“Docket No. 79-5600 SECRETARY OF LABOR,Complainant,v.OHIO-SEALY MATTRESS MANUFACTURING Co.,Respondent.OSHRC DOCKET NO. 79-5600DECISION Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:The Secretary of Labor issued a citation alleging that between August 22 and September 7,1979, Ohio-Sealy Mattress Manufacturing Company violated the air contaminant standard at29 C.E.R. ? 1910-1000. The standard requires that feasible engineering or administrativecontrols be implemented and that personal protective equipment be used when averageairborne concentrations of raw cotton dust reach a certain level. Ohio-Sealy argues thatthe citation should be vacated on the grounds that: (1) the standard was no longer ineffect when the alleged violation occurred; or (2) Ohio-Sealy lacked fair notice that thestandard was in effect. Administrative Law Judge Patton rejected Ohio-Sealy’s argument.The Commission granted a petition for interlocutory appeal. It is concluded that thestandard was in effect and 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 on themerits.I A The Secretary alleged that Ohio-Sealy had exceeded the exposure limit for raw cotton dustin Table Z-1 of section 1910.1000 and had violated 29 C.F.R. ? 1910.1000(a)(2) and (e).These provisions, which shall be referred to as \”the old cotton dust standard,\”were first adopted under the Walsh-Healey Public Contracts Act, 41 U.S.C. ?? 35-45; theywere adopted in 1971 as an occupational safety and health standard under 29 U.S.C. ?655(a), section 6(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”).[[1\/]] The old standard states in part:? 1910.1000 Air contaminants.An employee’s exposure to any materials listed in table Z-1 . . . of this section shall belimited in accordance with the requirements of the following paragraphs of this section. (a) Table Z-1:* * *(2) Other materials–8-hour time weighted averages. An employee’s exposure to any materialin table Z-1 . . . in any 8-hour work shift of a 40-hour work week, shall not exceed the8-hour time weighted average given for that material in the table.* * *(e) To achieve compliance with paragraph (a) through (d) of this section, administrativeor engineering controls must first be determined and implemented whenever feasible. Whensuch controls are not feasible to achieve full compliance, protective equipment or anyother protective measures 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)\” isone milligram per cubic meter of air (1 mg.\/m3), which is equivalent to 1000 microgramsper cubic meter (ug.\/m3). Item 1B of the citation alleged a violation of section1910.1000(a)(2) in that employees were exposed to average airborne concentrations of rawcotton dust greater than the level permitted by Table Z-1. Item 1C of the citation allegeda violation of section 1910.1000(e) for failure to determine and implement feasibleadministrative or engineering controls. Item 1A alleged that Ohio-Sealy did not establishand maintain a respiratory protection program, contrary to tie requirements of 29 C.F.R.? 1910.134(a)(2). Raw cotton dust levels were alleged to have been measured at 4646, 1873and 1155 ug.\/m3.BThe arguments of Ohio-Sealy and the amici[[2\/]] turn on events surrounding the Secretary’sadoption of the new cotton dust standard. On June 23, 1978, the Secretary published a newcotton 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 take variousmeasures such as monitoring, engineering and work practice controls, respiratoryprotection, medical surveillance and employee education and training. Within four years,employers were required to meet the applicable permissible exposure limit(\”PEL\”) by implementing feasible 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 for yarn manufacturing(which includes all textile operations except slashing and weaving); 750 ug.\/m3 forslashing and weaving; and 500 ug.\/m3 for all other operations, including non-textileoperations such as mattress manufacturing. Section 1910.1043(c). The Secretary did notconsider the difference between the new standard’s PEL for non-textile operations (500ug.\/m3 ) and the old standard’s PEL (1000 ug.\/m3) to represent an upgrading of protectionfor non-textile employees. The new standard regulates only the \”lint-freerespirable\” portion of all workplace dust[[3\/]] and the old standard regulated allworkplace dust.[[4\/]] Accordingly, the Secretary concluded that the new standard’s PELwould be \”roughly equivalent\” in non-textile workplaces to the limit set by theold standard. 