“Docket No. 82-0012 SECRETARY OF LABOR,Complainant, v.SIMPLEX TIME RECORDER COMPANY, Respondent.OSHRC Docket No. 82-0012DECISIONBefore:\u00a0 BUCKLEY, Chairman; RADER and WALL,Commissioners.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration.\u00a0 It was established to resolvedisputes arising out of enforcement actions brought by the Secretary of Labor under theAct and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C.? 659(c).Simplex Time Recorder Company manufactures timeequipment and building management systems at its Gardner, Massachusetts plant. \u00a0Following a fire on August 6, 1981, which resulted in the death of an employee, theSecretary on December 10, 1981 issued several citations to Simplex, one of which, citation2, alleged that Simplex had committed willful violations within the meaning of section17(a) of the Act, 29 U.S.C ? 666(a).\u00a0 Item 3 of citation 2, as amended, alleged thatduring the period from six months prior to the date of the citation through \”on orabout\” the date of the fire [[1]] Simplex was using a lacquer thinner with a flashpoint of four degrees Fahrenheit to clean the floor of a spray booth, contrary to 29C.F.R. ? 1910.107(g)(5).\u00a0 The standard states:? 1910.107\u00a0 Spray finishing usingflammable and combustible materials.(g) Operations and maintenance–(5) Cleaning solvents.\u00a0 The use ofsolvents for cleaning operations shall be restricted to those having flashpoints not lessthan 100? F.; however, for cleaning spray nozzles and auxiliary equipment, solventshaving flashpoints not less than those normally used in spray operations may be used.\u00a0 Such cleaning shall be conducted inside spray booths and ventilating equipmentoperated during cleaning.Simplex contends that the citation must bevacated because section 1910.107(g)(5) was not validly promulgated.\u00a0 AdministrativeLaw Judge Richard DeBenedetto rejected Simplex’s contention that the Secretary had notvalidly promulgated this standard.\u00a0 He found Simplex in violation of the standard andheld that the violation was willful.\u00a0 For the reasons that follow, we conclude thatthe judge properly upheld the standard as validly promulgated, but we reverse his decisionfinding the violation willful.The validity of section 1910.107(g)(5)29 C.F.R. ? 1910.107(g)(5) was adopted in 1971 when the Secretary promulgated Part 1910,containing occupational safety and health standards issued under section 6(a) of the Act.[[2]] 36 Fed. Reg. 10466 (1971).\u00a0 It was derived from section 808 of NFPA No.33–1969, Standard for Spray Finishing Using Flammable and Combustible Materials, anational consensus standard published by the National Fire Protection Association(\”NFPA\”).\u00a0 29 C.F.R. ? 1910.115.\u00a0 Section 808 of the NFPA standardstates in part:Solvents for cleaning purposes should, wherepractical, preferably be of a type that will not burn.The use of solvents for cleaning operationsshall be restricted to those having flash points not less than 100 degrees F.; however,for cleaning spray nozzles and auxiliary equipment, solvents having flash points not lessthan those normally used in spray operations may be used.Such cleaning shall be conducted inside spraybooths and ventilating equipment operated during cleaning.When the Secretary adopted section1910.107(g)(5), he deleted the first paragraph of section 808, \”[solvents] forcleaning purposes should, where practical, preferably be of a type that will notburn.\”[[3]]\u00a0 This deletion was consistent with the preamble to the new Part1910, in which the Secretary stated that:The national consensus standards areoccupational safety and health standards adopted and promulgated either by the AmericanNational Standards Institute (ANSI) or by [NFPA] under procedures where it can bedetermined that persons interested and affected by the scope or provisions of thestandards have reached substantial agreement on their adoption . . . . The nationalconsensus standards contain only mandatory provisions of the standards promulgated bythose two organizations.\u00a0 The standards of ANSI and NFPA may also contain advisoryprovisions and recommendations the adoption of which by employers is encouraged, but theyare not adopted in Part 1910.36 Fed. Reg. 10466.Because section 6(a) authorized the Secretary toadopt national consensus standards without regard to the notice and comment rulemakingprocedures otherwise prescribed by section 6(b) and the Administrative Procedure Act, 5U.S.C. ? 553, national consensus standards adopted under section 6(a) could not besubstantively modified.