“SECRETARY OF LABOR,Complainant,v.OHIO-SEALY MATTRESS MANUFACTURING Co.,Respondent.OSHRC DOCKET NO. 79-5600_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:The Secretary of Labor issued a citation alleging that between August 22and September 7, 1979, Ohio-Sealy Mattress Manufacturing Companyviolated the air contaminant standard at 29 C.E.R. ? 1910-1000. Thestandard requires that feasible engineering or administrative controlsbe implemented and that personal protective equipment be used whenaverage airborne concentrations of raw cotton dust reach a certainlevel. Ohio-Sealy argues that the citation should be vacated on thegrounds that: (1) the standard was no longer in effect when the allegedviolation occurred; or (2) Ohio-Sealy lacked fair notice that thestandard was in effect. Administrative Law Judge Patton rejectedOhio-Sealy’s argument. The Commission granted a petition forinterlocutory appeal. It is concluded that the standard was in effectand that Ohio- Sealy had fair notice that it was in effect. Accordingly,the judge’s ruling is affirmed and the case is remanded for a hearing onthe merits.IAThe Secretary alleged that Ohio-Sealy had exceeded the exposure limitfor raw cotton dust in Table Z-1 of section 1910.1000 and had violated29 C.F.R. ? 1910.1000(a)(2) and (e). These provisions, which shall bereferred to as \”the old cotton dust standard,\” were first adopted underthe Walsh-Healey Public Contracts Act, 41 U.S.C. ?? 35-45; they wereadopted in 1971 as an occupational safety and health standard under 29U.S.C. ? 655(a), section 6(a) of the Occupational Safety and Health Actof 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).[[1\/]] The old standard statesin part:? 1910.1000 Air contaminants.An employee’s exposure to any materials listed in table Z-1 . . . ofthis section shall be limited in accordance with the requirements of thefollowing paragraphs of this section.(a) Table Z-1:* * *(2) Other materials–8-hour time weighted averages. An employee’sexposure to any material in table Z-1 . . . in any 8-hour work shift ofa 40-hour work week, shall not exceed the 8-hour time weighted averagegiven for that material in the table.* * *(e) To achieve compliance with paragraph (a) through (d) of thissection, administrative or engineering controls must first be determinedand implemented whenever feasible. When such controls are not feasibleto achieve full compliance, protective equipment or any other protectivemeasures shall be used to keep the exposure of employees to aircontaminants within the limits prescribed in this section….The 8-hour time weighted average given by Table Z-1 for \”cotton dust(raw)\” is one milligram per cubic meter of air (1 mg.\/m3), which isequivalent to 1000 micrograms per cubic meter (ug.\/m3). Item 1B of thecitation alleged a violation of section 1910.1000(a)(2) in thatemployees were exposed to average airborne concentrations of raw cottondust greater than the level permitted by Table Z-1. Item 1C of thecitation alleged a violation of section 1910.1000(e) for failure todetermine and implement feasible administrative or engineering controls.Item 1A alleged that Ohio-Sealy did not establish and maintain arespiratory protection program, contrary to tie requirements of 29C.F.R. ? 1910.134(a)(2). Raw cotton dust levels were alleged to havebeen measured at 4646, 1873 and 1155 ug.\/m3.BThe arguments of Ohio-Sealy and the amici[[2\/]] turn on eventssurrounding the Secretary’s adoption of the new cotton dust standard. OnJune 23, 1978, the Secretary published a new cotton dust standard,section 1910.1043, and announced an effective date of September 4, 1978.43 Fed..Reg. 27,350 (1978). The new standard required employers to takevarious measures such as monitoring, engineering and work practicecontrols, respiratory protection, medical surveillance and employeeeducation and training. Within four years, employers were required tomeet the applicable permissible exposure limit (\”PEL\”) by implementingfeasible engineering and work practice controls. Sections 1910.1043(e),(m)(2)(ii), as published at 43 Fed.,Reg. 27,395 and 27,398. The newstandard prescribed three permissible exposure levels: 200 ug.\/m3 foryarn manufacturing (which includes all textile operations exceptslashing and weaving); 750 ug.\/m3 for slashing and weaving; and 500ug.\/m3 for all other operations, including non-textile operations suchas mattress manufacturing. Section 1910.1043(c). The Secretary did notconsider the difference between the new standard’s PEL for non-textileoperations (500 ug.\/m3 ) and the old standard’s PEL (1000 ug.\/m3) torepresent an upgrading of protection for non-textile employees. The newstandard regulates only the \”lint-free respirable\” portion of allworkplace dust[[3\/]] and the old standard regulated all workplacedust.[[4\/]] Accordingly, the Secretary concluded that the new standard’sPEL would be \”roughly equivalent\” in non-textile workplaces to the limitset by the old standard. 