proceeding. Unless otherwise ordered by the\t\t\t\t\t\t\t\t\t\tcourt, the filing of the petition would not operate as a stay of the standard.\u2019\t\t\t\t\t\t\t\t\t\t(Emphasis supplied)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn explaining the real need for a twofold system of standards review, Senator Williams\t\t\t\t\t\t\t\t\t\tstated in a speech on the Senate floor\u2014and in support of the provision as it was enacted\u2014\t\t\t\t\t\t\t\t\t\tThe bill as reported by the committee provides an opportunity for a person\t\t\t\t\t\t\t\t\t\taffected by the promulgation of a standard to seek judicial review within 60 days\t\t\t\t\t\t\t\t\t\tof the promulgation of such standard or the standard may also be challenged\t\t\t\t\t\t\t\t\t\tduring an enforcement proceeding.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis is a very broad-scaled judicial review protection that completely meets any\t\t\t\t\t\t\t\t\t\tindustry concerns regarding the ability to contest the standards in court.\u2019\t\t\t\t\t\t\t\t\t\t(Underlining added)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tLegislative History, p. 431\t\t\t\t\t\t\t\t\t\tOther references in the Legislative History of the Act are to the same effect, but their\t\t\t\t\t\t\t\t\t\tinclusion would only lengthen this decision unnecessarily.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tNeither the Review Commission nor its judges have hesitated to invalidate a standard for a\t\t\t\t\t\t\t\t\t\tvariety of reasons\u2014but all on the basic ground that the action of the Secretary in adopting the\t\t\t\t\t\t\t\t\t\tparticular standard was in excess of the power granted him by the Act. A few cases discussing\t\t\t\t\t\t\t\t\t\tthe principle\u2014most holding the standard invalid\u2014follow:\t\t\t\t\t\t\t\t\t\tJoseph Bucheit and Sons Company, Docket 295, 1 OSHC 3106. (\u2018validity\u2019\t\t\t\t\t\t\t\t\t\tdistinguished from \u2018wisdom\u2019)\t\t\t\t\t\t\t\t\t\tOberhelman-Ritter Foundry, Inc., Docket 572, 1 OSHC 3087, (\u2018should\u2019 changed\t\t\t\t\t\t\t\t\t\tto \u2018shall\u2019. Standard invalidated.)\t\t\t\t\t\t\t\t\t\tDivesco Roofing & Insulation Company, supra.\t\t\t\t\t\t\t\t\t\tTilo\t\t\t\t\t\tCompany,\t\t\t\t\t\tInc.,\t\t\t\t\t\tDocket\t\t\t\t\t\t211,\t\t\t\t\t\t1\t\t\t\t\t\tOSHC\t\t\t\t\t\t1206\t\t\t\t\t\t(Standard\t\t\t\t\t\tinvalid\u2014\t\t\t\t\t\t\t\t\t\tunenforceably vague)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSanta Fe Trail Transport Company, Docket 331, 1 OSHC 1457 (whether hospital,\t\t\t\t\t\t\t\t\t\tinfirmary, or clinic; in \u2018near proximity to work place.\u2019 Invalid as unenforceably\t\t\t\t\t\t\t\t\t\tvague.)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMore standards have been held invalid by the Commission\u2014and judges\u2014on this ground than on\t\t\t\t\t\t\t\t\t\tany other.\t\t\t\t\t\t\t\t\t\tThe third preliminary question for decision before we may reach the heart of the case, is\t\t\t\t\t\t\t\t\t\twhether the Review Commission has the right to pass on the legality or validity of a standard at\t\t\t\t\t\t\t\t\t\tall. Whether this be called a \u2018right\u2019, \u2018power\u2019, \u2018authority\u2019 or \u2018jurisdiction\u2019 makes no difference.\t\t\t\t\t\t\t\t\t\tThe specific question is whether the validity and legality of those portions of 29 CFR 1910.213\t\t\t\t\t\t\t\t\t\tunder review, as derived from ANSI 01.1 1954, reaffirmed 1961, may be adjudicated by the\t\t\t\t\t\t\t\t\t\tReview Commission, an independent or \u2018administrative\u2019 adjudicatory tribunal; or whether they\t\t\t\t\t\t\t\t\t\tmust be left untouched until they come before a \u2018judicial\u2019 adjudicatory tribunal.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt is worthy of note in passing that insofar as the precise issues involved in this case are\t\t\t\t\t\t\t\t\t\tconcerned, the trial judge\u2019s duty, authority and power at the hearing stage of the proceeding, are\t\t\t\t\t\t\t\t\t\tno different from the Review Commission\u2019s duty, authority and power at its review stage of the\t\t\t\t\t\t\t\t\t\tproceeding. No contention has been made on the part of any party that there is a difference, and\t\t\t\t\t\t\t\t\t\tno authority in support of any such position has been cited.\t\t\t\t\t\t\t\t\t\tIt should likewise be noted that the questions involved here are sufficiently closely\t\t\t\t\t\t\t\t\t\trelated to those last discussed, that some authorities cited are persuasive to the issues in both.\t\t\t\t\t\t\t\t\t\tThere are more differences than similarities, however, and thus the subjects lend themselves\t\t\t\t\t\t\t\t\t\tmore readily to separate discussion.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tWe may start on the assumption that unless the Secretary acts in some manner authorized\t\t\t\t\t\t\t\t\t\tby statute to withdraw his regulation (we call it a \u2018standard\u2019) or otherwise invalidate it, and if\t\t\t\t\t\t\t\t\t\tlitigation then develops questioning its legality or validity, the answers can only be determined\t\t\t\t\t\t\t\t\t\tby \u2018adjudication.\u2019 The question is\u2014in what forum; considering the precise questions raised and\t\t\t\t\t\t\t\t\t\tall parts of the particular statute?\t\t\t\t\t\t\t\t\t\tThe Secretary would have us believe the tribunal must be so marked as to indicate it is a\t\t\t\t\t\t\t\t\t\t\u2018court\u2019 or part of the judicial branch of the government.\t\t\t\t\t\t\t\t\t\tI have read and considered the briefs filed, and the cases cited therein; and have\t\t\t\t\t\t\t\t\t\tconducted some independent research. On the basis of this Act, I find no authority, even\t\t\t\t\t\t\t\t\t\tpersuasive, in support of the Secretary\u2019s position.\t\t\t\t\t\t\t\t\t\tFor example, the Secretary\u2019s greatest emphasis as authority for his position\u2014as\t\t\t\t\t\t\t\t\t\tdetermined by its prominent position and repeated citation in the Solicitor\u2019s briefs\u2014is on the\t\t\t\t\t\t\t\t\t\tcase of Stark v. Wickard (1944), 321 U.S. 559, 88 L.Ed. 733, 64 S.Ct. 559, 571. In that case, the\t\t\t\t\t\t\t\t\t\tcourt, speaking through Mr. Justice Reed said:\t\t\t\t\t\t\t\t\t\tThe responsibility of determining the limits of statutory grants of authority in such\t\t\t\t\t\t\t\t\t\tinstances is a judicial function entrusted to the courts by Congress by the statutes\t\t\t\t\t\t\t\t\t\testablishing courts and marking their jurisdiction.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAs quoted out of context, this is persuasive language in favor of the position of the\t\t\t\t\t\t\t\t\t\tSecretary here.\t\t\t\t\t\t\t\t\t\tThe court neither says nor implies, however, that Congress cannot adopt a law wherein\t\t\t\t\t\t\t\t\t\tthe initial adjudication \u2018to protect justiciable individual rights against administrative action\u2019 is by\t\t\t\t\t\t\t\t\t\tan independent or \u2018administrative court\u2019, subject to judicial review by the United States Court of\t\t\t\t\t\t\t\t\t\tAppeals. The real question involved in our case is whether Congress did adopt such a law.\t\t\t\t\t\t\t\t\t\tNor could the court have so stated or implied, because the holding of the case was simply\t\t\t\t\t\t\t\t\t\tthat the plaintiffs had standing to sue in Federal District Court to question the validity of a milk\t\t\t\t\t\t\t\t\t\tmarketing regulation of the Secretary of Agriculture.\t\t\t\t\t\t\t\t\t\tThe authority cited by Mr. Justice Reed in support of the quoted statement above is U.S.\t\t\t\t\t\t\t\t\t\tv. Morgan (1939) 307 U.S. 183, 83 L.Ed. 1211, 59 S.Ct. 795\u2013799, 800. In the opinion by Mr.\t\t\t\t\t\t\t\t\t\tJustice Stone may be found language even more favorable in this instance to the position of the\t\t\t\t\t\t\t\t\t\tRespondents in our case; if we consider it out of context also, and assume the \u2018agency\u2019 to be the\t\t\t\t\t\t\t\t\t\tReview Commission, and its \u2018action\u2019 adjudicatory.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t…….. In construing a statute setting up an administrative agency and providing for\t\t\t\t\t\t\t\t\t\tjudicial review of its action, court and agency are not to be regarded as wholly\t\t\t\t\t\t\t\t\t\tindependent and unrelated instrumentalities of justice, each acting in the\t\t\t\t\t\t\t\t\t\tperformance of its prescribed statutory duty without regard to the appropriate\t\t\t\t\t\t\t\t\t\tfunction of the other in securing the plainly indicated objects of the statute. Court\t\t\t\t\t\t\t\t\t\tand agency are the means adopted to attain the prescribed end, and so far as their\t\t\t\t\t\t\t\t\t\tduties are defined by the words of the statute, those words should be construed so\t\t\t\t\t\t\t\t\t\tas to attain that end through coordinated action. Neither body should repeat in this\t\t\t\t\t\t\t\t\t\tday the mistake made by the courts of law when equity was struggling for\t\t\t\t\t\t\t\t\t\trecognition as an ameliorating system of justice; neither can rightly be regarded\t\t\t\t\t\t\t\t\t\tby the other as an alien intruder, to be tolerated if must be, but never to be\t\t\t\t\t\t\t\t\t\tencouraged or aided by the other in the attainment of the common aim……..\t\t\t\t\t\t\t\t\t\t(Emphasis added)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIf this language could be used literally, it would be decisive of the issue of this case. It\t\t\t\t\t\t\t\t\t\tcannot, however, because the administrative action to which reference was made was not\t\t\t\t\t\t\t\t\t\tadjudication. It was the adoption of an order by the Secretary of Agriculture fixing maximum\t\t\t\t\t\t\t\t\t\trates to be charged at the Kansas City stock yards; and the question in the case was the validity\t\t\t\t\t\t\t\t\t\tof the order.\t\t\t\t\t\t\t\t\t\tNeither case can be considered as precedent in the one before us.\t\t\t\t\t\t\t\t\t\tJudge Burchmore\u2019s statement in Divesco, supra, warrants repeating:\t\t\t\t\t\t\t\t\t\t…….. the legal validity of the standards under the Constitution and Statutes of the\t\t\t\t\t\t\t\t\t\tUnited States is necessarily involved in the adjudication of enforcement\t\t\t\t\t\t\t\t\t\tproceedings, and this function has been reserved for the Commission subject to\t\t\t\t\t\t\t\t\t\tjudicial review.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe problem is to find the intent of Congress\u2014either from the plain language of the Act\t\t\t\t\t\t\t\t\t\tor from inferences to be drawn from it. If a point is reached where it may be concluded that the\t\t\t\t\t\t\t\t\t\tlanguage is not clear and unambiguous, that it may be subject to construction, then\u2014and only\t\t\t\t\t\t\t\t\t\tthen\u2014may we consult the Legislative History for aid in finding an answer to our inquiry.\t\t\t\t\t\t\t\t\t\tThere is no specific provision in the Act spelling out in exact words the power of the\t\t\t\t\t\t\t\t\t\tReview Commission to adjudicate the validity of the standards adopted by the Secretary and the\t\t\t\t\t\t\t\t\t\tlegality of his actions in so adopting them. Our considered conclusion is that this power and\t\t\t\t\t\t\t\t\t\tauthority are so clearly granted by inferences to be drawn from the Act, there is no reasonable\t\t\t\t\t\t\t\t\t\tground for disagreement about it. Our further conclusion is that the Review Commission is not\t\t\t\t\t\t\t\t\t\tonly a proper forum for such adjudication, but it is the only one where the question may be\t\t\t\t\t\t\t\t\t\traised past the pre-enforcement status of the standard.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tSuppose we enumerate and explain briefly the reasons for these statements.\t\t\t\t\t\t\t\t\t\t(1) The Review Commission\u2019s function is adjudicatory; nothing more, nothing less. The\t\t\t\t\t\t\t\t\t\tbasic grant of this power is in Section 2(b) of the Act:\t\t\t\t\t\t\t\t\t\tCONGRESSIONAL FINDINGS AND PURPOSE\t\t\t\t\t\t\t\t\t\tSEC. (2)……….\t\t\t\t\t\t\t\t\t\t(b) The congress declares it to be its purpose and policy, through the exercise of\t\t\t\t\t\t\t\t\t\tits powers to regulate commerce among the several States and with foreign\t\t\t\t\t\t\t\t\t\tnations and to provide for the general welfare, to assure so far as possible every\t\t\t\t\t\t\t\t\t\tworking man and woman in the Nation safe and healthful working conditions and\t\t\t\t\t\t\t\t\t\tto preserve our human resources\u2014\t\t\t\t\t\t\t\t\t\t(3)…….. by creating an Occupational Safety and Health Review Commission for\t\t\t\t\t\t\t\t\t\tcarrying out adjudicatory functions under the Act;\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(2) All findings of violations and imposition of penalties by default\u2014for failure to\t\t\t\t\t\t\t\t\t\tcontest an action of the Secretary\u2014are those of the Review Commission. The statute provides:\t\t\t\t\t\t\t\t\t\t\u2018They shall be deemed a final order of the Commission…..\u2019 (Sec. 10(a)(3))\t\t\t\t\t\t\t\t\t\t(3) With the exception of certain equitable powers to restrain conditions or practices in\t\t\t\t\t\t\t\t\t\tthe event of imminent danger, vested in the United States District Courts (Sec. 13), all civil\t\t\t\t\t\t\t\t\t\tactions and adjudications under the Act are in the Review Commission. All findings of violations\t\t\t\t\t\t\t\t\t\tof the Act are functions of the Review Commission.\t\t\t\t\t\t\t\t\t\tUnder Section 10(c), if a proposal of the Secretary is contested, \u2018the Commission shall\t\t\t\t\t\t\t\t\t\tafford an opportunity for a hearing\u2019 under the provisions of the Administrative Procedure Act.\t\t\t\t\t\t\t\t\t\tThereafter the Commission must enter an order \u2018based on findings of fact, affirming, modifying,\t\t\t\t\t\t\t\t\t\tor vacating the Secretary\u2019s citation or proposed penalty, or directing other appropriate relief,…..\u2019\t\t\t\t\t\t\t\t\t\tWe have referred to a common practice by both the Review Commission and its judges to\t\t\t\t\t\t\t\t\t\thold various standards of the Secretary invalid for a variety of announced reasons. In each case\t\t\t\t\t\t\t\t\t\tthe challenge to the standard was in the Commission proceedings and the real basis for the\t\t\t\t\t\t\t\t\t\tholding was that the Secretary was acting in excess of his statutory power and authority in\t\t\t\t\t\t\t\t\t\tadopting the standard. A few examples were given.