43 Fed. Reg. at 27,361.The Secretary also announced the addition of the following footnote to the 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 be used to reach the applicable PEL).The Secretary set September 4, 1978 as the effective date for the new standard. Id. at27,350. Had the new standard gone into effect on September 4, 1978, a non-textile employerwould have been required to: initially monitor employee exposure to cotton dust \”assoon as possible but no later than March 4, 1979,\” section 1910.1043(m)(2)(i);complete initial employee education and training \”as soon as possible but no laterthan December 4, 1978,\” section 1910.1043(m)(2)(vii); provide and assure the use ofrespirators no later than October 4, 1978, section 1910.1043(m)(2)(iv); employ workpractices required by 1910.1043(g) no later than December 4, 1978, section1910.1043(m)(2)(v); complete medical surveillance of employees no later than September 4,1979, section 1910.1043(m)(2)(vi); prepare a compliance program for implementingengineering and work practices controls required by section 1910.1043(e) no later thanSeptember 4, 1979, section 1910.1043(m)(2)(iii); and implement those engineering and workpractice controls by September 4, 1982. Section 1910.1043(m)(2)(ii).After the new standard was published, the Secretary received a request for anadministrative stay of the new standard from two of the amici curiae before us, theNational Cotton Batting Institute and the Textile Fibers and By-Products Association. Thetwo trade associations brought to the Secretary’s attention a draft report of a recentstudy on the magnitude of the dangers posed by cotton dust in mattress plants. OnSeptember 1, 1978, three days before the new standard was to go into effect, the Secretarysuspended the effective date of the new standard as 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 before us, the NationalAssociation of Bedding Manufacturers (\”NABM\”), of which Ohio-Sealy is a member,as well as representatives of affected employees, petitioned the United States Court ofAppeals for the District of Columbia Circuit for review of the new standard. On October20, 1978, the court granted a motion to stay the \”entire\” new standard until thecourt issued a decision on the merits. On November 1, 1978, the court severed allpetitioners affected by the Secretary’s suspension of the new standard as a result of theadministrative stay. The five severed petitions, including NABM’s petition, werereconsolidated under the name NABM v. Marshall, No. 78-1784.The court’s subsequent decision upholding the new standard as to other petitioners did notdispose 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 part sub nom. American Textile Manufacturers Institutev. 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 the Secretary andordered that he report on his reconsideration of the record at 120–day intervals. Thus,there has not been a decision by the court on the merits and the court’s stay of the newstandard remains in effect as to non-textile employers.On January 26, 1979, the Secretary lifted the administrative suspension and announced thatthe new standard would become effective on March 4, 1979. 44 Fed..Reg. 5,438-5,440 (1979).The Secretary also noted that although his \”notice reinstates the application of the[new] cotton dust standard the District of Columbia Circuit had stayed the effective dateof the new standard pending a decision on the merits. He therefore stated that the liftingof the administrative stay would not affect certain non-textile industries, includingmattress manufacturing, while the judicial stay is in force.On September 13, 1979, the Secretary issued this citation to Ohio Sealy, alleging thatviolations 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 cotton dust standardamended and superseded the earlier standard originally promulgated in 1971 and thatcitation for a violation of the old standard is unauthorized. Ohio-Sealy asserts that theSecretary, as part of the promulgation of the new standard, revoked the old standard as tonontextile industries by limiting its applicability to the varn manufacturing industry.Ohio-Sealy also maintains that any enforcement of the old standard in the non-textileindustries must be preceded by notice of the standard’s applicability to these industriesbecause the new standard had become enforceable in the textile industry until it wasJudicially stayed on October 20, 1978. Furthermore, Ohio-Sealy argues that any decision toreconstitute the old standard and apply it to non-textile employers requires formal actionby the Secretary.A Under section 6(b) of the Act \”[t]he Secretary may by rule promulgate, modify, orrevoke any occupational safety or health standard . . . .\” 29 U.S.C. ? 655(b). Seegenerally 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 for written comments and apublic hearing if requested, and then decide within 60 days whether the proposedrevocation should take effect. 29 U.S.C. ?? 665(b)(2), (3). (4); Synthetic OrganicChemical Manufacturers Ass’n v. Brennan, 506 F.2d 385, 388-89 (3d Cir. 1974), cert.denied, 420 U.S. 973, 423 U.S. 830, reh’g denied, 423 U.S. 886 (1975); see IndustrialUnion Dep’t, AFL-CIO v. Hodgson, 499 F.2d 467, 470-71 (D.C. Cir. 1974); Florida PeachGrowers Ass’n v. U.S. Dep’t of Labor, 489 F.2d 120, 124 (5th Cir. 1974). Moreover, theCommission has made it clear that the same rulemaking proceedings required for adoption ofa standard are also required for its modification. See United States Steel Corp., 77OSAHRC 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).Neither the preamble nor the ordering clause of the new cotton dust standard contains anylanguage expressly revoking the old cotton dust standard.