UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 79–4478
GENERAL MOTORS CORPORATION, GM PARTS DIVISION,
Respondent.

February 23, 1981

DECISION

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

The issue before us is whether the validity of an occupational safety and health standard may be challenged on the ground that the established federal standard from which it was derived was invalidly amended before its adoption under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). We hold that the validity of the procedure by which an ancestor standard was amended may not be challenged in a Commission proceeding.

On August 2, 1979, the Secretary of Labor (‘the Secretary’) issued to General Motors Corporation (‘GM’) a citation alleging that GM had violated section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), by failing to comply with the occupational safety and health standard at 29 C.F.R. § 1910.132(a). The citation alleged that employees handling heavy materials in a warehouse area of a GM Parts Division facility were not using foot protection. Section 1910.132(a) states in part that personal protective equipment for employees’ extremities ‘shall be provided, used, and maintained. . . wherever it is necessary by reason of hazards . . ..’ [1](Emphasis added.) GM contested the citation.

GM’s answer to the Secretary’s subsequent complaint alleged, among other things, that the standard was ‘improperly promulgated.’ Both parties then filed motions for summary judgment. Administrative Law Judge J. Paul Brenton granted GM’s motion and vacated the citation. He held that the addition of the word ‘used’ to 41 C.F.R. § 50–204.7, the established federal standard from which section 1910.132(a) was derived, was invalid because prior, public notice of the amendment was not given and rulemaking procedures were not followed. Judge Brenton agreed with the decision of another administrative law judge in General Motors Corp., OSHRC Docket No. 78–1443 (June 21, 1979), review directed, July 23, 1979, that the addition of the word ‘used’ was not a minor change for which notice and rulemaking proceedings were unnecessary.

The Secretary filed a petition for discretionary review of Judge Brenton’s decision, and review was granted by Commissioner Cottine under section 12(j) of the Act, 29 U.S.C. § 661(i).[2]

A review of the regulatory background is important to an understanding of this controversy. In 1936, Congress passed the Walsh-Healey Government Contracts Act, 41 U.S.C. §§ 35–45 (‘the Walsh-Healey Act’). The Walsh-Healey Act requires contracts with the federal government for materials in amounts over $10,000 to provide that ‘no part of such contract will be performed . . . under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of said contract.’[3] It authorizes the Secretary of Labor to adopt rules and regulations to carry out the statute,[4] and makes the Administrative Procedure Act, 5 U.S.C. §§ 551–706 (‘the APA’), applicable to the making of rules under the Walsh-Healey Act.[5]

Section 4(a) of the APA, 5 U.S.C. § 553(b), requires an agency to publish in the Federal Register a notice of a proposed rulemaking giving the terms or substance of a proposed rule, or a description of the subjects and issues involved, unless the agency for good cause finds that ‘notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.’ The agency’s finding of good cause, and a brief statement of the reasons for the finding, must accompany the publication. Id. Section 4(b) of the APA, 5 U.S.C. § 553(c), requires that after notice is given, interested persons be afforded ‘an opportunity to participate in the rulemaking’ through submission of information, views or arguments.

On September 20, 1968, the Bureau of Labor Standards of the United States Department of Labor proposed to revise 41 C.F.R. Part 50–204 by prescribing safety and health standards for the performance of contracts covered by the Walsh-Healey Act. 33 Fed. Reg. 14258 (1968). One of the standards proposed to be adopted stated in part as follows:

§ 50–204.64 Personal protective equipment.

Protective equipment, including personal protective equipment for . . . extremities, protective clothing, . . . and protective shields and barriers, shall be provided and maintained . . . wherever it is necessary by reason of hazards . . .. [Emphasis added.]

33 Fed. Reg. at 14270.

On December 28, 1968 mine radiation standards were adopted. 33 Fed. Reg. 19947 (1968). On January 17, 1969, the remainder of the revised Part 50–204 was adopted. 34 Fed. Reg. 788 (1969). The standard on personal protective equipment was designated 41 C.F.R. § 50–204.7. 34 Fed. Reg. at 790.[6] The standards, which were said by the Secretary to have been adopted after interested persons had been afforded opportunities to present oral and written comments, were to become effective 30 days after publication.

