United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 11-2395

KIEWIT POWER CONSTRUCTORS CO.,

Respondent.

ON BRIEFS:

Scott Glabman, Senior Appellate Attorney; Charles F. James, Counsel for Appellate 

Litigation; Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety and 

Health; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Arthur G. Sapper, Esq.; Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, DC

For the Respondent

DECISION

Before: MACDOUGALL, Chairman; ATTWOOD and SULLIVAN, Commissioners.

BY THE COMMISSION:

Enacted by Congress in 1970, the Occupational Safety and Health Act permitted the 

Secretary of Labor under section 6(a) to “promulgate as an occupational safety or health standard 

any . . . established Federal standard,” without notice-and-comment rulemaking, “during the period 

beginning with the effective date of this Act and ending two years” later. 29 U.S.C. § 655(a). At 

issue in this case is whether the Secretary had the authority under section 6(a) to adopt a “quickdrenching” standard that was originally promulgated under the Walsh-Healey Public Contracts 

Act of 1936 (WHA) and applied only to non-construction employers contracting with the federal 

government, as an Occupational Safety and Health Administration standard generally applicable

to all employers, including those in the construction industry. See 29 C.F.R. § 1926.50(g). We 

conclude that section 6(a) did not authorize the Secretary to apply the quick-drenching standard to 
2

construction employers without notice-and-comment rulemaking. Therefore, we vacate a serious 

citation issued by OSHA to Kiewit Power Constructors Company that alleges a violation of 

§ 1926.50(g).1

STATUTORY & REGULATORY BACKGROUND

To begin, we must undertake a review of the somewhat tortured history of § 1926.50(g), 

which starts with Congress’s passage of the OSH Act. The OSH Act authorized the Secretary to 

promulgate workplace safety and health standards applicable to all employers “engaged in a 

business affecting commerce.” 29 U.S.C. §§ 651(b)(3), 655. Section 4(b)(2) of the OSH Act

designated all “safety and health standards” promulgated under several existing labor laws, 

including the WHA, as temporary “occupational safety and health standards” under the OSH Act, 

so that these standards would not be repealed until they were replaced by OSHA standards

promulgated under section 6. See 29 U.S.C. § 653(b)(2); 116 Cong. Rec. H11899 (daily ed. Dec. 

17, 1970) (statement of Rep. Steiger). Section 6 provided two different procedures by which the 

Secretary could promulgate OSHA standards: either pursuant to section 6(a) or section 6(b). See 

29 U.S.C. § 655.

 

1 Kiewit contested the citation and filed a motion to dismiss or for summary judgment, claiming 

that the cited standard is invalid because it was promulgated without notice-and-comment 

rulemaking. Kiewit also sought a declaratory order affirming the invalidity of § 1926.50(g). 

Former Administrative Law Judge Stephen J. Simko, Jr., granted the motion to dismiss and vacated 

the citation, but he did not consider the motion for a declaratory order, finding that his granting of 

the motion to dismiss made such an order “unnecessary.” To be clear, the Commission has 

discretion to issue such an order. See 5 U.S.C. § 554(e) (“The agency . . . in its sound discretion, 

may issue a declaratory order to terminate a controversy or remove uncertainty.”); 29 U.S.C. 

§ 659(c) (permitting the Commission to direct “other appropriate relief”). Such an issuance, 

though, is an “extraordinary step,” Walker Towing Corp., 14 BNA OSHC 2072, 2074 (No. 87-

1359, 1991), taken only where the practical effect of the order would be greater than that of a 

decision. See Granite City Terminals Corp., 12 BNA OSHC 1741, 1748 (No. 83-882-S, 1986) 

(“[A] declaratory order stating that the company’s current use of . . . safety belt 

protection . . . compli[es] with [§] 1918.23(b) . . . would serve no useful purpose,” given the 

Secretary’s “fail[ure] to prove . . . [a] violat[ion] of [that provision].”). Although Kiewit claims 

on review that issuing a declaratory order here might “coerce” the Secretary into deleting the cited 

provision from Part 1926, this is speculative. Accordingly, we decline to issue a declaratory order.
3

Under section 6(a), the Secretary was permitted to promulgate, without notice and

comment, any “national consensus standard”2or “established Federal standard”3as an 

“occupational safety or health standard” during a two-year period beginning April 28, 1971, the 

effective date of the OSH Act.4 29 U.S.C. § 655(a). Section 6(b) provides a set of notice-andcomment procedures that mirror those of the Administrative Procedure Act (APA), 5 U.S.C. § 500, 

et seq., for the promulgation of all other standards. 29 U.S.C. § 655(b).

As part of his implementation of section 6(a), the Secretary adopted many WHA standards

as OSHA standards, including the WHA’s quick-drenching provision, 41 C.F.R. § 50-204.6(c), 

which was initially codified at § 1910.151(c). 36 Fed. Reg. 10,465, 10,601 (May 29, 1971). As a 

WHA standard, this provision applied only to employers engaged in the manufacturing or 

furnishing of materials under contracts with the federal government—it did not apply to 

construction employers. 41 U.S.C. § 6502(4). The Secretary initially retained this coverage 

limitation by promulgating simultaneously with the quick-drenching standard a provision, 29 

C.F.R. § 1910.5(e), stating that standards adopted from the WHA applied only to “manufacturing 

or supply operations which would be subject to the Walsh-Healey Act.” 36 Fed. Reg. at 10,468. 

 

2

“The term ‘national consensus standard’ means 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.” 29 U.S.C. § 652(9).

3

“The term ‘established Federal standard’ means any operative occupational safety and health 

standard established by any agency of the United States and presently in effect, or contained in 

any Act of Congress in force on the date of enactment of this Act.” 29 U.S.C. § 652(10).

4 Section 6(a) of the OSH Act 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. 

29 U.S.C. § 655(a).
4

A little more than three months later, however, the Secretary revoked § 1910.5(e)—without notice 

and comment—to make § 1910.151(c) and all other standards adopted from the WHA applicable 

to all employers covered by the OSH Act, including construction employers. 36 Fed. Reg. 18,080, 

18,081 (Sept. 9, 1971) (relying on OSH Act sections 6(a) and 8(g), and stating revocation was to 

“remove the limitation to the application of the [WHA] standards so that they may apply to every 

employment and place of employment exposed to hazards covered by the standards”).

In 1979, OSHA issued a “Notice of Enforcement Policy and Republication of Standards” 

(Notice) listing construction-specific standards (from Part 1926) and general industry standards

(from Part 1910) that the agency identified as being applicable to the construction industry, 

including the quick-drenching standard, § 1910.151(c). 44 Fed. Reg. 8575, 8577, 8589 (Feb. 9, 

1979). The Notice stated that it was the “first step in the agency’s long[-]range program to modify 

Part 1926 into a single comprehensive set of OSHA regulations for use on construction worksites.” 

Id. at 8577. Subsequently, in 1983 and 1991, OSHA issued additional guidance identifying general 

industry standards it considered applicable to construction. See 58 Fed. Reg. 35,075, 35,076 (June 

30, 1993).

In 1993, OSHA codified in Part 1926 the general industry standards it deemed applicable 

to construction work. Id. At that time, OSHA acknowledged that it had not engaged in noticeand-comment rulemaking, but it invoked the APA’s “good cause” exemption, asserting that its 

action was merely a codification requested by the construction industry of standards that already 

applied to construction employers. Id. at 35,076-77. See 5 U.S.C. § 553(b)(3)(B); 29 C.F.R. 

§ 1911.5. OSHA explained that the codification did not alter the substantive requirements of the 

standards or change the existing rights or obligations of regulated parties. 58 Fed. Reg. at 35,077. 

The text of the general industry quick-drenching provision, § 1910.151(c), which OSHA had 

previously identified in 1979 as being applicable to construction, was added to 29 C.F.R. 

§ 1926.50, the construction medical services and first aid standard, as subsection (g). 58 Fed. Reg.

at 35,084.

Now that we have walked down this long and winding road, we can pick up, nearly forty 

years after the enactment of the OSH Act, with the Secretary’s issuance of a citation to Kiewit for 

an alleged serious violation of § 1926.50(g).
5

DISCUSSION

Kiewit was engaged in construction at a worksite in Rogersville, Tennessee, when its 

worksite was inspected by OSHA. Following the inspection, Kiewit was issued a citation alleging 

a violation of § 1926.50(g)—the construction “quick-drenching” provision that requires 

immediate onsite access to eye/body wash facilities for employees who may be exposed to 

“injurious corrosive materials.”5 The Secretary contends that section 6(a) of the OSH Act 

authorized him to adopt the WHA quick-drenching provision as an OSHA standard and expand its 

scope to include the construction industry without notice-and-comment rulemaking. The Secretary 

further maintains that his interpretation of this section of the OSH Act is entitled to deference under 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Kiewit 

claims that the Secretary lacked such authority because § 1926.50(g)’s original “source standard” 

was promulgated under the WHA and, therefore, did not apply to construction work; thus, the 

Secretary’s adoption of it as a construction standard (without notice-and-comment rulemaking) 

was a substantive change, which is impermissible under section 6(a).6 This case turns on the 

authority granted to the Secretary in section 6(a) to take such action.

 

5 The cited provision states that “[w]here the eyes or body of any person may be exposed to 

injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and 

body shall be provided within the work area for immediate emergency use.” 29 C.F.R. 

§ 1926.50(g). The citation alleges that Kiewit employees used an electrical insulating resin on a 

daily basis and that the resin packaging indicated that it was corrosive.

6

In vacating the citation, the judge focused entirely on OSHA’s 1993 codification of the cited 

provision in Part 1926, finding that this was a substantive change requiring notice-and-comment 

rulemaking because “[b]y moving the [quick-drenching] requirement into the construction 

standard, there becomes a presumption of applicability to construction work that otherwise does 

not exist for provisions contained in . . . Part 1910[.]” The judge also reasoned that “feasibility of 

compliance becomes more difficult or even impossible for a cited employer to challenge.”

This rationale is flawed for two reasons. First, no such “presumption of applicability” exists—the 

Secretary always has the burden of proving that a standard applies to a particular condition in a 

particular case, regardless of whether that standard has been codified in Part 1926 or Part 1910. 

See Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129-30 (No. 78-6247, 1981), aff’d in relevant 

part, 681 F.2d 69 (1st Cir. 1980). Second, codification of a standard in one part or another has no 

bearing on the issue of feasibility—feasibility of compliance is always presumed, as reflected in 

the fact that infeasibility is an affirmative defense that must be proven by the employer. See

Peterson Bros. Steel Erection Co., 16 BNA OSHC 1196, 1202 (No. 90-2304, 1993), aff’d, 26 F.3d 

573 (5th Cir. 1994). In any event, the Secretary does not argue that the 1993 codification was what 

made the quick-drenching standard applicable here. Rather, he asserts that section 6(a) “authorized 
6

I. Plain Language of Section 6(a)

In determining whether § 1926.50(g) was lawfully promulgated pursuant to the authority 

granted to the Secretary by section 6(a) of the OSH Act, “the first step in our analysis is to 

determine whether the [statutory] language at issue has a plain meaning with regard to the 

particular dispute before us, or whether it is ambiguous.” Sharon & Walter Constr., Inc., 23 BNA 

OSHC 1286, 1293 (No. 00-1402, 2010) (citing Robinson v. Shell Oil Co., 519 U.S. 337, 340 

(1997)). The “plainness or ambiguity of statutory language is determined by reference to the 

language itself, the specific context in which that language is used, and the broader context of the 

statute as a whole.” Shell Oil, 519 U.S. at 341. Although section 6(a) provides for the adoption

of certain safety and health standards during a particular period of time without notice-andcomment rulemaking, it is silent as to whether the Secretary may apply “any established Federal 

standard” adopted “as an occupational safety or health standard” to industries beyond those the 

original standard covered. The OSH Act defines “occupational safety and health standard” only 

generally, without reference to the scope of coverage. See 29 U.S.C. § 652(8) (“The term 

‘occupational safety and health standard’ means a standard which requires conditions, or the 

adoption or use of one or more practices, means, methods, operations, or processes, reasonably 

necessary or appropriate to provide safe or healthful employment and places of employment.”). 

The Secretary concedes as much, stating on review that “the OSH Act is ambiguous about the 

scope of the authorized expanded coverage of established federal standards.” In these 

circumstances, we find that section 6(a) is ambiguous as to the issue before us.

7

 

[him in 1971] to extend the coverage of the [WHA] ‘quick[-]drenching’ standard . . . to 

construction employers without notice-and-comment rule-making.” Kiewit argues, in part, that 

the manner by which the Secretary adopted the quick-drenching provision as an OSH Act 

standard—namely, revocation of § 1910.5(e)—was “unlawful” for several reasons. Regardless of 

the mechanism the Secretary used, though, the issue here is the Secretary’s authority under section 

6(a), and the 1993 codification is irrelevant in that regard.

7 Our dissenting colleague asserts that this finding of ambiguity results from a “superficial reading” 

of section 6(a). Yet, neither the canons of statutory construction, nor the statutory context of 

section 6(a), changes the fact that the provision—even when read in context—is entirely silent as 

to whether the Secretary was authorized to expand the scope of WHA standards to new industries. 

Further, in responding to our colleague’s attack on our interpretation of section 6(a), we are 

mindful that the Supreme Court has stated “that Congress ‘does not alter the fundamental details 

of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide 

elephants in mouseholes.’ ” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1626-27 (2018) (quoting 
7

II. Whether Secretary’s Interpretation Is Entitled to Chevron Deference

“In the usual course, when an agency is authorized by Congress to issue regulations and 

promulgates a regulation interpreting a statute it enforces, the interpretation receives deference if 

the statute is ambiguous and if the agency’s interpretation is reasonable.” Encino Motorcars, LLC 

v. Navarro, 136 S. Ct. 2117, 2124 (2016) (discussing principles of Chevron deference). Such 

“deference is not warranted,” however, “where the regulation is ‘procedurally defective’—that is, 

where the agency errs by failing to follow the correct procedures in issuing the regulation.” Id. at 

2125. As the Court noted, “where a proper challenge is raised to the agency procedures, and those 

procedures are defective, a court should not accord Chevron deference to the agency 

interpretation.” Id. We find that Kiewit’s challenge is not only proper but also meritorious.

A. Secretary’s Interpretation Must Be Reasonable

“One of the basic procedural requirements of administrative rulemaking is that an agency 

must give adequate reasons for its decisions.” Id. Here, the Secretary’s 1971 promulgation of 

§ 1910.5(e) shows that he initially interpreted section 6(a) as precluding him from expanding the 

scope of established federal standards to other industries. See 36 Fed. Reg. at 10,468 (“Whenever 

the source of a standard . . . is . . . an established federal standard published in 41 C.F.R. Part 50-

204, the standard . . . is intended to apply to manufacturing and supply operations which would be 

subject to the [WHA] if there were a Federal contract . . . involved.”). Then, without explanation, 

the Secretary reversed course and interpreted section 6(a) as allowing him to apply WHA-derived 

standards to “every employment and place of employment exposed to hazards covered by the 

standards.”

8

 36 Fed. Reg. at 18,081. Having failed to “provide a reasoned explanation” for this

 

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)). Our colleague’s conclusion that 

section 6(a) must be read contrary to the primacy of notice-and-comment rulemaking and as 

authorizing the Secretary to expand the coverage of WHA-derived standards to non-manufacturing 

industries falls short in light of this principle.