[[5\/]] In fact, Table Z-1 ofsection 1910.1000 retains the permissible exposure level for cotton dust originallypromulgated in 1971. This contrasts with the deletion of permissible exposure levels fromthe tables of 29 C.F.R ? 1910.1000 when the Secretary has promulgated a new standard fora specific toxic substance and intends the new standard to have universal application.Eg., Occupational Exposure to Inorganic Arsenic, 43 Fed. Reg. 19,584, 19,624 (1978)(deletion of entries for inorganic arsenic from Table Z-1); Occupational Exposure toAcrylonitrile, 43 Fed. Reg. 45,762, 46,809 (1978) (deletion of acrylonitrile entry fromTable Z-1); Occupational Exposure to Lead, 43 Fed. Reg. 52,952, 53,007 (1978) (deletion ofpermissible exposure levels for lead and its inorganic compounds from Table Z-2);Emergency Temporary 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 toAsbestos Dust, 37 Fed. Reg. 11,318, 11,319-20 (1972) (deletion of asbestos entry fromTable G-3: Mineral Dusts).B Despite the absence of any express revocation in the newly promulgated standard,Ohio-Sealy argues that the preamble to the new standard indicates that the Secretaryintended to revoke the old standard as to its industry regardless of whether the newstandard actually became effective. Therefore the issue is whether, in the absence of anexpress revocation, there was an implied revocation conditioned on the effectiveness ofthe new standard or an implied revocation not conditioned on the effectiveness of the newstandard.Well-settled rules of interpretation provide the basis for analyzing this interpretiveissue. In the exercise of the Commission’s adjudicatory authority, the same rules ofinterpretation are applicable to administrative regulations and statutes. See Rucker v.Wabash Railroad Co., 418 F.2d 146, 149 (7th Cir. 1969). See generally 1A Sutherland,Statutes and Statutory Construction ? 31.06 (4th ed. 1972) (C. Sands, ed.). In this case,both the old and new standards literally apply to cotton dust exposure in the non-textileindustries.In confronting a similar problem involving two statutes governing wildlife refuges, theSupreme Court recently stated:[W]e decline to read the statutes as being in irreconcilable conflict without seeking toascertain the actual intent of Congress. Our examination of the legislative history isguided 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 and manifest.’\”United States v. Borden Co., 308 U.S. 188,198 . . . (1939) quoting Red Rock v. Henry, 106U.S. 596, 602 . . . (1882). We must read the statutes to give effect to each if we can doso while preserving their 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, 101S.Ct. 2142, 2152 (1981). An irreconcilable conflict between earlier and later legislationis never presumed. Instead, a consistent and harmonious interpretation is preferred,particularly when the effect of the later action on the earlier legislation is doubtful.Accordingly, the presumption against implied repeal must be overcome by a \”clear andmanifest\” showing by the party claiming the revocation. Watt v. Alaska supra; seegenerally 1A Sutherland, supra, at ? 23.10. Application of this presumption is notdependent on whether the revocation is conditional or unconditional. This presumption isreinforced when no express revocatory action has been taken under statutory authorityexpressly providing for it. See 29 U.S.C. ? 655(b); Modern Drop Forge Co. v. Secretary ofLabor, 683 F.2d 1105, 1111 (7th Cir. 1982).Under the facts of this case, this presumption has not been overcome. Obviously, anorderly and harmonious transition between the old and new standards was intended by theSecretary. In the opening paragraph of the new cotton dust standard, the Secretarydeclared: \”To provide continued protection for employees until the provisions of thenew standard become effective, the requirements pertaining to cotton dust currentlycontained in ? 1910.1000 Table Z-1 remain in full force and effect until ? 1910.1043becomes effective.\” 43 Fed. Reg. 27,350 (Emphasis added). The new standardspecifically applies to both the textile and non-textile industries. See 43.Fed. Reg.27,360-66 (1978).The preamble contains other expressions of the Secretary’s intent to provide continuedprotection for employees in the non-textile industry as well as the textile industry. Forexample: OSHA has reason to believe that 500 ug\/m3 is roughly equivalent to 1.0 mg\/m3 measured byan OSHA personal sampler or high volume sampler in the spectrum of non-textile workplaces.Thus, the new standard is about as protective of health as the old standard, and OSHAwould require much more definitive data than has been presented to justify a relaxation ofprotection.OSHA also notes that Dr. Merchant testified that in his opinion a 500 ug\/m3 level was anappropriate one for the non-textile industry . . . and that other witnesses stated that alow level was needed in non textile operations.Id. at 27,361 (citations omitted). In discussing the requirements of respiratoryprotection during the initial monitoring period under the new standard, OSHA stated,\”The agency has concluded that employees should be protected from exposure to cottondust throughout this period rather than waiting for the results of initialmonitoring.