43 Fed. Reg. at 27,361.The Secretary also announced the addition of the following footnote tothe entry for \”cotton dust (raw)\” in Table Z-1 of the old standard:This standard applies in cotton yarn manufacturing until compliance with? 1910.1043(c) and (e) is achieved.Id. at 27,394. (Subsection (c) of the new standard contains the PELs;subsection (e) requires that engineering and work practice controls beused to reach the applicable PEL).The Secretary set September 4, 1978 as the effective date for the newstandard. Id. at 27,350. Had the new standard gone into effect onSeptember 4, 1978, a non-textile employer would have been required to:initially monitor employee exposure to cotton dust \”as soon as possiblebut no later than March 4, 1979,\” section 1910.1043(m)(2)(i); completeinitial employee education and training \”as soon as possible but nolater than December 4, 1978,\” section 1910.1043(m)(2)(vii); provide andassure the use of respirators no later than October 4, 1978, section1910.1043(m)(2)(iv); employ work practices required by 1910.1043(g) nolater than December 4, 1978, section 1910.1043(m)(2)(v); completemedical surveillance of employees no later than September 4, 1979,section 1910.1043(m)(2)(vi); prepare a compliance program forimplementing engineering and work practices controls required by section1910.1043(e) no later than September 4, 1979, section1910.1043(m)(2)(iii); and implement those engineering and work practicecontrols by September 4, 1982. Section 1910.1043(m)(2)(ii).After the new standard was published, the Secretary received a requestfor an administrative stay of the new standard from two of the amicicuriae before us, the National Cotton Batting Institute and the TextileFibers and By-Products Association. The two trade associations broughtto the Secretary’s attention a draft report of a recent study on themagnitude of the dangers posed by cotton dust in mattress plants. OnSeptember 1, 1978, three days before the new standard was to go intoeffect, the Secretary suspended the effective date of the new standardas to certain non-textile industries, including mattress manufacturing,until the study was reviewed. 43 Fed. Reg. 39,087 (1978).Several national trade associations, including one of the amici beforeus, the National Association of Bedding Manufacturers (\”NABM\”), of whichOhio-Sealy is a member, as well as representatives of affectedemployees, petitioned the United States Court of Appeals for theDistrict of Columbia Circuit for review of the new standard. On October20, 1978, the court granted a motion to stay the \”entire\” new standarduntil the court issued a decision on the merits. On November 1, 1978,the court severed all petitioners affected by the Secretary’s suspensionof the new standard as a result of the administrative stay. The fivesevered petitions, including NABM’s petition, were reconsolidated underthe name NABM v. Marshall, No. 78-1784.The court’s subsequent decision upholding the new standard as to otherpetitioners did not dispose of the NABM case. See AFL-CIO v. Marshall,617 F.2d 636, 634 n. 1 (D.C. Cir. 1979), aff’d in part and rev’d in partsub nom. American Textile Manufacturers Institute v. Donovan, 452 U.S.490 (1981). On March 30, 1982, at the request of the Secretary, theDistrict of Columbia Circuit remanded the record in the NABM case to theSecretary and ordered that he report on his reconsideration of therecord at 120–day intervals. Thus, there has not been a decision by thecourt on the merits and the court’s stay of the new standard remains ineffect as to non-textile employers.On January 26, 1979, the Secretary lifted the administrative suspensionand announced that the new standard would become effective on March 4,1979. 44 Fed..Reg. 5,438-5,440 (1979). The Secretary also noted thatalthough his \”notice reinstates the application of the [new] cotton duststandard the District of Columbia Circuit had stayed the effective dateof the new standard pending a decision on the merits. He thereforestated that the lifting of the administrative stay would not affectcertain non-textile industries, including mattress manufacturing, whilethe judicial stay is in force.On September 13, 1979, the Secretary issued this citation to Ohio Sealy,alleging that violations of the old standard occurred between August 22,1979, and September 7, 1979.IIDismissal of this citation is sought on the grounds that the new cottondust standard amended and superseded the earlier standard originallypromulgated in 1971 and that citation for a violation of the oldstandard is unauthorized. Ohio-Sealy asserts that the Secretary, as partof the promulgation of the new standard, revoked the old standard as tonontextile industries by limiting its applicability to the varnmanufacturing industry. Ohio-Sealy also maintains that any enforcementof the old standard in the non-textile industries must be preceded bynotice of the standard’s applicability to these industries because thenew standard had become enforceable in the textile industry until it wasJudicially stayed on October 20, 1978. Furthermore, Ohio-Sealy arguesthat any decision to reconstitute the old standard and apply it tonon-textile employers requires formal action by the Secretary.AUnder section 6(b) of the Act \”[t]he Secretary may by rule promulgate,modify, or revoke any occupational safety or health standard . . . .\” 29U.S.C. ? 655(b). See generally Industrial Union Dep’t, AFL-CIO v.American Petroleum Institute, 448 U.S. 607 (1980) (benzene standard);American Textile Manufacturers Institute v. Donovan, 452 U.S. 490 (1981)(cotton dust standard). In order to revoke a standard the Secretary mustpublish a proposed rule in the Federal Register, allow 30 days forwritten comments and a public hearing if requested, and then decidewithin 60 days whether the proposed revocation should take effect. 29U.S.C. ?? 665(b)(2), (3). (4); Synthetic Organic Chemical ManufacturersAss’n v. Brennan, 506 F.2d 385, 388-89 (3d Cir. 1974), cert. denied, 420U.S. 973, 423 U.S. 830, reh’g denied, 423 U.S. 886 (1975); seeIndustrial Union Dep’t, AFL-CIO v. Hodgson, 499 F.2d 467, 470-71 (D.C.Cir. 1974); Florida Peach Growers Ass’n v. U.S. Dep’t of Labor, 489 F.2d120, 124 (5th Cir. 1974). Moreover, the Commission has made it clearthat the same rulemaking proceedings required for adoption of a standardare also required for its modification. See United States Steel Corp.,77 OSAHRC 12\/C3, 2 BNA OSHC 1343, 1974-75 CCH OSHD ?19,047 (Nos. 2975 &4349, 1974) (alternate holding); Koppers Co., Inc., 77 OSAHRC 44\/A4, 2BNA OSHC 1354, 1974-75 CCH OSHD ?19,063 (No. 3449, 1974).Neither the preamble nor the ordering clause of the new cotton duststandard contains any language expressly revoking the old cotton duststandard.