United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2020 Decided March 3, 2020

No. 19-1089

BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC, D/B/A 

BROOKE GLEN BEHAVIORAL HOSPITAL,

PETITIONER

v.

SECRETARY OF LABOR,

RESPONDENT

On Petition for Review of an Order of the 

Occupational Safety & Health Review Commission

Carla J. Gunnin argued the cause and filed the briefs for 

petitioner. Tressi L. Cordaro entered an appearance.

Anne R. Godoy, Attorney, U.S. Department of Labor, 

argued the cause for respondent. With her on the brief were 

Edmund C. Baird, Associate Solicitor, Charles F. James, 

Counsel, and Jessica Cole, Attorney.

Before: PILLARD and KATSAS, Circuit Judges, and 

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.
2

PILLARD, Circuit Judge: The Occupational Safety and 

Health Act’s General Duty Clause, enforced by the U.S. 

Secretary of Labor, requires every employer to provide a 

workplace “free from recognized hazards that are causing or 

are likely to cause death or serious physical harm to [its] 

employees.” 29 U.S.C. § 654(a)(1). In this case, the Secretary 

cited an inpatient psychiatric facility, Brooke Glen Behavioral 

Hospital, for violating the General Duty Clause by 

inadequately protecting its employees from the “recognized 

hazard[]” of patient aggression toward staff. Brooke Glen now 

petitions us for review of the administrative decision affirming 

the citation, see BHC Nw. Psychiatric Hosp. LLC, OSHRC 

Docket No. 17-0063, 2019 WL 989734 (Jan. 22, 2019) (ALJ),

contending it is not supported by substantial evidence and that 

the agency failed to provide adequate notice of the workplace 

safety measures the General Duty Clause requires. To the 

extent they are preserved, Brooke Glen’s objections fail to 

overcome our deference to the agency, so we dismiss in part 

and deny in part the petition for review.

BACKGROUND

Brooke Glen, also known as BHC Northwest Psychiatric 

Hospital LLC, is a 146-bed facility in Pennsylvania that 

employs some 200 staff and treats patients who, due to serious 

psychiatric and behavioral issues, often pose a danger to 

themselves or others. See id. at *2. Brooke Glen is owned by

Universal Health Services, Inc., and managed by UHS of 

Delaware, Inc. The Secretary cited both Brooke Glen and 

Arbour-HRI Hospital, a smaller inpatient psychiatric facility in 

Massachusetts owned and managed by the same corporate 

entities, for violating the General Duty Clause by inadequately 

protecting their staff from the risk of patient aggression. Both 

UHS facilities contested the citations in separate administrative 

proceedings before the same Administrative Law Judge (ALJ). 
3

The ALJ upheld Brooke Glen’s citation but vacated ArbourHRI’s. 

In reviewing the citation of Brooke Glen for violating the 

General Duty Clause, the ALJ heard testimony from the 

Secretary’s expert, Dr. Jane Lipscomb, and Brooke Glen’s 

expert, Monica Cooke, who addressed the effectiveness of 

various measures for protecting employees from the 

recognized hazard of death or serious physical harm from 

patient aggression. See id. at *5. The ALJ qualified both Dr. 

Lipscomb and Ms. Cooke as experts, but placed less weight on 

Cooke’s testimony because her examination of Brooke Glen’s 

workplace violence was limited in time and scope and, in some 

respects, unsupported by evidence. See id. at *6-7. The ALJ 

took care to note that Brooke Glen was not cited for

inadequately protecting against “the hazard of patient on staff 

violence” by “fail[ing] to follow clinical care guidelines” or by

delivering “inappropriate clinical care.” Id. at *11.

Examining Brooke Glen’s workplace violence program, 

the ALJ concluded that the facility failed to update or 

implement various written safety policies. For example, 

Brooke Glen’s staff training was inadequately implemented: 

The facility had a PowerPoint presentation covering workplace 

violence, but failed to present evidence of “how or if [the 

presentation] was made available to employees.” Id. at *25. 