\t\t\t\t\t\t\t\t\t\tOf equal\u2014or greater\u2014importance is the fact that implicit in every finding of a violation\t\t\t\t\t\t\t\t\t\tof an occupational safety or health standard under Section 5(a)(2) of the Act, is a holding that the\t\t\t\t\t\t\t\t\t\tstandard is valid\u2014that it was enacted by the Secretary in a proper exercise of his legislative\t\t\t\t\t\t\t\t\t\tpower and authority.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe Commission is directed to \u2018affirm\u2019 a citation and proposed penalty in some cases. If\t\t\t\t\t\t\t\t\t\ta standard is questioned and can be held valid only by a \u2018judicial\u2019 court; the Commission might\t\t\t\t\t\t\t\t\t\tfind itself in the completely untenable position of being required to affirm a penalty without a\t\t\t\t\t\t\t\t\t\tfinding that the standard is valid.\t\t\t\t\t\t\t\t\t\tCan this be the intention of the Congress? We think not.\t\t\t\t\t\t\t\t\t\t(4) Not only does it have sole power to find violations of the law and standards with\t\t\t\t\t\t\t\t\t\trespect to occupational safety and health, but \u2018The Commission shall have authority to assess all\t\t\t\t\t\t\t\t\t\tcivil penalties…..\u2019 (Sec. 17 (j)). This is not a review\u2014it is the first adjudicatory act with respect\t\t\t\t\t\t\t\t\t\tto the penalty.\t\t\t\t\t\t\t\t\t\t(5) Contempt powers are granted as under the National Labor Relations Act (Sec. 12(i)).\t\t\t\t\t\t\t\t\t\t(6) The Chairman is authorized to \u2018appoint such hearing examiners….. as he deems\t\t\t\t\t\t\t\t\t\tnecessary to assist in the performance of the Commission\u2019s functions…..\u2019 (Sec. 12(e)). Some of\t\t\t\t\t\t\t\t\t\tthese functions are enumerated (Sec. 12(j)). As stated above, and for the purpose of this inquiry,\t\t\t\t\t\t\t\t\t\tthe duties and powers of a hearing examiner (judge) are no greater or less at the hearing level\t\t\t\t\t\t\t\t\t\tthan are those of the Review Commission at the review level.\t\t\t\t\t\t\t\t\t\t(7) A direct method of review is provided of all decisions of the Commission to the\t\t\t\t\t\t\t\t\t\tUnited States Court of Appeals. Section 11(a) provides:\t\t\t\t\t\t\t\t\t\tJUDICIAL REVIEW\t\t\t\t\t\t\t\t\t\tSEC. 11. (a) Any person adversely affected or aggrieved by an order of the\t\t\t\t\t\t\t\t\t\tCommission issued under subsection (c) of section 10 may obtain a review of\t\t\t\t\t\t\t\t\t\tsuch order in any United States court of appeals for the circuit in which the\t\t\t\t\t\t\t\t\t\tviolation is alleged to have occurred or where the employer has its principal\t\t\t\t\t\t\t\t\t\toffice, or in the Court of Appeals for the District of Columbia Circuit, by filing in\t\t\t\t\t\t\t\t\t\tsuch court within sixty days following the issuance of such order a written\t\t\t\t\t\t\t\t\t\tpetition praying that the order be modified or set aside. A copy of such petition\t\t\t\t\t\t\t\t\t\tshall be forthwith transmitted by the clerk of the court to the Commission and to\t\t\t\t\t\t\t\t\t\tthe other parties, and thereupon the Commission shall file in the court the record\t\t\t\t\t\t\t\t\t\tin the proceeding as provided in section 2112 of title 28, United States Code.\t\t\t\t\t\t\t\t\t\tUpon such filing, the court shall have jurisdiction of the proceeding and of the\t\t\t\t\t\t\t\t\t\tquestion determined therein, and shall have power to grant such temporary relief\t\t\t\t\t\t\t\t\t\tor restraining order as it deems just and proper, and to make and enter upon the\t\t\t\t\t\t\t\t\t\tpleadings, testimony, and proceedings set forth in such record a decree affirming,\t\t\t\t\t\t\t\t\t\tmodifying, or setting aside in whole or in part, the order of the Commission and\t\t\t\t\t\t\t\t\t\tenforcing the same to the extent that such order is affirmed or modified. The\t\t\t\t\t\t\t\t\t\tcommencement of proceedings under this subsection shall not, unless ordered by\t\t\t\t\t\t\t\t\t\tthe court, operate as a stay of the order of the Commission. No objection that has\t\t\t\t\t\t\t\t\t\tnot been urged before the Commission shall be considered by the court, unless the\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tfailure or neglect to urge such objection shall be excused because of extraordinary\t\t\t\t\t\t\t\t\t\tcircumstances. The findings of the Commission with respect to questions of fact,\t\t\t\t\t\t\t\t\t\tif supported by substantial evidence on the record considered as a whole, shall be\t\t\t\t\t\t\t\t\t\tconclusive. If any party shall apply to the court for leave to adduce additional\t\t\t\t\t\t\t\t\t\tevidence and shall show to the satisfaction of the court that such additional\t\t\t\t\t\t\t\t\t\tevidence is material and that there were reasonable grounds for the failure to\t\t\t\t\t\t\t\t\t\tadduce such evidence in the hearing before the Commission, the court may order\t\t\t\t\t\t\t\t\t\tsuch additional evidence to be taken before the Commission and to be made a part\t\t\t\t\t\t\t\t\t\tof the record. The Commission may modify its findings as to the facts, or make\t\t\t\t\t\t\t\t\t\tnew findings, by reason of additional evidence so taken and filed, and it shall file\t\t\t\t\t\t\t\t\t\tsuch modified or new findings, which findings with respect to questions of fact, if\t\t\t\t\t\t\t\t\t\tsupported by substantial evidence on the record considered as a whole, shall be\t\t\t\t\t\t\t\t\t\tconclusive, and its recommendations, if any, for the modification or setting aside\t\t\t\t\t\t\t\t\t\tof its original order. Upon the filing of the record with it, the jurisdiction of the\t\t\t\t\t\t\t\t\t\tcourt shall be exclusive and its judgment and decree shall be final, except that the\t\t\t\t\t\t\t\t\t\tsame shall be subject to review by the Supreme Court of the United States, as\t\t\t\t\t\t\t\t\t\tprovided in section 1254 of title 28, United States Code. Petitions filed under this\t\t\t\t\t\t\t\t\t\tsubsection shall be heard expeditiously.\u2019(Underlining added)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tTwo provisions are particularly worthy of note here. First, no objection that has not been\t\t\t\t\t\t\t\t\t\turged before the Commission can be considered by the Court of Appeals. Thus, if there has been\t\t\t\t\t\t\t\t\t\tno question, or decision, on the validity of a standard; it cannot be considered by the Court of\t\t\t\t\t\t\t\t\t\tAppeals on review.\t\t\t\t\t\t\t\t\t\tSecondly, additional evidence may be ordered in exceptional circumstances. In this case\t\t\t\t\t\t\t\t\t\tit is taken \u2018before the Commission,\u2019 which may thereafter modify its findings or make new ones;\t\t\t\t\t\t\t\t\t\tand any review thereafter shall be considered as from the beginning.\t\t\t\t\t\t\t\t\t\tThe foregoing should show without question the intent of Congress to allow the Review\t\t\t\t\t\t\t\t\t\tCommission the right to pass on the validity and legality of standards adopted by the Secretary;\t\t\t\t\t\t\t\t\t\tand also require that they be challenged in the Review Commission proceedings. Perhaps\t\t\t\t\t\t\t\t\t\tviewing the question from a somewhat different angle might be helpful.\t\t\t\t\t\t\t\t\t\tAs a practical matter, how would an employer test the validity of a standard promulgated\t\t\t\t\t\t\t\t\t\tby the Secretary in a \u2018court\u2019 rather than before the Review Commission?\t\t\t\t\t\t\t\t\t\tHe could not make his first request for a ruling on review to the United States Court of\t\t\t\t\t\t\t\t\t\tAppeals under Section 11(a) of the Act after a Commission decision. This Section provides: \u2018No\t\t\t\t\t\t\t\t\t\tobjection that has not been urged before the Commission shall be considered by the court,…..\u2019\t\t\t\t\t\t\t\t\t\tShould the employer then start an action in the United States District Court seeking an\t\t\t\t\t\t\t\t\t\tinjunction? Again, this action would fail. On the state of the record of every one of the cases I\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tnow have before me, relief would be denied because of failure to exhaust administrative\t\t\t\t\t\t\t\t\t\tremedies. Perhaps not all decisions would be on exactly the same basis as that of the three judge\t\t\t\t\t\t\t\t\t\tpanel in Lance Roofing Co. vs. Hodgson, Secretary of Labor (1972), 1 OSHC 1012, 343 F.Supp.\t\t\t\t\t\t\t\t\t\t685. Good reasons exist in all for holdings other than on the identical ground. For a variety of\t\t\t\t\t\t\t\t\t\tholdings involving the principle of exhausting administrative remedies, see cases cited in Davis-\t\t\t\t\t\t\t\t\t\tAdministrative Law Treatise, Chapter 20.\t\t\t\t\t\t\t\t\t\tAn action for declaratory judgment would meet no better fate. The doctrine of exhaustion\t\t\t\t\t\t\t\t\t\tof administrative remedies applies alike to such actions. In Lance Roofing, supra, the plaintiffs\t\t\t\t\t\t\t\t\t\tsought declaratory\u2014as well as injunctive\u2014relief.\t\t\t\t\t\t\t\t\t\tThe question was asked as to how an employer wishing to challenge the validity of a\t\t\t\t\t\t\t\t\t\tstandard now may go about doing it in a \u2018judicial\u2019 court. The obvious answer is that he has no\t\t\t\t\t\t\t\t\t\tway of doing it. The first challenge must be made before the trial judge at the hearing stage of\t\t\t\t\t\t\t\t\t\tthe Review Commission proceeding. Failing this, a Respondent will necessarily be held to have\t\t\t\t\t\t\t\t\t\tfailed to exhaust his administrative remedies.\t\t\t\t\t\t\t\t\t\tWe believe the implication is so clear that the Review Commission proceeding is not\t\t\t\t\t\t\t\t\t\tonly the proper, but the exclusive forum for a current challenge to the validity of a standard of\t\t\t\t\t\t\t\t\t\tthe Secretary, there should be no need to resort to legislative history as an aid in reaching this\t\t\t\t\t\t\t\t\t\tconclusion. Since the Act does not so provide by its express terms, however, a contention\t\t\t\t\t\t\t\t\t\tconsidered by some to be reasonable might be made that it is subject to construction to the extent\t\t\t\t\t\t\t\t\t\tthat legislative history may be invoked, and we shall therefore turn in this direction for additional\t\t\t\t\t\t\t\t\t\tassistance.\t\t\t\t\t\t\t\t\t\tIn the Legislative History, there are references carrying a clear implication of the\t\t\t\t\t\t\t\t\t\tCongressional intent that the legality and validity of a regulation (standard) of the Secretary may\t\t\t\t\t\t\t\t\t\tbe tested and decided by the Review Commission. These are in two contexts. First, in reference\t\t\t\t\t\t\t\t\t\tto the fact that Section 6(f) of the Act is a pre-enforcement remedy only and that the standard\t\t\t\t\t\t\t\t\t\tmay be tested in an enforcement proceeding. Secondly, in emphasis on the adjudicatory function\t\t\t\t\t\t\t\t\t\tof the Review Commission.\t\t\t\t\t\t\t\t\t\tTwo such references have already been cited. Following are additional expressions of\t\t\t\t\t\t\t\t\t\tCongressional intent.\t\t\t\t\t\t\t\t\t\tFor example, in the Index itself, under \u2018Standards\u2019, is the following:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tStandards, pre-enforcement review. (See Section 6(f) in Section-by-Section\t\t\t\t\t\t\t\t\t\tIndex, \u2018Judicial Review of Standards\u2019)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn a Section by Section analysis and comparison of the Committee reported Bill S.\t\t\t\t\t\t\t\t\t\t2193\u2014containing the pertinent language of the present Act\u2014and substitute Bill S.4044, is this\t\t\t\t\t\t\t\t\t\treference to the former:\t\t\t\t\t\t\t\t\t\t6. Judicial Review of Standards Judicial review of standards is provided in the\t\t\t\t\t\t\t\t\t\tvarious United States Courts of Appeals. This right may be exercised up to 60\t\t\t\t\t\t\t\t\t\tdays after the standard is promulgated. (sec.6(f)). Judicial review of standards\t\t\t\t\t\t\t\t\t\twould also be possible in enforcement proceedings. (Emphasis supplied)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(Legislative History, p. 304)\t\t\t\t\t\t\t\t\t\tRepresentative Steiger of Wisconsin made the following statement with respect to the\t\t\t\t\t\t\t\t\t\tspecific language of the Bill which became part of the law having to do with the Review\t\t\t\t\t\t\t\t\t\tCommission and its adjudicatory procedures:\t\t\t\t\t\t\t\t\t\t\u2018Persons aggrieved by a citation of the Secretary of Labor will appeal to the\t\t\t\t\t\t\t\t\t\tCommission rather than to the Secretary, as is the case in the committee bill. We\t\t\t\t\t\t\t\t\t\twill, with this amendment, provide for a separation of powers. Standards will be\t\t\t\t\t\t\t\t\t\tpromulgated by the Secretary of Labor and contested citations will be considered\t\t\t\t\t\t\t\t\t\tby an independent court, so to speak, an independent review commission.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(Legislative History, p. 1074)\t\t\t\t\t\t\t\t\t\tIn preparing this decision, we are not unmindful of the decision in Secretary of Labor vs.\t\t\t\t\t\t\t\t\t\tBoise Cascade Corporation, Docket 2944. By stipulation of counsel, Judge Kennedy had before\t\t\t\t\t\t\t\t\t\thim a transcript of a major portion of the proceedings in our cases, (three of four days of the\t\t\t\t\t\t\t\t\t\tsupplemental hearing), but none of the 17 exhibits.\t\t\t\t\t\t\t\t\t\tThis brings us to the heart of the case. We are faced squarely with the necessity of\t\t\t\t\t\t\t\t\t\tdeciding the merits of Respondents\u2019 challenge to particular sections of 29 CFR 1910.213\u2014and\t\t\t\t\t\t\t\t\t\tonly those sections as they apply to the facts in this record.\t\t\t\t\t\t\t\t\t\tPerhaps a word of caution\u2014 and of limitation\u2014might be appropriate here. Not only have\t\t\t\t\t\t\t\t\t\tthere been inferences, but also broad sweeping statements that the effect of this action may be to\t\t\t\t\t\t\t\t\t\testablish the validity or invalidity of all parts of section 213 of Part 1910. These are all the\t\t\t\t\t\t\t\t\t\tsections having to do with machine guarding of woodworking machinery. Hopefully such\t\t\t\t\t\t\t\t\t\tstatements were inadvertent, but at best they show a disregard of the actual effect of decisional\t\t\t\t\t\t\t\t\t\tlaw.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tNeither this forum nor any other can do more than pass on the precise questions before it\t\t\t\t\t\t\t\t\t\tin a particular case, here the validity or invalidity of enumerated sections or subsections of\t\t\t\t\t\t\t\t\t\tstandards; and then only with reference to the record before it. The practical effect of some\t\t\t\t\t\t\t\t\t\tholdings may go much farther; but the adjudications themselves are so limited.