[[5\/]] In fact, Table Z-1 of section 1910.1000 retains thepermissible exposure level for cotton dust originally promulgated in1971. This contrasts with the deletion of permissible exposure levelsfrom the tables of 29 C.F.R ? 1910.1000 when the Secretary haspromulgated a new standard for a specific toxic substance and intendsthe new standard to have universal application. Eg., OccupationalExposure to Inorganic Arsenic, 43 Fed. Reg. 19,584, 19,624 (1978)(deletion of entries for inorganic arsenic from Table Z-1); OccupationalExposure to Acrylonitrile, 43 Fed. Reg. 45,762, 46,809 (1978) (deletionof acrylonitrile entry from Table Z-1); Occupational Exposure to Lead,43 Fed. Reg. 52,952, 53,007 (1978) (deletion of permissible exposurelevels for lead and its inorganic compounds from Table Z-2); EmergencyTemporary Standard for Exposure to Vinyl Chloride, 39 Fed. Reg. 12,342,12,343 (1974) (deletion of vinyl chloride entry from Table G-1);[[6\/]]Standard for Exposure to Asbestos Dust, 37 Fed. Reg. 11,318, 11,319-20(1972) (deletion of asbestos entry from Table G-3: Mineral Dusts).BDespite the absence of any express revocation in the newly promulgatedstandard, Ohio-Sealy argues that the preamble to the new standardindicates that the Secretary intended to revoke the old standard as toits industry regardless of whether the new standard actually becameeffective. Therefore the issue is whether, in the absence of an expressrevocation, there was an implied revocation conditioned on theeffectiveness of the new standard or an implied revocation notconditioned on the effectiveness of the new standard.Well-settled rules of interpretation provide the basis for analyzingthis interpretive issue. In the exercise of the Commission’sadjudicatory authority, the same rules of interpretation are applicableto administrative regulations and statutes. See Rucker v. WabashRailroad Co., 418 F.2d 146, 149 (7th Cir. 1969). See generally 1ASutherland, Statutes and Statutory Construction ? 31.06 (4th ed. 1972)(C. Sands, ed.). In this case, both the old and new standards literallyapply to cotton dust exposure in the non-textile industries.In confronting a similar problem involving two statutes governingwildlife refuges, the Supreme Court recently stated:[W]e decline to read the statutes as being in irreconcilable conflictwithout seeking to ascertain the actual intent of Congress. Ourexamination of the legislative history is guided by another maxim:\”repeals by implication are not favored,\” Morton v. Mancari, 417 U.S.535, 549 (1974) quoting Posadas v. National City Bank, 296 U.S. 497, 503(1936).Watt v. Alaska, 101 S.Ct. 1673, 1678 (1981). The Court continued:\”The intention of the legislature to repeal must be ‘clear andmanifest.’\” United States v. Borden Co., 308 U.S. 188,198 . . . (1939)quoting Red Rock v. Henry, 106 U.S. 596, 602 . . . (1882). We must readthe statutes to give effect to each if we can do so while preservingtheir sense and purpose. Mancari, supra, 417 U.S., at 551; see HaggarCo. v. Helvering, 308 U.S. 389, 394 . . . (1940).101 S.Ct. at 1678; see also St. Martin Evangelical Lutheran Church v.South Dakota, 101 S.Ct. 2142, 2152 (1981). An irreconcilable conflictbetween earlier and later legislation is never presumed. Instead, aconsistent and harmonious interpretation is preferred, particularly whenthe effect of the later action on the earlier legislation is doubtful.Accordingly, the presumption against implied repeal must be overcome bya \”clear and manifest\” showing by the party claiming the revocation.Watt v. Alaska supra; see generally 1A Sutherland, supra, at ? 23.10.Application of this presumption is not dependent on whether therevocation is conditional or unconditional. This presumption isreinforced when no express revocatory action has been taken understatutory authority expressly providing for it. See 29 U.S.C. ? 655(b);Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1111 (7thCir. 1982).Under the facts of this case, this presumption has not been overcome.Obviously, an orderly and harmonious transition between the old and newstandards was intended by the Secretary. In the opening paragraph of thenew cotton dust standard, the Secretary declared: \”To provide continuedprotection for employees until the provisions of the new standard becomeeffective, the requirements pertaining to cotton dust currentlycontained in ? 1910.1000 Table Z-1 remain in full force and effect until? 1910.1043 becomes effective.\” 43 Fed. Reg. 27,350 (Emphasis added).The new standard specifically applies to both the textile andnon-textile industries. See 43.Fed. Reg. 27,360-66 (1978).The preamble contains other expressions of the Secretary’s intent toprovide continued protection for employees in the non-textile industryas well as the textile industry. For example:OSHA has reason to believe that 500 ug\/m3 is roughly equivalent to 1.0mg\/m3 measured by an OSHA personal sampler or high volume sampler in thespectrum of non-textile workplaces. Thus, the new standard is about asprotective of health as the old standard, and OSHA would require muchmore definitive data than has been presented to justify a relaxation ofprotection.OSHA also notes that Dr. Merchant testified that in his opinion a 500ug\/m3 level was an appropriate one for the non-textile industry . . .and that other witnesses stated that a low level was needed in nontextile operations.Id. at 27,361 (citations omitted). In discussing the requirements ofrespiratory protection during the initial monitoring period under thenew standard, OSHA stated, \”The agency has concluded that employeesshould be protected from exposure to cotton dust throughout this periodrather than waiting for the results of initial monitoring.