\u00a0 Diebold, Inc. v. OSHRC, 585 F.2d 1327, 1332 (6th Cir.1978); George C. Christopher & Son, Inc., 82 OSAHRC 9\/A2, 10 BNA OSHC 1436,1442-43, 1982 CCH OSHD ? 25,956, pp. 32,530-31 (No. 76-647, 1982).\u00a0 Simplex claimsthat the deletion of the first paragraph of section 808 substantively altered the NFPAsource standard and therefore was impermissible under section 6(a) of the Act.\u00a0 JudgeDeBenedetto rejected the argument on the ground that the change in language had nosubstantial effect on Simplex’s duty.\u00a0 We agree.[[4]] The first paragraph of NFPA section 808 generally advises employers that to the extent\”practical\” for cleaning purposes they should avoid using solvents that willburn.\u00a0 Clearly, this provision does not prohibit an employer from using flammable orcombustible solvents.\u00a0 The second paragraph, moreover, by its plain terms expresslyallows employers to use solvents having a flash point [[5]] of less than 100 degreesFahrenheit for cleaning spray nozzles and auxiliary equipment, provided that the employeralso uses solvents of such flash point in its production operations.\u00a0 At the sametime, however, the second paragraph specifically prohibits an employer under anycircumstances from using solvents with a flash point less than 100 degrees for othercleaning purposes.\u00a0 In order for the two paragraphs to be read together as aharmonious whole, [[6]] we conclude that both are directed at the same objective, namely,the reduction or the hazards presented by the use of flammable or combustible solvents forcleaning purposes.\u00a0 The first paragraph essentially prescribes this objective.\u00a0The second paragraph elaborates on and more fully explains how an employer mustsatisfy the general admonition set forth in the first paragraph by specifying the precisecircumstances under which an employer shall or shall not use solvents of particular flashpoints in cleaning operations.\u00a0 Accordingly, the two paragraphs are consistent witheach other, [[7]] but the substantive requirements applicable to cleaning operations areimposed by the second paragraph.\u00a0 Clearly, under NFPA section 808 an employer isrequired to comply with the specific restrictions on the use of flammable solvents eventhough the language of the first paragraph is not mandatory. [[8]]\u00a0 It necessarilyfollows, then, that the Secretary’s deletion of the first paragraph of NFPA section 808had no effect on the substantive provisions of the standard.\u00a0 In this case, Simplex’sobligation to ensure that the flammable solvent it was using for cleaning the floors ofits spray booths had a flash point of at least 100 degrees is the same under both the NFPAsource standard and section 1910.107(g)(5) as ultimately promulgated by the Secretary.\u00a0 Therefore, by deleting the first paragraph of the NFPA standard, the Secretary didnot impermissibly modify that standard.\u00a0 Cf. Noblecraft Industries, Inc.,75 OSAHRC 5\/A2, 3 BNA OSHC 1727, 1732, 1975-76 CCH OSHD ? 20,168, p. 24,002 (No. 3367,1975), aff’d, 691 F.2d 199, 203-04 (9th Cir. 1980) (Section 6(a) does not requirethe Secretary to adopt an explanatory and discretionary \”headnote\” to a nationalconsensus standard).Alleged willfulness of violation of section1910.107(g)(5)This violation is based on Simplex’s practice of using a solvent having a flash point offour degrees to clean paint deposits on the floor of a spray booth.\u00a0 Simplex’semployees would allow approximately one-half gallon of solvent to accumulate on the floorof the spray booth in the area of paint deposits.\u00a0 Once the solvent had softened thepaint, employees would scrape off the residue.\u00a0 Use of the solvent in this manner wasdiscontinued on or about August 6, 1981, when a fire occurred in one of Simplex’selectrostatic spray booths.[[10]]\u00a0 The record does not indicate for how longemployees had been cleaning spray booth floors with the solvent prior to this fire.\u00a0Although another fire had occurred in one of Simplex’s automatic spray booths onMarch 23, 1981, Factory Mutual, one of Simplex’s insurance carriers, attributed theearlier fire to an electrical short igniting paint overspray deposits.\u00a0 As a result,Factory Mutual recommended that Simplex clean the walls and floors of its spray booths ona weekly basis.\u00a0 At about the same time, Whitman, an employee who had been assignedto redesign the spray finishing area to increase its efficiency and reduce the amount ofpaint deposits, also recommended improved cleaning procedures.