8 Our dissenting colleague claims that the Secretary’s adoption of § 1910.5(e) did not mean that 

he considered a scope expansion outside of his section 6(a) authority, because § 1910.5(c)(2) 

“plainly contemplates that under appropriate circumstances general standards . . . shall apply to 

industries that also have their own . . . standards.” Section 1910.5(c)(2), however, is not, as our 

colleague describes it, “Part 1910’s broad statement regarding the scope of Part 1910 standards.” 

Rather, it applies only in the event of a conflict with an industry-specific standard. Thus, 

§ 1910.5(c) is irrelevant as to the § 1910.5(e) revocation issue. Additionally, our colleague posits 

that the Secretary’s revocation of § 1910.5(e) was not a change from agency practice. Before the 
8

complete about-face, we find the Secretary’s “interpretation [of section 6(a)] to be an arbitrary and 

capricious change from agency practice . . . [that] receives no Chevron deference.”9 Encino 

Motorcars, 136 S. Ct. at 2125-26 (citation omitted); cf. Motor Vehicle Mfrs. Ass’n v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“[A]n agency changing its course by rescinding a rule 

 

revocation, WHA standards had a limited scope; after the revocation, they had a sweeping scope. 

We fail to see how this was not such a change.

9 We find, therefore, that Congress authorized only a limited range of actions under section 6(a) 

for the Secretary to adopt certain standards, not including the action at issue here.

Commissioner Sullivan further notes that essentially, the Secretary argues that section 6(a) gave 

him “free rein” to engage in promulgation, adoption, and revocation of health and safety standards 

for two years, without regard to the language in section 6(a), which states that these health and 

safety standards pertained to “specifically designated employees.” In her dissent, Commissioner 

Attwood asserts that there is no support for reading section 6(a) as limiting the application of 

established federal standards to those industries to which they originally applied. The meaning of 

the words Congress chose to use, however, demonstrates that this reading is the only plausible 

interpretation of the statute—indeed, this was the Secretary’s own interpretation until he chose to 

revoke § 1910.5(e). The word “specific” means “having a special application, bearing or 

reference; specifying, explicit, or definite,” and “precise, or particular.” Random House 

Dictionary of the English Language 1366 (1971). “Designate” means “to mark or point out; 

indicate; show; specify,” and “to nominate or select for a duty, office, purpose, etc.” Id. at 391. 

In Commissioner Sullivan’s view, it is clear from these contemporaneous definitions that 

“specifically designated” means a “particular” employee working for a particular “purpose,” which 

is the interpretation described above. By contrast, Commissioner Attwood’s interpretation—that 

“specifically designated employees” means all additional employees in industries not under the 

source standards’ protection—is not only completely inconsistent with the plain meaning of these 

terms as described above, but was part of a bill introduced by Rep. Dominick V. Daniels of New 

Jersey and rejected by the House before it passed the OSH Act. See H.R. 16785, 91st Cong. § 6 

(2d. Sess. 1970) (stating that any established federal standard adopted under that bill’s equivalent 

of section 6(a) was “not limited to its present area of application”). The term “specifically 

designated” was chosen for a reason, and if the drafters of section 6(a) meant “all additional 

employees or industries not previously covered,” they would have said so. Clearly, the 

interpretation that Commissioner Attwood propounds today was rejected by Congress decades 

ago. Commissioner Attwood also states that our interpretation renders meaningless the language, 

“unless the promulgation of such a standard would not result in improved safety or health for 

specifically designated employees,” because there would never be a circumstance where the 

adoption of a standard would not result in improved safety and health for specifically designated 

employees. The problem with this is that Congress first imposed a more significant limitation on 

the Secretary—he was not authorized to promulgate new standards covering new industries and 

employees not previously covered. This principal limitation was placed on the Secretary for good 

reason; the various stakeholders, including the additional employees cited by Commissioner 

Attwood as the “specifically designated employees,” would have no input given the lack of noticeand-comment rulemaking.
9

is obligated to supply a reasoned analysis for the change beyond that which may be required when 

an agency does not act in the first instance.”).

10

The Secretary’s interpretation of section 6(a) is also unreasonable in light of the language 

of the provision, its statutory context, and the statutory history. See Gen. Motors Corp. v. 

Ruckelshaus, 742 F.2d 1561, 1570 (D.C. Cir. 1984) (assessing reasonableness of “agency 

interpretation” in light of “statutory language and other portions of legislative history”). The 

Secretary asserts that section 6(a) “expressly exempted [him] from APA rule-making 

requirements” so that established federal standards could be adopted as soon as practicable, and 

that this exemption “demonstrate[s] that [he] had authority to extend the coverage” of the quickdrenching standard to construction employers. The statute’s exemption, however, bestowed no 

such authority—section 6(a) says nothing about expanding the scope of established federal 

standards. In fact, “established Federal standard” is defined as any safety or health standard 

established by a federal agency “and presently in effect,” 29 U.S.C. § 652(10) (emphasis added), 

and the WHA standards “presently in effect” at the time did not apply to the construction 

industry.11

Furthermore, the standards that section 6(a) allowed the Secretary to adopt—“national 

consensus standard[s]” and “established Federal standard[s]”—were originally promulgated using 

some type of notice-and-comment procedure, meaning that only the affected industries had notice

of the standards’ development and had the opportunity to give input. See 29 U.S.C. § 652(9) 

(defining “national consensus standard” as one “adopted and promulgated . . . under procedures 

whereby it can be determined by the Secretary that persons interested and affected by the scope or 

 

10 While our dissenting colleague disparages our reliance upon Encino Motorcars as “hogwash,” 

the fact remains that the Court has made clear that Chevron deference is not owed to an agency’s 

interpretation “where a proper challenge is raised to the agency procedures, and those procedures 

are defective.” 136 S. Ct. at 2125. Given the procedural defects we find here, Chevron deference 

is simply not available.

11 Our dissenting colleague claims that “presently in effect” means only “that the standard . . . was 

still on the books” on the effective date of the OSH Act. The definition of “established Federal 

standard,” however, requires that the standard be “operative,” and such WHA standards were 

operative only as to the manufacturing industry. As such, the scope of such standards cannot be 

ignored. Further, Congress included the language “presently in effect” because standards under 

the Construction Safety Act of 1969 (CSA) were promulgated after the OSH Act was passed, but 

before the OSH Act’s effective date—thus, Congress sought to ensure that the CSA standards 

would be deemed “established Federal standards.” See generally Underhill Constr. Corp. v. Sec’y 

of Labor, 526 F.2d 53, 55-56 (2d Cir. 1975).
10

provisions of the standard have reached substantial agreement on its adoption” and “formulated in 

a manner which afforded an opportunity for diverse views to be considered”) (emphasis added); 5 

U.S.C. § 553(b)-(c) (requiring, for promulgation of federal standards, a “notice of proposed rule 

making [to] be published in the Federal Register,” and “the agency [to] give interested persons an 

opportunity to participate”). Applying the Secretary’s interpretation here would allow him to 

adopt and apply a WHA standard to an entirely different industry, one that had no reason or 

incentive to participate in its original promulgation because it was not affected by the rulemaking. 

Depriving the construction industry of its “opportunity to participate” in the rulemaking process is 

contrary to the OSH Act’s language and intent. See United States v. Villanueva-Sotelo, 515 F.3d 

1234, 1237 (D.C. Cir. 2008) (“[I]f we find the statutory language ambiguous, we look beyond the 

text for other indicia of congressional intent.”); In re Koenig Sporting Goods, Inc., 203 F.3d 986, 

989 (6th Cir. 2000) (“When a statute is ambiguous, we look to its purpose and may consider the 

statute’s policy implications in determining what Congress intended.”).

Counsel for the Secretary did not dispute at oral argument that the Secretary lacks the 

authority under section 6(a) to make substantive changes to a source standard. At the same time, 

counsel argued that section 6(a)’s only limitation on expanding the coverage of established federal 

standards is that the Secretary could not modify the protective terms of such a standard—for 

example, the Secretary could not have specified additional requirements for a quick-drenching 

station that were not already set forth in the WHA standard. Accordingly, the Secretary argues

that he was free to expand the scope of such standards, given the OSH Act’s general protective 

purpose. We see no basis for such a distinction. The Secretary cannot point to an affirmative grant 

of authority to expand the scope of established federal standards, and it is illogical to suggest that 

he was authorized to do so simply because he could not change the terms of the standard. The 

Secretary also fails to adequately address the absurdities that could result from his proposed 

interpretation of section 6(a)—for example, that maritime or shipbuilding standards could be

applied to the manufacturing industry, or construction standards could be applied to the 

agricultural industry. The Secretary’s argument that each standard is limited only by its own 

“content restrictions” ignores the fact that the “scope provision” of each standard is, in itself, a 

“content” restricting provision—such as the scope provisions found in other standards (for 

example, in the agriculture or bloodborne pathogens standards, 29 C.F.R. §§ 1928.1, 
11

1910.1030(a)). We do not believe Congress intended to permit an interpretation of section 6(a) 

that would produce such illogical results.12

B. Modification to APA Notice-and-Comment Process Not to Be Lightly 

Presumed

Furthermore, a modification to the notice-and-comment process is “not lightly to be

presumed.” Marcello v. Bonds, 349 U.S. 302, 310 (1955) (discussing APA section 12 requirement 

that any exemptions from notice-and-comment rulemaking be express); Asiana Airlines v. F.A.A., 

134 F.3d 393, 397 (D.C. Cir. 1998) (“[T]he import of the [APA’s] instruction is that Congress’s

intent to make a substantive change [from ordinary notice-and-comment procedures] be clear,” so

“[t]he question . . . is whether Congress has established procedures so clearly different from those 

required by the APA that it must have intended to displace the norm.”) (internal citation omitted). 

We find that Congress did not intend so extraordinary a process that would allow the Secretary to 

side-step both Congress and the regulated public, such that he could apply the quick-drenching 

standard to construction employers without notice-and-comment rulemaking.

13

The Secretary also contends that because section 4(b)(2) of the OSH Act “required [him] 

to supersede the established federal standards with OSH Act standards [he] deemed to be more 

effective,” section 6(a) must have “authorized him to extend the coverage of [WHA] standards to 

construction, without notice-and-comment rulemaking, where the superseding OSH Act standards 

provided [greater] protection from [construction-related] hazards.” The Secretary, however, not 

only misreads section 4(b)(2), but he draws an erroneous conclusion from his misreading. Section 

4(b)(2) did not direct the Secretary to supersede each established federal standard by promulgating 

 

12 There is no dispute that section 6(a) did not authorize the Secretary to promulgate a new safety 

and health standard. However, the actual impact of the Secretary’s actions was to impose on the 

construction industry an entirely new standard, including its requirements.

13 Contrary to our dissenting colleague’s assertion, Marcello v. Bonds and its progeny are quite 

relevant, insofar as they uphold the primacy of notice-and-comment rulemaking. Additionally, 

our colleague claims that our analysis here is “contradicted” by our “concession” that WHA 

standards could be applied to manufacturers without federal contracts, because those 

manufacturers would have had no reason to participate in the promulgation of those standards. We 

disagree with this premise. Given that many companies have a mix of both government and private 

work, or at a minimum the possibility of a future federal contract, this would have given many 

manufacturers an interest in the promulgation of WHA standards. At the very least, some

manufacturers had an interest in participating in the WHA standard promulgation process, whereas 

no employers in the construction industry had any such interest.
12

a new one under the OSH Act. Rather, section 4(b)(2) merely ensured that the OSH Act would 

not be construed as repealing standards promulgated under existing laws, like the WHA. Also, by 

making WHA standards into OSH Act standards, section 4(b)(2) made available—as the Secretary 

himself concedes on review—the OSH Act’s “flexible enforcement scheme of citations, penalties 

and requests for injunctive relief,” rather than the WHA’s “inflexible enforcement scheme of 

federal contract cancellations and blacklisting.” In short, section 4(b)(2) was not a grant of 

authority to the Secretary, and it has no bearing on whether section 6(a) authorized the Secretary 

to expand the scope of established federal standards to additional industries.14

Furthermore, we find the Secretary’s interpretation of section 6(a) inconsistent with the 

OSH Act’s legislative history. See Superior Masonry Builders, Inc., 20 BNA OSHC 1182, 1184 

(No. 96-1043, 2003) (“If the meaning is ambiguous, consideration should be given to any 

contemporaneous legislative history.”); Bradley v. Austin, 841 F.2d 1288, 1293 (6th Cir. 1988) 

(“If we find that the statute is ambiguous, we then look to its legislative history.”); Estate of 

Farnam v. Comm’r of Internal Revenue, 583 F.3d 581, 584 (8th Cir. 2009) (“If . . . the language 

of the statute is ambiguous, the court may examine legislative history and other authorities to 

determine legislative intent.”). The legislative history confirms that Congress did not intend to 

allow the Secretary to apply non-construction, established federal standards to construction 

employers. On the contrary, Congress intended that such standards be applied only to those 

industries already covered by them—in other words, those industries or “interested persons,” 5 

U.S.C. § 553(c), that would have had reason to participate in the original rulemaking. The Report 

of the Senate Committee on Labor and Public Welfare, which accompanied the bill that would 

become the OSH Act, states that the purpose of the promulgation procedure authorized by section 

6(a) was “to establish as rapidly as possible national occupational safety and health standards with 

 

14 Section 4(b)(2)’s statement that “[s]tandards 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,” simply dealt with a timing 

issue unrelated to the issue before us here. As noted above, see supra note 11, the CSA was “in 

force on the date of enactment of [the OSH] Act,” 29 U.S.C. § 652(10) (defining “established 

Federal standard”), but the standards promulgated pursuant to the CSA did not become effective 

until the day before the OSH Act became effective. See Morrison-Knudsen Co., 16 BNA OSHC 

1105, 1108-10 (No. 88-0572, 1993) (although certain CSA standards were not in effect on the date 

of the OSH Act’s enactment, this did not invalidate their promulgation as OSHA standards 

because, in accordance with section 4(b)(2), the CSA standards were in effect by the OSH Act’s 

effective date).
13

which industry is familiar.” S. REP. NO. 91-1282, at 6 (2d Sess. 1970) (emphasis added). Indeed,

while the Senate Report notes that “standards which have been issued under other Federal 

statutes . . . may be made applicable to additional employees who are not under the protection of 

such other Federal laws,” it makes clear that “[s]uch standards have already been subjected to the 

procedural scrutiny mandated by the law under which they were issued.” Id. That “procedural 

scrutiny” would not have involved industries unaffected by the standard, so Congress’s reliance 

on such scrutiny having occurred would have been unavailing if section 6(a) was intended to 

permit the Secretary to apply such standards to other industries.

The Conference Report also shows that Congress did not intend non-construction 

established federal standards to be applied to the construction industry without notice-andcomment rulemaking. Specifically, the Conference Report states that “[t]he conferees intend that 

the Secretary develop health and safety standards for construction workers . . . pursuant to the 

provisions of [the Construction Safety Act of 1969] and that he use the same mechanisms . . . for 

the development of . . . standards for all the other construction workers newly covered by this Act.” 