The ALJ found that the facility’s Code 100 system—used to 

summon help in psychiatric emergencies—relied on phones 

inadequately distributed throughout the facility and walkietalkies that staff lacked or that frequently did not work. See id. 

at *15-17. Brooke Glen’s written policies required “a postincident debriefing of the people involved” in any incident of 

patient aggression to better prepare staff to prevent such

violence in the future. Id. at *12. The ALJ found, however,

that staff “debriefings did not consistently occur” and that, even 
4

when they did, “their scope was often so limited” that they did 

not meaningfully contribute to workplace safety. Id. at *12-13. 

Brooke Glen adduced evidence showing that its average 

patient aggression rate in 2016 was 4.41 incidents over 1,000 

patient days, significantly below both its 2014 average rate

(11.85 incidents) and the total average rate across all UHS 

facilities in 2016 (8-10 incidents). The ALJ, however, noted 

several flaws in Brooke Glen’s incident reporting process that 

impaired the information’s reliability. First, the ALJ found that 

staff had no obligation to report “incidents of workplace 

violence that did not result in an injury requiring first aid,” and 

that staff “could, but were not required to” report incidents in 

which a patient injured them. Id. at *19. A related reporting 

system that tracked incidents in which patients were restrained 

did not capture “the high number of occurrences of patient on 

staff violence that did not end in a restraint.” Id. at *13. As for 

a third recordkeeping system, MIDAS, the ALJ concluded that 

not “all direct care employees” used it, and that information

entered into MIDAS did not “effectively contribute[] to abating 

patient on staff violence.” Id. at *14. 

Having concluded that Brooke Glen inadequately

implemented its existing workplace safety program, the ALJ 

considered the measures the Secretary recommended Brooke 

Glen implement to come into compliance with its obligation to 

protect its staff from patient-inflicted harms. The ALJ agreed 

that the Secretary’s principal recommendation—having 

Brooke Glen complete a self-evaluation and institute a 

comprehensive workplace violence prevention and response

program—would effectively address the gaps in the present 

system. See id. at *28-29. The ALJ also held that the 

Secretary’s more targeted recommendations would materially

reduce the risk of patient-on-staff aggression: ensuring more 

consistent reporting of incidents of patient-on-staff aggression 
5

together with routine debriefing following those incidents to

detect and respond to systemic issues, see id. at *35-37;

increasing staffing to manage the risk of patient aggression, see 

id. at *30-33; improving procedures for summoning help

during violent encounters, see id. at *33-35; involving frontline 

staff on committees tasked with reviewing workplace safety 

policies, see id. at *37-39; and enhancing training regarding 

patient-on-staff violence and related policies and procedures,

see id. at *39. In view of the inadequacies in Brooke Glen’s 

implementation of its safety program and the clear prospect 

that the Secretary’s recommended measures would materially 

reduce the hazard of patient-on-staff violence, the ALJ 

affirmed the cited General Duty Clause violation. See id. 

at *43.

As mentioned above, the Secretary had also cited another 

UHS facility, Arbour-HRI, for violating the General Duty 

Clause by inadequately protecting against patient-on-staff 

aggression, but on the same day the ALJ upheld Brooke Glen’s

citation, she vacated Arbour-HRI’s. See HRI Hosp., Inc., 

OSHRC Docket No. 17-0303, 2019 WL 989735 (Jan. 22, 

2019) (ALJ). Based on a hearing with testimony from the same 

experts who had testified about Brooke Glen, the ALJ 

concluded that Arbour-HRI had been effectively implementing

its policies, including many of the Secretary’s recommended 

safety measures, and that the balance of the recommended 

measures would not have meaningfully reduced the hazard of 

patient-on-staff violence. See id. at *29-30. For example, the 

ALJ concluded that Arbour-HRI’s workplace violence 

policies, unlike Brooke Glen’s, were regularly reviewed and 

updated with input from frontline staff. See id. at *17-19. 

Arbour-HRI’s training program included the same PowerPoint 

presentation as Brooke Glen had on file, but, unlike in Brooke 

Glen’s case, the ALJ described in detail how Arbour-HRI 

effectively used its training materials. See id. at *9. The ALJ’s
6

findings also reflect that Arbour-HRI’s staff, unlike Brooke 

Glen’s, reported and discussed every incident of patient-onstaff violence, regardless of severity, see id. at *16, and had 

ready means to summon help during violent incidents, see id. 

at *27.