On February 14, 1969, the effective date of the revised Part 50–204 was postponed until May 17, 1969, ‘to permit a careful review’ of the standards by the new Secretary of Labor. 34 Fed. Reg. 7946 (1969) (preamble); 34 Fed. Reg. 2207 (1969). After an advisory committee composed of representatives of labor, management and public groups interested in occupational safety and health made its recommendations, and the public comments received earlier were reviewed, the Secretary amended some of the standards in Part 50–204 without further rulemaking and adopted the revised Part 50–204, effective May 20, 1969. 34 Fed. Reg. 7946 (1969). The personal protective equipment standard was unchanged.

On January 24, 1970, the Secretary published ‘miscellaneous amendments’ to the new part. 35 Fed. Reg. 1015 (1970). The Secretary stated:

Typographical or clerical corrections and other minor changes are made in [41 C.F.R.] Part 50–204 . . . in the manner indicated below. To the extent that substantive rules may be made in §§ 50–204.7 and 50–204.10 [the personal protective equipment and noise standards], notice and public procedure is found unnecessary because only minor amendments are involved.

All but two of the changes were to take effect at once; the changes to the personal protective equipment and noise standards were to take effect 30 days after publication. The personal protective equipment standard was changed by the addition of the word ‘used’, so that the standard stated: ‘Protective equipment, including personal protective equipment . . . shall be provided, used, and maintained . . ..’ (Emphasis added.) This is the change to which GM objects.

On April 28, 1971, the Occupational Safety and Health Act became effective. Section 6(a) of the Act, 29 U.S.C. § 655(a), required that the Secretary, within two years, adopt as occupational safety and health standards under the Act ‘established Federal standards’ and ‘national consensus standards’ without following the rulemaking requirements of the APA or of other subsections of section 6 of the Act. The Secretary was to do so unless he found that the adoption of a standard would not improve employee safety or health.[7] Established federal standards are defined in section 3(10), 29 U.S.C. § 652(10), as ‘any operative . . . standard established by any [federal] agency . . . and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act.’[8] The last sentence of section 4(b)(2), 29 U.S.C. § 653(b)(2), states, however, that ‘Standards issued under the laws listed in this paragraph and in effect on or after the effective date of this Act shall be deemed to be occupational safety and health standards issued under this Act . . ..’ The Walsh-Healey Act is one of the statutes listed.[9]

On May 29, 1971, the Secretary, acting under section 6(a) and in conformity with the congressional direction to adopt established federal standards under the Act, adopted many Walsh-Healey standards as occupational safety and health standards. 36 Fed. Reg. 10466 (1971). The Walsh-Healey standard on personal protective equipment was adopted and was codified as an occupational safety and health standard at 29 C.F.R. § 1910.132(a). Id. at 10590; 29 C.F.R § 1910.139.

III

On review, the Secretary argues that the Commission has no authority to pass upon the validity of occupational safety and health standards. He maintains that the pre-enforcement challenge provision in section 6(f) of the Act, 29 U.S.C. § 655(f), is exclusive, and that, in particular, challenges to the procedural regularity of a standard’s adoption may not be raised in an enforcement proceeding. For the latter point he cites National Industrial Constructors v. OSHRC, 583 F.2d 1048, 1052 (8th Cir. 1978) (‘NIC’).

The Secretary further argues that ‘the propriety of the promulgation of the antecedent Walsh-Healey standard may not be questioned in an OSHA enforcement proceeding.’ He maintains that in sections 4(b)(2) and 6(a) of the Act, Congress adopted and authorized the adoption as quickly as possible of all established federal standards ‘on the books’ when the Act became law; that ‘Congress did not require the Secretary to examine the genealogy of the standards in order to determine their procedural legitimacy as a prerequisite to their summary adoption’; and that in section 6(a) Congress required the Secretary to inquire only whether adoption of a standard ‘would not result in improved safety or health for specifically designated employees.’