H.R. REP. NO. 91-1765, at 33 (2d Sess. 1970). The Construction Safety Act (CSA) requires that 

“safety and health standards the Secretary of Labor prescribes by regulation [be] based on 

proceedings pursuant to section 553 of title 5, provided that the proceedings include a hearing 

similar in nature to that authorized by [that] section.” 40 U.S.C. § 3704(a)(1). Section 553 of Title 

5 is the APA’s “Rulemaking” provision, which requires a notice-and-comment procedure. 5 

U.S.C. § 553(b)-(c) (“General notice of proposed rule making shall be published in the Federal 

Register, . . . [and] the agency shall give interested persons an opportunity to . . . submi[t] written 

data, views, or arguments . . . .”).

Language included in one version of the bill, but ultimately not included in the OSH Act, 

stands as further proof that Congress never intended WHA standards to apply to construction 

employers. A bill introduced by Rep. Dominick V. Daniels of New Jersey stated that any 

established federal standard adopted under that bill’s equivalent of section 6(a) was “not limited 

to its present area of application.” H.R. 16785, 91st Cong. § 6 (2d. Sess. 1970). The Secretary’s 

only response to this legislative history is to argue that: (1) because Congress did not vote on the 

Daniels bill, no conclusion can be drawn from its omission of this language in the statute as 

enacted; and (2) the omission of the language is meaningless because it would have “merely 

clarified” what is otherwise evident—that the Secretary has the authority under the OSH Act to 
14

expand the scope of established federal standards. The weakness of these arguments is selfevident. The Daniels bill contained a clear expression of authority to expand the scope of 

established federal standards to other industries, and the OSH Act does not. The Secretary cannot 

reasonably claim that the decision to omit this language sheds no light on the issue at hand. Had 

the Daniels language been unnecessary because it would have “merely clarified” such authority in 

the OSH Act, we would not be here today.15

The Secretary, for his part, argues that the legislative history “reveals Congress’s intent to 

require the Secretary to adopt established federal standards . . . as soon as possible, without noticeand-comment rule-making, to provide immediate protection to under[-]protected workers.” Our 

dissenting colleague, in turn, picks up this mantle. One need not, however, resort to legislative 

history as support for this general principle—it is evident from section 6(a) itself, which plainly 

increased worker protections by authorizing the adoption of existing standards as OSHA standards. 

Unsurprisingly, there are floor statements raising concern about the large number of unprotected 

workers, see 116 Cong. Rec. S18249 (daily ed. Nov. 16, 1970) (statement of Sen. Williams)

(“[M]ore than 14,500 workers . . . are killed by industrial accidents each year.”); 116 Cong. Rec. 

H10636 (daily ed. Nov. 23, 1970) (statement of Rep. Gaydos) (“[T]his bill . . . would protect at 

least 11 million workers now outside Federal protection.”), but none of them mentions expanding 

the scope of established federal standards beyond the industries to which they had originally 

applied. Even so, section 6(a) did allow the Secretary to expand the scope of the previous WHA 

standards—to all manufacturers, not just those with federal contracts—thus, reaching, as our 

colleague seeks, “as many employers as possible,” but within the authority and limitations set by 

Congress.16 Similarly, while the Senate Report states that the purpose of section 6(a) is to establish 

safety and health standards “as rapidly as possible,” S. REP. NO. 91-1282, at 6, nothing in the 

Report supports the notion that the Secretary was authorized to disregard the WHA’s limited 

coverage to those employers engaged in manufacturing. Indeed, as noted, the standards that were 

to be adopted “as rapidly as possible” were those “with which industry [was] familiar.” Id. See 

 

15 If Congress meant to authorize expansion of the coverage of established federal standards to all 

employees that may be exposed to the particular hazards covered by those standards, it could have 

said just that.

16 Such a reading is not a “wishful reading of section 6(a)” as our colleague asserts but a contentneutral and appropriate one.
15

also 29 C.F.R. § 1910.1(a) (“The legislative purpose of [section 6(a)] is to establish, as rapidly as 

possible and without regard to the rule-making provisions of the [APA] standards with which 

industries are generally familiar, and on whose adoption interested and affected persons have 

already had an opportunity to express their views.”) (emphasis added).

17

The Secretary relies heavily on two Commission cases, neither of which controls our 

decision here. In Bechtel Power Co., 4 BNA OSHC 1005 (No. 5064, 1976), aff’d, 548 F.2d 248 

(8th Cir. 1977), the Commission concluded that the Secretary was authorized by section 6(a) to 

apply a predecessor CSA standard “to employers other than contractors and subcontractors without 

further rulemaking proceedings.” Id. at 1008. According to the Secretary, this holding supports 

his expansion of the scope of the quick-drenching standard, but in Bechtel, the Secretary did not 

apply an established federal standard to a new industry; rather, he applied a former CSA standard 

to a “construction manager at the site of a power plant under construction.” Id. at 1006. In 

American Can Co., 10 BNA OSHC 1305 (No. 76-5162, 1982), the Commission deemed 

permissible the Secretary’s section 6(a) promulgation of the WHA noise standard as an OSHA

standard, despite the Secretary’s failure to adopt the predecessor standard’s “scope and application 

provision.” Id. at 1311, 1313. Again, though, the Secretary in American Can did not apply the 

WHA-derived standard to a new industry—the employer there was a manufacturer. Neither of 

these cases, therefore, addresses the Secretary’s authority under section 6(a) to expand the scope 

of established federal standards to additional industries.

Finally, the Secretary relies on two circuit court cases, both of which are inapposite. The 

Secretary cites dictum from a footnote in Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978), 

stating that “the Secretary could properly extend the . . . standards [adopted under section 6(a)] to 

cover employees whose employers were not governed by the source standards, as long as the 

 

17 A similar eyewash standard—that would have applied to the construction industry—was 

apparently rejected by the Secretary during his notice-and-comment promulgation of the CSA 

standards. Compare 41 C.F.R. § 50-204.6 (WHA medical services and first aid standard that 

includes quick-drenching provision in paragraph (c)) with Safety and Health Regulations for 

Construction, 36 Fed. Reg. 7340, 7347-48 (Apr. 17, 1971) (CSA medical services and first aid 

standard, § 1518.50, mostly borrowed from WHA standard but excluding quick-drenching 

provision). Additionally, there is no evidence in the record that in 1971, employers and employees 

in the construction industry were aware of the WHA quick-drenching provision. This conclusion 

is consistent with the Secretary’s original promulgation of § 1910.5(e) limiting application of these 

WHA standards only to employers engaged in manufacturing or supply operations.
16

extension did not operate to create a protection which had not been afforded to workers who were 

covered by the source.” Id. at 1332 n.6. The issue there, however, was whether the Secretary 

could “impose requirements which the standard’s source did not impose,” namely “point of 

operation guarding on press brakes.” Id. at 1331-32. Diebold addressed a change to the 

substantive, protective requirements of a WHA standard, not application of the standard to a new 

industry. Equally unavailing is Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 

(10th Cir. 1975). In that case, the court deemed permissible the Secretary’s application of a WHAderived standard to a truck terminal facility owned and operated by “a large interstate motor 

carrier.” Id. at 866. Again, the issue was not whether a former WHA standard could be cited 

against an employer of an industry not covered by the source standard.

In sum, the Secretary’s interpretation of section 6(a) is not entitled to deference here. 

Further, in light of the language of the provision, its statutory context, and the OSH Act’s 

legislative history, the Secretary lacked authority to expand the scope of the WHA quick-drenching 

standard and apply the standard to the construction industry without notice-and-comment 

rulemaking. Accordingly, we conclude that OSHA’s quick-drenching provision, § 1926.50(g),

was invalidly promulgated as a construction standard, and, therefore, we vacate Citation 1, Item 1.

SO ORDERED.

__/s/__________________________

Heather L. MacDougall

Chairman

_/s/_________________________

James J. Sullivan, Jr. 

Dated: September 28, 2018 Commissioner
17

ATTWOOD, Commissioner, dissenting:

For almost a half-century, OSHA has applied the WHA-derived quick-drenching standard 

at issue here, according to its terms, to construction and general industry employers. Today, 

however, my colleagues accept Kiewit’s argument—that section 6(a) of the OSH Act expanded 

coverage of WHA-derived standards from manufacturers holding federal contracts to all 

manufacturers engaged in interstate commerce, and to no other employers.1 As such, the majority 

decides that the standard, 29 C.F.R. § 1926.50(g), was invalidly promulgated and they vacate the 

instant citation. My colleagues, however, commit two fundamental errors. First, they fail to apply 

basic principles of statutory construction and, as a result, find that section 6(a) is ambiguous when, 

in fact, it is not. And second, having found the provision to be ambiguous, they erroneously 

conclude that the Secretary’s interpretation is not entitled to Chevron deference. See Chevron 

U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843 (1984).

I find first that, according to the plain meaning of section 6(a), the Secretary was authorized 

to apply WHA-derived standards to additional industries, including construction. Second, I find 

that even if the meaning of section 6(a) were somehow ambiguous, the Secretary’s interpretation 

is in accord with the provision’s legislative history and longstanding Commission and circuit court 

precedent, and therefore is reasonable and entitled to Chevron deference. Finally, I conclude that 

 

1

In fact, counsel for Kiewit conceded at oral argument that this was the central premise of the 

company’s claim (see Tr. at 19), the timeliness of which was raised by the Commission in its 

Briefing Notice but was not contested by the Secretary on review. Although the Commission has 

generally allowed post-citation challenges to both the procedural and substantive validity of a 

standard, two of the relevant circuit courts here are split on the issue. See Advance Bronze, Inc. v. 

Dole, 917 F.2d 944, 951-52 (6th Cir. 1990) (allowing only substantive challenges to section 6(a) 

rules); Simplex Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 582 n.2 (D.C. Cir. 1985) 

(allowing both procedural and substantive challenges). Here, Kiewit is challenging the procedural, 

not substantive, validity of § 1926.50(g). Therefore, its challenge would likely be allowed in the 

D.C. Circuit, but barred in the Sixth Circuit. When faced with such a “dilemma,” the Commission 

applies its own precedent. Bethlehem Steel Corp., 9 BNA OSHC 1346, 1349 n.12 (No. 76-3444, 

1981) (consolidated). Accordingly, I would find Kiewit’s challenge timely. However, I note that 

although Kiewit claims that “confusion” would result from rejecting its argument, confusion is 

more likely to result from the majority’s decision today, given this circuit split. Indeed, my 

colleagues’ acceptance of Kiewit’s argument, if sustained, may yield a patchwork of inconsistent 

rulings on not only the validity of the quick-drenching standard at issue here, but on the validity 

of other WHA-derived standards as well. A procedural challenge to an action that was taken four 

decades in the past and has gone undisturbed in the intervening years would thus prove a tempting 

target for rejection on timeliness grounds.
18

the Secretary’s subsequent 1993 re-codification of the WHA-derived quick-drenching provision 

in Part 1926 was a purely ministerial action and therefore did not require notice and comment 

rulemaking. Therefore, I dissent.

I. Plain Language of Section 6(a)

The principal issue before the Commission is one of statutory interpretation. Kiewit 

challenges the Secretary’s long-held position that section 6(a) of the OSH Act authorized the 

extension of established federal standards to additional industries to which they did not originally 

apply.

“[T]he starting point for interpreting a statute is the language of the statute itself.” 

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). “[I]t should 

also be the ending point if the plain meaning of that language is clear.” United States v. Choice, 

201 F.3d 837, 840 (6th Cir. 2000). See also United States v. Barnes, 295 F.3d 1354, 1359 (D.C. 

Cir. 2002) (“In construing a statute, we look first for the plain meaning of the text,” and “[i]f the 

language of the statute has a plain and unambiguous meaning, our inquiry ends . . . .”) (citation 

omitted).” Section 6(a) provides:

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. 

29 U.S.C. § 655(a). This text most naturally breaks down into four parts. The first part addresses 

what rulemaking procedures apply—providing that section 6(a) rules are exempt from all APA 

requirements—and places a two-year limitation on the Secretary’s section 6(a) authority. The 

second part of the provision contains a statutory command—not merely an authorization—that the 

Secretary “shall . . . promulgate as an occupational safety or health standard any national consensus 

standard, and any established Federal standard.” The third part of the provision places a limitation 

on this command and provides that the Secretary shall not promulgate those standards “he 

determines . . . would not result in improved safety or health for specifically designated 

employees.” And finally, the fourth part of the provision clarifies that in the event of a conflict 
19

between standards that are required to be adopted, the Secretary “shall promulgate the standard 

which assures the greatest protection of the safety or health of the affected employees.”

My colleagues rightly find that none of these four parts, taken alone, answers the question 

before us. I disagree, however, with their conclusion that the plain meaning analysis ends there. 

“Whether statutory language is plain depends [in part] on . . . the specific context in which that 

language is used, and the broader context of the statute as a whole.” Barnes, 295 F.3d at 1359. 

And courts, in determining whether “Congress had an intention on the precise question at issue” 

are to “employ[] traditional tools of statutory construction,” Allen v. Sec’y of Health & Human 

Servs., 837 F.2d 267, 269 (6th Cir. 1988), tools that demand far more than a superficial reading of 

the statutory provision. Because my colleagues fail to engage in this broader inquiry, they 

erroneously conclude that section 6(a) is ambiguous.

A. Tools of Statutory Construction

Section 6(a) commanded the Secretary to promulgate any established federal standard and 

any national consensus standard “unless he determine[d] that the promulgation of such a standard 

would not result in improved safety or health for specifically designated employees.”2 29 U.S.C. 

§ 655(a). Applying the standard tools of statutory construction, we must attempt to ascribe 

meaning to this limitation on promulgating any standard. See Gade v. Nat’l Solid Wastes Mgmt. 

Ass’n, 505 U.S. 88, 100 (1992) (OSH Act must be interpreted in manner that “give[s] effect, if 

possible, to every clause and word” of the statute). In so doing, the text of this limitation reveals 

that the Secretary was commanded to apply established federal standards, according to their terms, 

to employees working in all industries, not just those working in the industries for which the 

standards were originally promulgated. One need only consider the majority’s interpretation of 

section 6(a) to understand this. My colleagues claim that section 6(a) merely authorized the 

 

2

It is important to recognize the limitations of federal safety and health legislation prior to the 

passage of the OSH Act. Workers in some segments of the construction, manufacturing, service, 

shipbuilding, longshoring, and related industries were subject to federal standards. However, even 

in covered industries, few standards had been promulgated. For example, the WHA standards took 

up only thirteen pages in the 1969 Code of Federal Regulations. 41 C.F.R. Part 50-204. And at 

the time the OSH Act was passed, the construction industry was still not subject to any mandatory 

federal safety or health standards. Standards originally promulgated under the Contract Work 

Hours and Safety Standards Act (commonly referred to as the Construction Safety Act or CSA), 

40 U.S.C. § 333, and then adopted under section 6(a) became effective only eleven days prior to 

the OSH Act’s own effective date. 36 Fed. Reg. 7340 (April 17, 1971).
20

Secretary to expand WHA-derived standards (which previously only applied to manufacturers 

holding federal contracts) to all manufacturers engaged in interstate commerce. But if this is the 

case, then section 6(a)’s limitation is rendered meaningless because the adopted WHA standards 

would always “result in improved safety or health” for the newly covered manufacturing 

employees, given that those employees would not have been protected by any other mandatory 

safety or health standards at the time of the OSH Act’s passage. In other words, if my colleagues 

are correct, there would have been no purpose for Congress to include this limitation because, 

given the lack of safety and health standards applicable to non-federal contract manufacturers at 

the time, it would have been impossible for a WHA-derived standard to not improve the safety or 

health of “specifically designated” manufacturing employees. Therefore, my colleagues’ reading

of section 6(a)’s limitation eviscerates its only possible purpose—under their reading, there would 

never be any “specifically designated employees” to whom it could apply.