In light of the divergent outcomes, Brooke Glen sought

Occupational Safety and Health Review Commission 

(Commission or OSHRC) review of the ALJ’s decision in its 

case, but the Commission exercised its discretion to deny 

review, rendering the ALJ’s decision the final order of the 

Commission. See 29 C.F.R. §§ 2200.90(f), 2200.91(a). 

Brooke Glen timely petitioned this court under 29 U.S.C. 

§ 660(a). 

ANALYSIS

In reviewing an administrative decision affirming a 

citation issued under the Occupational Safety and Health Act, 

we accept the ALJ’s “findings of fact as ‘conclusive’ if they are 

‘supported by substantial evidence on the record considered as 

a whole.’” Otis Elevator Co. v. Sec’y of Labor, 762 F.3d 116, 

120 (D.C. Cir. 2014) (quoting 29 U.S.C. § 660(a)). The 

“application of the law to those facts will be overturned only if 

it is arbitrary, capricious, an abuse of discretion, or contrary to 

law.” Id. at 120-21. Brooke Glen asserts in its petition for 

review that (1) the ALJ’s affirmance of the General Duty 

Clause violation is not supported by substantial evidence, and 

(2) it lacked adequate notice of the additional workplace safety 

measures the hospital needed to implement to avoid liability. 

Brooke Glen does not challenge the citation’s penalty of 

$12,471.00, having stipulated that the amount would be

appropriate under 29 U.S.C. § 666(j) if the General Duty 

Clause violation were affirmed. See BHC Nw., 2019 

WL 989734, at *43. 
7

I. Substantial Evidence Supports the ALJ’s Decision

“Substantial-evidence review is highly deferential to the 

agency fact-finder, requiring only ‘such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion.’” Rossello ex rel. Rossello v. Astrue, 529 F.3d 

1181, 1185 (D.C. Cir. 2008) (quoting Pierce v. Underwood, 

487 U.S. 552, 565 (1988)). Applying that deferential standard, 

“the question we must answer is not whether record evidence 

supports petitioner’s version of events, but whether it supports”

the ALJ’s conclusion that Brooke Glen violated the General 

Duty Clause. AJP Constr., Inc. v. Sec’y of Labor, 357 F.3d 70, 

73 (D.C. Cir. 2004) (alterations and internal quotation marks

omitted). Brooke Glen cites evidence that generally supports 

its “version of events” but, critically, does not undermine the 

ALJ’s conclusion.

Proving “a violation of the General Duty Clause” requires

the Secretary to

establish that: (1) an activity or condition in the 

employer’s workplace presented a hazard to an 

employee, (2) either the employer or the industry 

recognized the condition or activity as a hazard, (3) the 

hazard was likely to or actually caused death or serious 

physical harm, and (4) a feasible means to eliminate or 

materially reduce the hazard existed. 

SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202, 1207 (D.C. 

Cir. 2014) (quoting Fabi Constr. Co. v. Sec’y of Labor, 508 

F.3d 1077, 1081 (D.C. Cir. 2007)). Brooke Glen stipulated that 

the Secretary established the first two elements, see BHC Nw., 

2019 WL 989734, at *3, and does not here contest the third,

focusing its petition solely on the fourth element—the feasible

means it should have taken to materially reduce the hazard. 
8

To prevail on that final element, the Secretary must 

“specify the particular steps a cited employer should have taken 

to avoid citation” and “demonstrate the feasibility and likely 

utility of those measures.” Nat’l Realty & Constr. Co. v. 

OSHRC, 489 F.2d 1257, 1268 (D.C. Cir. 1973). Where, as 

here, “an employer has existing safety procedures, the burden 

is on the Secretary to show that those procedures are 

inadequate,” SeaWorld, 748 F.3d at 1215, as measured against 

the precautions “a reasonably prudent employer familiar with 

the circumstances of the industry” would take, id. at 1207 

(quoting Fabi Constr., 508 F.3d at 1081). Rather than dispute

the “feasibility” of the comprehensive workplace violence 

program and accompanying safety measures the Secretary 

specified, Brooke Glen contests those measures’ “likely 

utility,” Nat’l Realty, 489 F.2d at 1268, challenging the ALJ’s 

conclusion that the recommended measures would materially 

reduce the hazard of patient violence beyond what Brooke 

Glen’s existing safety program already achieved. See Pet’r Br. 