\” Id. at 27,386.Ohio-Sealy argues that two passages in the Federal Register indicatethat the Secretary contemplated unconditional abandonment of the oldstandard with respect to non-textile workers. One passage is anamendment to the old standard by the addition of the following footnote:This standard [for cotton dust (raw)] applies in cotton yarnmanufacturing until compliance with ? 1910.1043(c) and (e) [of the newstandard] is achieved. 29 C.F.R. ? 1910.1000, Table Z-1. Ohio-Sealyargues that the old standard would not apply to it after September 3,1978, because it is not engaged in cotton yarn manufacturing. Theexpress language of the footnote simply indicates a transition betweenthe old and new standards for the cotton yarn manufacturing industry.During the 4 year period allowed under the new standard for thedevelopment of engineering and work practice controls to achievecompliance with the 200 ug\/m3 permissible exposure level, thepermissible exposure level of 1000 ug\/m3 continues to apply[[7\/]] Forthe cotton yarn manufacturing industry, OSHA has considered the uniqueproblems of this specific industry and exercised its discretion to delaythe requirements for engineering and work practice controls specified bythe new standard. See United Steelworkers of America v. Marshall, 647F.2d 1189, 1310 (D.C. Cir. 1980). Although this footnote is specificallyaddressed to cotton yarn manufacturing, Ohio-Sealy argues that theCommission must infer that the footnote signifies a revocation of theold standard as to non-textile employers without regard to the fate ofthe new standard. That this inference cannot be drawn is clear from thefollowing passage in the preamble relied on by Ohio-Sealy:The current [old] standard, however, will not continue in effect . . .in the non-textile segment of the industry after the new cotton duststandard becomes effective. As to non-textiles, case law developed fromefforts to enforce the current standard has generally been adverse. OSHAhas concluded therefore, that the continued application of the currentstandard to these employers would serve no useful purpose.43 Fed. Reg. at 27,381. This text explains the compliance responsibilityof the non-textile industry during the four- year period established forthe implementation of the technological controls required by the newstandard. The phrase \”after the new cotton dust standard becomeseffective\” is central to the interpretation of this paragraph. It makesthe operative language– \”will not continue in effect\”– conditional onthe \”effective\” status of the new standard. [[8\/]] The suspension of theold standard is predicated on a future contingency.[[9\/]]The Secretary’s rationale for the suspension of the old standarddescribed in the first sentence of the paragraph is expressed in thelast two sentences of the paragraph describing the conditionalrevocation. The Secretary announced that he would forego furtherenforcement efforts under the old standard based on two interrelatedconsiderations — the Secretary’s estimate of the probability of successin enforcing the old standard under the Commission’s \”adverse\” case lawcoupled with the prospective enforcement of the new standard. As aconsequence, the Secretary reasonably concluded that continuedenforcement of the old standard during the four year period commencingwith the effective date of the new standard would serve \”no useful purpose.\”However, on the application of amici, the Secretary stayed the effectivedate of the new standard as to certain non-textile industries, includingmattress manufacturers, on September 1, 1978 — three days before theeffective date of the new standard. 43 Fed. Reg. 39,087 (1978).[[10\/]]Accordingly, the condition precedent to revocation never occurred.Certainly, the preamble is not free from ambiguity. However, ambiguitydoes not equate with implied, unconditional revocation. When thestandard and the preamble are treated as an integrated whole andinterpreted in the context of the remedial purpose of this statute, no\”clear and manifest\” intent to unconditionally revoke the old standardon September 4, 1978, can be found.[[11\/]]CIn addition to the administrative stay issued by the Secretary onSeptember 1, 1978, the United States Court of Appeals for the Districtof Columbia Circuit entered a judicial stay of the entire standard onOctober 20, 1978 at the request of industry petitioners including theNational Association of Bedding Manufacturers, an amicus curiae in thiscase. That stay was lifted as to the textile industry following judicialreview. AFL-CIO v. Marshall, Nos. 78-1562 etc. (D.C. Cir. January 11,1980) (order lifting judicial stay), enforcing 617 F.2d 636 (1979),aff’d in part and rev’d in part sub nom. American Textile ManufacturersInstitute, Inc. v. Donovan, 452 U.S. 490 (1981). However, the judicialstay has not been lifted with respect to bedding manufacturers. Thus,the new standard became effective in the textile industry forapproximately 6 weeks in 1978 and again in 1980 following the judicialdecision in 1979, 45 Fed. Reg. 12,416 (1980). However, the new standardhas never become effective for Ohio-Sealy’s non-textile industry and thecourt was presumably aware that the preamble conditioned the revocationof the old standard on the effective date of the new standard.