3

Thus, the only permissible reading of section 6(a)’s limitation is that established federal 

standards must be expanded to cover employees in additional industries unless application of the 

standards to the “specifically designated employees” in that industry “would not result in improved 

safety or health.” 4 For example, employees in the ship-repairing industry who engaged in blasting 

 

3 My colleagues seem to think that I have found an elephant hiding in a mousehole. But I have 

simply concluded that basic principles of statutory interpretation bar them from substituting their 

own wishful reading of section 6(a) for the provision’s actual text. Gade, 505 U.S. at 99-100. My 

colleagues’ selective quotation from Epic Systems Corp. and Whitman (the two cases upon which 

their “mousehole” theory rests) does not concern the type of statutory interpretation issue presented 

here. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1626-27 (2018) (quoting Whitman v. Am. 

Trucking Ass’ns, 531 U.S. 457, 468 (2001)). Those cases explain that when a reviewing court is 

faced with a choice between two or more permissible interpretations of a statutory provision, the 

court must refrain from choosing an interpretation that would amount to finding an “elephant 

hiding in a mousehole.” Here, as discussed above, only one reading of the statutory text is 

permissible in order to give effect to every provision of section 6(a)’s statutory text—that is, the 

only way to preserve the effect of section 6(a)’s limitation is to read the provision as allowing for 

the expansion of WHA-derived standards to additional industries. Nothing in my colleagues’ 

decision today—not even the elephant or mice—addresses this fundamental problem in their 

textual analysis.

4 Commissioner Sullivan attempts to ascribe meaning to the phrase “specifically designated 

employees,” noting that “essentially, the Secretary argues that section 6(a) gave him ‘free rein’ to 

engage in promulgation, adoption, and revocation of health and safety standards for two years, 

without regard to the language in section 6(a) describing that these health and safety standards 

pertained to ‘specifically designated employees.’ ” It appears that my colleague has rearranged 
21

and were already protected by a personal protective equipment standard, might not have 

experienced improved safety and health as a result of the application to their work of the WHAderived personal protective standard. Or, it is possible that employees in a specific industry might 

be less safe as the result of the application of an established federal standard due to particular 

circumstances or working conditions in their industry. By including this explicit limitation in 

section 6(a), Congress was able to simultaneously ensure that the Secretary expanded the 

established federal standards to as many employees as possible while safeguarding against the 

possibility that application of some of the standards might result in less safe working conditions 

for some “specifically designated,” newly covered employees.5

Moreover, the text of section 6(a) includes only two limitations on the Secretary’s authority 

to promulgate established federal and national consensus standards. As noted, he could not 

promulgate a standard that “would not result in improved safety or health for specifically 

designated employees.” In addition, in the event of a conflict among standards, he was required 

to choose the standard “which assures the greatest protection of the safety or health of the affected 

employees.” Both limitations signal that Congress intended to grant sweeping authority to the 

 

the words of the provision so that it would read: “The Secretary shall . . . for specifically 

designated employees 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.” Thus, for example, 

the WHA standards, which protected employees of manufacturers with federal contracts (the 

“specifically designated employees”) would, as occupational safety and health standards under the 

OSH Act, apply only to those same “specifically designated employees.” There is no textual 

support (or any other support, for that matter) for this reading of the section 6(a) limitation. 

Moreover, as my analysis demonstrates, Commissioner Sullivan’s claim that I read “specifically 

designated employees” as meaning “all additional employees or industries” is wildly off the mark.

Finally, Commissioner Sullivan’s recitation of the dictionary definitions of the terms “specific” 

and “designate” entirely misses the point—the issue here is not what those individual words mean, 

but only, as discussed above, the types of “specifically designated employees” the provision must 

be referencing, given the placement of the phrase in the statutory provision. Likewise, his resort 

to the legislative history (and plainly erroneous characterization of it) is entirely inappropriate 

given that, as discussed above, the provision is not ambiguous. Gemsco, Inc., v. Walling, 324 U.S. 

244, 260 (1945) (“The plain words and meaning of a statute cannot be overcome by” resort to 

“legislative history which . . . may furnish dubious bases for inference in every direction.”).

5 The same is true for national consensus standards promulgated under section 6(a). If application 

of such a standard were limited to the predecessor’s scope, the “specifically designated employees” 

language would be meaningless.
22

Secretary to make certain that standards adopted under section 6(a) were as protective as possible. 

Absent other evidence to the contrary, this general command followed by only two specific 

limitations calls into play the canon of statutory construction, expressio unius est exclusio 

alterius—the explicit mention of one is the exclusion of another. Field & Assocs., Inc., 19 BNA 

OSHC 1379, 1380 (No. 97-1585, 2001) (applying canon in finding that Secretary did not intend 

to limit scope of cited fall protection standard to employees engaged in roofing work where such 

limitation was not included in standard). For both of these reasons, I conclude that the text of 

section 6(a) must be read as authorizing the Secretary to expand the coverage of WHA-derived 

standards to non-manufacturing industries.6

B. Statutory Context of Section 6(a)

The above plain reading of section 6(a) notwithstanding, my colleagues rely on textual 

arguments related to other provisions of the OSH Act in finding that the Secretary was not 

authorized to expand the scope of WHA-derived standards beyond the manufacturing industry. 

They note that “established federal standard” means, in part, one “presently in effect,” 29 U.S.C. 

§ 652(10), and claim that the WHA standards in effect at the time of the OSH Act’s passage did 

not apply to the construction industry and thus could not be made applicable to it via section 6(a). 

Section 4(b)(2), however, clarifies the meaning of “presently in effect,” providing that “[s]tandards 

issued under [the WHA, the CSA, and other listed statutes] 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.” 29 U.S.C. § 653(b)(2) (emphasis added). Thus, “presently 

in effect” simply means that the standard must have been in effect on or after the effective date of 

the OSH Act—i.e., it was on the books. It has nothing to do with the scope of that source standard. 

See Gen. Motors Corp., 9 BNA OSHC 1331, 1336 n.15 (No. 79-4478, 1981) (“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.”)

Moreover, my colleagues’ interpretation of “presently in effect” leads to an untenable 

conclusion. If “presently in effect” means that the scope of an established federal standard must 

 

6 The majority charges that I conclude that “section 6(a) must be read contrary to the primacy of 

notice-and-comment rulemaking . . . .” Indeed, I do; as I discuss at length, section 6(a) expressly 

eschews any application of the rulemaking requirements of the APA and section 6(b).
23

be maintained, the WHA standards could not be extended from federal contract manufacturers to 

non-federal contract manufacturers. Yet my colleagues assert that the sole purpose of section 6(a), 

as it related to WHA standards, was to apply those standards to manufacturers for which the 

standards were not, by my colleagues’ definition, “presently in effect.” They cannot have it both 

ways—their interpretation of “presently in effect” runs headlong into their propounded 

interpretation of section 6(a). 

My colleagues also rely on the definition of “national consensus standard,” which specifies, 

among other things, that such a standard must have 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 . . . .

29 U.S.C. § 652(9).7 They argue that this definition is additional textual evidence that Congress 

intended “national consensus standards” and “established federal standards” adopted under section 

6(a) to only be applied to employers who had a “reason or incentive to participate in its original 

promulgation.”8

This analysis, however, ignores the fact that the definition of “national consensus standard” 

was designed to limit those standards to ones originally issued by the American National Standards 

Institute and National Fire Protection Association. S. REP. NO. 91-1282, at 6 (2d Sess. 1970). 

 

7

In support of its interpretation of section 6(a), Kiewit also makes a tortuous argument regarding 

the relationship between section 4(b)(2) and section 6(a). However, as I agree with my colleagues’ 

finding that section 4(b)(2) “has no bearing on whether section 6(a) authorized the Secretary to 

expand the scope of established federal standards to additional industries,” I find it unnecessary to 

travel down this particular rabbit hole. 

8 Kiewit makes a similar point, arguing that the OSH Act’s legislative history shows Congress 

mandated the adoption of established federal standards on the basis that the pertinent industry 

would be familiar with them, and that the standards would “have already been subjected to the 

procedural scrutiny mandated by the law under which they were issued.” S. REP. NO. 91-1282, at 

6 (2d Sess. 1970). Because construction employers arguably were not familiar with the WHA 

standards, Kiewit argues that Congress could not have intended to apply those standards to such 

employers. But this argument fails to acknowledge that Congress’s purpose in including section 

6(a) and mandating the adoption of initial standards “as soon as practicable” was to “immediately 

provid[e] a nationwide minimum level of health and safety” protection to workers. S. REP. NO.

91-1282, at 6 (2d Sess. 1970); see also Noblecraft Indus., Inc. v. Sec’y of Labor, 614 F.2d 199, 

203 (9th Cir. 1980) (section 6(a) was meant “to meet the pressing need for adoption of OSHA 

standards on an exceedingly broad industrial front without undue delay”).
24

Additionally, the definition only speaks to how the standards were created by ANSI and NFPA, 

not to how they could be applied under section 6(a), and nothing in section 6(a) limits the 

application of those national consensus standards to those industries that participated in the 

drafting process of those standards. Moreover, although the quoted language appears in the 

definition of “national consensus standard,” the definition of “established Federal standard” says 

nothing about how those standards had been promulgated.9 And finally, my colleagues’ assertion 

that Congress could not possibly have intended “so extraordinary a process” that would allow the 

Secretary to apply WHA standards to additional industries without notice-and-comment 

rulemaking is contradicted by their concession that those standards could be applied to 

manufacturers without federal contracts—those employers were similarly deprived of their 

“opportunity to participate in the rulemaking process,” and yet my colleagues agree that Congress 

intended for those employers to be subject to the standards previously applied only to 

manufacturers with federal contracts.

For all these reasons, I find the plain language of section 6(a)—specifically its limitation 

that the Secretary must promulgate “any established federal standard . . . unless he determines that 

the promulgation . . . would not result in improved safety or health for specifically designated 

employees”—authorized the Secretary to expand the scope of established federal standards to 

additional industries. See Corley v. United States, 556 U.S. 303, 314 (2009) (“[A] statute should 

be construed [to give effect] to all its provisions, so that no part will be inoperative or superfluous, 

void or insignificant.”) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)); Colautti v. Franklin, 

 

9 The Senate Report does, however, discuss the “established Federal standard” provision of section 

6(a) (which was identical to that of the final statute). It notes that it is appropriate that national 

consensus standards be promulgated without regard to the provisions of the Administrative 

Procedure Act (APA). It then discusses established federal standards:

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.

S. REP. NO. 91-1282, at 6 (2d Sess. 1970) (emphasis added).
25

439 U.S. 379, 392 (1979) (noting “elementary canon of construction that a statute should be 

interpreted so as not to render one part inoperative”).

II. Chevron Deference

Even “[i]f the intent of Congress on a matter of statutory meaning is ambiguous, however, 

[we are] to [consider] . . . whether the agency’s interpretation is a ‘permissible construction of the 

statute.’ ” Mid-Am. Care Found. v. NLRB, 148 F.3d 638, 642 (6th Cir. 1998) (quoting Chevron, 

467 U.S. at 843). In other words, “we must defer to the Secretary’s statutory interpretation so long 

as the statute in question is ambiguous and the Secretary’s interpretation is reasonable.” Gentiva 

Healthcare Corp. v. Sebelius, 723 F.3d 292, 295 (D.C. Cir. 2013) (citation omitted). As explained 

above, a Chevron analysis is unnecessary here because the meaning of section 6(a) in this context 

is plain. Nonetheless, I would conclude that, even if section 6(a) can be considered ambiguous, in 

light of its purpose, the Act’s legislative history, and the caselaw interpreting section 6(a), the 

Secretary’s interpretation is unquestionably reasonable and therefore entitled to deference. 

A. Applicability of Chevron Deference

Under Chevron, a reviewing court “may not substitute its own construction of a statutory 

provision for a reasonable interpretation made by the administrator of an agency.” Chevron, 467 

U.S. at 844. The agency’s interpretation need not be the most reasonable interpretation or the one 

the reviewing court would have adopted; the interpretation must only be reasonable. See id. The 

Supreme Court has repeatedly reaffirmed this principle, most recently in City of Arlington v. Fed. 

Commc’ns Comm’n, 569 U.S. 290 (2013), emphasizing that there is not “a single case in which a 

general conferral of rulemaking or adjudicative authority has been held insufficient to support 

Chevron deference for an exercise of that authority within the agency’s substantive field.” Id. at 

296.

Here, there can be no serious debate that the Secretary’s interpretation of section 6(a) is 

entitled to Chevron deference.10 Section 6(a) is a “general conferral of rulemaking authority,” id., 

 

10

 Kiewit advances a convoluted argument based on a provision of the APA, 5 U.S.C. § 559, which 

provides that a “[s]ubsequent statute may not be held to supersede or modify this subchapter . . . 

except to the extent that it does so expressly.” Kiewit argues that this provision bars the Secretary 

from applying the quick-drenching standard at issue here to construction employers without 

notice-and-comment rulemaking, because section 6(a) did not “expressly” exempt from APA 

requirements an expansion of the scope of WHA standards to additional industries. Section 6(a), 

however, is an unambiguous, comprehensive statement mandating that all rulemaking authorized 
26

and the “interpretation claiming deference,” United States v. Mead Corp., 533 U.S. 218, 227 

(2001), is reflected in regulations “that carry[] the force of law.” Chao v. OSHRC (Manganas 

Painting Co.), 540 F.3d 519, 526 (6th Cir. 2008); 29 C.F.R. §§ 1910.5(c), 1910.11(a), 

1910.151(c)(2).11 Compare 540 F.3d at 525-28 (upholding Secretary’s interpretation of 29 U.S.C. 

§ 659(b), over that of the Commission, but stating that Secretary’s interpretation was “entitled to 

only Skidmore deference” because she “offered her interpretation . . . only in her litigation 

position” and had “not pointed to any regulation or any other format that [reflects her interpretation 

and] carries the force of law . . . .”).

 

thereunder is exempt from all APA requirements, including section 559. The issue, therefore, is 

simply whether OSHA’s promulgation of the quick-drenching standard falls within the ambit of 

section 6(a). Kiewit cites nothing for the proposition that section 6(a)’s express renunciation of 

APA requirements must also have expressly addressed expansion of the scope of adopted 

standards. Additionally, because 5 U.S.C. § 559 only addresses the statutory language that 

Congress is required to use to dispense with APA rulemaking (i.e., express language), it has no 

bearing on the separate issue of whether the Secretary’s interpretation of his authority under section 

6(a) is entitled to Chevron deference.