28-39. Brooke Glen contends that the ALJ should have placed 

greater weight on Ms. Cooke’s expert testimony, see id. at 

38-39, and that the Secretary’s recommended safety measures 

would not materially reduce Brooke Glen’s already low 

incidence of patient aggression, see id. at 28-37. 

In particular, Brooke Glen asserts that the ALJ should have 

credited its industry expert, Ms. Cooke, over the Secretary’s 

expert, Dr. Lipscomb, whom Brooke Glen discounted as “an 

academic with no real experience in the industry.” Id. at 38. 

Yet we must “accept the ALJ’s credibility determinations 

unless they are patently unsupportable,” SeaWorld, 748 F.3d at 

1208 (alteration omitted) (quoting AJP Constr., 357 F.3d at 

73), including by deferring to “the ALJ’s reasonable 

determination regarding not only the relevance but the 

reliability of expert testimony,” id. at 1214 (alteration omitted) 

(quoting Sec’y of Labor v. Keystone Coal Mining Corp., 151 
9

F.3d 1096, 1107 (D.C. Cir. 1998)). Under that deferential 

standard, Brooke Glen’s challenge fails. The ALJ permissibly 

declined to place significant weight on Cooke’s testimony

because, in addition to various temporal, substantive, and 

informational limitations on her examination of Brooke Glen’s 

safety policies, see BHC Nw., 2019 WL 989734, at *6, her 

“expert opinion focused on whether what [Brooke Glen] was 

doing was consistent with the industry,” id. at *7. We have 

held that “a safety precaution” that “is recognized by safety 

experts” need not “find general usage in an industry” or have 

“become customary” for “its absence [to] give[] rise to a” 

violation of the General Duty Clause. Nat’l Realty, 489 F.2d 

at 1266 n.37. Brooke Glen also identifies nothing to contradict 

the ALJ’s conclusion that “information Ms. Cooke cites . . . [is]

not adequately borne out by the evidence.” BHC Nw., 

2019 WL 989734, at *6. And, while Brooke Glen asserts that 

Dr. Lipscomb relied on an academic study to find fault with 

Brooke Glen that it contends was not also brought to bear in 

the Arbour-HRI proceeding, the ALJ did consider the study in 

both proceedings. Compare id. at *29 & n.69, with HRI Hosp., 

2019 WL 989735, at *8. 

Next, Brooke Glen argues that the Secretary “provided no 

evidence of how” the recommended safety measures would 

further reduce the already low rate of patient aggression at 

Brooke Glen. Pet’r Br. 32. But, for starters, the flaws the ALJ 

identified in Brooke Glen’s reporting process diminish the 

significance of its recorded rate of patient aggression. Even 

accepting the rate on its own terms, a low rate of workplace 

accidents cannot alone establish compliance with the General 

Duty Clause. Just as “actual occurrence of hazardous conduct 

is not, by itself, sufficient evidence of a violation” of the 

General Duty Clause, “hazardous conduct need not actually 

have occurred,” or have occurred at any particular rate, for an 

employer to be liable. Nat’l Realty, 489 F.2d at 1267. The 
10

General Duty Clause inquires not how an employer’s accident 

rate compares with its own history or industry averages, but 

whether “a reasonably prudent employer familiar with the 

circumstances of the industry would have protected against the 

hazard in the manner specified by the Secretary’s citation.”

SeaWorld, 748 F.3d at 1207 (quoting Fabi Constr., 508 F.3d at 

1081). The relatively low “overall patient aggression rate” at 

Brooke Glen, Pet’r Br. 30, while salutary, does not answer the 

key question whether the Secretary’s measures would 

appropriately safeguard employees by “materially reduc[ing]

the hazard” of patient-on-staff violence, SeaWorld, 748 F.3d at 

1215.

According to the ALJ, Brooke Glen’s principal 

shortcoming was not its rate of patient-on-staff violence, but its 

failure to fully “implement the policies it had on paper” to 

prevent such violence. BHC Nw., 2019 WL 989734, at *42. 