The Secretary argues also that the word ‘used’ was properly added to the Walsh-Healey standard because it was a minor, clarifying amendment for which notice and rulemaking were unnecessary under 5 U.S.C. § 553(b). He maintains that the purpose of adding the word ‘used’ to the standard was to ‘make explicit what was implicit in the word ‘provided’.’ He views the term ‘provided’ to imply a requirement of use, citing Cornell & Co., 77 OSAHRC 18/D10, 5 BNA OSHC 1018, 1020, 1976–77 CCH OSHD ¶21,532 (No. 9353, 1977); Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974); Marshall v. Southern Industrial Contractors & Riggers, Inc., 576 F.2d 368 (5th Cir. 1978). He also relies on Turnbull Millwork Co., 77 OSAHRC 205/C8, 6 BNA OSHC 1148, 1149, 1977–78 CCH OSHD ¶ 22,388 (No. 15047, 1977). The Secretary acknowledges the contrary Commission and court decisions in Kennecott Copper Corp., 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976–77 CCH OSHD ¶ 20, 860 (No. 5958, 1976), aff’d, 577 F.2d 1113 (10th Cir. 1977).

GM argues that the Commission may review the validity of standards, and that the Commission and the courts have so held. It cites the legislative history of the Act and Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d 199 (9th Cir. 1980) (‘Noblecraft’), for the proposition that the pre-enforcement challenge procedure provided by section 6(f) is not exclusive. GM argues that the distinction drawn by the NIC court, and relied upon by the Secretary, between challenges to a standard’s substantive validity and to the procedural regularity of its adoption, is unsupportable. Finally, GM maintains that the addition of the word ‘used’ to § 50–204.7 was a substantial change that could have been effected under the Walsh-Healey Act only after notice and rulemaking under the APA.

In Rockwell International Corp., 80 OSAHRC ___, 9 BNA OSHC 1092, 1094–1097, 1980 CCH OSHD ¶ 24,979, pp. 30,843–45 (No. 12470, 1980), the Commission held that it is generally authorized to consider the validity of occupational safety and health standards in enforcement proceedings. We rejected the Secretary’s argument that the mere existence of the pre-enforcement challenge provision in section 6(f) of the Act indicates that Congress intended to bar all challenges to the validity of a standard in enforcement proceedings. We also stated, however, that Congress’ rejection of a bill containing an exclusive pre-enforcement challenge provision does not indicate necessarily that Congress intended to permit all challenges to a standard’s validity in enforcement proceedings regardless of the circumstances. 9 BNA OSHC at 1096, 1980 CCH OSHD at p. 30,844 (majority opinion) and 9 BNA OSHC at 1099, 1980 CCH OSHD at p. 30,847 (concurring opinion). Although we considered Rockwell’s argument that the standard at issue in that case is invalid because it is substantially different from the established federal standard from which it was derived, we specifically reserved decision on whether a challenge to the procedural regularity of the adoption of the ancestor standard itself would be permitted in an enforcement proceeding. We observed that such a question raised ‘different considerations’ and that the Eighth Circuit in NIC had refused to entertain such an attack in an enforcement proceeding. 9 BNA OSHC at 1096 & n. 18, 1980 CCH OSHD at p. 30,845 & n. 18 (lead opinion), and 9 BNA OSHC at 1100, 1980 CCH OSHD at p. 30,848 (concurring opinion).[10]

The language of the Act does not specifically address the issue before us. The only provision that even suggests that GM’s challenge may be considered is the definition of ‘established Federal standard’ in section 3(10) of the Act, 29 U.S.C. § 652(10), which refers to ‘any operative occupational safety and health standard established by any [federal] agency . . . and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act.’ (Emphasis added.) To rely upon section 3(10), however, would require us not only to construe ‘operative’ as meaning ‘valid’—despite its usual meaning of ‘operating’, or ‘exerting force or influence’[11]—but also to conclude that because the Walsh-Healey standard at issue was not ‘operative’, it was not an established federal standard within the contemplation of section 3(10). Such a construction would simply not reflect congressional intent. Section 4(b)(2) of the Act states in part that Walsh-Healey standards ‘in effect on or after the effective date of this Act shall be deemed to be occupational safety and health standards issued under this Act . . ..’[12] The drafters of the Act were aware that the then recently-adopted Walsh-Healey standards would be the primary source of established federal standards for industrial working conditions covered by the Act.[13] While section 4(b)(2) cannot be read so literally as to make section 6(a) superfluous,[14] its text and the regulatory background against which section 3(10) must be viewed do indicate that it was Congress’ view that the Walsh-Healey standards would be ‘established Federal standards’ under the Act. Congress’ view of the matter controls. Cf. Newport News Shipbuilding & Drydock Co., 80 OSAHRC ___, 9 BNA OSHC 1085, 1088–89, 1980 CCH OSHD ¶ 25, 003, pp. 30,889–890 (No. 76–171, 1980), following Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d at 203 (ANSI and NFPA standards, intended by Congress to be adopted as national consensus standards under section 6(a), meet the definition of national consensus standard in section 3 (9)).[15]