\u00a0 Neither FactoryMutual nor Whitman specified the type of cleaner to be used.\u00a0 In response, Simplexdid initiate a cleaning program consisting of weekly cleanup of the entire area of thebooths and daily cleanup of painting equipment.\u00a0 Supervisors were also required tocomplete log sheets, which were submitted to higher management, indicating that theprescribed cleaning had been conducted.Tremblay, Simplex’s safety engineer, testifiedthat although he would periodically examine the conditions in the spray booths, and wasgenerally aware that paint thinner having a flash point of four degrees was used duringproduction operations, he did not know, prior to the August 1981 fire, that solvent wasbeing used for cleaning purposes.\u00a0 Meunier, Simplex’s painting supervisor, was awarethat equipment and the floors in spray booths were being cleaned with solvent, but did notknow the flash point of the solvent used. Tremblay, but not Meunier, was generally awareof the OSHA standards, including section 1910.107.In addition to investigating the fires which hadoccurred in Simplex’s facility,[[10]] its two insurance carriers also conduct regular andperiodic inspections of the plant.\u00a0 One carrier makes monthly inspections.\u00a0 Theother inspects two times per year, and each of these inspections lasts between twoand-a-half and three days.\u00a0 Each production area of Simplex’s plant also has anemployee safety committee which meets monthly and reports in writing its recommendationsfor the correction of hazards.\u00a0 It is Simplex’s policy to implement the appropriatecorrective action when recommended by employee committees.\u00a0 Furthermore, prior to theAugust 1981 fire and the resulting inspection by the Secretary, Simplex had requested thatthe state authorities conduct a plant-wide health and safety evaluation.\u00a0 Followingthis inspection, which was conducted over a four-to-five month period and included thepainting area, the state inspectors identified some possible violations of OSHA standards,which Simplex instructed its managers and supervisors to correct.\u00a0 There is noindication that either Simplex’s insurance carriers, employee committees or the stateinspectors ever notified Simplex’s management that a flammable solvent was improperlybeing used for cleaning the floors of spray booths or informed Simplex that certainsolvents could not be used for this purpose.\u00a0 Indeed, Whitman, Simplex’s employeewith approximately 15 years experience in painting operations, whom Simplex regarded asone of its employees most knowledgeable about spray finishing, considered the solvent safewhen used for cleaning.\u00a0 Similarly, Simplex had never before been cited for aviolation of 29 C.F.R. ? 1910.107(g)(5) although the Secretary had inspected it on nineprior occasions.To establish that a violation was willful, theSecretary must show that it was committed voluntarily with either an intentional disregardfor the requirements of the Act or plain indifference to employee safety.\u00a0 See,e.g., D.A. & L. Caruso, Inc., 84 OSAHRC, 11 BNA OSHC 2138, 2142, 1984CCH OSHD ? 26,985, p. 34,694 (No. 79-5676, 1984); Duquesne Light Co., 84 OSAHRC23\/D2 11 BNA OSHC 2033, 2040, 1984 CCH OSHD ? 26,959, p. 34,603 (No. 79-1682, 1984); MobilOil Corp., 83 OSAHRC 47\/B6, 11 BNA OSHC 1700, 1983 CCH OSHD ? 26,699 (No. 79-4802,1983).The Secretary contends that the violation waswillful because Simplex’s supervisors knew that solvent having a flash point of fourdegrees was used for cleaning spray booth floors and disregard the \”obvioushazard\” of using a flammable liquid in a spray booth where the possibility ofignition exists.\u00a0 The Secretary also contends that Simplex actually knew of therequirements of 29 C.F.R. ? 1910.107(g)(5), because Tremblay was aware of the standardspertaining fire prevention in spray booths.We do not believe the record supports theSecretary’s contention that Simplex was aware that solvent having a flash point of lessthan 100 degrees was being used improperly for cleaning the floors of spray booths. \u00a0Meunier stated without contradiction that he was not aware of this usage. \u00a0 Insofaras Tremblay’s knowledge is concerned, the Secretary relies, as did the judge, on thetestimony of Mace, a state fire investigator, who testified that Tremblay told him he knewof the practice.\u00a0 As Simplex points out, however, Mace’s testimony does not clearlyestablish when Tremblay first became aware that solvent was being improperly used forcleaning floors.