\” Id. at 27,386.Ohio-Sealy argues that two passages in the Federal Register indicate that the Secretarycontemplated unconditional abandonment of the old standard with respect to non-textileworkers. One passage is an amendment to the old standard by the addition of the followingfootnote:This standard [for cotton dust (raw)] applies in cotton yarn manufacturing untilcompliance with ? 1910.1043(c) and (e) [of the new standard] is achieved. 29 C.F.R. ?1910.1000, Table Z-1. Ohio-Sealy argues that the old standard would not apply to it afterSeptember 3, 1978, because it is not engaged in cotton yarn manufacturing. The expresslanguage of the footnote simply indicates a transition between the old and new standardsfor the cotton yarn manufacturing industry. During the 4 year period allowed under the newstandard for the development of engineering and work practice controls to achievecompliance with the 200 ug\/m3 permissible exposure level, the permissible exposure levelof 1000 ug\/m3 continues to apply[[7\/]] For the cotton yarn manufacturing industry, OSHAhas considered the unique problems of this specific industry and exercised its discretionto delay the requirements for engineering and work practice controls specified by the newstandard. See United Steelworkers of America v. Marshall, 647 F.2d 1189, 1310 (D.C. Cir.1980). Although this footnote is specifically addressed to cotton yarn manufacturing,Ohio-Sealy argues that the Commission must infer that the footnote signifies a revocationof the old standard as to non-textile employers without regard to the fate of the newstandard. That this inference cannot be drawn is clear from the following passage in thepreamble relied on by Ohio-Sealy:The current [old] standard, however, will not continue in effect . . . in the non-textilesegment of the industry after the new cotton dust standard becomes effective. As tonon-textiles, case law developed from efforts to enforce the current standard hasgenerally been adverse. OSHA has concluded therefore, that the continued application ofthe current standard to these employers would serve no useful purpose.43 Fed. Reg. at 27,381. This text explains the compliance responsibility of thenon-textile industry during the four- year period established for the implementation ofthe technological controls required by the new standard. The phrase \”after the newcotton dust standard becomes effective\” is central to the interpretation of thisparagraph. It makes the operative language– \”will not continue in effect\”–conditional on the \”effective\” status of the new standard. [[8\/]] The suspensionof the old standard is predicated on a future contingency.[[9\/]]The Secretary’s rationale for the suspension of the old standard described in the firstsentence of the paragraph is expressed in the last two sentences of the paragraphdescribing the conditional revocation. The Secretary announced that he would foregofurther enforcement efforts under the old standard based on two interrelatedconsiderations — the Secretary’s estimate of the probability of success in enforcing theold standard under the Commission’s \”adverse\” case law coupled with theprospective enforcement of the new standard. As a consequence, the Secretary reasonablyconcluded that continued enforcement of the old standard during the four year periodcommencing with the effective date of the new standard would serve \”no usefulpurpose.\”However, on the application of amici, the Secretary stayed the effective date of the newstandard as to certain non-textile industries, including mattress manufacturers, onSeptember 1, 1978 — three days before the effective date of the new standard. 43 Fed.Reg. 39,087 (1978).[[10\/]] Accordingly, the condition precedent to revocation neveroccurred.Certainly, the preamble is not free from ambiguity. However, ambiguity does not equatewith implied, unconditional revocation. When the standard and the preamble are treated asan integrated whole and interpreted in the context of the remedial purpose of thisstatute, no \”clear and manifest\” intent to unconditionally revoke the oldstandard on September 4, 1978, can be found.[[11\/]]C In addition to the administrative stay issued by the Secretary on September 1, 1978, theUnited States Court of Appeals for the District of Columbia Circuit entered a judicialstay of the entire standard on October 20, 1978 at the request of industry petitionersincluding the National Association of Bedding Manufacturers, an amicus curiae in thiscase. That stay was lifted as to the textile industry following judicial review. AFL-CIOv. 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 TextileManufacturers Institute, Inc. v. Donovan, 452 U.S. 490 (1981). However, the judicial stayhas not been lifted with respect to bedding manufacturers. Thus, the new standard becameeffective in the textile industry for approximately 6 weeks in 1978 and again in 1980following the judicial decision in 1979, 45 Fed. Reg. 12,416 (1980). However, the newstandard has never become effective for Ohio-Sealy’s non-textile industry and the courtwas presumably aware that the preamble conditioned the revocation of the old standard onthe effective date of the new standard.