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American Federation of Labor & Congress of Industrial Organizations and Industrial Union Department v. Brennan

filed: December 31, 1975.

AMERICAN FEDERATION OF LABOR & CONGRESS OF INDUSTRIAL ORGANIZATIONS AND INDUSTRIAL UNION DEPARTMENT, AFL-CIO, PETITIONERS,
v.
PETER J. BRENNAN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR AND JOHN H. STENDER, ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY & HEALTH, RESPONDENTS, CHAMBER OF COMMERCE OF THE UNITED STATES AND AMERICAN METAL STAMPING ASSOCIATION, INTERVENORS



ON PETITION FOR REVIEW OF AN ORDER OF THE DEPARTMENT OF LABOR OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION.

Biggs, Gibbons and Weis, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Circuit Judge.

The American Federation of Labor and Congress of Industrial Organizations and the Industrial Union Department, AFL-CIO (Petitioners), by a petition filed pursuant to § 6(f) of the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 655(f), challenge the action of the Secretary of Labor (the Secretary) in promulgating on December 3, 1974 a revision of the safety standards applicable to mechanical power presses. The Secretary as respondent, and two intervenors, the Chamber of Commerce of the United States and the American Metal Stamping Association, defend the revised standards, as does the Associated Industries of New York State, Inc. as amicus. The National Machine Tool Builders Association as amicus supports the petitioner's challenge. At issue is the Secretary's decision to eliminate the "no hands in dies" standard for mechanical power presses, adopted in 1971 and appearing at 29 C.F.R. § 1910.217(d) (1)-(2) (1974).

In § 6(a) of the Act the Secretary was authorized and directed to promulgate by rule as an occupational safety and health standard any "national consensus standard" unless he determined that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. 29 U.S.C. § 655(a). "National consensus standard" is defined in § 3(9) of the Act as one adopted and promulgated by a nationally recognized standards-producing organization.*fn1 In 1971 the Secretary, acting pursuant to § 6(a), adopted a large number of standards which had been promulgated by the American National Standards Institute, Inc. (ANSI), an organization which has served as a clearinghouse for the development of voluntary standards by agreement among maker, seller and user groups.*fn2 Among the ANSI standards which the Secretary adopted was its standard B 11.1-1971, Safety Requirements for the Construction, Care, and Use of Mechanical Power Presses. This standard was a revision of a safety code for mechanical power presses which had first been promulgated in 1922 and had been revised several times thereafter. Standard B 11.1-1971, a revision adopted by ANSI on February 17, 1971, however, while it carried forward many features of the earlier mechanical power press safety codes, departed radically from those codes in one very significant respect. The 1971 standard announced its central purpose to be the elimination of "the necessity of having the operator place his hands or fingers within the point of operation, thus minimizing his exposure to point of operations hazards."*fn3 When it promulgated the no hands in dies standard*fn4 the B 11 standards committee did not anticipate that its code would, by virtue of the enactment of OSHA and the Secretary's action, become a mandatory federal standard rather than a precatory guideline for the affected industries.*fn5

On January 26, 1973 the Secretary announced in the Federal Register the receipt of two petitions*fn6 to revoke 29 C.F.R. § 1910.217(d) (1)-(2). The announcement disclosed:

A major contention of the petitioners is that the point of operation guards or point of operation devices required by 29 CFR 1910.217(c) adequately protect an operator of a mechanical power press from an injury that could result from his hands being placed at the point of operation of the press. Since the guards or devices are designed to prevent either an operator's hands or fingers from entering the area at the point of operation or the stroking of the press, it is contended that the design and construction requirements for mechanical power presses in 29 CFR 1910.217(d)(1) and (2) would serve the same purpose and provide substantially the same protection. Hence petitioners argue that these provisions require great expenditures without adding significant protection.