\u00a0 Therefore, Mace’s testimony does not contradict Tremblay’s repeateddenial that he knew of the practice prior to the August 1981 fire. [[11]]There is, of course, no dispute that Tremblaywas aware that a solvent having a flash point of four degrees was used during other sprayfinishing operations.\u00a0 However, we cannot agree with the Secretary that such useconstitutes an \”obvious hazard\” to which Tremblay consciously allowed employeesto be exposed.\u00a0 On the contrary, the standard by its plain terms permits an employergenerally to use solvents having a flash point of less than 100 degrees in sprayingoperations, as Simplex did.\u00a0 Moreover, it permits such solvents to be used forcertain cleaning operations as well, specifically for cleaning painting apparatus.\u00a0Accordingly, the mere fact that Simplex allowed this solvent to be used in spraybooths with the knowledge of its supervisor is not sufficient in itself to demonstratethat Simplex acted in disregard of the Act or was indifferent to employee safety.\u00a0Absent facts showing such disregard or indifference, Simplex’s failure to complywith the standard’s restrictions on the use of solvents for cleaning purposes clearlycannot be characterized as willful simply because Tremblay was generally familiar withsection 1910.107 and may have known of section 1910.107(g)(5) in particular.\u00a0 SeeWright & Lopez, Inc., 80 OSAHRC 36\/A2, 8 BNA OSHC 1261, 1265, 1980 CCH OSHD ?24,419, p. 29,777 (No. 76-3743, 1980).Furthermore, the evidence affirmativelydemonstrates that Simplex was not indifferent to employee safety and that, indeed, it wasseriously concerned with developing proper cleaning procedures for its spray booths.\u00a0 Moreover, despite numerous inspections, Simplex at no time was ever advised by itsinsurers, its employees, the state authorities, or the Secretary, of any improper use ofsolvent in its spray booths or of the restrictions on such use.\u00a0 Certainly, anemployer is required to comply with a standard regardless of whether it has previouslybeen informed that a violation exists.\u00a0 Columbian Art Works, Inc., 81 OSAHRC96\/F5, 10 BNA OSHC 1132, 1981 CCH OSHD ? 25,737 (No. 78-29, 1981).\u00a0 However, simplefailure to discover or eliminate a violation is not sufficient to demonstrate that theviolation is willful in nature.\u00a0 Marmon Group, Inc., 84 OSAHRC _______, 11 BNAOSHC 2090, 1984 CCH OSHD ? 26,975 (No. 79-5363, 1984), and cases cited therein.\u00a0 SeeTrans World Airlines, Inc. v. Thurston, 105 S.Ct 613, 626 (1985).\u00a0 MositesConstruction Co., 81 OSAHRC 40\/A2, 9 BNA OSHC 1808, 1981 CCH OSHD ? 25,357 (No.78-50, 1981).\u00a0 Accordingly, in the circumstances here, we conclude that the violationcannot be found willful.[[12]]Since the Secretary alleged the violation waswillful in nature but failed to prove willfulness, we must now determine whether to affirmthe violation as serious or other than serious in nature.\u00a0 See CrawfordConstruction Co., 82 OSAHRC 10\/A2, 10 BNA OSHC 1522, 1526, 1982 CCH OSHD ? 25,984, p.32,607 (No. 79-928, 1982), rev’d on other grounds, 718 F.2d 1098 (6th Cir. 1983)(unpublished).\u00a0 The Secretary presents no other argument regarding the propercharacterization of the violation, and does not contend that the violation should be foundserious under section 17(b) of the Act, 29 U.S.C. ? 666(b), if not found willful.However, due to the evident seriousness of the violation, as shown by the death of anemployee, we will affirm the citation item as serious under section 17(b), 29 U.S.C. ?666(b).\u00a0 In the circumstances, and taking into account as well Simplex’s good faithas indicated by its overall interest in employee safety, we conclude that a penalty of$400 is appropriate.Accordingly, that part of the judge’s decisionfinding the violation of 29 C.F.R. ? 1910.107(g)(5) to be willful is reversed.\u00a0 Item3 of citation 2 is affirmed as serious, and a penalty of $400 is assessed.FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary DATED:\u00a0 Dec. 16, 1985FOOTNOTES: [[1]] The citation originally alleged thatsolvent was used improperly \”on August 6, 1981 and subsequent days.\”\u00a0 As aresult of an amendment, the period during which the violation is alleged to have occurredis from about June 10, 1981 through about August 6, 1981.\u00a0 This amendment isconsistent with section 9(c) of the Act, 29 U.S.C. 658(c), which provides that no citationmay be issued \”after the expiration of six months following the occurrence of anyviolation.