\t\t\t\t\t\t\t\t\t\tBefore going into a detailed consideration of the specific sections of the standards and the\t\t\t\t\t\t\t\t\t\tgrounds on which they are challenged, a brief review of some of the evidence in the record\t\t\t\t\t\t\t\t\t\twould seem to be in order.\t\t\t\t\t\t\t\t\t\tI called six witnesses who testified at the supplemental hearing. They are:\t\t\t\t\t\t\t\t\t\tPatrick F. Cestrone, Silver Springs, Maryland; Consultant, Occupational Safety\t\t\t\t\t\t\t\t\t\tand Health Associates. In 1971, Mr. Cestrone was Director of the Office of Safety\t\t\t\t\t\t\t\t\t\tand Health Standards, United States Department of Labor. He was charged with\t\t\t\t\t\t\t\t\t\tthe responsibility of what has been aptly termed a \u2018crash program\u2019 to develop\t\t\t\t\t\t\t\t\t\tnational consensus standards and established Federal standards for the Secretary\t\t\t\t\t\t\t\t\t\tto\u2019 . . . by rule promulgate as occupational safety or health\u2019 standards under\t\t\t\t\t\t\t\t\t\tSection 6(a) of the Act.\t\t\t\t\t\t\t\t\t\tNixon deTarnowsky, Scarsdale, New York; Standards Coordinator for\t\t\t\t\t\t\t\t\t\tSafety and Health Standards; American National Standards Institute, New York\t\t\t\t\t\t\t\t\t\tCity.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDavid Zabriskie, Fairlawn, New Jersey; Manager of Construction Safety Division,\t\t\t\t\t\t\t\t\t\tEngineering and Safety Services, American Insurance Association, New York\t\t\t\t\t\t\t\t\t\tCity; Secretary of the ANSI 01 Committee since June of 1970.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tLewis R. Morrison, Ardsley, New York, Corporate Safety Manager, ACF\t\t\t\t\t\t\t\t\t\tIndustries, Inc., New York City. As an employee of the Lumbermen\u2019s Mutual\t\t\t\t\t\t\t\t\t\tCasualty Company of Chicago and as a representative of the National Association\t\t\t\t\t\t\t\t\t\tof Mutual Casualty Companies, he was a member of the ANSI 01 Committee at\t\t\t\t\t\t\t\t\t\tthe time ANSI 01.1 was adopted in 1954.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. A. Skonning, Riverside, Illinois; retired Senior Engineer, Western Electric\t\t\t\t\t\t\t\t\t\tCompany; 29 years experience in safety engineering, particularly woodworking;\t\t\t\t\t\t\t\t\t\trepresentative of the National Safety Council on the ANSI 01 Committee in 1954\t\t\t\t\t\t\t\t\t\tand 1961.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tJoseph J. Prabulos, Woodbury, Connecticut; retired Safety Director, National\t\t\t\t\t\t\t\t\t\tDistillers and Chemical Corporation; member of ANSI 01 Committee in 1954,\t\t\t\t\t\t\t\t\t\t1961 and 1971; representative on the committee of a trade association, Associated\t\t\t\t\t\t\t\t\t\tCooperage Industries.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDan Adair, Portland, Oregon; Vice President of consulting firm, Hearing\t\t\t\t\t\t\t\t\t\tConservation and Noise Control, Inc.; representative of National Safety Council\t\t\t\t\t\t\t\t\t\ton ANSI 01 Committee in 1954 and 1961.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tIn addition, Respondent Weyerhaeuser called Thaden Demas, Assistant Director for the\t\t\t\t\t\t\t\t\t\tDivision of Products Approval, American Plywood Association, Tacoma, Washington.\t\t\t\t\t\t\t\t\t\tThere is no conflict in evidence on any material fact in this part of the case.\t\t\t\t\t\t\t\t\t\tANSI does not write standards. In case of a consensus standard, one of its prime\t\t\t\t\t\t\t\t\t\tfunctions is to certify that standards presented to it are in fact representative of a \u2018consensus\u2019 of\t\t\t\t\t\t\t\t\t\tthose parties who have an interest in the subject covered.\t\t\t\t\t\t\t\t\t\tUsually the standards are written by committees of the organization, commonly\t\t\t\t\t\t\t\t\t\tsponsored by one or more members. There are 160 national organizations and 1,000 individual\t\t\t\t\t\t\t\t\t\tcompany dues-paying members. The areas of activity of the organization in promulgating\t\t\t\t\t\t\t\t\t\tstandards and approving them are very broad. The Safety Technical Advisory Board involved\t\t\t\t\t\t\t\t\t\twith the standard here under consideration is only one of 26 such advisory boards, each\t\t\t\t\t\t\t\t\t\tconcerned with its own category of standards.\t\t\t\t\t\t\t\t\t\tIn this case, the 01 Committee was sponsored by the Association of Casualty and Surety\t\t\t\t\t\t\t\t\t\tCompanies, a large trade association of the biggest stock casualty companies in the country (now\t\t\t\t\t\t\t\t\t\ta part of the American Insurance Association by reason of merger with the National Board of\t\t\t\t\t\t\t\t\t\tFire Underwriters); and the International Association of Government Labor Officials.\t\t\t\t\t\t\t\t\t\tWhen a request is made for permission to sponsor a standard, and certain formalities have\t\t\t\t\t\t\t\t\t\tbeen completed, such as a finding by ANSI of the need for such a standard, approval of its scope,\t\t\t\t\t\t\t\t\t\tthe Competence of the proposed sponsors, membership of the committee, including competence\t\t\t\t\t\t\t\t\t\tand comprehensive interests of committee members (usually trade associations or other\t\t\t\t\t\t\t\t\t\torganizations of groups of companies rather than individual companies) along with labor and\t\t\t\t\t\t\t\t\t\tgovernmental organizations); the committee is pretty much left alone to do its job of writing the\t\t\t\t\t\t\t\t\t\tstandard. In the process, technical assistance is supplied by the ANSI organization only on\t\t\t\t\t\t\t\t\t\trequest. Committee members are usually highly skilled experts in the field in which they are\t\t\t\t\t\t\t\t\t\tworking.\t\t\t\t\t\t\t\t\t\tWhen the job is completed and the proposed standard approved by a \u2018consensus\u2019 of the\t\t\t\t\t\t\t\t\t\tcommittee, it then undergoes further scrutiny. In this case the Safety Technical Advisory Board\t\t\t\t\t\t\t\t\t\tpassed on the technical competence of the standard and the Board of Standards Review on\t\t\t\t\t\t\t\t\t\twhether it represented a \u2018consensus.\u2019 Involved in the process now is a public review and\t\t\t\t\t\t\t\t\t\tcomment period following distribution of the proposed standard to recipients of \u2018ANSI\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tReporter.\u2019 This has a circulation of 10,000, including The Bureau of National Affairs, Commerce\t\t\t\t\t\t\t\t\t\tClearing House, National Safety Council, and other publishers of trade periodicals.\t\t\t\t\t\t\t\t\t\tEarly in 1971, Patrick F. Cestrone had completed about 31 years of government service\t\t\t\t\t\t\t\t\t\tas a professional safety engineer, most of it in supervisory capacities. He was Director of the\t\t\t\t\t\t\t\t\t\tOffice of Safety and Health Standards, United States Department of Labor. For more than 2\t\t\t\t\t\t\t\t\t\tyears, Cestrone and those under his supervision had worked on planning for the Labor\t\t\t\t\t\t\t\t\t\tDepartment in anticipation of some type of comprehensive Federal occupational safety and\t\t\t\t\t\t\t\t\t\thealth law.\t\t\t\t\t\t\t\t\t\tThe \u2018crash program\u2019 to which reference was made was principally the preparation of a\t\t\t\t\t\t\t\t\t\tcomprehensive set of occupational safety and health standards promulgated by the Secretary of\t\t\t\t\t\t\t\t\t\tLabor under Section 6(a) of the Occupational Safety and Health Act of 1970. These were\t\t\t\t\t\t\t\t\t\tpublished on May 29, 1971 in 36 Federal Register, commencing at page 10466.\t\t\t\t\t\t\t\t\t\tAdoption of these standards by the Secretary was mandated by Section 6(a) of the Act.\t\t\t\t\t\t\t\t\t\tThey were of two kinds, \u2018national consensus standards\u2019 and \u2018established Federal standards.\u2019 As\t\t\t\t\t\t\t\t\t\tthe man primarily responsible for \u2018putting together the package\u2019 Cestrone was familiar with all\t\t\t\t\t\t\t\t\t\tthe details of the project.\t\t\t\t\t\t\t\t\t\tCestrone does not remember specifically the details of rewriting ANSI 01.1 and its\t\t\t\t\t\t\t\t\t\tadoption as 29 CFR 1910.213 and 214. Nor does he have a definite recollection of considering\t\t\t\t\t\t\t\t\t\tand eliminating the headnote previously quoted at the beginning of Section 4, \u2018Woodworking\t\t\t\t\t\t\t\t\t\tMachinery\u2019, on page 9 of the ANSI printed standard (Respondent\u2019s Exhibits S\u20131 and S\u20133); or the\t\t\t\t\t\t\t\t\t\treason for its omission from Section 213 of Part 1910. He does recall ANSI 01.1, and that it was\t\t\t\t\t\t\t\t\t\tadopted as a national consensus standard.\t\t\t\t\t\t\t\t\t\tAmong the objectives of the group headed by Mr. Cestrone was to make no changes in\t\t\t\t\t\t\t\t\t\teither the scope or the substance of any national consensus standard. Part of the job also was to\t\t\t\t\t\t\t\t\t\teliminate any consensus standards that were advisory, or recommended. No provision was\t\t\t\t\t\t\t\t\t\tintended to be included in the final product unless its requirements were mandatory.\t\t\t\t\t\t\t\t\t\tNeither Cestrone nor, so far as he knew, anyone else engaged in the project took any\t\t\t\t\t\t\t\t\t\tsteps to insure the legality of the standards being adopted; for example, to determine whether the\t\t\t\t\t\t\t\t\t\tnational consensus standards met the statutory definitions of Section 3 (5) of the Act. As to\t\t\t\t\t\t\t\t\t\tANSI 01.1 there were two reasons for this.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tFirst, the Secretary was not only under a mandate of the statute (Section 6(a)) to adopt\t\t\t\t\t\t\t\t\t\tnational consensus standards produced by ANSI and the National Fire Protection Association\t\t\t\t\t\t\t\t\t\t(NFPA); but the legislative history of the Act contained numerous committee reports and other\t\t\t\t\t\t\t\t\t\tcomments urging speed and purporting to explain why the standards, having already met the\t\t\t\t\t\t\t\t\t\t\u2018consensus principle\u2019, could and should be adopted without further ado.\t\t\t\t\t\t\t\t\t\tFurther scrutiny will show that the language of the legislative history tending to show\t\t\t\t\t\t\t\t\t\tcompliance of the ANSI standards with the statutory definition of a national consensus standard\t\t\t\t\t\t\t\t\t\twas in error.\t\t\t\t\t\t\t\t\t\tIn his testimony, Mr. Cestrone referred to several such passages from the legislative\t\t\t\t\t\t\t\t\t\thistory:\t\t\t\t\t\t\t\t\t\tQ. What part of the legislative history, and to what part of the legislative history\t\t\t\t\t\t\t\t\t\tdo you refer there, if you know?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. May I sit and refer and to my notes?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. Yes, yes, refer to any notes you have.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. With respect to support of the legislative history and support of interim\t\t\t\t\t\t\t\t\t\tstandards, my reference is to report 21\u201382, starting on page 141, which\t\t\t\t\t\t\t\t\t\taccompanied the Senate version of the bill S 2193, particularly legislative history\t\t\t\t\t\t\t\t\t\tstarting on page 146\u20136.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. Is that in the legislative history?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. It\u2019s in the green June book, and I can read to you if you want me.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. If you have the pertinent language it might be good to put it in the record.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. Senate Report 91\u20131282, page 141, calendar number 1300; Accompanying\t\t\t\t\t\t\t\t\t\tSenate Bill S 2193, page 146\u20136. \u2018The purpose of this procedure is to establish as\t\t\t\t\t\t\t\t\t\trapidly as possible National Occupational Safety and Health standards with which\t\t\t\t\t\t\t\t\t\tindustry is familiar. These standards may not be as effective or up to date as is\t\t\t\t\t\t\t\t\t\tdesirable, but they will be useful for immediately providing a nation wide\t\t\t\t\t\t\t\t\t\tminimal level of safety and health. Two private organizations are the major\t\t\t\t\t\t\t\t\t\tsources of consensus standards; the American National Standards Institute,\t\t\t\t\t\t\t\t\t\tIncorporated and the National Fire Protection Association. By the Act\u2019s definition\t\t\t\t\t\t\t\t\t\ta consensus standard is one which has been adopted under procedures which have\t\t\t\t\t\t\t\t\t\tgiven diverse views an opportunity to be considered, and which indicated\t\t\t\t\t\t\t\t\t\tinterested and affected persons have reached substantial agreement on its\t\t\t\t\t\t\t\t\t\tadoption.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tQ. Pardon me, sir. I\u2019m interested in the part before \u2018affected persons.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. Which indicate that interested and affected persons have reached substantial\t\t\t\t\t\t\t\t\t\tagreement on its adoption.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. This is saying what has been done and the statute says it must be done, is that\t\t\t\t\t\t\t\t\t\tcorrect, sir?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. Yes, sir, and if I may finish this last phrase, the point I wanted to make here. I\t\t\t\t\t\t\t\t\t\tdon\u2019t know whether I left what I thought was non-applicable language out but it\t\t\t\t\t\t\t\t\t\tfollows that, \u2018It is appropriate to permit the Secretary to promulgate such\t\t\t\t\t\t\t\t\t\tstandards without regard to the provisions of the Administrative Procedures Act.\t\t\t\t\t\t\t\t\t\tThe bill also provides for the issuance in similar fashion of those standards\u2014\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. Are you quoting now?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. Yes, sir. \u2018. . . which have been issued under other federal standards and which\t\t\t\t\t\t\t\t\t\tunder this Act may be applicable to additional employees who are not under the\t\t\t\t\t\t\t\t\t\tprotection of such other federal laws. Such standards have already been subjected\t\t\t\t\t\t\t\t\t\tto the procedural scrutiny mandated by law under which they were issued. Such\t\t\t\t\t\t\t\t\t\tstandards moreover in large part represent the incorporation of voluntary\t\t\t\t\t\t\t\t\t\tindustrial standards.\u2019\t\t\t\t\t\t\t\t\t\tYour Honor, in the House Report 911291 which accompanied HR 16785\t\t\t\t\t\t\t\t\t\tstarting on page 831, but the pages of specific reference are page 847. The intent\t\t\t\t\t\t\t\t\t\tof this interim standards provision is to give the Secretary of Labor a speedy\t\t\t\t\t\t\t\t\t\tmechanism to promulgate standards with which industry is familiar. These may\t\t\t\t\t\t\t\t\t\tnot be as effective as the current standards promulgated under formal procedures\t\t\t\t\t\t\t\t\t\tbut they will be useful for immediately providing a nation-wide minimum level of\t\t\t\t\t\t\t\t\t\thealth and safety.