ON PETITIONS FOR REVIEW OF ORDERS OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION OSAHRC DOCKET NOS. 10611, 11327, 13320, 13708, and 14366
Before Seitz, Chief Judge, and Van Dusen and Rosenn, Circuit Judges.
Before us are two petitions for review filed by the Secretary of Labor pursuant to 29 U.S.C. § 660(b), asking this court to set aside certain orders of the Occupational Safety and Health Review Commission. In separate proceedings, the Commission vacated citations issued by the Secretary to respondents Pittsburgh-Des Moines Steel Company (PDM) and Wheeling-Pittsburgh Steel Company for alleged violations of two occupational safety and health standards relating to overhead and gantry cranes.
With respect to existing equipment, the overhead and gantry crane regulations provide that "cranes constructed before August 31, 1971, should be modified to conform to (these) design specifications by February 15, 1972, unless it can be shown that the crane cannot feasibly or economically be altered and that the crane substantially complies with the requirements of (these regulations)." 29 C.F.R. § 1910.179(b)(2) (1977). Because the regulation indicates that older cranes "should" be modified, the Commission held that the standards were merely advisory with respect to the cited cranes, which were installed before the standards became effective. It is that ruling that the Secretary challenges here.
The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 Et seq., was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . ." 29 U.S.C. § 651(b). To that end, the Act authorized the Secretary of Labor "to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce," and created the Occupational Safety and Health Review Commission "for carrying out adjudicatory functions (of the Act)." 29 U.S.C. § 651(b)(3). In order to provide for implementation of the Act as soon as practicable, the Secretary was authorized to "promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard," within two years of the effective date of the Act, without regard to the rule-making provisions of the Administrative Procedure Act, 5 U.S.C. § 500 Et seq., 29 U.S.C. § 655(a). The term "national consensus standard" is defined in the Act as:
any occupational safety and health standard or modification thereof which (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies.
The Act became effective on April 28, 1971, and one month later the Secretary promulgated occupational safety and health standards as a new Part 1910 of the Code of Federal Regulations. 36 Fed.Reg. 10466 (May 29, 1971). Subpart N of the new OSHA regulations dealt with "Materials Handling and Storage." As the section of this subpart dealing with overhead and gantry cranes, the Secretary adopted the pertinent safety code of the American National Standards Institute (ANSI) as a national consensus standard. 29 C.F.R. §§ 1910.179, 1910.183; 36 Fed.Reg. 10466, 10617-22, 10629 (May 29, 1971).
The OSHA standards that respondents allegedly violated were taken verbatim from Chapter 2-1 of the ANSI Code, sections 2-1.7.7a (guards for moving parts) and 2-1.9.2a (electrical equipment).*fn1 Both regulations use the word "shall," characterizing them as mandatory rules of the ANSI Code as defined by Section V of the Code's Introduction:
Mandatory rules of this Code are characterized by the use of the word "shall." If a rule is of an advisory nature it is indicated by the use of the word "should" or is stated as a recommendation.
At the core of this dispute is 29 C.F.R. § 1910.170(b)(2) (hereinafter "(b) (2)"), which was derived from Section IV of ...