[[12\/]]Ohio-Sealy argues that the judicial stay of the new standard operates only with respect tothe regulatory requirements of the new standard and not the implied revocation of the oldstandard. In other words, the implied revocation was severable from the remainder of thestandard and the judicial stay restrained only the enforcement of the new standard, notthe implied revocation of the old standard. This analysis overlooks several importantconsiderations. First, the revocation of the old standard was pre-conditioned on theenforceability of the new standard. Thus, the implied revocation is not severable from theeffectiveness of the new standard. See American Petroleum Institute v. OSHA, 581, F.2d493, 496 n.6, 498 (5th Cir. 1978), aff’d on other grounds sub nom.Industrial Union Dep’t,AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980). Second, a pre-enforcementjudicial stay restores the status quo existing before the promulgation of the new standardand operates to \”postpone the effective date of an agency action or to preservestatus or rights\” pending on judicial review. 5 U.S.C. ? 705; WashingtonMetropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 842 n.1, 844-45(D.C. Cir. 1977); see American Hospital Ass’n v. Harris, 625 F.2d 1328 (7th Cir.1980)(suit to enjoin operation of 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 of federalemployee). See generally L. Jaffe, Judicial Control of Administrative Action ch. 18(1965). In this case, the status quo before the new standard would become effectiveincluded the continuing statutory obligation to comply with the old standard. Accordingly,the judicial stay of the new standard operates to continue the enforceability of the oldstandard. DOhio-Sealy attempts to draw a distinction between the new standard’s \”effectivedate\” and its \”effectiveness\” in the sense of its\”enforceability.\” It reasons that: (1) the new standard’s effective date wasnever stayed because the term \”effective date\” signifies the date that the Codeof Federal Regulations is amended to reflect a new rule; (2) the CFR was amended; and (3)the only effect of the administrative and judicial stays was to suspend the enforceabilityof the new standard. To say that this argument elevates form over substance is to riskunderstatement. The term \”effective date\” refers to the date when a rule has alegal effect on rights and duties. As to non-textile employers, the new standard and therevocation of the old standard have never become effective.\u00a0 In addition, the FederalRegister Act makes codification in the CFR only prima facie evidence that a regulation isin effect. 44 U.S.C. ?1510(e).[[13\/]] Thus, the CFR publication does not negate theimpact of the administrative and judicial stays on the effective date.Similarly, Ohio-Sealy argues that because the 1978, 1979, and 1980 editions of the CFRreflect the addition of the footnote to Table Z-1 of the old standard regarding the cottonyarn manufacturing industry, it reasonably concluded that it was not required to complywith the old standard. Ohio-Sealy’s argument is unconvincing. Although the new standardalso appeared in these editions of the CFR, Ohio-Sealy does not claim that it believed ithad to comply with the new standard. Ohio-Sealy obviously knew of the stays of theeffective date of the new standard and therefore knew that the CFR did not reflect the newstandard’s legal status.III Ohio-Sealy and NABM also urge dismissal of the citation in this case on the ground thatfair notice of the enforceability of the old standard was not provided because the\”adverse case law\” referenced in the preamble to the new standard precluded theold standard’s applicability to the non-textile industry. [[14\/]] Several Commission casesare cited in support of the asserted inapplicability of the old standard.A Initial reliance is placed on an administrative law judge’s decision in BuckeyeCellulose Corp., 73 OSAHRC 36\/A2, 1 BNA OSHC 3116, 1971-73 CCH OSHD ? 16,313 (No. 1919,1973). However, this unreviewed judge’s decision is without precedential value. Eg., LeoneConstruction Co., 76 OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD ? 20,387 (No. 4090,1976). Furthermore, in Buckeye Cellulose Judge Patton noted testimony that \”cottonlinters\” [[15\/]] are used in the manufacture of mattresses and ruled that cottonlinters are not covered by the old standard. 