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSection 6\u2014\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. Does that refer to the reference or standards referred to by the terms of the\t\t\t\t\t\t\t\t\t\tstatement elsewhere? Did those include ANSI national consensus standards?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. Yes.\t\t\t\t\t\t\t\t\t\t(Tr. S54, S55, S56 and S57)\t\t\t\t\t\t\t\t\t\tAs to the adoption of ANSI 01.1 as a national consensus standard, Cestrone recalled\t\t\t\t\t\t\t\t\t\tbelieving the legality of the standard was protected not only by the congressional mandate of the\t\t\t\t\t\t\t\t\t\tstatute and congressional urgency in reports and debates, but also by the fact that the Labor\t\t\t\t\t\t\t\t\t\tDepartment\u2019s Solicitor advised that the standard had been adopted \u2018by reference\u2019 under the\t\t\t\t\t\t\t\t\t\tWalsh-Healy Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThere is some question as to what was intended by the witness when he referred to\t\t\t\t\t\t\t\t\t\tadoption \u2018by reference.\u2019\t\t\t\t\t\t\t\t\t\tCestrone referred specifically to the provisions of Section 4(b)(2) of the Act. This simply\t\t\t\t\t\t\t\t\t\tpurported to \u2018blanket in\u2019 all existing Walsh-Healy regulations\u2014as well as those under other\t\t\t\t\t\t\t\t\t\tsafety Acts\u2014as Occupational Safety and Health standards; by \u2018deeming\u2019 all such\u2014without\t\t\t\t\t\t\t\t\t\tfurther identification or reference\u2014to be occupational safety and health standards.\t\t\t\t\t\t\t\t\t\tThe witness may have been referring to the adoption \u2018by reference\u2019 in 41 CFR 50.204\u20132.\t\t\t\t\t\t\t\t\t\tThis reference applies to the general machine guarding requirements for all machines and states\t\t\t\t\t\t\t\t\t\tthat all standards on this subject produced by the four named major standards-producing\t\t\t\t\t\t\t\t\t\torganizations are effective under the Walsh-Healy Act; without specific reference to any such\t\t\t\t\t\t\t\t\t\tprivately produced standards, their provisions, or their application.\t\t\t\t\t\t\t\t\t\tThis section was mentioned by the Solicitor at the beginning of the supplemental hearing\t\t\t\t\t\t\t\t\t\ton the Secretary\u2019s Motion for Judgment on the pleadings. It was not urged thereafter by the\t\t\t\t\t\t\t\t\t\tSolicitor except in connection with his argument that 29 CFR 1910.213 is in fact a national\t\t\t\t\t\t\t\t\t\tconsensus standard.\t\t\t\t\t\t\t\t\t\tThe fact is ANSI 01.1954 (R 1961) was taken apart and reassembled, under the direction\t\t\t\t\t\t\t\t\t\tof Mr. Cestrone, to become 29 CFR 1910.213 and 214. (See Respondent\u2019s Exhibit S\u20133, showing\t\t\t\t\t\t\t\t\t\tdetails of the dismantling and reassembling job.) It was then adopted as a national consensus\t\t\t\t\t\t\t\t\t\tstandard. In the process the headnote at the beginning of Section 4 was removed and appears\t\t\t\t\t\t\t\t\t\tnowhere in the Occupational Safety and Health Standards.\t\t\t\t\t\t\t\t\t\tThere was no intent or effort to adopt any standard in the alternative, or as both a national\t\t\t\t\t\t\t\t\t\tconsensus standard and an established Federal standard.\t\t\t\t\t\t\t\t\t\t\u2018The new Part 1910 contains Occupational Safety and Health standards which are\t\t\t\t\t\t\t\t\t\teither national consensus standards or established Federal standards.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(36 Fed. Reg. 10466, May 29, 1971)\t\t\t\t\t\t\t\t\t\tThe Secretary\u2019s own regulation showing source\u201429 CFR 1910.221\u2014shows that both\t\t\t\t\t\t\t\t\t\tSections 213 and 214 were derived from \u2018ANSI\u201301.1\u20141954\u2014(R\u20131961)\u2014Safety Code for\t\t\t\t\t\t\t\t\t\tWoodworking Machinery.\u2019\t\t\t\t\t\t\t\t\t\tThere is no statutory authority to promulgate the standard except as one or the other.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThus, the standard under scrutiny in this case\u2014or portions of it\u2014is either a valid general\t\t\t\t\t\t\t\t\t\tindustry occupational safety and health standard adopted as a national consensus standard; or so\t\t\t\t\t\t\t\t\t\tfar as we are here concerned, it has no relevance.\t\t\t\t\t\t\t\t\t\tWe now come to consideration of the three principal questions to be answered by this\t\t\t\t\t\t\t\t\t\tdecision.\t\t\t\t\t\t\t\t\t\tThe first is the effect of deleting the headnote to Section 4.1 \u2018Woodworking Machinery\u2019,\t\t\t\t\t\t\t\t\t\tpage 9, ANSI 01.1 1954 (R 1961). It is as follows:\t\t\t\t\t\t\t\t\t\tNOTE: It is recognized that the standards for saw guards in 4.1 are not perfectly\t\t\t\t\t\t\t\t\t\tapplicable to all operations for which saws are used. The standards given are\t\t\t\t\t\t\t\t\t\tthose which woodworkers have agreed are note generally useful. Since there are a\t\t\t\t\t\t\t\t\t\tconsiderable number of cases not satisfactorily met by these standards, the\t\t\t\t\t\t\t\t\t\tenforcing authority should exercise rather wide latitude in allowing the use of\t\t\t\t\t\t\t\t\t\tother devices which give promise of affording adequate protection. It may be\t\t\t\t\t\t\t\t\t\texpected that by so doing further progress in saw guarding will be encouraged.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe record shows a similar note to have been part of the 01.1 standard in 1944. Another\t\t\t\t\t\t\t\t\t\tis a part of the 1971 revision.\t\t\t\t\t\t\t\t\t\tThe record further shows that at a meeting in the summer of 1973, for the first time the\t\t\t\t\t\t\t\t\t\tANSI 01 Committee considered removing the text of the note as it has appeared and placing its\t\t\t\t\t\t\t\t\t\tprovisions as part of the text of the various sections applicable. (See Secretary\u2019s Exhibit S\u20132.)\t\t\t\t\t\t\t\t\t\tA number of undisputed facts should be considered.\t\t\t\t\t\t\t\t\t\tFirst, all of the provisions of 29 CFR 1910.213 are mandatory. The headnote is not.\t\t\t\t\t\t\t\t\t\tThe note is not \u2018explanatory\u2019, \u2018preliminary\u2019, \u2018a suggestion\u2019, \u2018a recommendation\u2019, \u2018for\t\t\t\t\t\t\t\t\t\tinformational purposes\u2019, or even an \u2018exhortation.\u2019 It is an integral part of the standard itself.\t\t\t\t\t\t\t\t\t\t\u2018JUDGE WATKINS: Mr. Ehlke, I forgot to ask Mr. deTarnowsky something. If\t\t\t\t\t\t\t\t\t\tyou want to cover it, okay; if not, I\u2019ll ask him again.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tI want to make sure he testified as to whether the headnote that we\u2019ve been\t\t\t\t\t\t\t\t\t\ttalking about is a part of the standard. Would you cover that?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMR. EHLKE: That\u2019s my next question.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. (By Mr. Ehlke) Turn to page 9 of that document, sir. Is there a note at the\t\t\t\t\t\t\t\t\t\tbeginning of section 4 entitled \u2018Woodworking Machinery?\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. Yes, it is.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. What type of note would that be, sir?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. We call it a headnote.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. Are headnotes an integral part of the standards?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. Yes.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. Is this headnote an integral part of that standard?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. Yes, it is.\u2019\t\t\t\t\t\t\t\t\t\t(Tr. S172)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThere is considerably more evidence in the record to the same effect. There is no\t\t\t\t\t\t\t\t\t\tevidence to the contrary.\t\t\t\t\t\t\t\t\t\tThe saws covered by Section 213 of Part 1910 simply cannot be used for many jobs they\t\t\t\t\t\t\t\t\t\tare designed to do while guarded as required by the standard. This evidence is also undisputed\t\t\t\t\t\t\t\t\t\tand from expert and technically competent witnesses\u2014members of the Committee.\t\t\t\t\t\t\t\t\t\tAll Committee members stated that ANSI 01.1 would not be and could not be\u2014a\t\t\t\t\t\t\t\t\t\t\u2018consensus\u2019 standard with the headnote removed Those asked stated they would not have voted\t\t\t\t\t\t\t\t\t\tfor it as a consensus standard in the absence of the headnote.\t\t\t\t\t\t\t\t\t\tIt is interesting to note the difference in the method used by the Secretary in adopting\t\t\t\t\t\t\t\t\t\tANSI 01.1 in the Construction Standards, from that used here in the General Industry Standards.\t\t\t\t\t\t\t\t\t\tSubpart I of the Construction Standards covers \u2018Tools\u2014Hand and Power\u2019, and includes\t\t\t\t\t\t\t\t\t\t29 CFR 1926.300 \u2018General Reguirements\u2019, through Section 305. Section 304 of Part 1926,\t\t\t\t\t\t\t\t\t\tentitled \u2018Woodworking Tools\u2019, has some specific requirements for portable, power driven\t\t\t\t\t\t\t\t\t\tcircular saws (subparagraph (d)); and then provides:\t\t\t\t\t\t\t\t\t\t(f) Other requirements. All woodworking tools and machinery shall meet other\t\t\t\t\t\t\t\t\t\tapplicable requirements of American National Standards Institute, 01.1\u20141961.\t\t\t\t\t\t\t\t\t\tSafety Code for Woodworking Machinery.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tLeaving aside other questions for the purpose of discussion; the result is the adoption of\t\t\t\t\t\t\t\t\t\tANSI 01.1 with its headnote. This is the procedure\u2014and the result\u2014intended by Congress in\t\t\t\t\t\t\t\t\t\tSec. 6(a) of the Act.\t\t\t\t\t\t\t\t\t\tWhatever may be the good or bad things about mandatory standards, or the validity or\t\t\t\t\t\t\t\t\t\tinvalidity of adoption by reference; this was the enactment of what appeared on its face to be a\t\t\t\t\t\t\t\t\t\tnational consensus standard\u2014as such; not as changed. With the headnote still a part of the\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tstandard, enforcement of Construction standards must consider that all parts of Section 4.1 of\t\t\t\t\t\t\t\t\t\tANSI 01.1 are optional\u2014not mandatory.\t\t\t\t\t\t\t\t\t\tIn adopting Part 1910, including Section 213, on the other hand, the Secretary states in\t\t\t\t\t\t\t\t\t\tVolume 36, No. 105, Federal Register, page 10466; May 29, 1971:\t\t\t\t\t\t\t\t\t\tThe national consensus standards contain only mandatory provisions of the\t\t\t\t\t\t\t\t\t\tstandards promulgated by those two organizations. The standards of ANSI and\t\t\t\t\t\t\t\t\t\tNFPA may also contain advisory provisions and recommendations, the adoption\t\t\t\t\t\t\t\t\t\tof which by employers is encouraged, but they are not adopted in Part 1910.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPerhaps the Secretary made a mistake in including Section 213 of Part 1910. With the\t\t\t\t\t\t\t\t\t\theadnote, provisions of Section 4.1 of ANSI 01.1: \u2018are not perfectly applicable to all operations\t\t\t\t\t\t\t\t\t\tfor which saws are used.\u2019 The standards are only those \u2018which woodworkers have agreed are\t\t\t\t\t\t\t\t\t\tmost generally useful.\u2019 \u2018…….. there are a considerable number of cases not satisfactorily met by\t\t\t\t\t\t\t\t\t\tthese standards.\u2019\t\t\t\t\t\t\t\t\t\tWith the headnote, ANSI 01.1 is not mandatory. Without the headnote, all provisions as\t\t\t\t\t\t\t\t\t\tthey appear in 29 CFR 1910.213 are mandatory. The answer is that simple.\t\t\t\t\t\t\t\t\t\tThe Secretary exceeded his statutory authority in failing to retain the headnote as it\t\t\t\t\t\t\t\t\t\twas\u2014an integral part of the standard.\t\t\t\t\t\t\t\t\t\tThe second and third questions for consideration are whether, in two respects, ANSI 01.1\t\t\t\t\t\t\t\t\t\t1954 (R 1961) meets the statutory definition of national consensus standard.\t\t\t\t\t\t\t\t\t\tThe Act provides:\t\t\t\t\t\t\t\t\t\tSEC.3. For the purposes of this Act\u2014\t\t\t\t\t\t\t\t\t\t(9) The term \u2018national consensus standard\u2019 means any occupational safety and\t\t\t\t\t\t\t\t\t\thealth standard or modification thereof which (1), has been adopted and\t\t\t\t\t\t\t\t\t\tpromulgated by a nationally recognized standards-producing organization under\t\t\t\t\t\t\t\t\t\tprocedures whereby it can be determined by the Secretary that persons interested\t\t\t\t\t\t\t\t\t\tand affected by the scope or provisions of the standard have reached substantial\t\t\t\t\t\t\t\t\t\tagreement on its adoption, (2) was formulated in a manner which afforded an\t\t\t\t\t\t\t\t\t\topportunity for diverse views to be considered and (3) has been designated as\t\t\t\t\t\t\t\t\t\tsuch a standard by the Secretary, after consultation with other appropriate Federal\t\t\t\t\t\t\t\t\t\tagencies.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAlthough Section 3 (9) of the Act contains only three numbered subsections, as we view\t\t\t\t\t\t\t\t\t\tit two requirements are contained in the first. There are therefore, four requirements for a\t\t\t\t\t\t\t\t\t\tstandard to meet this statutory definition.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t(1) It must have been \u2018adopted and promulgated by a nationally recognized standards-\t\t\t\t\t\t\t\t\t\tproducing organization.\u2019\t\t\t\t\t\t\t\t\t\t(2) \u2018Under procedures whereby it can be determined by the Secretary that persons\t\t\t\t\t\t\t\t\t\tinterested and affected by the scope or provisions of the standard have reached substantial\t\t\t\t\t\t\t\t\t\tagreement on its adoption.\u2019\t\t\t\t\t\t\t\t\t\t(3) \u2018Was formulated in a manner which afforded an opportunity for diverse views to be\t\t\t\t\t\t\t\t\t\tconsidered.\u2019\t\t\t\t\t\t\t\t\t\t(4) \u2018Has been designated as such a standard by the Secretary, after consultation with\t\t\t\t\t\t\t\t\t\tother appropriate Federal agencies.\u2019\t\t\t\t\t\t\t\t\t\tRespondent Konkolville argues in its brief that the first and fourth requirements are not\t\t\t\t\t\t\t\t\t\tmet. We find it unnecessary to decide these questions because we hold that ANSI 01.1 does not\t\t\t\t\t\t\t\t\t\tmeet the statutory definition of a national consensus standard under the second.