Another reviewing court has similarly held that the fact that an 

employer “incorporated the relevant” safety measures “into its 

own safety manual does not satisfy its obligation” under the 

General Duty Clause unless those measures are actually

“followed and enforced.” Nelson Tree Servs., Inc. v. OSHRC, 

60 F.3d 1207, 1211 (6th Cir. 1995). We likewise held in 

SeaWorld that an employer’s decision to implement safety 

measures only for workers interacting with one killer whale 

supported General Duty Clause liability because the employer

failed to institute those measures throughout its facility. See 

748 F.3d at 1215. Despite Brooke Glen’s effort to undercut the 

ALJ’s findings of inadequate implementation by highlighting

contrary yet highly general testimony from its own risk 

manager, see Pet’r Br. 31-32 (quoting J.A. 485-486), the ALJ’s 

refusal to credit that testimony is not “patently unsupportable”

based “on the record considered as a whole,” AJP Constr., 357 

F.3d at 73 (quoting 29 U.S.C. § 660(a)).
11

In view of the multiple shortcomings in Brooke Glen’s

overall process of preventing and, when it nonetheless occurs, 

tracking and addressing patient-on-staff violence, the Secretary 

specified a thorough self-evaluation for Brooke Glen “to 

determine what action or combination of actions will,” in the 

form of a comprehensive workplace violence prevention 

program, “eliminate or materially reduce the hazard.” BHC 

Nw., 2019 WL 989734, at *29 (quoting Pepperidge Farm, Inc., 

17 BNA OSHC 1993 (No. 89-265, 1997)). Contrary to Brooke 

Glen’s assertions, see Pet’r Br. 32-34, the Secretary need not

quantify the extent to which that program and its component 

parts “would have materially reduced the likelihood” of 

patient-on-staff violence, Nat’l Realty, 489 F.2d at 1267. 

Instead, the Secretary satisfied the General Duty Clause’s test

by establishing that a comprehensive workplace safety 

program would more effectively and consistently apply 

measures designed to reduce patient-on-staff violence than

Brooke Glen’s present system did. 

In sum, substantial evidence supports the ALJ’s 

conclusion that Brooke Glen’s incomplete and inconsistently 

implemented safety protocols “were inadequate 

to . . . materially reduce the hazard” posed by patient-on-staff 

violence. SeaWorld, 748 F.3d at 1215. The ALJ’s

determination that a more comprehensively considered and 

applied program would materially reduce the hazard was fully 

warranted by her legal analysis and evidentiary findings.

II. The General Duty Clause Provided Fair Notice Here

Brooke Glen contends that it lacked fair notice that the 

General Duty Clause might be applied as it was here—

especially when contrasted with the ALJ’s decision to vacate 

the citation in the Arbour-HRI case. “A fundamental principle 

in our legal system,” assured here by the Fifth Amendment’s 
12

Due Process Clause, “is that laws which regulate persons or 

entities must give fair notice of conduct that is forbidden or 

required.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 

253 (2012). We have “accommodated possible constitutional 

problems with fair notice in this context by interpreting 

‘recognized hazard’ only to include preventable hazards,” 

SeaWorld, 748 F.3d at 1216, and by applying the General Duty 

Clause “only when a reasonably prudent employer in the

industry would have known that the proposed method of 

abatement was required,” id. (quoting Donovan v. Royal 

Logging Co., 645 F.2d 822, 831 (9th Cir. 1981)).

Contending that the Secretary provided “a fundamental 

lack of fair notice . . . regarding what abatement methods would 

materially reduce the hazard of patient aggression to staff and 

what specific measures must be enacted” to avoid future 

citation, Reply Br. 1, Brooke Glen assails the application of the 

reasonably-prudent-employer and material-reduction standards

in this case as unconstitutionally vague. But neither a contextsensitive reasonableness standard nor an unquantified

precautionary threshold is necessarily vague. Cf. Crooks v. 

Mabus, 845 F.3d 412, 418 (D.C. Cir. 2016). And even if the 

scope of a general standard “may not be clear in every 

application,” where its “terms are clear in their application to” 

the conduct at issue, the “vagueness challenge must fail.” 

Holder v. Humanitarian Law Project, 561 U.S. 1, 21 (2010).

The Secretary identified specific measures, including an 

overarching workplace violence prevention program, needed to 

meet the requirements of the General Duty Clause and protect

staff from patient violence at a sizable inpatient psychiatric 

hospital like Brooke Glen. The ALJ found that those measures 

accord with well-known industry best practices and peerreviewed research. See BHC Nw., 2019 WL 989734, at *29. 