\”[[2]] Section 6(a) of the Act, 29 U.S.C. ? 655(a),provides:Without regard to chapter 5 of title 5, UnitedStates Code or to the other subsections of this section, the Secretary shall, as soon aspracticable during the period beginning with the effective date of this Act and ending twoyears after such date, by rule promulgate as an occupational safety or health standard anynational consensus standard, and any established Federal standard, unless he determinesthat the promulgation of such a standard would not result in improved safety or health forspecifically designated employees.\u00a0 In the event of conflict among any suchstandards, the Secretary shall promulgate the standard which assures the greatestprotection of the safety or health of the affected employees.[[3]] According to the NFPA’s \”OfficialDefinitions,\” the word \”should\” refers to \”recommendations or thatwhich is advised but not required,\” whereas \”shall\” is \”intended toindicate requirements.\”\u00a0 Had the \”should\” provision been adopted underthe Act without change, it would not have been binding.\u00a0 See Usery v.Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977); A. Prokosch &Sons Sheet Metal, Inc., 80 OSAHRC 96\/A2, 8 BNA OSHC 2077, 1980 CCH OSHD ? 24,840(Nos. 76-406 and 76-576, 1980).[[4]] Simplex also notes a number of other instances in which section 1910.107 differsfrom NFPA No. 33–1969.\u00a0 Simplex contends that because NFPA No. 33–1969 represents aconsensus of the views of its drafters, it must be adopted verbatim in order to preservethe consensus on which it is based.\u00a0 However, section 6(a) of the Act does notrequire the Secretary to promulgate established Federal or national consensus standardsliterally word-for-word.\u00a0 Deering-Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1100(5th Cir. 1980); George C. Christopher & Son, Inc., 82 OSAHRC 9\/A2, 10 BNA OSHC1436, 1443, 1982 CCH OSHD ? 25,956, p. 32,531 (No. 76-647, 1982).\u00a0 We further notethat an appellate court has rejected an identical argument raised by Simplex in aproceeding arising out of the same inspection at issue here.\u00a0 Simplex TimeRecorder Co. v. Secretary of Labor, 766 F.2d 575 (D.C. Cir. 1985).[[5]] \”Flash point\” is elsewheredefined in the NFPA standards as \”the minimum temperature of a liquid at whichsufficient vapor is given off to form an ignitable mixture with the air near the surfaceof the liquid or within the vessel used . . . .\” NFPA No. 321-1969, Standard onBasic Classification of Flammable and Combustible Liquids.\u00a0 The NFPA standardsindicate that, generally speaking, the degree of ignition hazard presented by a liquiddeclines as its flash point increases.\u00a0 See, e.g., NFPA No. 326-1951, WarningLabels for Containers of Flammable Liquids.[[6]] It is a fundamental rule of statutoryconstruction that a standard must be read as a harmonious whole, with meaning given, ifpossible, to every word or phrase.\u00a0 Richards v. United States, 369 U.S. 1, 11(1962); United States v. Menasche, 348 U.S. 528, 538-39 (1955); United StatesSteel Corp., 77 OSAHRC 64\/C8, 5 BNA OSHC 1289, 1296, 1977-78 CCH OSHD ? 21,795, p.26,225 (Nos. 10,825 and 10,849, 1977).[[7]] The decision of the NFPA not to prohibitan employer from using any flammable or combustible solvent is consistent with the NFPA’sconclusion that it is not possible to establish criteria from which an employer couldabsolutely determine that a particular solvent would never be hazardous under anycircumstances.\u00a0 Thus, NFPA No. 30-1969, Flammable and Combustible Liquids Code,which applies generally to the storage and use of such liquids, exempts from itsrequirements liquids having flash points at or above 200 degrees.\u00a0 However, section11 of the standard expressly notes that this exemption \”should not be construed asindicating that liquids with higher flash points are non-combustible.\” Section 1010further states:Such liquids, however, [those with flash pointsabove 200 degrees] involve some degree of hazard, which may be controlled by applicationof certain provisions of this Code, with appropriate modifications.\u00a0 Attention isdirected to the fact that liquids of flash point higher than 200? F. may assume thecharacteristics of lower flash points when heated, and under such conditions it may beappropriate to apply the provisions of the Code to liquids with flash points above 200 ?F.[[8]] To put it another way, under NFPA section 808 if an employer uses a solvent forcleaning purposes \”that will not burn\” then the remaining provisions of section808 are inoperative.