My colleagues echo this argument and—citing to a line of cases beginning with Marcello v. Bonds, 

349 U.S. 302 (1955)—assert that a modification to the notice-and-comment process is “not lightly 

to be presumed.” But the issue in Marcello and its progeny was whether, in the absence of an 

express exemption, a statute should nonetheless be read as exempting APA notice-and-comment 

requirements—the Supreme Court has held that as long as the intent is clear, an exemption can be 

by necessary implication. See Dorsey v. United States, 567 U.S. 260, 274 (2012) (“[I]n a 

comparable context the Court has emphasized that the [APA]’s use of the word ‘expressly’ does 

not require Congress to use any ‘magical passwords’ to exempt a later statute from the provision.”). 

Here, there can be no dispute that the text of section 6(a) contains an express exemption from APA 

requirements, so this line of cases relied upon by the majority is inapposite.

11 The Secretary’s interpretation of section 6(a) is embodied in multiple regulations. Most 

importantly, as I discuss more fully below, the Secretary’s interpretation of section 6(a) is 

embodied in § 1910.5(c)(2), in which he provides an actual example of the application of a WHAderived standard to a non-manufacturing employer. Likewise, in § 1910.11(a), the Secretary 

specifically states that section 6(a) authorized him to “adopt and extend the applicability of, 

established Federal standards in effect on April 28, 1971, with respect to every employer, 

employee, and employment covered by the Act.” And finally, by adopting each WHA-derived 

standard without the WHA’s native scope limitation (that limited the WHA standards to only 

manufacturers engaged in federal contracts), each WHA-derived OSHA standard, including the 

quick-drenching standard at issue here, constitutes the Secretary’s interpretation that he may apply 

the WHA-derived standards to industries beyond manufacturing. Indeed, the Secretary’s 

revocation of § 1910.5(e) confirms the Secretary’s intent that each of the WHA-derived standards 

is also applicable to non-manufacturing employers.
27

Nonetheless, in their decision today my colleagues put forth a contrary legal analysis on 

this issue that is quite astonishing. They cite Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 

(2016), for the proposition that “Chevron deference is not warranted . . . where the agency errs by 

failing to follow the correct procedures in issuing the regulation.” Id. at 2125 (emphasis added). 

In Encino Motorcars, the Supreme Court held that a final rule re-interpreting a provision of the 

Fair Labor Standards Act was “procedurally defective”—and therefore undeserving of Chevron 

deference—because the Secretary had failed to comply with the APA’s most basic procedural 

requirement that the agency provide “adequate reasons” for its change in position. Id. The Court 

explained:

In promulgating the 2011 regulation, the Department [of Labor] offered barely any 

explanation. A summary discussion may suffice in other circumstances, but here—

in particular because of decades of industry reliance on the Department’s prior 

policy—the explanation fell short of the agency’s duty to explain why it deemed it 

necessary to overrule its previous position.

Id. at 2126.

My colleagues argue that the Secretary’s revocation of 29 C.F.R. § 1910.5(e), the 

regulation that had limited application of WHA-derived standards to manufacturers, suffered the 

same procedural defect as discussed in Encino Motorcars.

12

 36 Fed. Reg. 18,081 (Sept. 9, 1971). 

They claim that because the Secretary failed to “provide a reasoned explanation” for his change in 

position, his interpretation that section 6(a) authorized application of WHA-derived standards to 

construction is wholly undeserving of Chevron deference.13

This, frankly, is hogwash. First, the Secretary’s revocation of § 1910.5(e) was not, as my 

colleagues claim, without a “reasoned explanation” or prior notice. In the Federal Register notice 

revoking § 1910.5(e), the Secretary explained that he was doing so pursuant to his authority under 

section 6(a) of the Act and 29 C.F.R. § 1910.4. 36 Fed. Reg. 18,080. Section 1910.4 (which was 

promulgated at the same time the Secretary adopted the first established federal standards as OSH 

 

12 Section 1910.5(e) stated that WHA-derived standards applied only to “manufacturing or supply 

operations which would be subject to the Walsh-Healey Act.” 36 Fed. Reg. 10465, 10468 (May 

29, 1971). 

13 Kiewit similarly argues that § 1910.5(e) “could not be revoked without giving public notice and 

inviting public comment” pursuant to the APA, and in failing to give reasons for the revocation 

the Secretary acted arbitrarily and capriciously. For the same reasons discussed above, this 

argument is entirely without merit. 
28

Act standards under section 6(a) in May 1971) provided that the Secretary preserved his full 

authority under section 6(a) for the provision’s entire two-year period and expressly allowed him 

to modify or revoke any of the standards in Part 1910 without notice-and-comment rulemaking 

until April 28, 1973.14 There can be no question that the Secretary’s interpretation of section 6(a) 

embodied in § 1910.4 is itself reasonable and therefore entitled to Chevron deference.15 Because 

§ 1910.4 gave actual notice to employers that the Secretary might find it appropriate to modify or 

revoke any of the initial rules promulgated pursuant to section 6(a), the Secretary’s revocation of 

§ 1910.5(e) was not, as my colleagues claim, an “arbitrary and capricious change from agency 

practice,” but was in full accord with the Secretary’s original interpretation and implementation of 

section 6(a).16

 

14 Section 1910.4 provides that “[t]he Assistant Secretary of Labor shall have all of the authority 

of the Secretary of Labor under sections 3(9) and 6(a) of the Act,” and as follows:

The Assistant Secretary of Labor may at any time before April 28, 1973, on his own 

motion or upon the written petition of any person, by rule promulgate as a standard 

any national consensus standard and any established Federal standard, pursuant to 

and in accordance with section 6(a) of the Act, and, in addition, may modify or 

revoke any standard in this part 1910. In the event of conflict among any such 

standards, the Assistant Secretary of Labor shall take the action necessary to 

eliminate the conflict, including the revocation or modification of a standard in this 

part, so as to assure the greatest protection of the safety or health of the affected 

employees.

29 C.F.R. § 1910.4(a)-(b).

15 The Secretary’s approach in this regard was eminently reasonable. By immediately 

promulgating established federal standards but preserving his full authority under section 6(a) to 

modify or revoke those adoptions for the full two years, the Secretary was able to “establish as 

rapidly as possible national occupational safety and health standards” in order to “immediately 

provid[e] a nationwide minimum level of health and safety” S. REP. NO. 91-1282, at 6 (2d Sess. 

1970) (emphasis added), while ensuring, through § 1910.4, that there was a mechanism to quickly 

correct any missteps that occurred in the initial promulgation. Notably, neither Respondent nor 

my colleagues challenge the validity of § 1910.4.

16 Indeed, this was not the only change in the Part 1910 standards that the Secretary effectuated 

during section 6(a)’s two-year limitation period. See, e.g., Deering Milliken, Inc. v. OSHRC, 630 

F.2d 1094, 1097 (5th Cir. 1980) (“On May 29, 1971, acting pursuant to section 6(a), the Secretary 

of Labor promulgated 29 C.F.R. § 1910.1000 as an OSHA requirement[,] . . . dealing with 

permissible levels of exposure to air contaminants, including cotton dust. Subsequently, on August 

13, 1971, the Secretary published a revision of 29 C.F.R. § 1910.1000, stating that “Section 

1910.93 (air-contaminants) (presently designated as 29 C.F.R. § 1910.1000. See n.1 supra at 1096) 

has been revised in its entirety, in the interest of greater intelligibility and accuracy.”).
29

Second, the Secretary’s action was not, as my colleagues assert, “a complete about-face.” 

The Secretary gave no explanation in the May 29, 1971, Federal Register notice for the initial 

inclusion of § 1910.5(e) in Part 1910. However, there is no evidence that it was originally included 

because he had concluded that section 6(a) did not authorize an expansion of the WHA-derived 

standards beyond manufacturing. In fact, as I explain below, § 1910.5(c), which was included in 

the same Part 1910 issuance, was in direct conflict with § 1910.5(e)’s limitation. 

Section 1910.5(c), which is Part 1910’s broad statement regarding the scope of Part 1910 

standards, demonstrates that the Secretary clearly contemplated that WHA-derived standards 

would, in appropriate circumstances, be applicable to employers other than just manufacturers. 

The full text of that subsection provides:

(c)(1) If a particular standard is specifically applicable to a condition, practice, 

means, method, operation, or process, it shall prevail over any different general 

standard which might otherwise be applicable to the same condition, practice, 

means, method, operation, or process. For example, § 1915.23(c)(3) of this title 

prescribes personal protective equipment for certain ship repairmen working in 

specified areas. Such a standard shall apply, and shall not be deemed modified nor 

superseded by any different general standard whose provisions might otherwise be 

applicable, to the ship repairmen working in the areas specified in § 1915.23(c)(3).

(2) On the other hand, any standard shall apply according to its terms to any 

employment and place of employment in any industry, even though particular 

standards are also prescribed for the industry, as in subpart B or subpart R of this 

part, to the extent that none of such particular standards applies. To illustrate, the 

general standard regarding noise exposure in § 1910.95 [a WHA-derived standard]

applies to employments and places of employment in pulp, paper, and paperboard 

mills covered by § 1910.261.

29 C.F.R. § 1910.5(c) (emphasis added). Subsection (c)(2) plainly contemplates that under

appropriate circumstances general standards, including WHA-derived standards, shall apply to 

industries that also have their own “particular” standards.17 First, the reference in that subsection 

to “subpart B or subpart R of this part” is to the “particular” standards promulgated in Part 1910 

for construction; maritime; longshoring; pulp, paper, and paperboard mills; textiles; bakery 

equipment; laundry machinery and operations; sawmills; pulpwood logging; and agriculture. 29 

 

17 Kiewit argues, in the context of its contention that the 1993 codification of construction 

standards was invalid, that references in § 1910.5(c) to standards that “apply” or are “applicable,” 

must be read as excluding standards, such as the WHA standards, that are “inapplicable” to 

construction. But the references in the subsection clearly are to standards that apply to a particular 

hazard or condition.
30

C.F.R. §§ 1910.12(a)(1), 1910.13(a), 1910.14(a), 1910.15(a), 1910.16(a), 1910.261(a), 

1910.262(a), 1910.263(a), 1910.264(b), 1910.265(a) (1972); 36 Fed. Reg. at 10469, 10669, 10676, 

10679, 10687, 10689. The meaning of subsection (c)(2) is clear: even if an industry, such as 

construction, has its own standards, if those standards do not apply to a particular hazard or 

condition, “any standard” that fills that gap shall apply “according to its terms to any employment 

and place of employment” in that industry.18 And, the illustration included in § 1910.5(c)(2) states 

that § 1910.95(a) and (b), the WHA-derived noise standard, applies to pulp, paper, and paperboard 

mills, which are industries in Subpart R that do not have their own noise standard. For these 

reasons, § 1910.5(c)(2) clearly contemplated the application of WHA-derived standards to 

industries other than manufacturing, and thus directly conflicted with the limitation contained in § 

1910.5(e). The courts have recognized that errors such as this were present in the May 1971 Part 

1910 promulgation. As the Sixth Circuit noted in Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th 

Cir. 1978), it should not be surprising that anomalies occurred “[g]iven the wide variety of sources 

for the initial standards package and the rapidity of its promulgation.” Id. at 1335. The Secretary’s 

prompt revocation of subsection 1910.5(e), authorized as it was by section 6(a) and 29 C.F.R. 

§ 1910.4, removed the anomaly created by the conflicting § 1910.5 provisions.

Moreover, the “correct procedures” at stake in Encino Motorcars—specifically, the APA’s 

basic procedural requirement that the agency provide “adequate reasons”—do not apply here 

because, as I have explained above, section 6(a) rulemaking was expressly exempted from all of 

the APA’s requirements. And finally, one more reason why the holding in Encino Motorcars is 

inapplicable to the Secretary’s revocation of § 1910.5(e) relates to the overarching reliance 

interests at stake in that case—the final rule there implicated “decades of industry reliance.” Such 

interests are simply not present here. In contrast to the rule at issue in Encino Motorcars, 

§ 1910.5(e) existed for less than four months, was in effect for less than two weeks, and was never 

 

18 My colleagues put forth a contrary analysis of § 1910.5(c)(2) that is at odds with the regulation’s 

plain language. I can only suggest that they reread § 1910.5(c)(2)—it does not, as they claim, only 

“appl[y] in the event of a conflict with an industry-specific standard.” 29 C.F.R. § 1910.5(c)(2) 

(“On the other hand, any standard shall apply according to its terms to any employment and place 

of employment in any industry, even though particular standards are also prescribed for the 

industry . . . .”).
31

even published in the Code of Federal Regulations.19 Thus, the reliance interests the Supreme 

Court found significant in Encino Motorcars are altogether absent here. 20 For all these reasons, 

Encino Motorcars provides no guidance whatsoever regarding the Secretary’s revocation of 

§ 1910.5(e) and therefore Chevron deference most certainly applies.

B. Reasonableness of the Secretary’s Interpretation

The Secretary argues that “[s]ection 6(a) of the OSH Act, its legislative history, and the 

interpretive case law all demonstrate” the reasonableness of his interpretation that he “had 

authority to extend the coverage of the [predecessor] Walsh-Healey Act ‘[quick] drenching 

standard’ to construction employers without notice-and-comment rule-making.” Kiewit argues to 

the contrary,21 claiming that nothing in section 6(a) “expressly” authorized the Secretary to apply 

WHA-derived standards to construction employers; that the legislative history shows that 

Congress intended WHA-derived standards to only apply to manufacturers; and that none of the 

previous Commission or circuit court cases supports the Secretary’s interpretation. My colleagues 

largely accept Kiewit’s arguments and conclude that the Secretary’s interpretation is 

“unreasonable in light of the language of the provision, its statutory context, and the statutory 

history.” On the contrary, proper analysis of the statutory text, legislative history, and interpretive 

case law leads to the opposite conclusion—the reasonableness of the Secretary’s interpretation 

here cannot seriously be questioned.

1. Legislative History and Purpose of Section 6(a)

The reasonableness of the Secretary’s interpretation of section 6(a) is supported by the 

OSH Act’s legislative history and purpose, which makes clear that Congress intended the OSH 

Act to largely supplant rather than perpetuate regulatory schemes embodied in statutes such as the 

WHA.22 116 CONG. REC. H10623 (daily ed. Nov. 23, 1970) (statement of Rep. Daniels). Multiple 

 

19 Section 1910.5(e) was promulgated on May 29, 1971, took effect on August 27, 1971, and was 

revoked on September 9, 1971.

20 Notably, neither my colleagues nor Kiewit discuss the “reliance interests” involved in 

overturning the Secretary’s lengthy and consistent interpretation of section 6(a).

21 As discussed supra note 10, Kiewit argues Chevron deference does not apply and therefore its 

arguments do not directly address the reasonableness issue.

22 The purpose of section 6(a) was “to establish as rapidly as possible national occupational safety 

and health standards with which industry is familiar.” S. REP. NO. 91-1282, at 6 (2d Sess. 1970) 
32

representatives, both Democratic and Republican, repeatedly emphasized that a “broad, 

comprehensive, and fair occupational safety and health bill” was needed to redress the reactionary 

and “piecemeal fashion” in which safety standards had been promulgated in the past.23 Id.; 116 

CONG. REC. H10616-17 (daily ed. Nov. 23, 1970) (statement of Rep. Madden); 116 CONG. REC.

H10618 (daily ed. Nov. 23, 1970) (statement of Rep. Steiger). And, as the Secretary points out, 

Congress believed this was especially true for the construction industry, which experienced “the 

heaviest losses of the over 7 million annual occupational injuries . . . .” See 116 CONG. REC.