Although the text of the Act itself does not specifically answer the question before us, we do have evidence of the guiding congressional purposes. Congress authorized the Secretary to summarily adopt established federal standards and national consensus standards ‘as soon as practicable’ because it found a ‘pressing need for adoption of OSHA standards on an exceedingly broad industrial front without undue delay.’[16] As the Senate Subcommittee on Labor stated: ‘The purpose of this procedure is to establish as rapidly as possible national occupational safety and health standards with which industry is familiar.’[17] Congress also expected that, despite their defects, the established federal standards and national consensus standards ‘would provide a sound foundation for a national safety and health program’[18] and that the summary adoption of established federal standards would be fair to employers because ‘[s]uch standards have already been subjected to the procedural scrutiny mandated by the law under which they were issued.’[19] For these reasons, and to expedite the adoption and nationwide enforcement of established federal standards, section 6(a) imposed only a minimal, additional burden upon the task of adopting them: The Secretary was commanded to adopt established federal standards unless he found that no improvement in employee safety and health would result. As the Secretary puts it, Congress directed the adoption of established federal standards ‘on the books’ when the Act became effective and did not require him to ‘examine the genealogy of the standards . . . as a prerequisite to their adoption.’

Our task here is to formulate a rule that best reflects congressional purposes and expectations. The legitimacy of the procedures by which many established federal standards were adopted has been questioned both here and in the courts.[20] While we are sensitive to the interests of employers and labor organizations in challenging the validity of standards—and we weighed those interests heavily in Rockwell—we must also give weight to countervailing considerations. As we have noted, Congress expected that the established federal standards would help to provide a sound foundation for a national safety and health program because the procedural regularity of their adoption had been subjected to scrutiny at the time of their promulgation under other federal legislation. To strike down an occupational safety and health standard at this time because of a procedural misstep involving its ancestor standard adopted under another federal statute would upset this congressional expectation. We also give considerable weight to the fact that freely permitting challenges to the procedural validity of ancestor standards would substantially undercut the public interests in finality and in avoiding the burden that continuous challenges would impose upon the Secretary’s enforcement program and the Commission’s adjudicative processes. Rockwell International Corp., 9 BNA OSHC at 1096, 1980 CCH OSHD at p. 30,845 (lead opinion) and 9 BNA OSHC at 1099, 1980 CCH OSHD at pp. 30,847–48 (concurring opinion). See also National Industrial Constructors v. OSHRC, 583 F.2d at 1052.[21] We therefore hold that the validity of an occupational safety and health standard may not be challenged on the ground that the established federal standard from which it was derived was invalidly amended before its adoption under the Act.

Accordingly, the judge’s decision is reversed, and the case is remanded for further proceedings consistent with this opinion.

FOR THE COMMISSION:

RAY H. DARLING, JR.,

EXECUTIVE SECRETARY

DATED: FEB 23, 1981

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 79–4478
GENERAL MOTORS CORPORATION, GM PARTS DIVISION,
Respondent.

February 7, 1980

DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

APPEARANCES

Bobbye D. Spears, Regional Solicitor, Larry A. Auerbach, Esquire, U.S. Department of Labor, Office of the Solicitor, Atlanta, Georgia, On behalf of Complainant.

Michael J. Connolly, Esquire, Ms. M. Alice McCann, Esquire, General Motors Corporation, Detroit, Michigan, On behalf of Respondent.

Brenton, Judge

STATEMENT OF THE CASE

On August 2, 1979, complainant cited respondent for a § 5(a)(2) violation of the Occupational Safety and Health Act of 1970. After respondent timely filed its notice of contest, a complaint was filed and served upon respondent to which respondent filed its answer.

On November 2, 1979, a hearing on the merits was scheduled to commence on December 21, 1979. On December 3, 1979, respondent filed a motion for summary judgment to which complainant responded on January 8, 1980. Complainant’s response includes a cross-motion for summary judgment in his favor. Respondent responded to that cross-motion on January 14, 1980.

At an early date, the parties orally indicated that neither would request a hearing on the motion, and neither made such request on or before December 18, 1979, having been extended that opportunity on December 7, 1979.