\u00a0 But if the employer does use a flammable solvent for cleaning,the mandatory provisions regarding the flash point of the solvent come into play. \u00a0Likewise, under OSHA standard section 1910.107(g)(5) if an employer uses a solvent forcleaning that will not burn, the standard is obviously inapplicable.\u00a0 However, if theemployer uses a flammable solvent for cleaning purposes then the mandatory provisions of? 107(g)(5) apply to the flash point of the solvent.\u00a0 Thus, the employer’s dutiesunder NFPA section 808 and under OSHA section 1910.107(g)(5) are exactly thesame.[[9]] This fire resulted in the issuance of thepresent citations.[[10]] The Secretary also relies, as did the judge, on another fire that occurred inSimplex’s facility on November 18, 1980.\u00a0 This fire did not involve the spray boothsthemselves but rather the paint storage and dispensing room from which paint and thinnerare piped to the spray booths.\u00a0 Simplex’s insurance carrier, in its report toSimplex, attributed this fire to static electricity which ignited thinner being pumpedthrough an ungrounded hose.\u00a0 It recommended improvements to the pumps, including aprovision for grounding, and other modifications to the paint room and procedures for itsoperation.\u00a0 Because this fire did not involve the use of solvents for cleaningpurposes, we agree with Simplex that it has no bearing on the issues in this case.[[11]] The judge credited Mace’s testimony overthat of Tremblay in part because Tremblay participated in developing new cleaningprocedures following the March 1981 fire.\u00a0 There is, however, no evidence to supportthe judge’s apparent inference that Tremblay necessarily would have become aware thatduring cleaning employees were using solvent in an improper manner.\u00a0 On the contrary,Tremblay indicated that he had not observed solvent being used for cleaning floors despitehis periodic inspections of spray booths.The Secretary also contends that Tremblay wasshown to be aware of improper use of flammable solvents because following the stateinspection he signed a memorandum stating, in part, that \”no flammables should beinside the booths\” due to possible fire hazard.\u00a0 The record, however, shows thatTremblay did not sign this memorandum.\u00a0 Rather, the memorandum was prepared byWhitman, who did not give it to Tremblay nor did Tremblay have knowledge of it.\u00a0Whitman further testified that his comment was concerned with storage of open cansof solvents in spray booths and that Simplex’s supervisors at his request removed suchcans from the spray booths.\u00a0 We cannot conclude on these facts that Tremblay was puton notice that solvents were being used in spray booths for cleaning purposes.[[12]] Although Simplex petitioned for discretionary review of the judge’s decision on anumber of citation items and issues, the direction for review was expressly limited onlyto the issues of whether section 1910.107(g)(5) was properly promulgated and, if so,whether the judge erred in finding the violation of that standard willful.\u00a0 Wesubsequently issued an order severing these issues from those on which review had not beendirected, and we entered a final order as to those citation item and issues on whichreview had not been directed.\u00a0 It was the Commission’s intent by that severance orderto permit the ALJ’s affirmance of a violation of section 1910.107(g)(5) to become a finalorder, ripe for review, leaving before the Commission only those issues directed forreview, i.e., the validity of the promulgation of 1910.107(g)(5) and thecategorization of the violation of that standard as \”willful.\”\u00a0 On review,however, the Circuit Court of Appeals for the District of Columbia Circuit interpreted theseverance order as reserving to the Commission \”the whole question of the facts,validity, and nature of the alleged violation,\” and declined to rule on the ALJ’sfinding.\u00a0 Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 590,n.9 (D.C. Cir. 1985).\u00a0 The circumstances, as they now exist, are that the appeal ofthe factual existence of the violation remains undecided, and it is unclear whether thecircuit court would review the factual existence of a violation, should a deal be taken.\u00a0 In order to assure a final disposition and to preserve the rights of the parties toseek review, we assert jurisdiction pursuant to Rule 60(b) of the Federal Rules of CivilProcedure, and reaffirm the ALJ’s finding that the violation occurred.”