S18269 (daily ed. Nov. 16, 1970) (statement of Sen. Yarborough). Given that one of the primary 

purposes of the OSH Act was to address the shortcomings and limited scope of previous 

occupational safety and health laws, it was perfectly reasonable for the Secretary to interpret 

section 6(a) as allowing for the application of relevant general industry standards (such as the 

quick-drenching standard) to additional industries, including construction employers. 

Kiewit makes several arguments to the contrary, all of which my colleagues repeat in their 

decision today, and none of which withstand scrutiny.24 First, Kiewit claims that Congress’s 

failure to include in the OSH Act a parenthetical that appeared in the bill reported out by the House 

Committee, referred to as the Daniels Bill, shows that Congress did not intend WHA standards to 

 

(emphasis added). Considering the other legislative history on this issue, it is clear that the Report 

meant “industry” in the broadest sense—i.e., industry as a whole.

23 According to Rep. Daniels, this prior legislative approach to occupational safety and health had 

been grossly insufficient. 116 CONG. REC. H10623 (daily ed. Nov. 23, 1970) (statement of Rep. 

Daniels).

24 Kiewit also argues the legislative history of the WHA shows that WHA standards were 

“affirmatively inapplicable to construction.” But this argument focuses on Congress’s 

understanding of the scope of the WHA and says nothing about the reach of section 6(a). 

Moreover, when the OSH Act was passed, WHA regulations were understood to be cross-industry 

standards. See 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 (1969-70). Former Secretary of Labor Shultz, the first witness to testify before the 

Senate Subcommittee on Labor, testified that the standards promulgated under the Walsh-Healey 

Public Contracts Act were not confined to a specific industry. And clearly, the WHA contained 

no impediment to Congress’s ability in section 6(a) to authorize the expanded scope of the WHAderived standards. Furthermore, the fact that construction employers were not covered by the 

standards under the WHA does not mean that Congress subsequently intended that those standards 

would not be made applicable to them pursuant to section 6(a). Indeed, my colleagues and Kiewit 

agree that section 6(a) expanded the class of employees protected beyond those already covered 

under existing safety and health statutes.
33

apply to construction employers. The parenthetical stated that any established federal standard 

adopted under the Daniels Bill’s equivalent of section 6(a) was “not limited to its present area of 

application.” H.R. 16785, 91st Cong. § 6 (2d. Sess. 1970).25 Kiewit argues that the absence of 

this parenthetical from the OSH Act indicates Congress did not intend established federal standards 

to apply outside their “present area of application.”26 But this argument ignores that the 

parenthetical phrase was never present in any version of the Williams or Steiger bills, the two bills 

from which the OSH Act was ultimately derived. Instead, the parenthetical was present only in 

the Daniels bill. Moreover, the parenthetical was not even mentioned in the House debates on the 

two bills, and the Daniels bill was never voted on by the House and never even considered by the 

Senate. Thus, Kiewit’s claim that “Congress rejected” the parenthetical is flatly contradicted by 

the OSH Act’s legislative history—the House never voted on the provision and the Senate cannot 

be said to have “rejected” something that was never actually before it.

Second, my colleagues argue that in enacting section 6(a), Congress was merely concerned 

with providing the OSH Act’s expanded remedies to all manufacturers engaged in interstate 

commerce, not in expanding the coverage of the safety and health standards incorporated by 

operation of that section to new industries. However, the OSH Act’s legislative history contains 

numerous statements by members of Congress, both Democratic and Republican, describing the 

immediate and dire need for safety standards. See, e.g., 116 CONG. REC. S18248-49 (daily ed. 

Nov. 16, 1970) (statement of Sen. Williams) (“[A]t a time when the Nation’s concern is 

understandably directed at the problems of our environment, it is particularly appropriate that we 

 

25 The OSH Act was ultimately a compromise between two bills, one passed by the Senate, the 

Williams bill, S. 2193, 91st Cong. (2d Sess. 1970), and the other passed by the House, the Steiger 

bill, H.R. 19200, 91st Cong. (2d Sess. 1970). See H.R. REP. NO. 91-1765, at 1 (2d Sess. 1970) 

(Conf. Rep.). However, leading up to the House’s passage of the Steiger bill, House members 

debated the Steiger bill and the competing Daniels bill, which itself was loosely based on the 

Williams bill. 116 CONG. REC. H10618 (daily ed. Nov. 23, 1970) (statement of Rep. Steiger) 

(“Some groups have attempted to talk about the Daniels bill and the Williams bill as if they were 

identical, but this is simply not the case.”). The parenthetical in the APA exemption contained in 

section 6 of the Daniels bill (but not in either the Williams or Steiger bills) instructed the Secretary 

to promulgate “any established Federal standard then in effect (not limited to its present area of 

application).” H.R. 16785, 91st Cong., 2d Sess. § 6 (1970) (emphasis added).

26 My colleagues go one step further and baldly assert that this legislative history reflects “a 

decision to omit” the language of the parenthetical. As I point out, the only decision the House 

made was to pass another bill (the Steiger bill), and the Senate never made any decision whatsoever 

regarding the language in the Daniels bill.
34

give specific attention to the crisis in the workplace environment—for this is a crisis as urgent as 

any confronting the Nation today.”); 116 CONG. REC. H10642 (daily ed. Nov. 23, 1970) (statement 

of Rep. Broomfield) (“[E]very year 14,000 workers are killed on the job . . . [t]here is no room for 

partisanship where the health of a worker is concerned . . . there is only the self-evident need 

for . . . health and safety standards for all American workers.”); 116 CONG. REC. H10635 (daily 

ed. Nov. 23, 1970) (Statement of Rep. Gaydos, quoting President Richard Nixon) (“The Federal 

role in occupation[al] safety and health has thus far been limited. A few specific industries have 

been made subject to special Federal laws and limited regulations have been applied to workers in 

companies who hold certain government contracts.”). Thus, Congress in section 6(a) was not 

merely concerned with providing the OSH Act’s expanded remedies to employees in previously 

regulated industries, it was quite specifically concerned with expanding the coverage of existing 

standards to additional employees, including those in industries not previously covered by existing 

safety and health standards.

Furthermore, as the Secretary points out, “[t]here is no indication in the legislative history 

that Congress expected anything more than . . . [that] industry in general would be familiar with 

the established federal standards, not that every specific industry, such as construction, would 

necessarily be familiar with every established federal standard that applied to it.” Indeed, the OSH 

Act was passed to vastly expand occupational safety and health protection to more employees. See

29 U.S.C. § 651(b). Its national cross-industry jurisdiction makes it highly unlikely Congress 

intended section 6(a) standards to protect employees only in industries that were intimately 

familiar with them or had participated in the original rulemaking process.

In addition, the version of section 6(a) included in the OSH Act originated in the Williams 

bill as reported out of committee. S. 2193, 91st Cong. § 6(a) (1970). The Senate Report 

accompanying that bill explicitly stated that “established Federal standards” adopted under this 

version of section 6(a) “may be made applicable to additional employees who are not under the 

protection of such other Federal laws.” S. REP. NO. 91-1282, at 6 (2d Sess. 1970). My colleagues 

argue that the Report was referring to the expansion of established Federal standards to the same 

categories of employers but including those that were not subject to government contracts under 

the source laws. However, the Report also noted that “the consensus and other standards issued 

under section 6(a) would provide a sound foundation for a national safety and health program.” 

Id. And, although it noted that “a large proportion of the voluntary standards [national consensus 
35

standards] are seriously out-of-date,” that many of them “represent merely the lowest common 

denominator of acceptance by interested private groups,” and that many occupational hazards were 

not covered by any standards at all, the Report gave no indication that the OSH Act was meant to 

carry forward the piecemeal coverage of the source legislation.

Finally, Kiewit argues that section 6(a) could not have authorized the application of WHA 

standards to construction employers because, it alleges, Congress intended “that all construction 

industry standards be developed using the mechanisms not merely of the OSH Act but also of the 

CSA.” In support of this argument, the company points to the following language from the 

conference committee report: 

The conferees intend that the Secretary develop health and safety standards for 

construction workers covered by [the CSA,] pursuant to the provisions of that law 

and that he use the same mechanisms and resources for the development of health 

and safety standards for all the other construction workers newly covered by this 

Act . . . .

H.R. REP. NO. 91-1765, at 33 (2d Sess. 1970) (Conf. Rep.). Kiewit appears to be arguing that the 

only established federal standards that the Secretary could have adopted under section 6(a) for 

construction were those that had met the procedural requirements of the CSA—i.e., existing CSA 

standards. This argument lacks merit for several reasons.

First, the assertion is inconsistent with the plain language of section 6(a), which expressly 

mandates that the Secretary issue “any established Federal standard” as an OSHA standard. 29 

U.S.C. § 655(a) (emphasis added). In addition, section 6(a) contains no such limiting language—

rather, as I have discussed above, the two specified limitations on the Secretary’s authority were 

intended to assure improved worker safety and health. Id. Second, Kiewit’s argument is contrary 

to section 6(a)’s authorization to adopt “any national consensus standard.” Although the voluntary 

bodies that issued national consensus standards had a comment process, their standards had not 

been subjected to notice-and-comment procedures (e.g., the draft rules were not published in the 

Federal Register), nor would the Secretary have consulted with the Advisory Committee on 

Construction Safety and Health, which the CSA also requires. And third, Kiewit’s argument does 

not account for the fact that the conference report looks to future rather than past actions—it states 

that the Secretary is to “use” CSA mechanisms and resources “for the development” of 

construction standards. H.R. REP. NO. 91-1765, at 33 (2d Sess. 1970) (Conf. Rep.). The existing 

CSA standards had already been developed using those “mechanisms and resources.” It is thus 

more likely that the report was referring to the development of standards under section 6(b)—like 
36

the CSA, section 6(b) requires notice-and-comment and consultation with the applicable federal 

advisory committee.27 See 29 U.S.C. § 655(b).

Nevertheless, my colleagues assert that the Secretary’s interpretation of section 6(a) is 

unreasonable because it would produce “illogical results”—specifically that otherwise 

inapplicable “maritime or shipbuilding standards could be applied to the manufacturing industry, 

or construction standards could be applied to the agricultural industry.” Although they frame this 

claim as an unassailable truism, my colleagues (and Kiewit, for that matter) are unable to point to 

an example of this happening, nor do they show how it could. Indeed, to the extent their assertion 

is that safety and health standards from one industry are necessarily inappropriate for other 

industries, they fail to account for the fact that a truly industry-specific requirement is self-limiting, 

by its own terms, to that particular industry. As for other requirements that are not so self-limiting, 

those would apply only where the same hazards are present in the industry to which the predecessor 

standard was being applied. This concept of applicability is consistent with the idea that requiring 

that employees exposed to the same hazards be similarly protected across all industries was one of 

the primary purposes of section 6(a) and the OSH Act as a whole. See S. REP. NO. 91-1282, at 6 

(2d Sess. 1970) (Congress’ purpose in including section 6(a) was to provide an immediate 

“nationwide minimum level of health and safety”); Noblecraft Indus., Inc. v. Sec’y of Labor, 614 

F.2d 199, 203 (9th Cir. 1980) (section 6(a) was meant “to meet the pressing need for adoption of 

OSHA standards on an exceedingly broad industrial front without undue delay”). In sum, the 

legislative history overwhelmingly supports the Secretary’s interpretation that he was authorized 

to apply established federal standards to additional industries, including construction.

2. Interpretive Case Law

The Secretary’s interpretation is also supported by Commission and circuit court precedent. 

Although neither the Commission nor the circuit courts have directly analyzed the Secretary’s 

authority under section 6(a) to apply WHA-derived standards to the construction industry, they 

 

27 In this regard I note that Senator Dominick apparently understood that section 6(a) would enable 

OSHA to apply non-CSA derived standards to construction, given that he objected to the 

legislation for that very reason—“we’re going to have new standards which are going to be 

applicable to the Construction Act, and you won’t know what they are until we get through with 

them about two years from now. This will be the effect if we pass the bill reported by the 

committee.” 116 CONG. REC. S18266-67 (daily ed. Nov. 16, 1970) (statement of Sen. Dominick) 

(emphasis added).
37

have been called upon to adjudicate other aspects of the Secretary’s authority under section 6(a). 

The analysis in those decisions provides considerable guidance here.28

In analyzing the validity of an established federal standard promulgated under section 6(a), 

the Commission and circuit courts have adopted a “substantive change” test that considers whether 

the Secretary’s action substantively changed the established federal standard. In American Can 

Co., 10 BNA OSHC 1305 (No. 76-5162, 1982) (consolidated), the Commission considered 

whether a WHA-derived general industry noise standard promulgated by the Secretary under 

section 6(a) included an impermissible substantive change because it did not adopt the predecessor 

standard’s “scope and application provision.”29 Id. at 1305. The Commission held that the changes 

made by the Secretary were permitted by section 6(a), stating that the “general principle that a 

standard adopted under section 6(a) may not be different in substance from the established federal 

or national consensus standard from which it was derived . . . is only a general principle. Some 

changes are permissible.” Id. at 1310-11. The Commission reasoned that the allegedly 

impermissible changes, even if substantive, were “the sort of changes that Congress allowed the 

Secretary to make” because the Secretary had merely adapted the predecessor standard to better 

reflect the OSH Act’s purpose and structure. Id. at 1311-12. The Commission explained that the 

Secretary’s non-adoption of the scope and application provision was permissible because the 

provision reflected “peculiar features” in the WHA that did not exist in the OSH Act. Id. at 1312. 

The Commission went on to state:

The implication of American Can’s argument is that the Secretary could not have 

adopted established federal standards without also adopting the statutes under 

which the federal standards were established. We think it highly unlikely that 

Congress intended to require such an odd state of affairs. As a practical matter, 

Congress’ purpose was to supersede rather than perpetuate statutory schemes such 

as the [WHA]’s.

 

28 It is worth noting that all of the prior Commission and court of appeals cases interpreting section 

6(a) of the Act were decided prior to 1983. Thus, these cases predate the Supreme Court’s holdings 

in Chevron, 467 U.S. at 842-43, and Martin v. OSHRC (CF&I), 499 U.S. 144 (1991), which 

together make clear that the Secretary’s reasonable interpretation of provisions of the OSH Act 

and its standards (not the Commission’s) is entitled to deference. 

29 The scope and application provision applicable to all WHA standards allowed the covered 

federal contractor to defend an enforcement action by challenging the “legality, fairness, or 

propriety of the Labor Department’s reliance upon the standard.” Am. Can Co., 10 BNA OSHC 

at 1308.
38

Id. Although American Can is not controlling here, it provides an expansive view of the 

Secretary’s authority under section 6(a) to conform WHA-derived standards to the expanded 

coverage of the OSH Act.

The Commission’s decision in Bechtel Power Corp., 4 BNA OSHC 1005 (No. 5064, 1976), 

aff’d, 548 F.2d 248 (8th Cir. 1977), is even more directly on point. In that case the Commission 

considered whether the Secretary had impermissibly changed the predecessor CSA standards by 

not adopting the CSA’s native scope provision. Although the source CSA standards applied only 

to “contractor[s] or subcontractor[s]” that worked on federally-subsidized construction projects 

and employed “laborer[s] or mechanic[s],” the Secretary, when he adopted the standards pursuant 

to section 6(a), expanded their coverage to “every employment and place of employment of every 

employee engaged in construction work.” Id. at 1007. Bechtel was the construction manager at 

the site of a power plant. It administered and coordinated the construction on the owner’s behalf. 