The need for full and consistent implementation of such 
13

measures is or should be evident to reasonably prudent 

managers of any major psychiatric inpatient hospital—indeed, 

as in SeaWorld, the General Duty Clause’s application here 

turned in significant part on the employer’s failure to extend 

throughout its workplace the very safety “measures it had 

[already] applied,” albeit inconsistently. 748 F.3d at 1216. The 

ALJ was particularly troubled by the internal disconnect 

between Brooke Glen’s written policies and its actual practice, 

noting that, had “the record showed that [Brooke Glen] had the 

program it described to Ms. Cooke, it would have been more 

difficult for the Secretary to meet his burden.” BHC Nw., 2019 

WL 989734, at *26 n.62. Brooke Glen can hardly object that 

it was blindsided by the utility of measures it had already 

embraced, at least on paper. 

The contrast between the ALJ decisions in Arbour-HRI’s 

case and this one underscores the point. Brooke Glen contends

that the “diametrically opposite results” in the parallel cases 

support its fair-notice claim because an “employer reading the 

two decisions to determine its compliance obligations in this 

area would be completely mystified.” Pet’r Br. at 45. But the 

pair of cases throws into clear relief the nature of Brooke 

Glen’s shortfall. Brooke Glen, unlike Arbour-HRI, allowed 

whole categories of incidents to go unreported and failed to 

review and learn from incidents that had occurred. Compare 

HRI Hosp., 2019 WL 989735, at *16, with BHC Nw., 2019 

WL 989734, at *12-13, *19. And, unlike Arbour-HRI, Brooke 

Glen failed to ensure that staff would have means at hand 

throughout the facility to summon help. Compare HRI Hosp., 

2019 WL 989735, at *27, with BHC Nw., 2019 WL 989734, at 

*15-17. Likewise, only Brooke Glen failed to involve its 

employees in formulating policies to combat patient-on-staff 

violence and was unable to show the effectiveness of its 

training. Compare HRI Hosp., 2019 WL 989735, at *20, with 

BHC Nw., 2019 WL 989734, at *23-25. The non-arbitrariness 
14

of the ALJ’s decision to affirm Brooke Glen’s citation even as 

it vacated Arbour-HRI’s is established by Brooke Glen’s 

different factual record—involving similar policies, but

markedly different implementation of them in practice.

In addition to its as-applied constitutional challenge, 

Brooke Glen objects “that rulemaking—rather than the blunt 

General Duty Clause—is the only appropriate tool” for the 

Secretary “to establish and enforce compliance obligations” 

regarding the “nebulous, complicated, and individualized 

nature of workplace violence” as it “exists in the behavioral 

hospital setting.” Pet’r Br. 46-47. We may not consider this 

objection because, absent “extraordinary circumstances,” “[n]o 

objection that has not been urged before the Commission shall 

be considered by the court.” 29 U.S.C. § 660(a); see also Frank 

Lill & Son, Inc. v. Sec’y of Labor, 362 F.3d 840, 844 (D.C. Cir. 

2004). Brooke Glen did not raise rulemaking in its petition for 

discretionary review and has identified no “extraordinary 

circumstances” to excuse that failure. Frank Lill, 362 F.3d at 

844 (quoting 29 U.S.C. § 660(a)). By not responding to the 

Secretary’s observation that the rulemaking argument was 

unpreserved, see Resp’t Br. 47-48, Brooke Glen further 

forfeited the point, cf. Perry Capital LLC v. Mnuchin, 864 F.3d 

591, 618 (D.C. Cir. 2017). We therefore cannot consider

Brooke Glen’s objection that the Secretary may only police 

patient-on-staff violence via notice-and-comment rulemaking, 

as opposed to agency adjudication under the General Duty 

Clause. 

* * *

We dismiss the petition for review of the ALJ’s decision 

affirming the General Duty Clause citation insofar as the 

petition challenges the agency’s authority to guard against 

patient-on-staff violence via adjudication rather than 
15

rulemaking. In all other respects, including as to substantial 

evidence and adequate notice, the petition is denied.

So ordered.