[[12\/]]Ohio-Sealy argues that the judicial stay of the new standard operatesonly with respect to the regulatory requirements of the new standard andnot the implied revocation of the old standard. In other words, theimplied revocation was severable from the remainder of the standard andthe judicial stay restrained only the enforcement of the new standard,not the implied revocation of the old standard. This analysis overlooksseveral important considerations. First, the revocation of the oldstandard was pre-conditioned on the enforceability of the new standard.Thus, the implied revocation is not severable from the effectiveness ofthe new standard. See American Petroleum Institute v. OSHA, 581, F.2d493, 496 n.6, 498 (5th Cir. 1978), aff’d on other grounds subnom.Industrial Union Dep’t, AFL-CIO v. American Petroleum Institute, 448U.S. 607 (1980). Second, a pre-enforcement judicial stay restores thestatus quo existing before the promulgation of the new standard andoperates to \”postpone the effective date of an agency action or topreserve status or rights\” pending on judicial review. 5 U.S.C. ? 705;Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc.,559 F.2d 841, 842 n.1, 844-45 (D.C. Cir. 1977); see American HospitalAss’n v. Harris, 625 F.2d 1328 (7th Cir. 1980)(suit to enjoin operationof hospital regulations promulgated by U.S. Dep’t of HEW); Morgan v.Fletcher, 518 F.2d 236, 239 (5th Cir. 1975)(suit to enjoin dismissal offederal employee). See generally L. Jaffe, Judicial Control ofAdministrative Action ch. 18 (1965). In this case, the status quo beforethe new standard would become effective included the continuingstatutory obligation to comply with the old standard. Accordingly, thejudicial stay of the new standard operates to continue theenforceability of the old standard.DOhio-Sealy attempts to draw a distinction between the new standard’s\”effective date\” and its \”effectiveness\” in the sense of its\”enforceability.\” It reasons that: (1) the new standard’s effective datewas never stayed because the term \”effective date\” signifies the datethat the Code of Federal Regulations is amended to reflect a new rule;(2) the CFR was amended; and (3) the only effect of the administrativeand judicial stays was to suspend the enforceability of the newstandard. To say that this argument elevates form over substance is torisk understatement. The term \”effective date\” refers to the date when arule has a legal effect on rights and duties. As to non-textileemployers, the new standard and the revocation of the old standard havenever become effective. In addition, the Federal Register Act makescodification in the CFR only prima facie evidence that a regulation isin effect. 44 U.S.C. ?1510(e).[[13\/]] Thus, the CFR publication does notnegate the impact of the administrative and judicial stays on theeffective date.Similarly, Ohio-Sealy argues that because the 1978, 1979, and 1980editions of the CFR reflect the addition of the footnote to Table Z-1 ofthe old standard regarding the cotton yarn manufacturing industry, itreasonably concluded that it was not required to comply with the oldstandard. Ohio-Sealy’s argument is unconvincing. Although the newstandard also appeared in these editions of the CFR, Ohio-Sealy does notclaim that it believed it had to comply with the new standard.Ohio-Sealy obviously knew of the stays of the effective date of the newstandard and therefore knew that the CFR did not reflect the newstandard’s legal status.IIIOhio-Sealy and NABM also urge dismissal of the citation in this case onthe ground that fair notice of the enforceability of the old standardwas not provided because the \”adverse case law\” referenced in thepreamble to the new standard precluded the old standard’s applicabilityto the non-textile industry. [[14\/]] Several Commission cases are citedin support of the asserted inapplicability of the old standard.AInitial reliance is placed on an administrative law judge’s decision inBuckeye Cellulose Corp., 73 OSAHRC 36\/A2, 1 BNA OSHC 3116, 1971-73 CCHOSHD ? 16,313 (No. 1919, 1973). However, this unreviewed judge’sdecision is without precedential value. Eg., Leone Construction Co., 76OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD ? 20,387 (No. 4090,1976). Furthermore, in Buckeye Cellulose Judge Patton noted testimonythat \”cotton linters\” [[15\/]] are used in the manufacture of mattressesand ruled that cotton linters are not covered by the old standard. 73OSAHRC at 36\/A13-A16. Judge Patton did not rule that all mattressmanufacturers process only cotton linters or that their employees arenever exposed to substances covered by the old standard. The judge hadno occasion to rule on these issues because the employer in that casewas a cellulose manufacturer, not a mattress manufacturer. Thus, thefacts in Buckeye Cellulose are distinguishable from the facts in thiscase. Accordingly, the argument that Ohio-Sealy lacked notice of theapplicability of the old standard to its mattress manufacturing facilitybased on the judge’s decision in Buckeye Cellulose is without foundation.The next cited authority is Traders Oil Mill Co., 75 OSAHRC 29\/D9, 2 BNAOSHC 1508, 1974-75 CCH OSHD ?19,216 (No. 2873, 1975). However, purelyprocedural grounds were the basis for the Commission’s decision in thatcase. The Respondent had attached an affidavit to its motion for summaryjudgment stating that it was engaged solely in processing cottonseed andnot in processing raw cotton in any manner. The Secretary did not file acounter-affidavit or present any contrary evidence at the hearing on themotion. Counsel for the Secretary merely