\t\t\t\t\t\t\t\t\t\tA word about the fourth (has been designated, etc.) is in order, however, because it has\t\t\t\t\t\t\t\t\t\tsignificance in our holding that the standard under discussion was adopted as a national\t\t\t\t\t\t\t\t\t\tconsensus standard. It was designated as such, and as nothing else. Further, it was \u2018. . . by rule\t\t\t\t\t\t\t\t\t\tpromulgated\u2019 as such by the Secretary, as provided by Section 6(a) of the Act.\t\t\t\t\t\t\t\t\t\tIn the Federal Register adopting Part 1910, \u2018Occupational Safety and Health Standards\u2019\t\t\t\t\t\t\t\t\t\t(36 Fed. Reg. 10466, May 29, 1971), the Secretary states:\t\t\t\t\t\t\t\t\t\t\u2018The national consensus standards are occupational safety and health standards\t\t\t\t\t\t\t\t\t\tadopted and promulgated either by the American National Standards Institute\t\t\t\t\t\t\t\t\t\t(ANSI) or by the National Fire Protection Association (NFPA) under procedures\t\t\t\t\t\t\t\t\t\twhereby it can be determined that persons interested and affected by the scope or\t\t\t\t\t\t\t\t\t\tprovisions of the standards have reached substantial agreement on their adoption.\t\t\t\t\t\t\t\t\t\tI have determined that those standards have been adopted and promulgated under\t\t\t\t\t\t\t\t\t\tsuch procedures. Accordingly, pursuant to this determination, after consultation\t\t\t\t\t\t\t\t\t\twith other appropriate Federal agencies, and in accordance with section 3 (9) of\t\t\t\t\t\t\t\t\t\tthe Act, I do hereby designate as national consensus standards those standards in\t\t\t\t\t\t\t\t\t\tPart 1910 which are standards adopted and promulgated by either the American\t\t\t\t\t\t\t\t\t\tNational Standards Institute or the National Fire Protection Association.\u2019\t\t\t\t\t\t\t\t\t\t(Emphasis added)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe first question which must be decided under this statutory definition (the second of the\t\t\t\t\t\t\t\t\t\tprincipal questions in the case) is whether the standard was promulgated\t\t\t\t\t\t\t\t\t\tunder procedures whereby it can be determined by the Secretary that persons\t\t\t\t\t\t\t\t\t\tinterested and affected by the scope or provisions of the standard have reached\t\t\t\t\t\t\t\t\t\tsubstantial agreement on its adoption,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tAssuming first of all that the \u2018procedures\u2019 are those of ANSI\u2014the standards-producing\t\t\t\t\t\t\t\t\t\torganization\u2014a number of other unanswered questions are immediately apparent. For example,\t\t\t\t\t\t\t\t\t\t(1) Who are persons interested and affected by the scope or provisions of the standards?\t\t\t\t\t\t\t\t\t\t(2) How many such persons are there?\t\t\t\t\t\t\t\t\t\t(3) How many must \u2018have reached substantial agreement on its adoptions?\t\t\t\t\t\t\t\t\t\t(4) What is \u2018substantial agreement on its adoption?\u2019\t\t\t\t\t\t\t\t\t\tIt might be pointed out there is no requirement that the Secretary find or \u2018determine\u2019 that\t\t\t\t\t\t\t\t\t\tthe persons contemplated have reached substantial agreement. Rather the requirement is that the\t\t\t\t\t\t\t\t\t\tcircumstances of adoption of the standard be such that these things \u2018can be determined by the\t\t\t\t\t\t\t\t\t\tSecretary.\u2019\t\t\t\t\t\t\t\t\t\tThe Secretary does purport to so find in the Federal Register cited. His statement to this\t\t\t\t\t\t\t\t\t\teffect is in the last quotation from it.\t\t\t\t\t\t\t\t\t\tWe may assume the Secretary cannot find that which is untrue. He cannot \u2018determine\u2019\t\t\t\t\t\t\t\t\t\tthat something happened when in fact it did not happen. Thus, although the statute does not\t\t\t\t\t\t\t\t\t\trequire the Secretary to \u2018determine\u2019 the specific facts regarding the adoption of the standard by\t\t\t\t\t\t\t\t\t\tANSI; those facts must exist so that the Secretary could so determine them. Those facts are \u2018that\t\t\t\t\t\t\t\t\t\tpersons interested and affected by the scope or provisions of the standard have reached\t\t\t\t\t\t\t\t\t\tsubstantial agreement on its adoption,\u2019\t\t\t\t\t\t\t\t\t\tWho are \u2018persons interested and affected by the scope or provisions of the standard?\u2019\t\t\t\t\t\t\t\t\t\tLittle time need be spent in answering this question. The record shows so many thousands of\t\t\t\t\t\t\t\t\t\tpersons who are clearly within this class we need not concern ourselves with the niceties of\t\t\t\t\t\t\t\t\t\tdeciding in a borderline case whether or not a particular person or class of persons is within it.\t\t\t\t\t\t\t\t\t\tFor example, these are shown by the record:\t\t\t\t\t\t\t\t\t\tWorkmen who operate the machinery\t\t\t\t\t\t\t\t\t\tLabor organizations to which the workmen belong\t\t\t\t\t\t\t\t\t\tEmployers who hire the workmen\t\t\t\t\t\t\t\t\t\tTrade associations of those employers\t\t\t\t\t\t\t\t\t\tWorkmens compensation or industrial insurance carriers who insure the\t\t\t\t\t\t\t\t\t\temployers and workmen, both by reason of their financial interest in the safety of\t\t\t\t\t\t\t\t\t\tthe workmen and the insurance companies\u2019 traditional interest in safety.\t\t\t\t\t\t\t\t\t\tTrade associations of the workmens compensation insurance carriers\t\t\t\t\t\t\t\t\t\tGovernmental organizations with an interest in employee safety\t\t\t\t\t\t\t\t\t\tPrivate safety organizations, for example, the National Safety Council\t\t\t\t\t\t\t\t\t\tProducers of safety standards, such as ANSI\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe last two questions posed above present greater difficulties of solution. How many\t\t\t\t\t\t\t\t\t\t\u2018persons interested and affected\u2019 must have agreed on the adoption of an ANSI standard? The\t\t\t\t\t\t\t\t\t\tliteral language of the statute would be satisfied if the answer were either \u2018two\u2019 or \u2018all.\u2019 Either\t\t\t\t\t\t\t\t\t\tanswer is ridiculous.\t\t\t\t\t\t\t\t\t\tMight the answer be \u2018a representative number\u2019; or \u2018a substantial number\u2019; whatever either\t\t\t\t\t\t\t\t\t\tof these expressions means? I have been unable to find anything in the Legislative History\t\t\t\t\t\t\t\t\t\thelpful in trying to answer this question.\t\t\t\t\t\t\t\t\t\tIt would rather seem from numerous passages in the history that Congress became\t\t\t\t\t\t\t\t\t\tenamored of its own definition and began to assume that both ANSI and NFPA standards met it.\t\t\t\t\t\t\t\t\t\tAt the same time, from some of the testimony, one might draw the inference that ANSI began to\t\t\t\t\t\t\t\t\t\tbelieve its standards met the Congressional definition.\t\t\t\t\t\t\t\t\t\tAs will be shown, the answer to the question is academic. Since we are talking about\t\t\t\t\t\t\t\t\t\t\u2018consensus\u2019 standards, however, would it not be sensible to believe Congress intended that \u2018a\t\t\t\t\t\t\t\t\t\tconsensus\u2019 of \u2018persons interested and affected\u2019 agreed to the adoption of the standard?\t\t\t\t\t\t\t\t\t\tConsensus means\t\t\t\t\t\t\t\t\t\t\u2018General agreement.\u2019 \u2018Collective opinion. The judgment arrived at by most of\t\t\t\t\t\t\t\t\t\tthose concerned.\u2019\t\t\t\t\t\t\t\t\t\t(Webster\u20143rd Unabridged)\t\t\t\t\t\t\t\t\t\t\u2018Majority of opinion.\u2019\t\t\t\t\t\t\t\t\t\t(Random House\u2014College Edition)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDeTarnowsky quoted from one of ANSI\u2019s principal publications, \u2018Consensus implies\t\t\t\t\t\t\t\t\t\tmuch more than a concept of a simple majority, not necessarily unanimity.\u2019\t\t\t\t\t\t\t\t\t\tPerhaps it would be helpful to delve slightly deeper into ANSI procedures, particularly in\t\t\t\t\t\t\t\t\t\tits method of \u2018obtaining a consensus.\u2019 There is reference to the question in the testimony of Mr.\t\t\t\t\t\t\t\t\t\tdeTarnowsky:\t\t\t\t\t\t\t\t\t\tQ. (By Judge) The other day when we had\u2014well, that was Tuesday\u2014and we had\t\t\t\t\t\t\t\t\t\tthis meeting with all of us there, I asked, I believe, if there is an ANSI\u2014if ANSI\t\t\t\t\t\t\t\t\t\tdefines consensus anywhere. I didn\u2019t ask then, but I meant it, of course, as a\t\t\t\t\t\t\t\t\t\tguide. You then consulted your files, and would you tell us what you found about\t\t\t\t\t\t\t\t\t\tthat?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. The term \u2018consensus in standardization practice is achieved when substantial\t\t\t\t\t\t\t\t\t\tagreement is reached by concerned interests according to the judgment of duly\t\t\t\t\t\t\t\t\t\tappointed authority.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tQ. Then we ought to identify it. I\u2019m reading in a different place.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. I\u2019m reading from the \u2018guide of the Development of American National\t\t\t\t\t\t\t\t\t\tStandards\u2019, dated November 2, 1972, page 6, the third paragraph, \u2018Consensus\t\t\t\t\t\t\t\t\t\tPrinciple.\u2019 I better read the whole paragraph.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. Go ahead, sir.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. The title of this paragraph is \u2018Consensus Principle\u2019, \u2018The basic principle\t\t\t\t\t\t\t\t\t\tunderlying ANSI approval of a standard is that a consensus must be reached of\t\t\t\t\t\t\t\t\t\tthose having substantial concern with its scope and provisions. In standardization\t\t\t\t\t\t\t\t\t\tpractice a consensus is achieved when substantial agreement is reached by\t\t\t\t\t\t\t\t\t\tconcerned interests according to the judgment of a duly appointed authority.\t\t\t\t\t\t\t\t\t\tConsensus implies much more than a concept of a simple majority, not\t\t\t\t\t\t\t\t\t\tnecessarily unanimity.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(Tr. S164\u2013165)\t\t\t\t\t\t\t\t\t\tFrom the record it is not clear who is the \u2018duly appointed authority\u2019 whose judgment is\t\t\t\t\t\t\t\t\t\tused to determine when a \u2018consensus in achieved\u2019 by \u2018substantial agreement.\u2019 Although the\t\t\t\t\t\t\t\t\t\tBoard of Standards Review of ANSI is charged with only one function\u2014to determine whether or\t\t\t\t\t\t\t\t\t\tnot the standard \u2018represents a consensus\u2019\u2014other procedures of ANSI apparently also go into the\t\t\t\t\t\t\t\t\t\tdetermination.\t\t\t\t\t\t\t\t\t\tFirst there is the selection and approval of the committee which is to write the standard\t\t\t\t\t\t\t\t\t\tand the determination that it has as broad a base in the particular field as possible. One factor not\t\t\t\t\t\t\t\t\t\tconsidered at length in testimony is the theory of placing somewhat unusual duties and\t\t\t\t\t\t\t\t\t\tresponsibilities on members of ANSI, and their individual committee members, to keep the\t\t\t\t\t\t\t\t\t\tmember organization informed of the work of ANSI committees in writing standards. At the\t\t\t\t\t\t\t\t\t\tsame time the individual is charged with the responsibility of interpreting the attitude of the\t\t\t\t\t\t\t\t\t\torganization he represents\u2014and its members\u2014in the development of the standards work.\t\t\t\t\t\t\t\t\t\tTestimony of Committee members does not disclose any particular attention having been\t\t\t\t\t\t\t\t\t\tpaid to these responsibilities.\t\t\t\t\t\t\t\t\t\tThe following quotation from \u2018The ASA System\u2019 (Secretary\u2019s Exhibit S\u20131) is of interest\t\t\t\t\t\t\t\t\t\tin this connection.\t\t\t\t\t\t\t\t\t\tThese principles require thoroughgoing responsibility on the part of cooperating\t\t\t\t\t\t\t\t\t\tbodies and their representatives\u2014responsibility in three senses, viz:\t\t\t\t\t\t\t\t\t\t(a)\t\t\t\t\t\tResponsibility in representation. It is the duty of a representative (1) to keep\t\t\t\t\t\t\t\t\t\tsufficiently in touch with his organization so that he can correctly interpret its\t\t\t\t\t\t\t\t\t\tattitude in the development of the work and can participate in decisions in\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tcommittees; (2) to keep his organization informed of developments; (3) to act\t\t\t\t\t\t\t\t\t\tas a leader in the formulation of the policies of his organization in regard to\t\t\t\t\t\t\t\t\t\tthe matters with which he is dealing; and (4) to refer back to his organization\t\t\t\t\t\t\t\t\t\tquestions upon which he feels unauthorized to speak for it;…..\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe statement was made above that the number of \u2018persons interested and affected\u2019 who\t\t\t\t\t\t\t\t\t\treach \u2018substantial agreement\u2019 on the adoption of the standard is academic. The fact is, nobody\t\t\t\t\t\t\t\t\t\treaches substantial agreement\u2014or any other kind of agreement\u2014on the adoption of an ANSI\t\t\t\t\t\t\t\t\t\tconsensus standard except the individual committee members writing the standard and the\t\t\t\t\t\t\t\t\t\torganizations they represent.\t\t\t\t\t\t\t\t\t\tThe organizations are usually not the employers but trade or other associations, or the\t\t\t\t\t\t\t\t\t\tlike. \u2018Substantial agreement\u2019 could also be said to be reached by subsequent reviewing\t\t\t\t\t\t\t\t\t\tauthorities within the ANSI organization itself.\t\t\t\t\t\t\t\t\t\tIt is not only a matter of common knowledge, but it is the uncontradicted evidence in this\t\t\t\t\t\t\t\t\t\trecord; that except in unusual circumstances not here shown, no member of a trade association or\t\t\t\t\t\t\t\t\t\tsimilar organization allows the organization to act for it, agree to anything for it, to speak for it,\t\t\t\t\t\t\t\t\t\tto express an opinion for it, or to commit it in any way.\t\t\t\t\t\t\t\t\t\tThe evidence in this record does not include all the 13 or 14 organizations constituting\t\t\t\t\t\t\t\t\t\tthe ANSI 01 committee in 1954 and 1961. It does, however, include the following.\t\t\t\t\t\t\t\t\t\tNixon deTarnowsky testified that ANSI\u2019s members do not authorize the organization to\t\t\t\t\t\t\t\t\t\tmake any decision for them involving judgment or to speak for them on any matter involving the\t\t\t\t\t\t\t\t\t\ttechnical content of a standard. He is familiar with the operation and practices of trade\t\t\t\t\t\t\t\t\t\tassociations and has represented at least one. With respect to the representative and in\t\t\t\t\t\t\t\t\t\tconnection with ANSI procedures, he testified:\t\t\t\t\t\t\t\t\t\tQ. But he normally speaks for the association and industry or the trade association\t\t\t\t\t\t\t\t\t\tonly, not for individual members?