73 OSAHRC at 36\/A13-A16. Judge Patton did notrule that all mattress manufacturers process only cotton linters or that their employeesare never exposed to substances covered by the old standard. The judge had no occasion torule on these issues because the employer in that case was a cellulose manufacturer, not amattress manufacturer. Thus, the facts in Buckeye Cellulose are distinguishable from thefacts in this case. Accordingly, the argument that Ohio-Sealy lacked notice of theapplicability of the old standard to its mattress manufacturing facility based on thejudge’s decision in Buckeye Cellulose is without foundation.The next cited authority is Traders Oil Mill Co., 75 OSAHRC 29\/D9, 2 BNA OSHC 1508,1974-75 CCH OSHD ?19,216 (No. 2873, 1975). However, purely procedural grounds were thebasis for the Commission’s decision in that case. The Respondent had attached an affidavitto its motion for summary judgment stating that it was engaged solely in processingcottonseed and not in processing raw cotton in any manner. The Secretary did not file acounter-affidavit or present any contrary evidence at the hearing on the motion. Counselfor the Secretary merely stated that if a trial were held on the citation he would produceevidence in conflict with the affidavit. The Commission majority ruled that the judgeproperly refused to consider the Secretary’s unsupported factual assertion in granting theRespondent’s motion for summary judgment. The Commission stated:Once an affidavit is filed showing that there is no triable issue, the adversary partymust respond by counter-affidavit or otherwise present competent evidence to demonstratethat 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 Commission neither held norintimated that the old standard was inapplicable to cottonseed processing. The referenceto Buckeye Cellulose is merely a recitation of one of Respondent’s bases for its motionfor summary judgment. There is no reference to Buckeye Cellulose in the substantiveholding or rationale of Traders Oil Mill. Thus, there is no substantive basis in TradersOil Mill for the contention that the old standard was inapplicable. [[16\/]]In addition, the dissent in Traders Oil Mill makes it clear that the majority’sdecision is purely procedural. Commissioner Clearystated that summary judgment should not have been granted because \”[t]here is plainlyan issue of fact as to the nature of the dust in respondent’s plant\” warranting ahearing on the merits and the judge should have granted a continuance to permit theSecretary to file counter-affidavits. According to the dissent, the judge:.should not have made this important decision turn on what amounts to a technicality.Possible exposure to the debilitating effects of cotton dust contamination requires noless. The Commission’s protection of the public interest suggests that this be done. SeeBrennan v. OSHRC & John J. Gordon, 492 F.2d 1027, 1032 (2d Cir. 1974).2 BNA OSHC at 1510, 1974-75 CCH OSHD at p. 22,971. Thus, Commissioner Cleary recognizedthat Traders Oil Mill turned on \”what amounts to a technicality\” — the lack ofsworn evidence by the Secretary at the motion hearing. If a factual hearing is required todetermine the composition of the dust in a non-textile plant as correctly urged by thedissent in Traders Oil Mill, no less is required regarding Ohio-Sealy’s non-textile plant.Indeed, it seems particularly implausible that the Secretary intended to immediately andunconditionally surrender an opportunity to prove that at least some non-textileoperations generate raw cotton dust. Furthermore, the public interest in employeeprotection against excessive cotton dust exposure identified by the dissent in Traders OilMill is no less important in this case. [[17\/]]The argument regarding the substantive value of Traders Oil Milland Buckeye Celluloseis also inconsistent with the Commission’s subsequent decision in Deering Milliken, Inc.,78 OSAHRC 1O1\/A2, 6 BNA OSHC 2143, 1978 CCH OSHD ?23,191 (No. 12597, 1978), aff’d, 630F.2d 1094 (5th Cir. 1980). In Deering Milliken, issued almost a year before the citationin this case, the Commission relied on the testimony of Dr. Roach, the co-author of thebyssinosis study that served as the scientific basis for the old standard.[[18\/]] Dr.Roach testified that cotton dust includes cellulose fibers among other things. 6 BNA OSHCat 2146, 1978 CCH 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 CCH OSHD atp. 28,040, and that the standard \”is applicable to any work-place where cotton dustis present. Its applicability is not dependent on the materials or processesinvolved.\” 6 BNA OSHC at 2144 n.4, 1978 CCH OSHD at p. 28,038 n.4. This case putOhio-Sealy squarely on notice that enforcement of the old standard was permissible in anyworkplace where cellulose fibers and the other components of cotton dust were present.Certainly, the Commission would have overruled the Trader’s Oil Mill\/ Buckeye Celluloseline of cases if they contradicted the substantive ruling in Deering- Milliken.[[20\/]]Moreover, the Fifth Circuit specifically rejected Deering Milliken’s claim that it was noton reasonable notice that the old standard was a total dust standard. It pointed out thatprior to citing Deering Milliken the Secretary had sought to enforce the old standard as atotal dust standard, and that Congress specifically had in mind the hazards of exposure toall the dust generated by cotton processing when it passed the Act. 630 F.2d at 1103-5,citing S. Rep. No. 91-1282, 91st Cong., 2d Sess. 3. reprinted in 1970 U.S. Code Cong.& Ad. News 5177, 5179. \”If there ever was any vagueness in the wording of theregulation, its history and the legislative intent behind its implementation as an OSHAmandate, coupled with the endorsement posture of the Secretary, dispelled that vaguenessand rendered the meaning of section 1910.1000 clear.