stated that if a trial wereheld on the citation he would produce evidence in conflict with theaffidavit. The Commission majority ruled that the judge properly refusedto consider the Secretary’s unsupported factual assertion in grantingthe Respondent’s motion for summary judgment. The Commission stated:Once an affidavit is filed showing that there is no triable issue, theadversary party must respond by counter-affidavit or otherwise presentcompetent evidence to demonstrate that there is a triable issue.Complainant did not do this.Consequently, we affirm the disposition ordered by the Judge.2 BNA OSHC at 1509, 1974-75 CCH OSHD at p. 22,970. The Commissionneither held nor intimated that the old standard was inapplicable tocottonseed processing. The reference to Buckeye Cellulose is merely arecitation of one of Respondent’s bases for its motion for summaryjudgment. There is no reference to Buckeye Cellulose in the substantiveholding or rationale of Traders Oil Mill. Thus, there is no substantivebasis in Traders Oil Mill for the contention that the old standard wasinapplicable. [[16\/]]In addition, the dissent in Traders Oil Mill makes it clear that themajority’s decision is purely procedural. Commissioner Clearystated that summary judgment should not have been granted because\”[t]here is plainly an issue of fact as to the nature of the dust inrespondent’s plant\” warranting a hearing on the merits and the judgeshould have granted a continuance to permit the Secretary to filecounter-affidavits. According to the dissent, the judge:.should not have made this important decision turn on what amounts to atechnicality. Possible exposure to the debilitating effects of cottondust contamination requires no less. The Commission’s protection of thepublic interest suggests that this be done. See Brennan v. OSHRC & JohnJ. Gordon, 492 F.2d 1027, 1032 (2d Cir. 1974).2 BNA OSHC at 1510, 1974-75 CCH OSHD at p. 22,971. Thus, CommissionerCleary recognized that Traders Oil Mill turned on \”what amounts to atechnicality\” — the lack of sworn evidence by the Secretary at themotion hearing. If a factual hearing is required to determine thecomposition of the dust in a non-textile plant as correctly urged by thedissent in Traders Oil Mill, no less is required regarding Ohio-Sealy’snon-textile plant. Indeed, it seems particularly implausible that theSecretary intended to immediately and unconditionally surrender anopportunity to prove that at least some non-textile operations generateraw cotton dust. Furthermore, the public interest in employee protectionagainst excessive cotton dust exposure identified by the dissent inTraders Oil Mill is no less important in this case. [[17\/]]The argument regarding the substantive value of Traders Oil MillandBuckeye Cellulose is also inconsistent with the Commission’s subsequentdecision in Deering Milliken, Inc., 78 OSAHRC 1O1\/A2, 6 BNA OSHC 2143,1978 CCH OSHD ?23,191 (No. 12597, 1978), aff’d, 630 F.2d 1094 (5th Cir.1980). In Deering Milliken, issued almost a year before the citation inthis case, the Commission relied on the testimony of Dr. Roach, theco-author of the byssinosis study that served as the scientific basisfor the old standard.[[18\/]] Dr. Roach testified that cotton dustincludes cellulose fibers among other things. 6 BNA OSHC at 2146, 1978CCH OSHD at p. 28,040 [[19\/]] The Commission held that the old standard\”is based on a measurement of total dust,\” 6 BNA OSHC at 2147, 1978 CCHOSHD at p. 28,040, and that the standard \”is applicable to anywork-place where cotton dust is present. Its applicability is notdependent on the materials or processes involved.\” 6 BNA OSHC at 2144n.4, 1978 CCH OSHD at p. 28,038 n.4. This case put Ohio-Sealy squarelyon notice that enforcement of the old standard was permissible in anyworkplace where cellulose fibers and the other components of cotton dustwere present. Certainly, the Commission would have overruled theTrader’s Oil Mill\/ Buckeye Cellulose line of cases if they contradictedthe substantive ruling in Deering- Milliken.[[20\/]]Moreover, the Fifth Circuit specifically rejected Deering Milliken’sclaim that it was not on reasonable notice that the old standard was atotal dust standard. It pointed out that prior to citing DeeringMilliken the Secretary had sought to enforce the old standard as a totaldust standard, and that Congress specifically had in mind the hazards ofexposure to all the dust generated by cotton processing when it passedthe Act. 630 F.2d at 1103-5, citing S. Rep. No. 91-1282, 91st Cong., 2dSess. 3. reprinted in 1970 U.S. Code Cong. & Ad. News 5177, 5179. \”Ifthere ever was any vagueness in the wording of the regulation, itshistory and the legislative intent behind its implementation as an OSHAmandate, coupled with the endorsement posture of the Secretary,dispelled that vagueness and rendered the meaning of section 1910.1000clear.