The respective motions of the parties are based soley upon the pleadings except respondent submitted the decision and order of Judge Weil in Secretary of Labor v. General Motors Corporation, OSHRC Docket No. 78–1443, in support of its motion.

No affected employee or union representative of affected employees claimed party status or objected at any time to the proceedings in this case.

THE CHARGE

That checkers in the warehouse area handling heavy materials were not required to wear foot protection in violation of a specific standard [promulgated under the Act] (29 C.F.R. 1910.132(a)).

THE ISSUE

Whether the pleadings, admissions, if any, and extraneous material on file show that there is no genuine issue as to any material fact and that one of the moving parties is entitled to a judgment as a matter of law.

LAW AND OPINION

Respondent by its answer concedes that it is engaged in a business affecting commerce, therefore the Review Commission has jurisdiction to hear and decide the issue presented; unless § 6(f) of the Act establishes exclusive jurisdiction in the United States Court of Appeals to hear and decide challenges to the validity of the Secretary’s promulgated regulations and standards.

Respondent’s answer denies the alleged violation and affirmatively avers the invalidity of § 132(a).

Complainant concedes that in promulgating the standard under attack, he did not adopt the pre-existing federal standard verbatim. That pre-existing standard provided:

‘Protective equipment . . . shall be provided and maintained . . .’ (34 FR 788 at 790)

Complainant, without a rule-making proceeding on public notice, changed the standard, adopted and promulgated it to read:

‘Protective equipment . . . shall be provided, used, and maintained . . .’ (35 FR 1015).

The addition of the word ‘used’ in the standard as promulgated is the underlying thrust of respondent’s case for summary judgment in its favor.

The pleadings and the extraneous material judicially noticed clearly present the question of law.

The posture of this case at this stage of the proceedings clearly shows that the fact of change upon adoption of § 132(a) is indisputable, which in turn presents the issue of its validity and enforceability.

The validity of the cited standard is, of course, a material fact and the heart of complainant’s enforcement action here.

Judge Weil’s decision and order appended to respondent’s memorandum in support of its motion properly declared § 132(a) invalid. The parties there are identical here. The issues presented and decided there are the same as presented and to be decided here. Complainant here has presented no new or different propositions of law and authorities.

This tribunal is aware that Judge Weil’s decision and order in OSHRC Docket No. 78–1443 has been directed for review by the Review Commission and to date is not Commission precedent.

Nevertheless, this tribunal is in complete agreement with his analysis of the issue of the validity of the cited standard. If the Commission has precisely decided the issue as presented there and here, this tribunal by research is unaware of such a decision.

This tribunal has been over this territory before in Secretary v. Duriron Company, 78 OSAHRC 46/E6, 6 BNA 1701, 1978 CCH OSHD ¶ 22,819 (Docket No. 77–3177). There, as here, a substantial change in substance occurred upon the promulgation of the respective standards and invalid in the absence of compliance with APA safeguards (5 U.S.C. § 553).

Judge Weil’s decision in OSHRC Docket No. 78–1443 is incorporated herein by reference and adopted by this tribunal as if fully rewritten. His conclusions reached in that decision are equally valid here.

There being no genuine issue as to the essential material fact put in issue by respondent’s motion, respondent is entitled to judgment as a matter of law; and complainant’s cross motion is denied and dismissed.

Respondent’s motion here is functionally equivalent to a motion to dismiss for failure to state a claim or a motion for judgment on the pleadings. In those kind of cases, the movant denies the sufficiency of the truth of his adversary’s allegations. Thus having found that § 132(a) is invalid in law, the citation should be vacated.

ORDER

Citation 1 and its correlative penalty are vacated.

J. PAUL BRENTON

JUDGE

Dated: February 7, 1980

Atlanta, Georgia

[1] Section 1910.132 states in its entirety:

§ 1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

(b) Employee-owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.

[2] We sever this case from No. 78–1443, with which it had been consolidated. Commission Rule 10, 29 C.F.R § 2200.10.

[3] Section 1(e), 41 U.S.C. § 35(e).

[4] Section 4, 41 U.S.C. § 38.

[5] Section 10 as amended in 1952, 41 U.S.C. § 43a. Section 4(2) of the APA, 5 U.S.C § 553(a)(2), makes APA rulemaking procedures inapplicable to government contract matters.