It was not a “contractor or subcontractor” within the meaning of the CSA because it employed 

only engineers, timekeepers, safety inspectors, and administrative and office personnel, but not 

“laborer[s] or mechanic[s].” The Secretary cited Bechtel for violating several CSA-derived 

construction standards that had been promulgated as OSH Act standards pursuant to section 6(a). 

Bechtel challenged the citations on the grounds that the Secretary did not have the authority under 

section 6(a) to issue the CSA-derived standards as OSH Act standards without also adopting the 

CSA’s coverage limitations and therefore was not subject to the CSA-derived standards as so 

limited.

30

 Id.

The Commission held that the Secretary acted within his section 6(a) authority in adopting 

and extending the applicability of established federal standards to “every employer, employee, and 

employment covered by the [Occupational Safety and Health] Act,” and in extending the coverage 

of the standards in Part 1926 to “every employment and place of employment to every employee 

engaged in construction work.” Id. at 1008. The Commission relied on the OSH Act’s legislative 

history, which it noted “makes clear that in adopting [CSA] standards as established Federal 

standards under OSHA, the Secretary was empowered by sections 4(b)(2) and 6(a) to extend their 

 

30 Bechtel conceded that it was subject to the OSHA general industry standards in 29 C.F.R. Part 

1910. 4 BNA OSHC at 1006 n.2.
39

coverage . . . .”31 Id. Finding “the Commission’s application of the Occupational Safety and 

Health Act correct,” the Eighth Circuit affirmed this holding in a per curiam opinion. 548 F.2d at 

249.

The facts in Bechtel are the reverse of those in this case in one respect. In Bechtel the 

employer argued that it was not a construction contractor under the CSA and therefore not subject 

to the OSH Act construction standards; rather it was a general industry employer and was subject 

to the general industry standards, presumably including those derived from the WHA. Here, on 

the other hand, Kiewit argues that it is a construction employer and although it is subject to 

OSHA’s construction standards, it is not subject to the WHA-derived general industry standards. 

I find Kiewit’s argument is unsupportable for the same reasons expressed in the Commission’s 

Bechtel decision—the plain implication there was that section 6(a) did far more than simply

expand coverage to all contractors and subcontractors that employed laborers and mechanics. As 

interpreted in Bechtel, section 6(a) also authorized the extension of the CSA-derived standards to 

new types of employers that had never been covered under the CSA.

The appellate courts have come to similar conclusions. The Sixth Circuit, a circuit to which 

this decision could be appealed, see 29 U.S.C. § 660(a), considered a related issue in Diebold, Inc. 

v. Sec’y of Labor, 585 F.2d 1327 (6th Cir. 1977). In that case, the respondent argued that a WHAderived standard promulgated under section 6(a) was inapplicable to press brakes because press 

brakes were not covered under the original WHA standard. Id. at 1331. In stating that “the 

Secretary may not enforceably construe a [section 6(a)] standard to impose requirements which 

the standard’s source did not impose,” the Sixth Circuit explained that the determining factor is 

not whether the scope of the standard’s application had been broadened, but whether the 

substantive protections within the standard had been changed. Id. at 1332. Thus, “the Secretary 

could properly extend the [section 6(a)] standards to cover employees whose employers were not 

governed by the source standards, as long as the extension did not operate to create a protection 

which had not been afforded to workers who were covered by the source.” Id. at 1332 n.6.

 

31 The Commission quoted S. REP. NO. 91-1282, at 6 (2d Sess. 1970), which states that “[t]he bill 

[S. 2193, 91st Cong., 1st Sess. (May 16, 1969), subsequently enacted] 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.”
40

And, finally, in Lee Way Motor Freight, Inc., 1 BNA OSHC 1689 (No. 1105, 1974), aff’d, 

511 F.2d 864 (10th Cir. 1974), the Commission and the Tenth Circuit, another relevant circuit 

here, considered a challenge to the applicability of a WHA-derived standard that required guarding 

of “open pits.” 1 BNA OSHC at 1690; 511 F.2d at 866. Lee Way was a transportation company, 

not a manufacturer, and argued before the Commission that because the original WHA standard 

only applied to the handling and storage of materials for manufacturers, the cited OSHA 

requirement was inapplicable to Lee Way’s pits, which were used for a non-manufacturing vehicle 

maintenance operation. 511 F.2d at 868-69. The Commission ultimately rejected this argument, 

with one Commissioner finding that “Congress specifically directed [the Secretary] to promulgate 

established federal standards” that “apply to industry in general,” not just manufacturers, and 

another Commissioner determining that the issue was moot because Lee Way’s pits would have 

also been covered under the WHA. 1 BNA OSHC at 1691, 1692.

The Tenth Circuit affirmed, stating that “there is little doubt but that it was the legislative 

intent that the Secretary of Labor could promulgate by rule the standard [at issue].” 511 F.2d at 

869. The court reasoned that the standard was applicable because its “principal purpose” as a 

standard of general application was to “extend protection to many workers who had not been 

covered by previous standards.” Id. (emphasis added). My colleagues remarkably mischaracterize 

this case as not determining “whether a former WHA standard could be cited against an employer 

of an industry not covered by the source standard.” But, as discussed above, that is exactly what 

the Tenth Circuit did: 

Lee Way does not contend that it is totally immune from the [WHA-derived] 

standard of 29 C.F.R. § 1910.22(c) (1972), but rather that this standard applies only 

to such part of its operation [that would have been previously covered by the 

WHA]. We do not agree with this line of reasoning.

The established federal standard related to the necessity for either covering or 

providing guardrails for open pits. There is little doubt but that it was the legislative 

intent that the Secretary of Labor could promulgate by rule the standard now 

embodied in 29 C.F.R. § 1910.22(c) (1972). Congress itself adopted the [WHA] 

standards a[s] occupational safety and health standards of general application. 29 

U.S.C. § 653(b)(2). And in our view the standard in question is not limited in its 

application to areas [that would have been previously covered by the WHA], but it 

has applicability, as the standard itself provides, to ‘Walking-Working Surfaces.’ 

Indeed the principal purpose to be served by adopting standards established under 

previous federal statutes as standards of the Act was to extend protection to many 

workers who had not been covered by previous standards.
41

Id. (emphasis added).32 Thus, the Tenth Circuit most certainly addressed whether a WHA-derived 

standard could be applied to a type of work—non-manufacturing vehicle maintenance 

operations—that was not covered under the WHA.

In any event, my colleagues miss the larger point: the analysis in all these cases plainly 

supports the reasonableness of the Secretary’s interpretation, which is the only issue here. 

Moreover, apropos of the reasonableness of the Secretary’s interpretation, OSHA has been 

continuously applying WHA-derived standards to non-manufacturing industries including 

construction for four decades—yet neither the Commission nor the courts of appeals have been 

called upon to rule on this or any other issue of the Secretary’s authority under section 6(a) since 

1983.

Finally, Kiewit attempts to twist the Commission and circuit courts’ substantive change 

test by arguing that the Secretary’s application of a WHA-derived standard to construction 

employers constituted an impermissible substantive change to such a standard because it altered 

the standard’s scope provision, which Kiewit contends is as much a part of each standard’s 

substance as its protective requirements. But the analysis in all of the Commission and circuit 

court cases either explicitly or implicitly holds that changes to a standard’s scope provision are not 

substantive, or if substantive, were permissible because changes to the standards’ scope were 

necessary to adapt the established federal standards (which were largely limited to federal 

contractors in specified industries based on the government’s procurement authority) to the vastly 

expanded jurisdiction of the OSH Act (which was based on the Commerce Clause). See also 

Underhill Constr. Corp. v. Sec’y of Labor, 526 F.2d 53, 55-56 (2d. Cir. 1975) (explaining that 

under section 6(a) the Secretary only had the authority to adopt the substantive requirements of 

the established federal standards—meaning, the “practices, means, methods, operations, or 

 

32 Kiewit made a similar argument at oral argument, claiming that Lee Way is inapposite because 

the Tenth Circuit did not use the term “validity” in considering the issue. (Tr. at 8.) But it is 

obvious that the Tenth Circuit did not speak in terms of “validity” because the standard in Lee Way 

was a Part 1910 standard (as opposed to the Part 1926 standard at issue here) that would in any 

event remain valid with respect to those operations that would have been covered by the WHA. 

Thus, the Tenth Circuit’s use of the word “applicability” as opposed to “validity” is meaningless 

in the context of this case. The only difference between Lee Way and this case is that the WHAderived standard at issue here was subsequently re-codified as a construction standard, 

§ 1926.50(g).
42

processes, reasonably necessary . . . to provide safe or healthful employment and places of 

employment”—not other aspects of the established federal standards, such as their effective dates).

For example, in Bechtel, the Commission permitted alteration of a CSA-derived standard’s 

scope provision to include additional construction employers not covered under the CSA, and in 

Lee Way, the Tenth Circuit permitted expansion of a WHA-derived standard’s scope provision to 

a transportation company that would not have been covered under the WHA. Bechtel Power Corp., 

4 BNA OSHC at 1006-07; Lee Way Motor Freight, 1 BNA OSHC at 1691, aff’d, 511 F.2d at 869. 

Moreover, because section 4(b)(2) already deemed the established federal standards as OSHA 

standards with their native scope provisions intact, the end result of Kiewit’s argument would be 

the complete nullification of section 6(a)’s effect—if an established federal standard’s native scope 

provision, which necessarily includes the limitation to federal contractors, was substantive and 

therefore could not be changed in a section 6(a) rulemaking, section 6(a) would accomplish 

nothing more than section 4(b)(2). Such an interpretation of section 6(a) would thus be 

nonsensical.

For all these reasons, I would find that the reasonableness of the Secretary’s interpretation 

is supported by Commission and circuit court precedent—in applying the WHA-derived quickdrenching standard to construction employers, the Secretary did not substantively change the 

standard or “impose requirements” on construction employers and other non-manufacturing 

employers “which the standard’s source did not [originally] impose” on manufacturers. Diebold, 

585 F.2d at 1332. Therefore, even if section 6(a) is ambiguous as to the issue before us, the 

Secretary’s interpretation is reasonable and entitled to deference.

III. The Secretary’s Codification of § 1910.151(c) as § 1926.50(g)

The final issue concerning § 1926.50(g)’s validity is whether the Secretary’s codification 

of § 1910.151(c) as § 1926.50(g) required notice and comment rulemaking. The judge vacated the 

citation on this basis, finding that this 1993 codification constituted an impermissible substantive 

change because it “less[e]ned or eliminated” the Secretary’s burden “to prove [the] applicability

of the standard” and made “feasibility of compliance . . . difficult or even impossible for a cited 

employer to challenge.” For the reasons put forth by the majority in footnote 6 of their opinion, I 
43

also reject the judge’s findings and would conclude the Secretary’s codification was plainly 

permissible for the same reasons provided by the Secretary in the accompanying Federal Register 

notice.

/s/_____________________________

Cynthia L. Attwood

Dated: September 28, 2018 Commissioner
 

 

 

 

 

 

 

 

 

 

 

 

 

 

United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1924 Building – Room 2R90, 100 Alabama Street, SW 

Atlanta, Georgia 30303-3104 

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC Docket No.11-2395 

Kiewit Power Constructors, Co., 

Respondent. 

APPEARANCES: 

Matt S. Shepherd, Esquire, U.S. Department of Labor, Office of the Solicitor 

Nashville, Tennessee 

For the Complainant. 

Arthur G. Sapper, Esquire, McDermott, Will & Emery, LLP., Washington, D.C. 

For the Respondent 

Before: Administrative Law Judge Stephen J. Simko, Jr. 

DECISION AND ORDER 

This matter arose as a result of an inspection by the Occupational Safety and Health 

Administration (OSHA) of the worksite of Kiewit Power Constructors Company (Kiewit) in 

Rogersville, Tennessee on August 3, 2011. Respondent filed a timely notice contesting only 

Citation No. 1, Item 1, which alleged a violation of 29 C.F.R. § 1926.50(g). 

Respondent filed a Motion to Dismiss or for Summary Judgment on the ground that 29 

C.F.R. § 1926.50(g) is invalid. It also filed a Motion for Declaratory Order declaring 29 C.F.R. 

§ 1926.50(g) is invalid. A hearing on Respondent’s Motions was held in Decatur, Georgia on 

November 20, 2012. All arguments and submissions of both parties have been given careful 

consideration. For the reasons that follow, Respondent’s Motion to Dismiss the alleged violation 

of 29 C.F.R. § 1926.50(g) is granted. It is therefore unnecessary to decide the Motion for 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Summary Judgment or the Motion for Declaratory Order. Citation No. 1, Item 1 alleging a 

violation of 29 C.F.R. § 1926.50(g) is vacated. 

The Occupational Safety and Health Act of 1970(Act) was signed into law on December 

29, 1970 and became effective one hundred and twenty days later on April 28, 1971. Section 

4(b)(2) of the Act provided certain established Federal Standards in effect on the effective date 

of the Act were deemed to be occupational safety and health standards under this Act. These 

included the standard at 41 C.F.R. § 50-204.6 promulgated under the Walsh-Healey Act (41 

U.S.C. 35 et seq.) and 29 C.F.R. § 1518.50 promulgated pursuant to the Contract Work Hours 

and Safety Standards Act (40 U.S.C. 333). 

The Standard at 41 C.F.R. § 50-204.6 promulgated on May 20, 1969, provides: 

§ 50 – 204.6 Medical services and first aid. 

(a) The employer shall ensure the ready availability of medical personnel for 

advice and consultation on matter of plant health. 

(b) In the absence of an infirmary, clinic or hospital in near proximity to the 

work place which is used for the treatment of all injured employees, a person or 

persons shall be adequately trained to render first aid. First aid supplies approved 

by the consulting physician shall be readily available. 

(c) Where the eyes or body of any person may be exposed to injurious 

corrosive materials, suitable facilities for quick drenching or flushing of the eyes 

and body shall be provided within the work area for immediate emergency use. 

The standard at 29 C.F.R. § 1518.50 promulgated on April 17, 1971, provides: 

§ 1518.50 Medical services and first aid. 

(a) The employer shall ensure the availability of medical personnel for advice 

and consultation on matters of occupational health. 

(b) In the absence of an infirmary, clinic, or hospital in proximity to the 

worksite which is available for the treatment of injured employees, a person or 

persons who have a valid certificate in first aid training from the U.S. Bureau of 

Mines or the American Red Cross shall be available to render first aid. 

(c)(1) First aid supplies recommended by the consulting physician shall be easily 

accessible when required. 

(2) The first aid kit shall consist of materials recommended by the consulting 

physician in a weatherproof container with individual sealed packages for each 

type of item. The contents of the first aid kit shall be checked by the employer 

before being sent out on each job and at least weekly on each job to ensure that 

the expended items are replaced. 

(d) Provisions shall be made prior to commencement of the project for prompt 

medical attention in case of serious injury. 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

(e) Proper equipment for prompt transportation of the injured person to a 

physician or hospital, or a communication system for contacting necessary 

ambulance service, shall be provided. 