38 Fed. Reg. 2465 (1973). The Secretary invited comments on the proposed action by February 24, 1973.

The point made in the petitions for revocation was that ANSI Standard B 11.1-1971 provided for redundant safeguards against the hazard of injury to the operator's hands during the power stroke of a mechanical press. Section (c)(1), 29 C.F.R. § 1910.217(c)(1)(i) provided that "it shall be the responsibility of the employer to provide and insure the usage of 'point of operation guards' or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press." Guards or fixed barriers are intended to prevent the entry of hands or fingers into the point of operation during the power stroke of the press.*fn7 Devices are intended to prevent or interrupt the power stroke of the press if the operator's hands are in the point of operation, or to prevent the operator from placing his hands in the point of operation during the power stroke by requiring that they be elsewhere.*fn8 What the original section (d)(1) required, in addition to mechanical safeguarding, was that the operator's hands remain outside the die not only during the power stroke cycle of the press but also during the feeding cycle. Thus the effect of section (d)(1) was to prevent hand feeding of any mechanical press. Feeding under standard (d)(1) could be accomplished only by automatic or semiautomatic feeding, or by the use of hand tools.

On March 14, 1974 the Secretary gave notice of proposed modifications of the mechanical power press regulations. The notice proposed tightened standards relating to guards and devices,*fn9 but also proposed the elimination of the no hands in dies requirement.*fn10 The notice fixed May 13, 1974 as the date upon which a public hearing on the proposed rulemaking would commence.*fn11

Thirty-three interested parties appeared and testified at the hearing, including representatives of the Chamber of Commerce, the American Metal Stamping Association, several large corporate power press users, the UAW and the AFL-CIO. Labor representatives uniformly opposed at this hearing revocation of the no hands in dies standard, as did manufacturers of mechanical power presses. Both groups heavily relied upon statistical evidence to strengthen the case against revocation. Industrial users of power presses uniformly supported the Secretary's proposed action. In addition to oral testimony the Secretary received over 300 written comments and 90 hearing exhibits. The rulemaking proceedings were closed on June 26, 1974.

On December 3, 1974 the Secretary adopted the final power press standard substantially in the form proposed in his March 14, 1974 notice.*fn12 Pursuant to § 6(b)(8) of the Act, 29 U.S.C. § 655(b)(8), the Secretary published a statement of reasons describing why the rule as adopted would better effectuate the purposes of OSHA than the national consensus standard it supplanted. The significant parts of that statement are quoted in Part II of this opinion.*fn13 The petitioner seeks review of the December 3, 1974 action.

I. SCOPE OF REVIEW

In Synthetic Organic Chemical Manufacturers Association v. Brennan, 503 F.2d 1155 (3d Cir. 1974), cert. denied, 420 U.S. 973, 43 L. Ed. 2d 653, 95 S. Ct. 1396 (1975) (Synthetic Organic I), we outlined the five-step process under § 6(f) that we will follow in reviewing the Secretary's action in promulgating a permanent safety standard.*fn14 The petitioner contends that in this instance the scope of our review is far less circumscribed than under § 6(f), which provides that "determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole." It points to § 6(b)(8) of the Act, 29 U.S.C. § 655(b)(8):

Whenever a rule promulgated by the Secretary differs substantially from an existing national consensus standard, the Secretary shall, at the same time, publish in the Federal Register a statement of the reasons why the rule as adopted will better effectuate the purposes of this chapter than the national consensus standard.

From this language the petitioner reasons that whenever the Secretary departs from a national consensus standard his rulemaking is deprived of the presumption of validity afforded by § 6(f), and he must satisfy us, by fact-finding supported by evidence, that the departure from the consensus will better effectuate the purposes of the Act. Thus we must initially determine whether to review the administrative action by the standards announced in Synthetic Organic I or by a stricter standard.

At the outset we note that petitioners' position with respect to the proper interpretation of § 6(b)(8) is a two-edged sword. In this instance the departure from a national consensus standard involves the elimination of a redundant safety requirement, the retention of which arguably would enhance employee safety. But petitioner's interpretation of § 6(b)(8) would impose on the Secretary the same burden of proof in those instances where he concluded that it was desirable and feasible to modify an existing national consensus standard by proposing new and more vigorous health and safety requirements. There are literally hundreds of national consensus standards.*fn15 Many of these represent only the lowest common denominator of sharply-divided opinion;*fn16 others represent a state of the art which does not take into account emerging developments in the technology of safety, or in the field of health science.*fn17 Congress made unmistakably clear its intention that national consensus standards should ...


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