\”630 F-2d at 1105.On this record, there is inadequate evidence to conclude that Ohio-Sealy lacked fairnotice that the old standard was enforceable at its workplace. The due process clause ofthe fifth amendment requires that one be given fair notice of the requirements of the law.It does not require perfect notice. See Toy Manufacturers of America v. Consumer ProductsSafety Commission, 633 F.2d 70, 78 (2d Cir. 1980).IV In the exercise of rulemaking authority, the Secretary has sought to establishreasonable employer and employee expectations regarding the abatement of hazards resultingfrom employee exposure to cotton dust.\u00a0 The standard promulgated in 1978 representsmore than a decade of initiative 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. News5177, 5179; 36 Fed. Reg. 10523 (1971)(promulgation of old cotton dust standard); Nat’lInstitute for Occupational Safety and Health, U.S. Dep’t of Health, Educ. & Welfare,Criteria for a Recommended Standard Occupational Exposure to Cotton Dust (1974);Occupational Exposure to Cotton Dust: Final Standard, 43 Fed. Reg. 27350 (1978). SeeAmerican Textile Manufacturers Institute v. Donovan, 101 S.Ct. 2478, 2483-88 (1981)(reviewof regulatory history). The Commission also establishes reasonable expectations throughadjudicatory interpretations. In performing this statutory responsibility the Commissioninterprets standards to achieve the Congressional objectives underlying the Act. Brennanv. OSAHRC (Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974); McLean Trucking Co. v. OSAHRC, 503F.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 under the statute as newstandards build upon the advances of old standards. All earlier regulatory improvementsare not risked every time there is a new regulatory advance. Furthermore, the Secretarymay properly condition the modification of an old standard on the effectiveness of thegradual 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 1983The Administrative Law Judgedecision in this matter is unavailable in this format. To obtain a copy of this document,please request one from our Public Information Office by e-mail ( [email protected] ) , telephone (202-606-5398),fax (202-606-5050), or TTY (202-606-5386)\u00a0FOOTNOTES:[[1\/]] The history of the old standard is further described in the Commission and courtdecisions in Deering-Milliken, Inc., 78 OSAHRC 101\/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 Batting Institute, theTextile Fibers and By-Products Association, the National Association of BeddingManufacturers, the National Association of Furniture Manufacturers and the WolfCorporation.[[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 of the old standard inDeering-Milliken, note 1 supra.[[5\/]] Standards adopted under section 6(a) of the Act, such as the old cotton duststandard, remain enforceable until modified or revoked by a section 6(b) rule. Modern DropForge Co. v. Secretary of Labor, 683 F.2d 1105, 1111 (7th Cir. 1982). In past revocationsof these original standards, 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 and HealthStandards: Revocation, 43 Fed. Reg. 49,726 (1978). In addition, the preamble specificallyidentifies the standards or paragraph revoked by the promulgated rule, and indicates that\”[t]he revocations listed herein 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 separate revocations andamendments) (emphasis added). Also 43 Fed. Reg. 49,764-67 (special industry standards: 321separate revocations and amendments). 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 wasrecodified as ? 1910.1000. 40 Fed. Reg. 23,072 (1975).[[7\/]] Section 1910.1000 prescribes an 8 hour time-weighted permissible exposure limit forraw cotton dust of no more than 1000 ug\/m and the use of protective equipment is requiredif engineering and administrative controls are infeasible or inadequate. 29 C.F.R. ?1910.1000(e) incorporating by reference 29 C.F.R. ? 1910.134. Section 1910.1043 containsan 8-hour time-weighted permissible exposure limit of 200 ug\/m3 for cotton yarnmanufacturing and allows employers 4 years to develop the necessary engineering and workpractice controls. 29 C.F.R. ? 1910.1043 (c)(1),(e). Compliance with that limit by meansof respirators is 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 employee exposure to cottondust for employers other than cotton yarn manufacturers for four years, that is until therequired compliance date for installing engineering and work practice controls under ?1910.1043(e). This assertion is inconsistent with various effective dates established fordifferent requirements of the new standard. 29 C.F.R. ? 1910.1043(m)(1), (m)(2)(i)-(vi)See also 29 C.F.R. ? 1910.1043(c) (\”permissible exposure limits\” stated in thepresent tense), ? 1910.1043(f) (continual use of respirators).