(f) The telephone numbers of the doctors, hospital and ambulances shall be 

conspicuously posted. 

(g) There shall be at least one person, with a valid certificate in first aid 

training from the U.S. Bureau of Mines or the American Red Cross, to administer 

emergency first aid at any isolated location, or area of difficult access, and where 

medical treatment is not available. 

It is important to note that this standard was promulgated eleven days before the effective 

date of the Act, arguably in anticipation of this standard being adopted by the Act as an 

Established Federal Standard. It is also noteworthy that this standard was issued two years after 

41 C.F.R. § 50-204.6 and that both standards were issued by the Department of Labor. 

Section 6 (a) of the Act provides: 

Sec. 6. (a) 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. 

(29 U.S.C. 655) 

Pursuant to the authority in sections 6 (a) and 8 (g) of the Act, on May 29, 1971, the 

Secretary of Labor promulgated 29 C.F.R. Part 1910, which in part, adopted and extended 

certain Established Federal Standards in effect on April 28, 1971. The Standards in part 1910 

became effective August 27, 1971. The provisions of 41 C.F.R. § 50-204.6 were promulgated as 

an occupational safety and health standard and designated as 29 C.F.R. § 1910.151. 

The provisions in Part 1910 relating to the applicability of Part 1910 standards, including 

29 C.F.R. § 1910.151, are found in 29 C.F.R. § 1910.5. On May 29, 1971, this section included 

the limitation language of 29 C.F.R. § 1910.5 (e) as follows: 

(e) Whenever the source of a standard prescribed in this Part 1910 is 

indicated to be an established Federal standard published in 41 C.F.R. Part 50-

204, the standard so prescribed is applicable only to plants, factories, buildings, or 

3 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

other places of employment where materials, supplies, articles, or equipment are 

manufactured or furnished. That is, the standard is intended to apply to 

manufacturing or supply operations which would be subject to the Walsh-Healey 

Public Contracts Act if there were a Federal contract (41 U.S.C. 35-45) for the 

procurement of the materials, supplies, articles, or equipment involved. 

The Secretary revoked 29 C.F.R. § 1910.5 (e) by publication in the Federal Register at 36 

Fed. Reg. 18080 on September 9, 1971. That revocation provides: 

Paragraph (a) of 29 C.F.R. 1910.5 (36 F.R. 10468) limits the application 

of established Federal standards derived from 41 C.F.R. Part 50-204 to plants, 

factories, buildings, or other places of employment where materials, supplies, 

articles, or equipment are manufactured or furnished. The purpose of this 

amendment is to remove the limitation to the application of the standards so that 

they may apply to every employment and place of employment exposed to the 

hazards covered by the standards. 

The provisions of 5 U.S.C. 553 concerning notice of proposed rulemaking, 

public participation therein, and delay in effective date are inapplicable by virtue 

of the exception to 5 U.S.C. Ch. 5 provided in section 6(a) of the Williams-Steiger 

Occupational Safety and Health Act of 1970. Accordingly pursuant to authority 

in sections 6(a) and 8(g) of the Williams-Steiger Occupational Safety and Health 

Act of 1970 (84 Stat. 1593, 1600; 29 U.S.C. 655, 657) and in 29 C.F.R. 1910.4, § 

1910.5 of Title 29 of the Code of Federal Regulations is hereby amended by 

revoking paragraph (e). As amended, § 1910.5 reads as follows: 

§ 1910.5 Applicability of standards. 

* * * * 

(e) [Revoked] 

* * * * 

Effective date. This amendment shall become effective immediately upon 

publication in the Federal Register (9-9-71). 

On December 30, 1971, Part 1518, containing safety and health regulations for 

construction, was transferred from Chapter XIII to Chapter XVII of Title 29 of the Code of 

Federal Regulations and was designated as 29 C.F.R., Part 1926. The standard at 29 C.F.R. § 

1518.50 was changed to the current designation of 29 C.F.R. § 1926.50 on that date. 

All of the above actions by the Secretary of Labor on or after April 28, 1971, the 

effective date of the Act, were taken pursuant to Section 6(a) of the Act without regard to 

Chapter 5 of Title 5 of the United States Code. Specifically, the promulgation, adoption and 

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extension of established Federal Standards, and the revocation were all done without notice and 

comment. All of these promulgations, modifications and revocations were completed in 

accordance with Section 6(a) of the Act before April 28, 1973, two years after the effective date 

of the Act. 

The Secretary published in the Federal Register on February 9, 1979 a Notice of 

Enforcement Policy and Republication of Standards (44 Fed. Reg. 8577). This notice listed the 

entire text of 29 C.F.R. Part 1926 plus certain general industry standards the Secretary had 

identified as applicable to construction work. This list included 29 C.F.R. § 1910.151(c). The 

Secretary characterized this notice as an effort to provide a better understanding of OSHA’s 

enforcement policy regarding hazards in construction. This notice is merely a policy statement 

by OSHA. It is not a notice of proposed rulemaking allowing for comment by interested 

members of the public. This is not a substitute for a proposed rule under the Act or the APA. 

In June, 1993, immediately prior to the Secretary’s regulatory action published in the 

Federal Register at 58 Fed. Reg. 35075 on June 30, 1993, the standard at 29 C.F.R. § 1926.50 

provided: 

§ 1926.50 Medical services and first aid. 

(a) The employer shall insure the availability of medical personnel for advice 

and consultation on matters of occupational health. 

(b) Provisions shall be made prior to commencement of the project for prompt 

medical attention in case of serious injury. 

(c) In the absence of an infirmary, clinic, hospital, or physician, that is 

reasonably accessible in terms of time and distance to the worksite, which is 

available for the treatment of injured employees, a person who has a valid 

certificate in first-aid training from the U.S. Bureau of Mines, the American Red 

Cross, or equivalent training that can be verified by documentary evidence, shall 

be available at the worksite to render first aid. 

(d)(1) First-aid supplies approved by the consulting physician shall be easily 

accessible when required. 

(2) The first-aid kit shall consist of materials approved by the consulting 

physician in a weatherproof container with individual sealed packages for each 

type of item. The contents of the first-aid kit shall be checked by the employer 

before being sent out on each job and at least weekly on each job to ensure that 

the expended items are replaced. 

(e) Proper equipment for prompt transportation of the injured person to a 

physician or hospital, or a communication system for contacting necessary 

ambulance service, shall be provided. 

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(f) The telephone numbers of the physicians, hospitals, or ambulances shall 

be conspicuously posted. 

On July 1, 1993, immediately after the Secretary’s action, 29 C.F.R. § 1926.50 provided: 

§ 1926.50 Medical services and first aid. 

(a) The employer shall insure the availability of medical personnel for advice 

and consultation on matters of occupational health. 

(b) Provisions shall be made prior to commencement of the project for prompt 

medical attention in case of serious injury. 

(c) In the absence of an infirmary, clinic, hospital, or physician, that is 

reasonably accessible in terms of time and distance to the worksite, which is 

available for the treatment of injured employees, a person who has a valid 

certificate in first-aid training from the U.S. Bureau of Mines, the American Red 

Cross, or equivalent training that can be verified by documentary evidence, shall 

be available at the worksite to render first aid. 

(d)(1) First-aid supplies approved by the consulting physician shall be easily 

accessible when required. 

(2) The first-aid kit shall consist of materials approved by the consulting 

physician in a weatherproof container with individual sealed packages for each 

type of item. The contents of the first-aid kit shall be checked by the employer 

before being sent out on each job and at least weekly on each job to ensure that 

the expended items are replaced. 

(e) Proper equipment for prompt transportation of the injured person to a 

physician or hospital, or a communication system for contacting necessary 

ambulance service, shall be provided. 

(f) The telephone numbers of the physicians, hospitals, or ambulances shall 

be conspicuously posted. 

(g) Where the eyes or body of any person may be exposed to injurious 

corrosive materials, suitable facilities for quick drenching or flushing of the eyes 

and body shall be provided within the work area for immediate emergency use. 

In its notice in the Federal Register at 58 Fed.Reg. 35076 on June 30, 1993, the 

Department of Labor, Occupational Safety and Health Administration (OSHA) published a final 

rule incorporating the regulatory text of Part 1910 standards that OSHA identified as applicable 

to construction work into various Part 1926 standards. OSHA “determined that it is not required 

to follow procedures for public notice and comment rulemaking under either Section 4 of the 

Administrative Procedure Act or under Section 6(b) of the Occupational Safety and Health Act,” 

reasoning that, “this action does not affect the substantive requirements or coverage of the 

standards.” In this notice, OSHA further asserted that, “incorporation does not modify or revoke 

existing rights or obligations nor does it establish new ones.” The basis for these assertions 

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appears to be that OSHA was accommodating “elements of both labor and management within 

the construction industry” that “have requested the Agency to develop a single set of OSHA 

regulations for the exclusive use of that industry.” (58 Fed. Reg. 35076-35077). 

As part of this notice, OSHA added a new standard to 29 C.F.R. § 1926.50 as follows: 

Subpart D-Occupational Health and Environmental Control 

6. New § 1926.50(g) is added to read as follows: 

§ 1926.50 Medical services and first aid. 

* * * * 

(g) Where the eyes or body of any person may be exposed to injurious 

corrosive materials, suitable facilities for quick drenching or flushing of the eyes 

and body shall be provided within the work area for immediate emergency use. 

The notice clearly adds § 1926.50(g) as a new standard. Prior to the June 30, 1993 

Federal Register Final Rule publication, the standard at 29 C.F.R. § 1926.50 did not contain a 

Section (g). It did not provide a requirement for a quick drenching facility where the eyes or 

body of any person may be exposed to injurious corrosive materials. With the publication of this 

notice, a new section (g) was added requiring such facilities specifically in construction work. 

Section 6(a) of the Act sets forth the requirements for promulgation of standards for two 

years after the effective date of the Act without regard to the Administrative Procedure Act. 

Section 6(b) of the Act sets forth specific procedures for the Secretary to promulgate, modify or 

revoke any standard under the Act after April 28, 1973. That section requires a proposed rule to 

be published in the Federal Register allowing interested persons to submit written data or 

comments. A final rule may be promulgated, modified or revoked only after receipt of 

comments under Section 6(b)(2) or the completion of a hearing under Section 6 (b) (3). 

Consistent with Section 6(b) of the Act, 29 C.F.R. § 1911.10 sets forth specific 

mandatory procedures for commencement of rulemaking for standards applicable to construction 

work. An exception to this procedure is allowed by 29 C.F.R. § 1911.5 for minor changes in 

standards where the public is not particularly interested. In such cases, the Secretary must 

incorporate a finding of good cause for not providing notice and public procedure. These 

changes include interpretive and procedural changes to regulations and standards as allowed 

under the Administrative Procedure Act (APA), 5 U.S.C. § 550 et seq. 

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Amending 29 C.F.R. § 1926.50 to add a new standard in § 1926.50 (g) is not a minor 

change involving interpretation or procedure. Rather, it is clearly a substantive change requiring, 

at the very least, informal rulemaking in the form of notice and public comment. 

OSHA recognized this was a substantive change by considering requests from elements 

of labor and management within the construction industry for the agency to develop a single set 

of OSHA regulations for the exclusive use of that industry. The Agency, in accordance with 

section 6(b)(2) of the Act, also considered recommendations of its Advisory Committee on 

Construction Safety and Health relating to consolidation of regulations applicable to 

construction. See 58 Fed. Reg. 35076, June 30, 1993. 

To that point, OSHA followed the requirements of the Act, the regulations and the APA. 

These actions were consistent with informal and formal procedures for promulgation and 

modification of substantive rules. Rather than publishing proposed rule changes, allowing for 

public procedure involving comment or a hearing, however, OSHA chose to issue a final rule 

adding a new standard at § 1926.50 (g). 

The Agency determined it was exempt from following required procedures of notice and 

comment, reasoning the action did not affect substantive requirements or coverage of the 

standard. This bare assertion is internally inconsistent with OSHA’s official action in the final 

rule published in the same notice entitled “6. New § 1926.50 (g) is added to read as follows:” (58 

Fed.Reg. 35084). 

It is clear that OSHA made a substantive change to 29 C.F.R. § 1926.50 by adding a new 

section (g) with new requirements for quick drenching facilities for employees doing 

construction work that may be exposed to injurious corrosive materials. This standard had no 

such requirement prior to this change. No other construction standard had this requirement. 

On September 9, 1971, the Secretary of Labor extended and expanded the application of 

Established Federal Standards promulgated under the Walsh-Healey Act. This included the 

standard at 41 C.F.R. § 50-204.6 which was recodified as an OSHA standard on May 29, 1971 as 

29 C.F.R. § 1910.151. The standards in Part 1910 are often referred to as general industry 

standards which by their terms are broadly worded standards that may or may not be applicable 

to working conditions in various industries. 

Standards in Part 1926 are vertical standards. These are detailed specific standards 

applicable to specific working conditions. The vertical standards in Part 1926 apply to 

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employment and places of employment of every employee engaged in construction work as 

described and defined in 29 C.F.R. § 1910.12. 

While 29 C.F.R. § 1910.151(c), a general industry standard, contained this requirement 

for quick drenching facilities, its terms may or may not apply to specific construction work. At 

an enforcement hearing the burden to establish applicability of this general industry standard to 

working conditions on a construction jobsite rests squarely on the Secretary, By sliding the 

terms of § 1910.151(c) into a construction standard specifically applicable to construction work, 

the burden on the Secretary to prove the applicability of the standard is lessoned or even 

eliminated. By moving the requirement into the construction standard, there becomes a 

presumption of applicability to construction work that otherwise does not exist for provisions 

contained in general standards in Part 1910. Once these requirements are incorporated into the 

vertical industry specific construction standards, feasibility of compliance becomes more 

difficult or even impossible for a cited employer to challenge. 

This alone shows that the action of OSHA was a substantive change and created a 

substantial impact on private parties engaged in construction activity. This substantive change 

required a proposed rule subject to notice and comment. 

OSHA failed to follow procedures required by Section 6(b) of the Act, its own 

regulations in 29 C.F.R. Part 11 and the APA. The Agency’s statement that these changes are 

minor and do not affect substantive requirements or coverage of the standards is internally 

inconsistent with its notice of final rule. This assertion is unconvincing and, therefore, rejected. 

Conclusion 

Complainant did not comply with the requirements of Section 6(b) of the Act, its own 

regulations at 29 C.F.R. Part 1911 or the Administrative Procedure Act in the promulgation of 29 

C.F.R. §1926.50(g). This action substantively changed employer duties and obligations under 29 

C.F.R. §1926.50 without notice and comment, as required for informal rulemaking, or a hearing 

under formal rulemaking procedures. Since this standard at 29 C.F.R. § 1926.50(g) was 

improperly promulgated and added as a new standard, the Secretary cannot now enforce an 

alleged violation of that standard. The alleged serious violation of 29 C.F.R. § 1926.50(g) in 

Citation No. 1, Item 1 is vacated. 

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Findings of Fact and Conclusions of Law 

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. 

ORDER 

Based upon the foregoing decision, it is ORDERED, Respondent’s Motion to Dismiss is 

granted, and Item 1 of Citation No. 1 is vacated and no penalty is assessed. 

/s/ 

STEPHEN J. SIMKO, JR. 

Judge 

Date: December 24, 2012 

Atlanta, Georgia 

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