[6] The final standard included a sentence that did not appear in the proposed standard. The new sentence stated that ‘All personal protective equipment shall be of safe design and construction for the work to be performed.’ Some changes were also made in another sentence dealing with employee-provided equipment.

[7] Section 6(a) states:

Without regard to chapter 5 of title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.

[8] National consensus standards are defined in section 3 (9) of the Act, 29 U.S.C. § 652(9), as:

. . . any occupational safety and health standard or modification thereof which (1), has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies.

[9] The other laws are the Service Contract Act of 1965, 41 U.S.C. §§ 351–358; the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 333 (usually known as the Construction Safety Act); the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901–950 (‘the LHWCA’); and the National Foundation on Arts and Humanities Act of 1965, 20 U.S.C. §§ 951–960. Section 4(b)(2) is reproduced in its entirety at note 12, infra.

[10] Unlike Rockwell, this case does not present the question of whether a standard is invalid because it is substantially different from its source standard. See also Kennecott Copper Corp., 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976–77 CCH OSHD ¶ 20,860 (No. 5958, 1976), aff’d, 577 F.2d 1113 (10th Cir. 1977) (change in national consensus standard). We also do not have before us a claim that § 1910.132(a) is invalid because it is vague or otherwise violates the due process clause of the Fifth Amendment. See, e. g., Owen Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ¶23, 509 (No. 76–4990, 1979) (vagueness of § 1910.132(a)), appeal filed, No. 79–2516 (5th Cir. June 26, 1979).

[11] Webster’s Third New International Dictionary, at 1581 (1971) lists the following meanings: ‘producing an appropriate or designed effect’, ‘efficacious’, ‘having the effect of acting: exerting force or influence’, and ‘operating’. The Random House Dictionary, at 1009 (1971) lists ‘operating, or exerting force or influence’, ‘having force; being in effect or operation: [e. g.,] laws operative in this city’ (exemplary italics omitted), and ‘effective or efficacious’.

[12] Section 4(b)(2) states in its entirety:

The safety and health standards promulgated under the Act of June 30, 1936, commonly known as the Walsh-Healey Act (41 U.S.C. 35 et seq.), the Service Contract Act of 1965 (41 U.S.C. 351 et seq.), Public Law 91–54, Act of August 9, 1969 [the Construction Safety Act] (40 U.S.C. 333), Public Law 85–742, Act of August 23, 1958 [the LHWCA] (33 U.S.C. 941), and the National Foundation on Arts and Humanities Act (20 U.S.C. 951 et seq.) are superseded on the effective date of corresponding standards, promulgated under this Act, which are determined by the Secretary to be more effective. Standards issued under the laws listed in this paragraph and in effect on or after the effective date of this Act shall be deemed to be occupational safety and health standards issued under this Act, as well as under such other Acts.

[13] Former Secretary of Labor Shultz, the first witness to testify before the Senate Subcommittee on Labor, testified that ‘[t]he only Federal laws not confined to a specific industry are the Walsh-Healey Public Contracts Act and its companion legislation, the McNamara-O’Hara Service Contract Act.’ Occupational Safety and Health Act, 1970: Hearings on S.2193 and S.2788 Before the Subcomm. on Labor of the Senate Comm. on Labor & Public Welfare, 91st Cong., 1st & 2d Sess. 80 (1969–1970). Senators Williams and Javits, two of the drafters of the Act, were also aware of the adoption and coverage of the Walsh-Healey standards. id. at 402–403 (Senator Javits), and at 808–809 (Senator Williams) (remarks on noise standards). See also, e.g., id. at 1003 (remarks of Mr. Mittelman minority counsel, on noise standard); at 150 (Dr. Key, Director of Bureau of Occupational Safety and Health, Dept. of HEW); at 630–631 (Mr. Ralph Nader); at 834 (Mr. Veneri, Electrical Workers); and at 1313 (final Walsh-Healey standards reproduced verbatim).

[14] That Congress did not intend § 4(b)(2) to make § 6(a) superfluous or impair the Secretary’s rulemaking authority under § 6(a) is clear. See remarks of Representative Steiger of Wisconsin, reprinted in Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 1217 (1971) (‘Leg. Hist.’); see also Atlantic & Gulf Stevedores, Inc., 75 OSAHRC 47/A2, 3 BNA OSHC 1003, 1008 & n.8, 1974–75 CCH OSHD ¶19,526, pp. 23,301–23,302 & n.8 (No. 2818 etc. 1975), aff’d, 534 F.2d 541 (3d Cir. 1976).

