FRIENDLY, Circuit Judge:
This petition to review so much of an order of the Department of Labor, 38 F.R. 10930, 10933 (1973), as set minimum numbers of lavatories in industrial establishments is an early illustration of the new tasks imposed on the federal courts of appeals by legislation enacted during the past decade which subjects to their review a wide variety of determinations, by agencies within the executive
I. The Statutory Scheme
We are here concerned with the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., already yclept OSHA. Section 5 of the Act, 29 U.S.C. § 654, requires every employer engaged in a business affecting commerce to furnish each employee "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm" and to "comply with occupational safety and health standards promulgated under this chapter." The Secretary of Labor is given authority to promulgate such standards by a two-step process. For a two year period, the Secretary, without regard to the Administrative Procedure Act, could promulgate "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," 29 U.S.C. § 655(a). "National consensus standard" was defined, 29 U.S.C. § 652(9), to mean a standard which
After the end of this stop-gap period, standards were to be promulgated, modified or revoked by a rulemaking procedure specified in 29 U.S.C. § 655(b). Petitioner does not dispute that, broadly speaking, this is to be "notice and comment" rulemaking of the sort provided in § 4 of the APA, now 5 U.S.C. § 553. The proposed standard is to be published in the Federal Register, and interested persons are to be given thirty days to submit written data or comments. During the same period any interested person may file written objections and request a public hearing thereon. Within another thirty days the Secretary shall publish in the Federal Register a notice specifying the standard to which objections have been filed and setting a hearing. Within sixty days after the period for filing comments or, if objection and request for hearing have been timely filed, within sixty days after the hearing,
The judicial review provision, 29 U.S.C. § 655(f), is as follows:
II. The Proceedings in the Department of Labor
In May 1971, the Secretary, acting under § 655(a), promulgated a general sanitation standard, avowedly as a national consensus standard, which included the subject of lavatories that is here at issue. 36 F.R. 10593, 10594. This standard, 29 C.F.R. § 1910.141, was based on a 1968 American National Standards Institute (ANSI) general sanitation standard and required that in all places of employment whether industrial or nonindustrial
Although petitioner now questions whether the ANSI standard met the statutory requirement for a national consensus standard, neither it nor, so far as appears, anyone else challenged this within the 60 days allowed by § 655(f).
On July 15, 1972, the Secretary issued, under § 655(b), a notice of rulemaking, 37 F.R. 13996, which proposed a substantial revision of the standards previously adopted. With respect to lavatories it was proposed to reduce the requirements for "offices" in a manner not here material but to retain those previously provided for "all other". Id. at 13998. The reason for the change was explained as follows:
Id. at 13996. Comments and requests for a hearing having been received, the Secretary published a notice of informal hearing, 37 F.R. 20571. Such a hearing, the bulk of which was devoted to proposals other than that here at issue,
--------------------------------------------------------------------- Number of Minimum number Type of employment employees of lavatories --------------------------------------------------------------------- Nonindustrial—office buildings, 1-15____ 1. public buildings, and 16-35____ 2. similar establishments. 36-60____ 3. 61-90____ 4. 91-125___ 5. Over 125_ 1 additional fixture for each additional 45 employees. Industrial&factories, warehouses, 1-100____ 1 fixture for each loft buildings, and 10 employees. similar establishments. Over 100_ 1 fixture for each additional 15 employees.
No mention was made of the objections that had been proffered to the minima-proposed for industrial establishments or of the reasons for rejecting them.
This petition for review of the portion of the standard concerning lavatories in industrial establishments followed. Another panel stayed enforcement of the standard pending argument of an expedited appeal; we continued the stay.
III. The Standard of Review
The respondents ask us to apply a standard of review less severe than the substantial evidence test. They point to what they consider an anomaly in subjecting notice and comment rulemaking, which has here produced a regulation essentially legislative in nature, to the substantial evidence test, which under the APA, 5 U.S.C. § 706(2)(E), applies only to determinations resulting from adjudication, 5 U.S.C. § 554, and rules "required by statute to be determined on the record after opportunity for an agency hearing," 5 U.S.C. § 553(c). It is argued in support of this that the final sentence of § 655(f) says only that the Secretary's "determinations" must be supported by substantial evidence, not that the regulation as a whole must be so supported; respondents' clear implication is that § 655(f) imposes the substantial evidence test only upon such findings of fact as the Secretary announces when promulgating a rule.
Admittedly, the closing sentence of subsection (f) does not speak with the clarity of e. g., § 11(c) of the Consumer Product Safety Act, 15 U.S.C. § 2060(c).
We need not debate whether what thus seems a rather plain meaning could be overcome by legislative history pointing to the contrary. For here the history, while peculiar in one respect hereafter noted, lends much more support to adhering to the natural meaning than to departing from it. The bill as passed by the Senate provided for the informal rulemaking procedures now in the Act but was silent on the scope of review, thus leaving the latter question to the APA, 116 Cong.Rec. 37633-34 (1970); the House amended this so as to require a hearing on the record in accordance with 5 U.S.C. §§ 556 and 557, 116 Cong. Rec. 38725 (1970). As indicated, the Conference Committee adopted the Senate version with respect to rulemaking and the House version with respect to scope of judicial review.
See The Job Safety and Health Act of 1970, BNA Operations Manual 129 (1971); 91st Cong., 2d Sess., 3 U.S.Code Cong. & Admin.News p. 5232 (1970).