\”630 F-2d at 1105.On this record, there is inadequate evidence to conclude that Ohio-Sealylacked fair notice that the old standard was enforceable at itsworkplace. The due process clause of the fifth amendment requires thatone be given fair notice of the requirements of the law. It does notrequire perfect notice. See Toy Manufacturers of America v. ConsumerProducts Safety Commission, 633 F.2d 70, 78 (2d Cir. 1980).IVIn the exercise of rulemaking authority, the Secretary has sought toestablish reasonable employer and employee expectations regarding theabatement of hazards resulting from employee exposure to cotton dust. The standard promulgated in 1978 represents more than a decade ofinitiative to bring this serious health hazard under control. S. Rep.No. 91-1282, 91st Cong., 2d Sess. 3, reprinted in 1970 U.S. Code Cong. &Ad. News 5177, 5179; 36 Fed. Reg. 10523 (1971)(promulgation of oldcotton dust standard); Nat’l Institute for Occupational Safety andHealth, U.S. Dep’t of Health, Educ. & Welfare, Criteria for aRecommended Standard Occupational Exposure to Cotton Dust (1974);Occupational Exposure to Cotton Dust: Final Standard, 43 Fed. Reg. 27350(1978). See American Textile Manufacturers Institute v. Donovan, 101S.Ct. 2478, 2483-88 (1981)(review of regulatory history). The Commissionalso establishes reasonable expectations through adjudicatoryinterpretations. In performing this statutory responsibility theCommission interprets standards to achieve the Congressional objectivesunderlying the Act. Brennan v. OSAHRC (Gerosa, Inc.), 491 F.2d 1340 (2dCir. 1974); McLean Trucking Co. v. OSAHRC, 503 F.2d 8 (4th Cir. 1974);Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974).Gradual improvement of employee safety and health is anticipated underthe statute as new standards build upon the advances of old standards.All earlier regulatory improvements are not risked every time there is anew regulatory advance. Furthermore, the Secretary may properlycondition the modification of an old standard on the effectiveness ofthe gradual improvement to be achieved by a new standard.This case is remanded for a hearing on the merits of the citation.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ) , telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386) FOOTNOTES:[[1\/]] The history of the old standard is further described in theCommission and court decisions in Deering-Milliken, Inc., 78 OSAHRC101\/A2, 6 BNA OSHC 2143, 1978 CCH OSHD ? 23,191 (No. 12597, 1978),aff’d, 630 F.2d 1094 (5th Cir. 1980).[[2\/]] The amici curiae in this case are the National Cotton BattingInstitute, the Textile Fibers and By-Products Association, the NationalAssociation of Bedding Manufacturers, the National Association ofFurniture Manufacturers and the Wolf Corporation.[[3\/]] See the definitions of \”cotton dust\” and \”lint-free respirablecotton dust\” in ? 1910.1043(b).[[4\/]] The Commission and the Fifth Circuit later adopted this view ofthe old standard in Deering-Milliken, note 1 supra.[[5\/]] Standards adopted under section 6(a) of the Act, such as the oldcotton dust standard, remain enforceable until modified or revoked by asection 6(b) rule. Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d1105, 1111 (7th Cir. 1982). In past revocations of these originalstandards, the Secretary has explicitly captioned the rulemaking actionas a \”revocation\” and summarized the action with the following phrase:\”[T]his final rule revokes . . . .\” Selected General Industry Safety andHealth Standards: Revocation, 43 Fed. Reg. 49,726 (1978). In addition,the preamble specifically identifies the standards or paragraph revokedby the promulgated rule, and indicates that \”[t]he revocations listedherein shall be effective as of\” a specific date. Eg., 43 Fed. Reg.49,744. Finally, in the ordering clause following the preamble eachrevocation is numerically identified:Accordingly, Part 1910 of 29 C.F.R. is amended as follows:. . .1. Paragraph (e)(3) of ?1910.23 is revoked.. . .43 Fed. Reg. at 49,744-31 (general industry standards: 607 separaterevocations and amendments) (emphasis added). Also 43 Fed. Reg.49,764-67 (special industry standards: 321 separate revocations andamendments). See Proposed Revocation of Advisory and RepetitiveStandards, 47 Fed. Reg. 23,477 (May 28, 1982).[[6\/]] Tables G-1 to G-3 were recodified as Tables Z-1 to Z-3 when ?1910.93 was recodified as ? 1910.1000. 40 Fed. Reg. 23,072 (1975).[[7\/]] Section 1910.1000 prescribes an 8 hour time-weighted permissibleexposure limit for raw cotton dust of no more than 1000 ug\/m and the useof protective equipment is required if engineering and administrativecontrols are infeasible or inadequate. 29 C.F.R. ? 1910.1000(e)incorporating by reference 29 C.F.R. ? 1910.134. Section 1910.1043contains an 8-hour time-weighted permissible exposure limit of 200 ug\/m3for cotton yarn manufacturing and allows employers 4 years to developthe necessary engineering and work practice controls. 29 C.F.R. ?1910.1043 (c)(1),(e). Compliance with that limit by means of respiratorsis enforceable thirty days after the effective date. 29 C.F.R. ?1910.1043(f)(2)(vi), (m)(2)(iv).The amici argue that ? 1910.1043 requires no limitations on employeeexposure to cotton dust for employers other than cotton yarnmanufacturers for four years, that is until the required compliance datefor installing engineering and work practice controls under ?1910.1043(e). This assertion is inconsistent with various effectivedates established for different requirements of the new standard. 29C.F.R. ? 1910.1043(m)(1), (m)(2)(i)-(vi) See also 29 C.F.R. ?1910.1043(c) (\”permissible exposure limits\” stated in the presenttense), ? 1910.1043(f) (continual use of respirators).[[8\/]] A non-conditional revocation could have been accomplishedimmediately on the promulgation of the new standard on June 23, 1978,because the termination of compliance responsibilities by a new standardrequires no delay. In contrast, delayed effectiveness is required whenemployers must familiarize themselves with new regulatory requirementsand implement new controls under the new promulgated standard. SeeSociety of Plastics Ind., Inc. v. OSHA, 509 F.2d 1301, 1311 (2d Cir.),cert. denied, 421 U.S. 992 (1975).[[9\/]] This is consistent with the rules of interpretation governingstatutory amendments.