Section 4(b)(2), in addition to indicating that Walsh-Healey standards would be established federal standards within the contemplation of § 3(10), also made those standards ineffective under the Walsh-Healey Act only after they, or corresponding national consensus standards found to be more effective, had been adopted under § 6(a). Until then, the Walsh-Healey standards could have been enforced against government contractors under the Walsh-Healey Act or the Occupational Safety and Health Act. See Atlantic & Gulf Stevedores, 3 BNA OSHC at 1007–1008, 1974–75 CCH OSHD at pp. 23,301–23,302; S. Rep. No. 91–1282, 91st Cong., 2d Sess., at 22 and 27 (1970) (‘S. Rep.’), reprinted in Leg. Hist. at 141, 162 and 167; H.R. Conf. Rep. No. 91–1765, 91st Cong., 2d Sess., at 33 (1970) (‘Conf. Rep.’), reprinted in Leg. Hist. at 1154, 1186; Leg. Hist. at 1204 (remarks of Representive Perkins), and at 1216–1217 (remarks of Representive Steiger).

[15] We have considered also whether the words ‘in effect’ in the phrase ‘in effect on or after the effective date of this Act’ in § 4(b)(2) could be construed to mean ‘valid’. We conclude, however, that ‘in effect’ refers simply to the effective date of the standards.

[16] Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d at 203; accord, Deering Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1096 (5th Cir. 1980) (Congress adopted abbreviated procedure because it ‘perceived the industrial safety problem to be severe’).

[17] S. Rep. at 5–6, Leg. Hist. at 145–146. The Senate committee stated:

Consensus Standards, Established Federal Standards, Proprietary Standards.—Within two years after enactment, the Secretary would be required by section 6(a), to promulgate all national consensus standards and all established Federal standards unless he determines that a standard would not result in improved safety or health for all or some of the affected employees. If there is a conflict among standards, the Secretary shall promulgate that which assures the greatest protection for the affected employees.

The purpose of this procedure is to establish as rapidly as possible national occupational safety and health standards with which industry is familiar. These standards may not be as effective or as up-to-date as is desirable, but they will be useful for immediately providing a nationwide minimum level of health and safety.

Two private organizations are the major sources of consensus standards: the American National Standards Institute, Inc., and the National Fire Protection Association. Since, by the Act’s definition, a ‘consensus standard’ is one which has been adopted under procedures which have given diverse views an opportunity to be considered and which indicate that interested and affected persons have reached substantial agreement on its adoption, it is appropriate to permit the Secretary to promulgate such standards without regard to the provisions of the Administrative Procedure Act.

The bill also provides for the issuance in similar fashion of those standards which have been issued under other Federal statutes and which under this act may be made applicable to additional employees who are not under the protection of such other Federal laws. Such standards have already been subjected to the procedural scrutiny mandated by the law under which they were issued; such standards, moreover, in large part, represent the incorporation of voluntary industrial standards.

Promulgation, Revision and Revocation of Standards.—The consensus and other standards issued under section 6(a) would provide a sound foundation for a national safety and health program.

Id. See also Conf. Rep. at 33–34, Leg. Hist. at 1186–1187.

[18] S. Rep. at 6, Leg. Hist. at 146.

[19] See also Leg. Hist. at 995 (remarks of Rep. Steiger).

[20] For example, in NIC it was claimed that nearly all of 29 C.F.R. Part 1926 was invalidly adopted under the Construction Safety Act because, contrary to the APA, it was published in the Federal Register less than 30 days before its effective date.

[21] NIC is the only court decision to have confronted the narrow question we examine here. Although recently two courts of appeals have expressly declined to follow NIC, neither of those cases concerned the validity of ancestor standards. Deering-Milliken Inc. v. OSHRC, supra note 16 (modification under the Act of Walsh-Healey standard without following § 6(b) rulemaking procedures); Marshall v. Union Oil Co., 616 F.2d 1113 (9th Cir. 1980) (same as to national consensus standard). Despite the breadth of its reasoning, we read NIC in light of the particular challenge posed before the court.