[[8\/]] A non-conditional revocation could have been accomplished immediately on thepromulgation of the new standard on June 23, 1978, because the termination of complianceresponsibilities by a new standard requires no delay. In contrast, delayed effectivenessis required when employers must familiarize themselves with new regulatory requirementsand implement new controls under the new promulgated standard. See Society of PlasticsInd., 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 governing statutoryamendments.- If the amendment is invalid, the original statute sought to be amendedremains in effect, even if the amendment contains an express repeal of the originalstatute. See Frost v. Corporation Commission, 278 U.S. 515 (1929); Conlon v. Admaski, 77F.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) isdependent on the protection of employees during this interim period by OSHA standardsalready in effect. See United Steelworkers of America v. Marshall, 647 F.2d 1189, 1310(D.C. Cir. 1980).[[11\/]] The Respondent and amici also rely on a post-promulgation notice in the FederalRegister and argue that the Secretary is required to publish a notice that enforcement ofthe new standard has been suspended and enforcement of the old standard will continue.However, the Federal Register notice for these other industries was published because thepreamble to the new standard may not adequately describe the basis for finding a\”significant risk\” to employees exposed to cotton dust in these industries. 45Fed. Reg. 50,328, 50,329 (1980). The argument overlooks the fact that this notice isexclusively directed to two specific industries and states that it \”does not affectthe enforcement of the new standard in the textile manufacturing industry, as to which adetermination has been made that the standard meets the Supreme Court’s requirements[regarding significant risk], or in any non–textile industries other than classing andwarehousing.\” Id. at 50,329. Moreover, Ohio-Sealy’s argument assumes that if the oldstandard were revoked by the new standard, a Federal Register notice would be sufficientto reinstate the old rule without regard to the requirements of section 6(b) of the Act.Neither assumption is correct. See United States Steel Corp., 77 OSAHRC 12\/C3, 2 BNA OSHC1343, 1974-75 CCH OSHD ?19,047 (Nos. 2975 & 4349, 1974) (alternate holding); KoppersCo., 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 intentto provide continued protection to workers until the provisions of the new standard arefully effective and enforceable.\” 45 Fed. Reg. 50,329.[[12\/]] See also American. Petroleum Institute v. Secretary of Labor, 581 F.2d 493, 496n.6, 498 (5th Cir. 1978), aff’d on other grounds sub nom. Industrial Union Dep’t, AFL-CIOv. 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 the supplemental editionof the Federal Register under this section [i.e., the CFR], as amended by documentssubsequently filed with the Office and published in the daily issues of the FederalRegister, shall be prima facie evidence of the text of the documents and of the fact thatthey are in effect on and after the date of publication.[[14\/]] A standard may be unenforceable because of its invalidity, e.g., RockwellInternational 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., 830SAHRC 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 cotton seed afterginning. 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 by the fact thatTraders Oil Mill Company is a subsidiary of Buckeye Cellulose Corporation. 2 BNA OSHC at1510 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 evidentiary grounds and the Commissionexpressly reserved decision on the Buckeye Cellulose issue in that case. Furthermore, theFifth Circuit has concluded that the constitutionally sufficient notice afforded by theold standard was not vitiated by Spring Air Mattress Co. because the Commission’s decisionwas not on the merits. 630 F.2d 1094, 1103-04 (5th Cir. 1980).[[18\/]] Roach & Schilling, A clinical and environmental study of byssinosis in theLancashire cotton industry, 17 Br. J. Med. 1 (1960).[[19\/]] In Buckeye Cellulose the judge noted testimony that linter fibers as well ascotton fibers are cellulose. 73 OSAHRC at 36\/A6. There was no evidence to the contrary.[[20\/]] We cannot agree with the Chairman that \”Traders Oil Mill and BuckeyeCellulose had the apparent effect of exempting mattress manufacturers from the oldstandard.\” Neither Traders Oil Mill nor Buckeye Cellulose involved mattressmanufacturers. Neither case purported to define the term \”cotton dust (raw)\” toexclude an entire class of employers without regard to the material actually used in itsproduction process. Moreover, at this stage in the proceedings, no evidentiary record hasbeen developed to show precisely what material is used inmattress manufacturing. In theabsence of an authoritative definition of the term \”cotton dust (raw)\” or aCommission decision in which the term has actually been applied to a mattressmanufacturer, Ohio-Sealy could not reasonably have concluded that mattress manufacturingwas exempt. It may be that some stages of cotton plant processing do not generate rawcotton dust within the meaning of the old standard, but that is a question that poseslegal and factual issues yet to be decided by the Commission.”