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. That\u2019s right. He\u2019s a representative of the association. This is his function.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. I wonder if it isn\u2019t usually the practice for a trade association representative to\t\t\t\t\t\t\t\t\t\tbe very careful not to speak in the names of the individual members?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. That is correct, they do. They must remember they are speaking for an\t\t\t\t\t\t\t\t\t\tassociation and not for their company or themselves.\u2019\t\t\t\t\t\t\t\t\t\t(Tr. S166\u2013167)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tDavid Zabriskie is an employee of the American Insurance Association and Secretary of\t\t\t\t\t\t\t\t\t\tthe ANSI Committee. \u2018Roughly\u2019 all company members who subscribe to the engineering and\t\t\t\t\t\t\t\t\t\tsafety services of the Association write workmens compensation insurance. These are the largest\t\t\t\t\t\t\t\t\t\tstock casualty companies in the country (formerly constituting the Association of Casualty and\t\t\t\t\t\t\t\t\t\tSurety Companies). Zabriskie testified that there are some mutual companies who are now\t\t\t\t\t\t\t\t\t\tmembers.\t\t\t\t\t\t\t\t\t\tThere are 150 to 160 of these companies writing workmen\u2019s compensation insurance.\t\t\t\t\t\t\t\t\t\tThe record does not show how many million policy holders they have or how many such policy\t\t\t\t\t\t\t\t\t\tholders own or operate saws of the type covered by the woodworking machine guarding\t\t\t\t\t\t\t\t\t\tstandards in question. A fair inference can be drawn the number is very large.\t\t\t\t\t\t\t\t\t\tNeither Zabriskie nor any other representative of the American Insurance Association\t\t\t\t\t\t\t\t\t\thad authority from any member company to \u2018agree\u2019 to anything, to speak for it, or to make any\t\t\t\t\t\t\t\t\t\tdecision or express an opinion on the question of the adoption of any safety standard. If the\t\t\t\t\t\t\t\t\t\tcommittee member is a company employee, he is authorized to speak and vote for the\t\t\t\t\t\t\t\t\t\tAssociation only, not for his company. This situation is often the case. Nelson, the current\t\t\t\t\t\t\t\t\t\tchairman of the ANSI 01 committee, is an employee of St. Paul Fire and Marine. Steinman, the\t\t\t\t\t\t\t\t\t\tprevious Chairman, was an employee of the United States Fidelity and Guaranty Company.\t\t\t\t\t\t\t\t\t\tNo company member of the American Insurance Association has authority from any\t\t\t\t\t\t\t\t\t\tpolicy holder to speak for it, \u2018agree\u2019 for it, take any position for it or express any opinion for it on\t\t\t\t\t\t\t\t\t\tany matter having to do with a safety standard. Every policy holder (in case of its insurance\t\t\t\t\t\t\t\t\t\tcompany) and every company (in case of its trade association) jealously guards its own right to\t\t\t\t\t\t\t\t\t\t\u2018agree\u2019, \u2018assent\u2019, \u2018take a position\u2019, \u2018take action\u2019, or withhold it, and in all respects to form its own\t\t\t\t\t\t\t\t\t\topinions and conclusions and to express them on all matters\u2014including safety.\t\t\t\t\t\t\t\t\t\tLewis R. Morrison was a representative of the National Association of Mutual Casualty\t\t\t\t\t\t\t\t\t\tCompanies on the ANSI 01 Committee in 1954. He was an employee of the Lumbermens\t\t\t\t\t\t\t\t\t\tMutual Casualty Company of Chicago. The trade association he represented was made up of the\t\t\t\t\t\t\t\t\t\tlarge mutual companies writing workmens compensation insurance.\t\t\t\t\t\t\t\t\t\tThe same facts are true with respect to Mr. Morrison as with Mr. Zabriskie. He spoke\t\t\t\t\t\t\t\t\t\tfor\u2014voted for\u2014only the trade association\u2014not his employer or any other company. No\t\t\t\t\t\t\t\t\t\tcompany member of the trade association had authority to take any action or position or express\t\t\t\t\t\t\t\t\t\tany view on behalf of any of its policy holders.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tA. A. Skonning, Senior Engineer, Western Electric Company, was a representative on the\t\t\t\t\t\t\t\t\t\tcommittee in 1954 and 1961 for the National Safety Council. Dan Adair, an employee of the\t\t\t\t\t\t\t\t\t\tSafety Council, was also a representative. Both were active in the work of the committee for a\t\t\t\t\t\t\t\t\t\tconsiderable number of years.\t\t\t\t\t\t\t\t\t\tIn 1970, the National Safety Council had 9,000 members, 8,000 of them industrial\t\t\t\t\t\t\t\t\t\tconcerns. Others included labor unions and insurance companies. In 1963, a listing was\t\t\t\t\t\t\t\t\t\tdeveloped of 28,000 industrial plants involved in memberships of the National Safety Council.\t\t\t\t\t\t\t\t\t\tNo member of the National Safety Council authorized either Skonning or Adair to speak\t\t\t\t\t\t\t\t\t\tfor it, act for it, or do anything else in connection with safety. As a member of the committee,\t\t\t\t\t\t\t\t\t\tMr. Skonning voted only on behalf of the National Safety Council, not on behalf of Western\t\t\t\t\t\t\t\t\t\tElectric.\t\t\t\t\t\t\t\t\t\tJoseph J. Prabulos represented the Associated Cooperage Industries, a trade association,\t\t\t\t\t\t\t\t\t\ton the committee in its work resulting in the revision of the standard in 1954, its reaffirmation in\t\t\t\t\t\t\t\t\t\t1961 and its further revision in 1971. He was employed as Safety Director of the National\t\t\t\t\t\t\t\t\t\tDistillers and Chemical Corporation.\t\t\t\t\t\t\t\t\t\tPrabulos\u2019 recollection was that the trade association had about 130 member companies.\t\t\t\t\t\t\t\t\t\tAs a committee member, he spoke and voted only for the trade association, not for his employer.\t\t\t\t\t\t\t\t\t\tIn other respects his testimony is the same as that of the witnesses just mentioned except that, in\t\t\t\t\t\t\t\t\t\taddition, he had no specific instructions or authorization from the trade association on how to\t\t\t\t\t\t\t\t\t\tcast any vote with respect to the standard.\t\t\t\t\t\t\t\t\t\tAs with the other witnesses, Mr. Prabulos had no contact or communication with the\t\t\t\t\t\t\t\t\t\tmember companies of his trade association, or with his own company, with respect to the work\t\t\t\t\t\t\t\t\t\tof the ANSI committee.\t\t\t\t\t\t\t\t\t\tIn fact, each committee member who testified was an expert in his field, and used his\t\t\t\t\t\t\t\t\t\town judgment in casting his vote in a manner that caused the committee to be in substantial\t\t\t\t\t\t\t\t\t\tagreement.\t\t\t\t\t\t\t\t\t\tIt would serve no useful purpose to speculate on the precise meaning of \u2018substantial\t\t\t\t\t\t\t\t\t\tagreement\u2019 to the extent of framing a definition. Certainly it means much less than a formal and\t\t\t\t\t\t\t\t\t\trecorded agreement, either written or oral. It might be inferred from inaction\u2014with knowledge\t\t\t\t\t\t\t\t\t\tof essential facts\u2014rather than from any positive action.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tAt a minimum there must be some communication \u2014 or chance to communicate\u2014by a\t\t\t\t\t\t\t\t\t\tperson held to be in \u2018substantial agreement.\u2019 In any event, to hold that many thousands of people\t\t\t\t\t\t\t\t\t\tare in \u2018substantial agreement\u2019 means more than the best judgment of safety experts about what\t\t\t\t\t\t\t\t\t\tthey are thinking; when the experts have received no communications from them as to what they\t\t\t\t\t\t\t\t\t\tare thinking, and no authority from anyone to take or withhold any action.\t\t\t\t\t\t\t\t\t\tAt the conclusion of the first three days of testimony and at the request of counsel for\t\t\t\t\t\t\t\t\t\tRespondent, the case was continued to September 17. Although not so limited, this was\t\t\t\t\t\t\t\t\t\tprincipally for the purpose of obtaining further evidence tending to improve the record as to the\t\t\t\t\t\t\t\t\t\tnumber of \u2018persons interested and affected by the scope or provisions of the standard.\u2019\t\t\t\t\t\t\t\t\t\tMost of the evidence we have is general\u2014some of it vague. From the total, however,\t\t\t\t\t\t\t\t\t\tcertain valid inferences may be drawn, particularly with respect to Minimum numbers of persons\t\t\t\t\t\t\t\t\t\twho may be so interested and affected.\t\t\t\t\t\t\t\t\t\tA number of documents, or portions of them, were introduced in evidence. With the\t\t\t\t\t\t\t\t\t\tbackground record of the insurance and cooperage industries, the National Safety Council, and\t\t\t\t\t\t\t\t\t\tthe ANSI members, perhaps reference to one and a stipulation in connection with it would be\t\t\t\t\t\t\t\t\t\tsufficient for our present purpose.\t\t\t\t\t\t\t\t\t\tMr. George J. Tichy, counsel for Konkolville, did not testify. By stipulation, however, the\t\t\t\t\t\t\t\t\t\tequivalent of his testimony was received.\t\t\t\t\t\t\t\t\t\tIt was stipulated that, based on Respondent\u2019s Exhibit S\u20138, that portion having to do with\t\t\t\t\t\t\t\t\t\tlumber, sawmills and wood products, Mr. Tichy would testify if he were called as a witness, and\t\t\t\t\t\t\t\t\t\tbased upon his experience in the industry, not only as counsel but also including extensive\t\t\t\t\t\t\t\t\t\texperience as a workman; that in 1954, 1961, 1971 and 1973 there were no less than 30,000\t\t\t\t\t\t\t\t\t\tindustrial users of the types of saws found in Section 4.1 of ANSI 01.1 1954 (R 1961 and\t\t\t\t\t\t\t\t\t\tadopted thereafter as 29 CFR 1910.213. The stipulation was further that on each of the dates the\t\t\t\t\t\t\t\t\t\tnumber of such saws in use was no less than 50,000.\t\t\t\t\t\t\t\t\t\tIt was further agreed that the stipulation might be accepted in lieu of Mr. Tichy\u2019s\t\t\t\t\t\t\t\t\t\ttestimony, that he was qualified to testify to the facts stated, and that the stipulation might be so\t\t\t\t\t\t\t\t\t\tused even though Tichy was in court and could have taken the witness stand.\t\t\t\t\t\t\t\t\t\tIt is of interest to note that so far as all the logging and sawmill, as well as the Northwest\t\t\t\t\t\t\t\t\t\tPlywood industries are concerned; there was no representative\u2014either company or trade\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tassociation\u2014on the ANSI 01 Committee. One of the reasons assigned for this was that at the\t\t\t\t\t\t\t\t\t\ttime a \u2018vertical\u2019, standard for sawmills was being considered and prepared. (29 CFR 1910.265)\t\t\t\t\t\t\t\t\t\tFrom the foregoing it is abundantly clear that the ANSI National consensus standard here\t\t\t\t\t\t\t\t\t\tunder consideration does not meet the definition of Section 3 (9)(1) of the Act, as having been\t\t\t\t\t\t\t\t\t\tadopted \u2018under procedures whereby it can be determined by the Secretary that persons interested\t\t\t\t\t\t\t\t\t\tand affected by the scope or provisions of the standard have reached substantial agreement on its\t\t\t\t\t\t\t\t\t\tadoption.\u2019\t\t\t\t\t\t\t\t\t\tOne can but conclude that Congress mandated the use of national consensus standards as\t\t\t\t\t\t\t\t\t\toccupational safety and health standards under the Act, espoused their adoption as interim\t\t\t\t\t\t\t\t\t\tregulations and under abbreviated procedures, sought to speed their promulgation and\t\t\t\t\t\t\t\t\t\timplementation; and at the same time adopted a statutory definition that no national consensus\t\t\t\t\t\t\t\t\t\tstandard could meet. At least the standard here under consideration does not meet it.\t\t\t\t\t\t\t\t\t\tThe third question for decision is whether the ANSI 01.1 1954 (R 1961) standard \u2018was\t\t\t\t\t\t\t\t\t\tformulated in a manner which afforded an opportunity for diverse views to be considered…..\t\t\t\t\t\t\t\t\t\tIn an earlier explanation of the working of ANSI, reference was made to \u2018a public review\t\t\t\t\t\t\t\t\t\tand comment period.\u2019 References to this procedure under the same or similar language are in\t\t\t\t\t\t\t\t\t\tseveral places in the Legislative History.\t\t\t\t\t\t\t\t\t\tNixon deTarnowsky testified the present system started in 1969. Previous efforts, while\t\t\t\t\t\t\t\t\t\tnot haphazard, were much less complete.\t\t\t\t\t\t\t\t\t\t\u2018The old ASA system did not include a public review and comment period such as\t\t\t\t\t\t\t\t\t\twe have now. The old system relied exclusively on the membership of the ASA\t\t\t\t\t\t\t\t\t\tsystem. It was published in the Magazine of Standards, however, which was given\t\t\t\t\t\t\t\t\t\tgeneral distribution, and was subscribed to by a great many more companies, but\t\t\t\t\t\t\t\t\t\tas I understand it the public review and comment, as we have it today, did not\t\t\t\t\t\t\t\t\t\texist at the time 01 was promulgated.\u2019\t\t\t\t\t\t\t\t\t\t(Tr. S154\u2013155)\t\t\t\t\t\t\t\t\t\tThe Magazine of Standards was published by ANSI. Its circulation is not shown. Other\t\t\t\t\t\t\t\t\t\ttrade publications reproduced proposals with respect to the adoption of standards.\t\t\t\t\t\t\t\t\t\tMr. Cestrone testified he had no difficulty in knowing of any ANSI action contemplated\t\t\t\t\t\t\t\t\t\tin which he was interested over the years. At the same time, however, it appears that for many\t\t\t\t\t\t\t\t\t\tyears he was active in ANSI and served on many of its committees and bodies.\t\t\t\t\t\t\t\t\t\tIn general, the record indicates dissemination of information about proposed actions\t\t\t\t\t\t\t\t\t\tregarding standards before the change in 1969. The change brought about a much wider and\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tmore selective distribution of information, and also brought into effect a number of new\t\t\t\t\t\t\t\t\t\tprocedures with respect to comments received.\t\t\t\t\t\t\t\t\t\tThe statute does not designate whose \u2018diverse views\u2019 are to be considered; or who must\t\t\t\t\t\t\t\t\t\tbe \u2018afforded an opportunity.\u2019 If the \u2018opportunity\u2019 and \u2018diverse views\u2019 are limited to safety\t\t\t\t\t\t\t\t\t\tprofessionals, there would be compliance with the statute.\t\t\t\t\t\t\t\t\t\tNor is there a specific provision about who is to do the \u2018considering.\u2019 By implication,\t\t\t\t\t\t\t\t\t\thowever, this would be some part of the ANSI organization.\t\t\t\t\t\t\t\t\t\tThere is no indication Congress intended that a procedure such as that provided by\t\t\t\t\t\t\t\t\t\tSection 6(b) of the Act was thought to be required of private standards-producing organizations.