- If the amendment is invalid, the original statutesought to be amended remains in effect, even if the amendment containsan express repeal of the original statute. See Frost v. CorporationCommission, 278 U.S. 515 (1929); Conlon v. Admaski, 77 F.2d 397 (D.C.Cir. 1935); Weissinger v. Boswell, 330 F.Supp. 615 (M.D. Ala. 1971). SeeGenerally 1A Sutherland, Statutes and Statutory Construction, ? 22.37(4th ed. 1972).[[10\/]] The validity of a delayed effectiveness provision such as ?1910.1043(e) is dependent on the protection of employees during thisinterim period by OSHA standards already in effect. See UnitedSteelworkers of America v. Marshall, 647 F.2d 1189, 1310 (D.C. Cir. 1980).[[11\/]] The Respondent and amici also rely on a post-promulgation noticein the Federal Register and argue that the Secretary is required topublish a notice that enforcement of the new standard has been suspendedand enforcement of the old standard will continue. However, the FederalRegister notice for these other industries was published because thepreamble to the new standard may not adequately describe the basis forfinding a \”significant risk\” to employees exposed to cotton dust inthese industries. 45 Fed. Reg. 50,328, 50,329 (1980). The argumentoverlooks the fact that this notice is exclusively directed to twospecific industries and states that it \”does not affect the enforcementof the new standard in the textile manufacturing industry, as to which adetermination has been made that the standard meets the Supreme Court’srequirements [regarding significant risk], or in any non–textileindustries other than classing and warehousing.\” Id. at 50,329.Moreover, Ohio-Sealy’s argument assumes that if the old standard wererevoked by the new standard, a Federal Register notice would besufficient to reinstate the old rule without regard to the requirementsof section 6(b) of the Act. Neither assumption is correct. See UnitedStates Steel Corp., 77 OSAHRC 12\/C3, 2 BNA OSHC 1343, 1974-75 CCH OSHD?19,047 (Nos. 2975 & 4349, 1974) (alternate holding); Koppers Co., Inc.,77 OSAHRC 44\/A4, 2 BNA OSHC 1354, 1974-75 CCH OSHD ?19,063 (No. 3449,1974). Finally, the Secretary reemphasized in this notice that it is\”OSHA’s express intent to provide continued protection to workers untilthe provisions of the new standard are fully effective and enforceable.\”45 Fed. Reg. 50,329.[[12\/]] See also American. Petroleum Institute v. Secretary of Labor,581 F.2d 493, 496 n.6, 498 (5th Cir. 1978), aff’d on other grounds subnom. Industrial Union Dep’t, AFL-CIO v. American Petroleum Institute,448 U.S. 607 (1980).[[13\/]] 44 U.S.C. ? 1510(e) states:?1510 Code of Federal Regulations.(e) The codified documents of the several agencies published in thesupplemental edition of the Federal Register under this section [i.e.,the CFR], as amended by documents subsequently filed with the Office andpublished in the daily issues of the Federal Register, shall be primafacie evidence of the text of the documents and of the fact that theyare in effect on and after the date of publication.[[14\/]] A standard may be unenforceable because of its invalidity, e.g.,Rockwell International Corp., 80 OSAHRC 118\/A2, 9 BNA OSHC 1092,1980 CCH OSHD ? 24,979 (No. 12470, 1980), its not yet being effective,American Smelting & Refining Co. v. OSHRC, 501 F.2d 504, 512-14(8th Cir. 1974), and its inapplicability to the cited conditions, e.g.,Stanbest Inc., 83 0SAHRC 10\/D6, 11 BNA OSHC 1222, 1983 CCH OSHD ? 26,455(No. 76- 4355, 1983).[[15\/]] Cotton linters are short raw cotton fibers that adhere to cottonseed after ginning. See Buckeye Cellulose Corp., 73 OSAHRC 36\/A2,36\/A11-Al2 (No. 1919, 1973); Websters Third New Int’l Dictionary 1317(1971).[[16\/]] The passing reference to Buckeye Cellulose is also explained bythe fact that Traders Oil Mill Company is a subsidiary of BuckeyeCellulose Corporation. 2 BNA OSHC at 1510 n.2, 1974-75 CCH OSHD at p.22,971 n.2. (Cleary, Commissioner, dissenting).[[17\/]] Spring Air Mattress Co., 74 OSAHRC 90\/B12, 2 BNA OSHC 1416,1974-75 CCH OSHD ?919,146 (No. 1422, 1974), was decided on evidentiarygrounds and the Commission expressly reserved decision on the BuckeyeCellulose issue in that case. Furthermore, the Fifth Circuit hasconcluded that the constitutionally sufficient notice afforded by theold standard was not vitiated by Spring Air Mattress Co. because theCommission’s decision was not on the merits. 630 F.2d 1094, 1103-04 (5thCir. 1980).[[18\/]] Roach & Schilling, A clinical and environmental study ofbyssinosis in the Lancashire cotton industry, 17 Br. J. Med. 1 (1960).[[19\/]] In Buckeye Cellulose the judge noted testimony that linterfibers as well as cotton fibers are cellulose. 73 OSAHRC at 36\/A6. Therewas no evidence to the contrary.[[20\/]] We cannot agree with the Chairman that \”Traders Oil Mill andBuckeye Cellulose had the apparent effect of exempting mattressmanufacturers from the old standard.\” Neither Traders Oil Mill norBuckeye Cellulose involved mattress manufacturers. Neither casepurported to define the term \”cotton dust (raw)\” to exclude an entireclass of employers without regard to the material actually used in itsproduction process. Moreover, at this stage in the proceedings, noevidentiary record has been developed to show precisely what material isused inmattress manufacturing. In the absence of an authoritativedefinition of the term \”cotton dust (raw)\” or a Commission decision inwhich the term has actually been applied to a mattress manufacturer,Ohio-Sealy could not reasonably have concluded that mattressmanufacturing was exempt. It may be that some stages of cotton plantprocessing do not generate raw cotton dust within the meaning of the oldstandard, but that is a question that poses legal and factual issues yetto be decided by the Commission.”