\t\t\t\t\t\t\t\t\t\tNo attempt is made to spell out times, places, manners of publication or other dissemination of\t\t\t\t\t\t\t\t\t\tinformation or methods used.\t\t\t\t\t\t\t\t\t\tUnder all the circumstances, we feel there was no failure on the part of ANSI to meet the\t\t\t\t\t\t\t\t\t\trequirements of Section 3 (9)(2) in its adoption or promulgation of the standard here under\t\t\t\t\t\t\t\t\t\tconsideration.\t\t\t\t\t\t\t\t\t\tIn order that there may be no misunderstanding, I should like to make it clear there is no\t\t\t\t\t\t\t\t\t\tintention in this decision to criticize anybody.\t\t\t\t\t\t\t\t\t\tFirst, the Secretary of Labor was required by Section 6(a) of the Act to adopt national\t\t\t\t\t\t\t\t\t\tconsensus standards as occupational safety and health standards \u2018unless he determines that the\t\t\t\t\t\t\t\t\t\tpromulgation of such a standard would not result in improved safety or health for specifically\t\t\t\t\t\t\t\t\t\tdesignated employees.\u2019\t\t\t\t\t\t\t\t\t\tThere are numerous references in the Legislative History to the assumption\u2014stated as\t\t\t\t\t\t\t\t\t\tfact\u2014that national consensus standards of ANSI and NFPA met the tests of the definition\t\t\t\t\t\t\t\t\t\tSection of the Act; even though the ANSI standard here under review did not. All the\t\t\t\t\t\t\t\t\t\tCongressional views were known to the people in the Labor Department charged with the\t\t\t\t\t\t\t\t\t\tresponsibility of developing the program.\t\t\t\t\t\t\t\t\t\tAlthough unnecessary to this decision, there is yet another ground for vacating the\t\t\t\t\t\t\t\t\t\tcitation alleging violation of the saw guarding standard. There is insufficient proof of employee\t\t\t\t\t\t\t\t\t\texposure to either saw.\t\t\t\t\t\t\t\t\t\tThe radial arm saw was operated only by Donald Gilkey, the maintenance man at the\t\t\t\t\t\t\t\t\t\tmill. He testified that at times he used the saw two or three times a month. On other occasions\t\t\t\t\t\t\t\t\t\tthere was two months between uses. On further direct examination he then testified as follows:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u2018Q. Do you recall how long it had been since you had used that saw before the\t\t\t\t\t\t\t\t\t\tinspection?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. No, I can\u2019t recall for sure, but it was when\u2014I remember when I ripped with it\t\t\t\t\t\t\t\t\t\tlast, but I don\u2019t remember when it was\u2014I\u2019d have to look it up on the time book.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. You don\u2019t have any estimate, reasonable estimate you could give us?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. I would say, three or four weeks.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. Prior to the inspection?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. That\u2019s right.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. I believe you have already testified you\u2019re the only one that was ever assigned\t\t\t\t\t\t\t\t\t\tto use that saw.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. That\u2019s right.\u2019\t\t\t\t\t\t\t\t\t\t(Tr. 309)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis is insufficient proof of use sufficiently related to the date of inspection to show the\t\t\t\t\t\t\t\t\t\tnecessary employee exposure to a hazard governed by the standard.\t\t\t\t\t\t\t\t\t\tThere is a greater deficiency of proof with respect to the swing cutoff saw. The clearest\t\t\t\t\t\t\t\t\t\tproof of its use was about two times a year and it had probably been used about six months\t\t\t\t\t\t\t\t\t\tbefore. It was never used after the inspection. It was junked.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThere was no plug on the end of the electric cord attached to the saw. Rather there were three\t\t\t\t\t\t\t\t\t\twires\u2014one a ground. Anyone using the saw would have first had to wire it into an electrical\t\t\t\t\t\t\t\t\t\tconnection.\t\t\t\t\t\t\t\t\t\tABSENCE OF RAILING OR OTHER BARRICADE ADJACENT TO CABLE DRUM\t\t\t\t\t\t\t\t\t\tOPERATING MAIN LOG CARRIAGE OF THE MILL\t\t\t\t\t\t\t\t\t\tAssuming for purposes of discussion that the area adjacent to the cable drum operating\t\t\t\t\t\t\t\t\t\tthe log carriage on the floor above was a room \u2018….. used exclusively for power transmission\t\t\t\t\t\t\t\t\t\tequipment…..\u2019 and that the standard therefore required it to be \u2018….. guarded in accordance with\t\t\t\t\t\t\t\t\t\tthis section…..\u2019; we are unable to determine what guards \u2018this section\u2019 requires.\t\t\t\t\t\t\t\t\t\tThe decision to vacate the citation and proposed penalty are made considerably easier,\t\t\t\t\t\t\t\t\t\thowever, because of the fact there is no evidence that any employee was ever in the area while\t\t\t\t\t\t\t\t\t\tthe machinery was in operation. The only exception would be at the time of the inspection when\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tthe maintenance man, Donald Gilkey, was there as an employer representative accompanying the\t\t\t\t\t\t\t\t\t\tCompliance Officer.\t\t\t\t\t\t\t\t\t\tOstrom, the Compliance Officer, saw an area which he described as a \u2018platform\u2019 and off\t\t\t\t\t\t\t\t\t\tone side of it, a cable drum and cable leading from it to the carriage above. On the other side was\t\t\t\t\t\t\t\t\t\ta battery of electrical boxes on the wall which he \u2018assumed\u2019 to be the main electrical panel for\t\t\t\t\t\t\t\t\t\tthe mill.\t\t\t\t\t\t\t\t\t\tThe platform was in fact a concrete slab constituting the floor of the mill at this point.\t\t\t\t\t\t\t\t\t\tThe electrical boxes are secondary \u2018disconnects.\u2019 They are never used to turn any machine in the\t\t\t\t\t\t\t\t\t\tmill on or off. Every machine in the mill running from power passing through these\t\t\t\t\t\t\t\t\t\t\u2018disconnects\u2019 has switches used to turn it on and off in closer proximity to the work station of\t\t\t\t\t\t\t\t\t\tmen operating the machines.\t\t\t\t\t\t\t\t\t\tThe area is not a work station; it is not a walkway or area used by workmen while the\t\t\t\t\t\t\t\t\t\tmill is operating\u2014carrying out their duties or otherwise.\t\t\t\t\t\t\t\t\t\tThe sum total of all the evidence indicates there was never a workman in the area while\t\t\t\t\t\t\t\t\t\tthe adjacent machinery was in operation. Donald Konkol, General Manager of the mill,\t\t\t\t\t\t\t\t\t\testimated that about twice a year it had been necessary for a workman to go to the area while the\t\t\t\t\t\t\t\t\t\tMill was in operation; but the machinery adjacent to the area was neither operating nor operable.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tUnder the circumstances, the various measurements from the edge of the \u2018platform\u2019 to the\t\t\t\t\t\t\t\t\t\tcable drum and to the cables and from the electrical boxes to the cable drum and cables are\t\t\t\t\t\t\t\t\t\timmaterial. There is simply no evidence that any workman was ever there while the machinery\t\t\t\t\t\t\t\t\t\toperating the cable drum was connected so that it could be operated. Maintenance men were in\t\t\t\t\t\t\t\t\t\tthe area at least three times a week when the mill was completely down.\t\t\t\t\t\t\t\t\t\tINCOMPLETE GUARD OF CHAIN AND SPROCKET BECAUSE A PORTION WAS\t\t\t\t\t\t\t\t\t\tBROKEN OFF\t\t\t\t\t\t\t\t\t\tHere there was another open space (the flooring was wood) with a guarded chain and\t\t\t\t\t\t\t\t\t\tsprocket immediately adjacent to one side. There were also electrical boxes and switches on the\t\t\t\t\t\t\t\t\t\topposite wall.\t\t\t\t\t\t\t\t\t\tAt the hearing the Solicitor stated the guarding was adequate before a short piece of the\t\t\t\t\t\t\t\t\t\ttop guard fell off because its hinges broke, leaving the sprocket exposed.\t\t\t\t\t\t\t\t\t\tIt was stipulated this occurred on January 17 or 18. The inspection was January 23. The evidence\t\t\t\t\t\t\t\t\t\tis undisputed that Donald Konkol, General Manager of the mill, did not know of the occurrence\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tuntil after the inspection. There is no evidence that any other supervisory employee, whose\t\t\t\t\t\t\t\t\t\tknowledge could be imputed to Respondent, had knowledge of the broken guard. As a matter of\t\t\t\t\t\t\t\t\t\tfact, there is no evidence anyone had such knowledge except a vague statement that \u2018the\t\t\t\t\t\t\t\t\t\tmillwright was having it repaired.\u2019 After Konkol learned about it, the guard was repaired and\t\t\t\t\t\t\t\t\t\treturned to its former position within two days.\t\t\t\t\t\t\t\t\t\tAgain this is not a work station. It is not an area to which employees go whether\t\t\t\t\t\t\t\t\t\tperforming their duties or otherwise. If one is in the area, there is no reason for him to be at the\t\t\t\t\t\t\t\t\t\textreme edge of the platform where he might be exposed to the danger of the chain and sprocket.\t\t\t\t\t\t\t\t\t\tTwo things, however, lead us to the conclusion there was a violation of the cited\t\t\t\t\t\t\t\t\t\tstandard. First, Konkol testified there was \u2018a limited amount of travel in the area.\u2019 He was\t\t\t\t\t\t\t\t\t\tprobably referring to the fact that switches turning certain machinery on and off are on the panel\t\t\t\t\t\t\t\t\t\tacross the platform form from the chain and sprocket. It is necessary for one employee to go\t\t\t\t\t\t\t\t\t\tthere to start certain machinery at the beginning of the shift in the morning, again to turn it off at\t\t\t\t\t\t\t\t\t\tthe end of the morning shift, and again to turn it on at the start of the afternoon\u2019s operation, and\t\t\t\t\t\t\t\t\t\tfinally to turn the switches off at the end of the day. Clean up men, of course, are in the area\t\t\t\t\t\t\t\t\t\twhen the mill is down.\t\t\t\t\t\t\t\t\t\tAlthough the danger is slight and the chance of accident remote, an employee is required\t\t\t\t\t\t\t\t\t\tto be in the general area performing his duties, and it is possible he might be exposed to the\t\t\t\t\t\t\t\t\t\tunguarded chain and sprocket. We therefore find the standard in question was violated.\t\t\t\t\t\t\t\t\t\tThe question of lack of knowledge of Respondent was covered above. As to notice, or\t\t\t\t\t\t\t\t\t\twhether Respondent could \u2018….. with the exercise of reasonable diligence, know of the presence\t\t\t\t\t\t\t\t\t\tof the violation…..\u2019; the question is whether Konkol should have inspected the area in the five or\t\t\t\t\t\t\t\t\t\tsix days between the time the portion of the guard fell off, and January 23, when it was\t\t\t\t\t\t\t\t\t\tdiscovered by the Compliance Officer. Intervening was a two-day weekend. There was no\t\t\t\t\t\t\t\t\t\tinterruption or interference with the use of the machinery guarded. We cannot, therefore, find\t\t\t\t\t\t\t\t\t\tthat Konkol, as general manager of the mill, should have inspected the area in order to put\t\t\t\t\t\t\t\t\t\tRespondent on notice; and consequently we find that requirements of Section 17(k) of the Act\t\t\t\t\t\t\t\t\t\tfor a serious violation are not met.\t\t\t\t\t\t\t\t\t\tIn view of the minimal nature of the hazard, a penalty in the amount of $50.00 would\t\t\t\t\t\t\t\t\t\tseem to be reasonable, considering all statutory factors.\t\t\t\t\t\t\t\t\t\tBased upon the entire record, the undersigned now makes the following\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\tI\t\t\t\t\t\t\t\t\t\tAt all times herein mentioned the Respondent was an Idaho corporation organized and\t\t\t\t\t\t\t\t\t\texisting under the laws of the State of Idaho. Respondent operated a sawmill at Orofino where it\t\t\t\t\t\t\t\t\t\temployed 37 people and in the previous year had gross sales of approximately two million\t\t\t\t\t\t\t\t\t\tdollars.\t\t\t\t\t\t\t\t\t\tII\t\t\t\t\t\t\t\t\t\tOn January 23, 1973 Respondent\u2019s sawmill was inspected by a Compliance Officer of the\t\t\t\t\t\t\t\t\t\tOccupational Safety and Health Administration, United States Department of Labor, resulting in\t\t\t\t\t\t\t\t\t\tthe issuance on February 28, 1973 of certain citations alleging violations of the Occupational\t\t\t\t\t\t\t\t\t\tSafety and Health Law of 1970. These findings have to do with citations and items thereof at\t\t\t\t\t\t\t\t\t\tissue because of Respondent\u2019s timely notice of contest to the Secretary following issuance of the\t\t\t\t\t\t\t\t\t\tcitations.\t\t\t\t\t\t\t\t\t\tIII\t\t\t\t\t\t\t\t\t\tWith respect to Citation for Serious Violation No. 1, Respondent owned and had in its\t\t\t\t\t\t\t\t\t\tpossession the two saws described therein on the dates and at the places alleged. Neither saw had\t\t\t\t\t\t\t\t\t\ta guard on the lower portion of its blade.\t\t\t\t\t\t\t\t\t\tIV\t\t\t\t\t\t\t\t\t\tThe Secretary purported to promulgate 2. CFR 1910.213 as a national consensus standard\t\t\t\t\t\t\t\t\t\tby publication on May 29, 1971 in 34 Fed. Reg. 10466. The source standard is one of the\t\t\t\t\t\t\t\t\t\tAmerican National Standards Institute, adopted in 1954 and reaffirmed in 1961, commonly\t\t\t\t\t\t\t\t\t\tknown as ANSI 01.1 1954 (R 1961).\t\t\t\t\t\t\t\t\t\tV\t\t\t\t\t\t\t\t\t\tA headnote to ANSI 01.1 1954 (R 1961) at the beginning of Section 4.1 thereof provides:\t\t\t\t\t\t\t\t\t\t\u2018NOTE: It is recognized that the standards for saw guards in 4.1 are not perfectly\t\t\t\t\t\t\t\t\t\tapplicable to all operations for which saws are used. The standards given are\t\t\t\t\t\t\t\t\t\tthose which woodworkers have agreed are most generally useful. Since there are\t\t\t\t\t\t\t\t\t\ta considerable number of cases not satisfactorily met by these standards, the\t\t\t\t\t\t\t\t\t\tenforcing authority should exercise rather wide latitude in allowing the use of\t\t\t\t\t\t\t\t\t\tother devices which give promise of affording adequate protection. It may be\t\t\t\t\t\t\t\t\t\texpected that by so doing further progress in saw guarding will be encouraged.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSections 213(h)(1) and 213(g)(1) of Part 1910 were derived from Section 4.1 of ANSI 01.1\t\t\t\t\t\t\t\t\t\t1954(R 1961). The headnote is an integral part of Section 4.1 and every subsection and part\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tthereof. Section 4.1 with the headnote produces the result that the use of lower blade guards for\t\t\t\t\t\t\t\t\t\tredial arm saws and swing cutoff saws is optional. Sections 213(h)(1) and (g)(1) of Part 1910\t\t\t\t\t\t\t\t\t\thave the effect of requiring the use of lower blade guards for such saws at all times used. The\t\t\t\t\t\t\t\t\t\trequirements are mandatory. The meaning, scope and application of the source standard are\t\t\t\t\t\t\t\t\t\tthereby materially changed.\t\t\t\t\t\t\t\t\t\tVI\t\t\t\t\t\t\t\t\t\tANSI 01.1 1954 (R 1961) before its purported adoption by the Secretary, had not been\t\t\t\t\t\t\t\t\t\tadopted and promulgated by a nationally recognized standards-producing organization under\t\t\t\t\t\t\t\t\t\tprocedures whereby it could be determined by the Secretary that persons interested and affected\t\t\t\t\t\t\t\t\t\tby the scope or provisions of the standard had reached substantial agreement on its adoption. In\t\t\t\t\t\t\t\t\t\tfact, only the 13 or 14 organizational members of the committee writing the standard\u2014not the\t\t\t\t\t\t\t\t\t\tcorporations or other persons constituting such organizations\u2014and the individuals representing\t\t\t\t\t\t\t\t\t\tthem, along with members of the Safety Technical Advisory Board and the Board of Standards\t\t\t\t\t\t\t\t\t\tReview of ANSI had reached such substantial agreement.\t\t\t\t\t\t\t\t\t\tVII\t\t\t\t\t\t\t\t\t\tANSI 01.1 1954 (R 1961) was formulated in a manner which afforded an opportunity for\t\t\t\t\t\t\t\t\t\tdiverse views to be considered.\t\t\t\t\t\t\t\t\t\tVIII\t\t\t\t\t\t\t\t\t\tNo employee of Respondent was exposed to any hazard from either saw because neither was\t\t\t\t\t\t\t\t\t\toperated on or about the\t\t\t\t\t\t\t\t\t\tIX\t\t\t\t\t\t\t\t\t\tWith respect to Citation for Serious Violation No. 2 for failure to guard a cable drum and\t\t\t\t\t\t\t\t\t\tcable used in operating the carriage in the mill, no employee of Respondent was exposed to any\t\t\t\t\t\t\t\t\t\thazard in connection therewith because none was adjacent to the cable drum and cable at any\t\t\t\t\t\t\t\t\t\ttime when it was operated.\t\t\t\t\t\t\t\t\t\tX\t\t\t\t\t\t\t\t\t\tIn connection with Citation for Serious Violation No. 3, Respondent was in violation of\t\t\t\t\t\t\t\t\t\tthe Act for failure to guard a chain and sprocket from which a short piece of guard had broken\t\t\t\t\t\t\t\t\t\toff. Respondent neither knew, nor in the exercise of reasonable diligence could have known, of\t\t\t\t\t\t\t\t\t\tthe absence of a portion of the guard.\t\t\t\t\t\t\t\t\t\tXI\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tWith respect to Citation No. 1 and Item 13 thereof, alleging violation of a fire protection\t\t\t\t\t\t\t\t\t\tstandard, there is no evidence or reasonable inference from evidence to substantiate the same.\t\t\t\t\t\t\t\t\t\tBased upon the foregoing and upon all facts admitted, stipulated proved by\t\t\t\t\t\t\t\t\t\tuncontradicted substantial credible evidence, the undersigned hereby makes the following\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\tI\t\t\t\t\t\t\t\t\t\tRespondent is engaged in a business affecting commerce within the provisions of Section\t\t\t\t\t\t\t\t\t\t3(3) of the Occupational Safety and Health Act of 1970. The Review Commission has\t\t\t\t\t\t\t\t\t\tjurisdiction of the parties and the subject matter of this action.\t\t\t\t\t\t\t\t\t\tII\t\t\t\t\t\t\t\t\t\tANSI 01.1 1954 (R 1961) was not enacted in part as 29 CFR 1910.213(h)(1) and (g)(1)\t\t\t\t\t\t\t\t\t\tbecause the Secretary was acting in excess of his statutory authority in the deletion of the\t\t\t\t\t\t\t\t\t\theadnote to Section 4.1.\t\t\t\t\t\t\t\t\t\tIII\t\t\t\t\t\t\t\t\t\tANSI 01.1 1954 (R 1961) is not a national consensus standard as defined in Section 3 (9)\t\t\t\t\t\t\t\t\t\tof the Act.\t\t\t\t\t\t\t\t\t\tIV\t\t\t\t\t\t\t\t\t\t29 CFR 1910.213(h)(1) and (g)(1) were not a valid enactment by the Secretary of a\t\t\t\t\t\t\t\t\t\tnational consensus standard under Section 6(a) of the Act. 29 CFR 1910.213(h)(1) and (g)(1) are\t\t\t\t\t\t\t\t\t\tinvalid and unenforceable.\t\t\t\t\t\t\t\t\t\tV\t\t\t\t\t\t\t\t\t\tCitations for Serious Violation Nos. 1 and 2, dated February 28, 1973, and Citation No.\t\t\t\t\t\t\t\t\t\t1, Item 13 thereof, and proposed penalties should be vacated.\t\t\t\t\t\t\t\t\t\tVI\t\t\t\t\t\t\t\t\t\tCitation for Serious Violation No. 3, dated February 28, 1973 should be affirmed as a\t\t\t\t\t\t\t\t\t\tnon-serious violation. The penalty therefor should be $50.00.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tBased upon the foregoing,\t\t\t\t\t\t\t\t\t\tIT IS HEREBY ORDERED THAT:\t\t\t\t\t\t\t\t\t\tI\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tCitation for Serious Violation No. 3, dated February 28, 1973 is hereby affirmed as a\t\t\t\t\t\t\t\t\t\tnon-serious violation. A civil penalty of $50.00 is assessed.\t\t\t\t\t\t\t\t\t\tII\t\t\t\t\t\t\t\t\t\tCitations for Serious Violation Nos. 1 and 2 and Citation No. 1, Item 13, and the\t\t\t\t\t\t\t\t\t\tproposed penalties therefor are hereby Vacated.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDated: July 18, 1974\t\t\t\t\t\t\t\t\t\tGARL WATKINS\t\t\t\t\t\t\t\t\t\tJudge\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tAPPENDIX\t\t\t\t\t\t\t\t\t\tCITATION FOR SERIOUS VIOLATION NO. 1\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tStandard or regulation allegedly violated\t\t\t\t\t\tDescription of alleged violation\t\t\t\t\t\t\t\t\t\t29 CFR 1910.213(g)(1)\t\t\t\t\t\tJanuary 23, 1973\t\t\t\t\t\t\t\t\t\tThe radial arm saw in the carpenters shop does\t\t\t\t\t\t\t\t\t\tnot have a saw guard that completely encloses\t\t\t\t\t\t\t\t\t\tthe sides and full diameter of the blade.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR 1910.213(g) (1)\t\t\t\t\t\tThe swing saw, at the rip saw station, did not\t\t\t\t\t\t\t\t\t\thave a guard that completely enclosed the saw\t\t\t\t\t\t\t\t\t\tblade to include the point of operation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCOMPLAINT\t\t\t\t\t\t\t\t\t\t\u2018IV\t\t\t\t\t\t\t\t\t\tOn January 23, 1973, at the aforesaid worksite and place of business and employment,\t\t\t\t\t\t\t\t\t\tthe Respondent violated the safety and health regulations in the following respects:\t\t\t\t\t\t\t\t\t\t1. The radial arm saw in the carpenters shop does not have a saw guard that\t\t\t\t\t\t\t\t\t\tcompletely encloses the sides and full diameter of the blade, contrary to 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1910.213(h)(1);\t\t\t\t\t\t\t\t\t\t2. The swing saw, at the rip saw station, did not have a guard that completely\t\t\t\t\t\t\t\t\t\tenclosed the saw blade to include the point of operation, contrary to 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1910.213(g)(1);\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSTANDARDS\t\t\t\t\t\t\t\t\t\t\u20181910.213 Woodworking machinery requirements.\t\t\t\t\t\t\t\t\t\t(h) Radial saws.\t\t\t\t\t\t\t\t\t\t(1) The upper hood shall completely enclose the upper portion of the blade down\t\t\t\t\t\t\t\t\t\tto a point that will include the end of the saw arbor. The upper hood shall be\t\t\t\t\t\t\t\t\t\tconstructed in such a manner and of such material that it will protect the operation\t\t\t\t\t\t\t\t\t\tfrom flying splinters, broken saw teeth, etc., and will deflect sawdust away from\t\t\t\t\t\t\t\t\t\tthe operator. The sides of the lower exposed portion of the blade shall be guarded\t\t\t\t\t\t\t\t\t\tto the full diameter of the blade by a device that will automatically adjust itself to\t\t\t\t\t\t\t\t\t\tthe thickness of the stock and remain in contact with stock being out to give\t\t\t\t\t\t\t\t\t\tmaximum protection possible for the operation being performed.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u20181910.213 Woodworking machinery requirements.\t\t\t\t\t\t\t\t\t\t(g) Swing cutoff saws.\t\t\t\t\t\t\t\t\t\t(1) Each swing cutoff saw shall be provided with a hood that will completely\t\t\t\t\t\t\t\t\t\tenclose the upper half of the saw, the arbor end, and the point of operation at all\t\t\t\t\t\t\t\t\t\tpositions of the saw. The hood shall be constructed in such a manner and of such\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tmaterial that it will protect the operator from flying splinters and broken saw\t\t\t\t\t\t\t\t\t\tteeth. Its hood shall be so designed that it will automatically cover the lower\t\t\t\t\t\t\t\t\t\tportion of the blades, so that when the saw is returned to the back of the table the\t\t\t\t\t\t\t\t\t\thood will rise on top of the fence, and when the saw is moved forward the hood\t\t\t\t\t\t\t\t\t\twill drop on top of and remain in contact with the table or material being cut.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPROPOSED PENALTY: $550.00\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCITATION FOR SERIOUS VIOLATION NO. 2\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tStandard or regulation allegedly violated\t\t\t\t\t\tDescription of alleged violation\t\t\t\t\t\t\t\t\t\t29 CFR 1910.219(c)(5)\t\t\t\t\t\tJanuary 23, 1973\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThere was no protective guardrail or barricade\t\t\t\t\t\t\t\t\t\tat the cable drum that runs the carriage of the\t\t\t\t\t\t\t\t\t\tband saw; cable drum was located next to the\t\t\t\t\t\t\t\t\t\telectrical panel under the sawmill.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCOMPLAINT\t\t\t\t\t\t\t\t\t\t\u2018IV\t\t\t\t\t\t\t\t\t\t3. There was no protective guardrail or barricade at the cable drum that runs the\t\t\t\t\t\t\t\t\t\tcarriage of the band saw; cable drum was located next to the electrical panel\t\t\t\t\t\t\t\t\t\tunder the sawmill, contrary to 29 C.F.R. 1910.219(c)(5);\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSTANDARD\t\t\t\t\t\t\t\t\t\t\u20181910.219 Mechanical power-transmission apparatus.\t\t\t\t\t\t\t\t\t\t(c) Shafting\t\t\t\t\t\t\t\t\t\t(5) Power-transmission apparatus located in basements. All mechanical power\t\t\t\t\t\t\t\t\t\ttransmission apparatus located in basements, towers, and rooms used exclusively\t\t\t\t\t\t\t\t\t\tfor power transmission equipment shall be guarded in accordance with this\t\t\t\t\t\t\t\t\t\tsection, except that the requirements for safeguarding belts, pulleys, and shafting\t\t\t\t\t\t\t\t\t\tneed not be complied with when the following requirements are met:\t\t\t\t\t\t\t\t\t\t(i) The basement, tower, or room occupied by transmission equipment is locked\t\t\t\t\t\t\t\t\t\tagainst unauthorized entrance.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(ii) The vertical clearance in passageways between the floor and power\t\t\t\t\t\t\t\t\t\ttransmission beams, ceiling, or any other objects, is not less than five feet six\t\t\t\t\t\t\t\t\t\tinches (5 ft.6 in.).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(iii) The intensity of illumination conforms to the requirements of ANSI A11.1\u2013\t\t\t\t\t\t\t\t\t\t1965 (R\u20131970).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(iv) The footing is dry, firm, and level.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(v) The route followed by the oiler is protected in such manner as to prevent\t\t\t\t\t\t\t\t\t\taccident.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPROPOSED PENALTY: $550.00\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCITATION FOR SERIOUS VIOLATION NO. 3\t\t\t\t\t\t\t\t\t\tStandard or regulation allegedly violated\t\t\t\t\t\tDescription of alleged violation\t\t\t\t\t\t\t\t\t\t29 CFR 1910.219(f)(3)\t\t\t\t\t\tJanuary 23, 1973\t\t\t\t\t\t\t\t\t\tThere was no guard on a section of chains and\t\t\t\t\t\t\t\t\t\tsprocket of the live rolls behind the pony rig at\t\t\t\t\t\t\t\t\t\tthe walkway to the steps that cross over the\t\t\t\t\t\t\t\t\t\tlive rolls.\t\t\t\t\t\t\t\t\t\tCOMPLAINT\t\t\t\t\t\t\t\t\t\t\u2018IV\t\t\t\t\t\t\t\t\t\t4. There was no guard on a section of chains and sprocket of the live rolls behind\t\t\t\t\t\t\t\t\t\tthe pony rig at the walkway to the steps that cross over the live rolls, contrary to\t\t\t\t\t\t\t\t\t\t29 C.F.R. 1910.219(f)(3).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSTANDARD\t\t\t\t\t\t\t\t\t\t\u20181910.219 Mechanical power-transmission apparatus.\t\t\t\t\t\t\t\t\t\t(f) Gears, sprockets, and chains\u2014\t\t\t\t\t\t\t\t\t\t(3) Sprockets and chains. All sprocket wheels and chains shall be enclosed unless\t\t\t\t\t\t\t\t\t\tthey are more than seven (7) feet above the floor or platform. Where the drive\t\t\t\t\t\t\t\t\t\textends over other machine or working areas, protection against falling shall be\t\t\t\t\t\t\t\t\t\tprovided. This subparagraph does not apply to manually operated sprockets.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPROPOSED PENALTY: $500.00\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCITATION NO. 1 (Non-Serious)\t\t\t\t\t\t\t\t\t\tItem No.\t\t\t\t\t\tStandard or regulation allegedly\t\t\t\t\t\tDescription of alleged violation\t\t\t\t\t\t\t\t\t\tviolated\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t13\t\t\t\t\t\t13 29 CFR 1910.265(i)\t\t\t\t\t\tJanuary 23, 1973\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1. There was no fire extinguisher in the shop\t\t\t\t\t\t\t\t\t\tarea where there was flammable material and\t\t\t\t\t\t\t\t\t\telectrical equipment. 2. Fire extinguisher in\t\t\t\t\t\t\t\t\t\tthe yellow truck at the shop was empty. 3.\t\t\t\t\t\t\t\t\t\tFire extinguisher on the wall of the outfeed at\t\t\t\t\t\t\t\t\t\tPlaner was empty.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCOMPLAINT\t\t\t\t\t\t\t\t\t\t\u2018V.\t\t\t\t\t\t\t\t\t\tOn January 23, 1973, at the aforesaid worksite and place of business and employment,\t\t\t\t\t\t\t\t\t\tthe Respondent further violated the safety and health regulations in the following respects:\t\t\t\t\t\t\t\t\t\t1. There was no fire extinguisher in the shop area where there was flammable\t\t\t\t\t\t\t\t\t\tmaterial and electrical equipment;\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. Fire extinguisher In the yellow truck at the shop was empty; and,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3. Fire extinguisher on the wall of the outfeed at planer was empty,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAll contrary to 29 C.F.R. 1910.265(i).\t\t\t\t\t\t\t\t\t\tSTANDARD\t\t\t\t\t\t\t\t\t\t1910.265 Sawmills.\t\t\t\t\t\t\t\t\t\t(i) Fire protection. The requirements of Subpart L of this part shall be complied\t\t\t\t\t\t\t\t\t\twith in providing the necessary fire protection for sawmills.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPROPOSED PENALTY: $25.00\t\t\t\t\t\t\t\t\t\t\t\t\t”