Respondents argue that the conferees apparently assumed, however mistakenly, that the "standards generally applicable to review of rules" were "more vigorous" than the substantial evidence test, and that the conferees therefore must have been opting for what they deemed relatively weak review. Whatever the explanation of the House managers' having said "more vigorous" rather than "less vigorous," the intention to adopt the substantial evidence test for review as a tradeoff for the House's abandoning its insistence on rulemaking on the record, which would automatically have invoked that test under 5 U.S.C. § 706(2)(E), is apparent. Indeed, in contrast to the argument here made by counsel, the Department of Labor itself seems to have recognized the applicability of the substantial evidence rule. In 29 C.F.R. § 1911.5(a)(2), as amended April 29, 1972, 37 F.R. 8664, 8665, it stated:
While we have felt constrained to determine and sustain the applicability of the substantial evidence test, it may well be that the controversy is semantic in some degree, at least in the context of informal rulemaking, and that it lacks the dispositional importance that respondents imply. In one of its first brushes with rulemaking, prior to the adoption of the APA, the Supreme Court said in National Broadcasting Co. v. United States, 319 U.S. 190, 224, 63 S.Ct. 997, 1013, 87 L.Ed. 1344 (1943), a case of notice and comment rulemaking:
In WBEN, Inc. v. United States, 396 F.2d 601, 610-614 (2 Cir.), cert. denied, 393 U.S. 914, 89 S.Ct. 238, 21 L.Ed.2d 200 (1968), while we applied to F.C.C. rulemaking the "arbitrary and capricious" standard of 5 U.S.C. § 706(2)(A), it is hard to see in what respect we would have treated the question differently if we had been applying a "substantial evidence" test. The same can be said of Air Line Pilots Ass'n v. Quesada, 276 F.2d 892, 898 (2 Cir. 1960), cert. denied, 366 U.S. 962, 81 S.Ct. 1923, 6 L.Ed.2d 1254 (1961). Commentators have suggested that in the "class of cases in which the ground for challenging the agency action is the inadequacy of its evidentiary basis, it is difficult to imagine a decision having no substantial evidence to support it which is not `arbitrary', or a decision struck down as arbitrary which is in fact supported by `substantial evidence'," and that the true significance of the substantial evidence rule is in limiting the agency to the confines of the public
IV. The Effect of the Prior Consensus Standard
An additional point must be considered before we reach the merits. Both petitioner and respondents devote a great deal of time to the questions whether the 1971 consensus standard—which was no less severe with regard to industrial buildings than the 1973 standard—was properly adopted and if not, whether it can be attacked at this late date. In its own terms, this debate started by petitioner is inapposite, since the 1973 regulations and not those of 1971 are here at issue. However, at one point respondents seem to seek to support the 1973 standards on the basis that the 1971 regulations were promulgated without objection and have been in effect for two years. This argument presumably would be that the 60-day time limitation of 29 U.S.C. § 655(f) would bar petitioner from challenging the same standard that has governed its members since May 1971.
If in fact respondents mean to suggest any affirmative argument in defense of the 1973 regulations based on the promulgation without objection of consensus standards two years ago and on their having been in effect in the interim, such an argument must be rejected.
V. The Merits
In its regulation previously quoted, 29 C.F.R. § 1911.5, the Department properly recognized "a Congressional expectation that the rule making would be on the basis of a record to which a substantial evidence test, where pertinent, may be applied in the event an informal hearing is held." This seems to imply a recognition of some responsibility on the part of the Department to explain and support the proposals it is advancing, at least when these have been opposed on substantial grounds. That burden was not here discharged.
The notice of rulemaking, 37 F.R. 13996, contained no affirmative justification for the proposal here at issue. While this was understandable since the requirements for industrial buildings were the same as in the previous national consensus standard, comments received before the hearing made the Department aware that petitioner and others challenged the propriety of the requirement on various grounds. Petitioner pointed out that New York required only half as many lavoratories for industrial employment and said that this had not resulted "in any evidence of adverse physiological effects or employee complaints." Eastman Kodak Co., a member of petitioner, proposed a more generally worded "performance" standard, with an addition to cover "those situations where exposures to specific materials indicate the need for special attention to on-the-job wash facilities."
In light of all this—and there was more—it would have been eminently desirable for the Department to present at the outset of the hearing some justification for selecting what apparently is the highest numerical requirement in any state code and for applying this, with regard to existing buildings as well as new construction, not only to foundries and paint factories but to factories making
Respondents' brief makes much of a statement by Dr. Lorin Kerr of the American Public Health Association, "We are not talking about aesthetics; we're talking about protecting people's lives . . . we're talking on the basis of experience that in the absence of this, we just know, as health officers, we're going to be confronted with outbreaks of illness which can be prevented." Examination of the transcript shows that this had nothing like the force the brief attempts to give to it. Dr. Kerr had earlier stated that the Association's comments "will be confined specifically to the uses of non-potable water." The quoted remark was made in interrupting an exceedingly bland statement of a representative of the AFL-CIO that the number of toilets and sinks was a proper subject of regulation under OSHA and that he had no objection to the proposed numbers but was "not really terribly excited about that issue." Dr. Kerr was far more aroused then the labor representative and accordingly was advocating some numerical requirement; but he said nothing to support the precise figures proposed. The brief's statement that the labor representative "had no objection to the proposed lavatory requirements" likewise conveys a false impression. All that can be read into the statement is that labor thought the requirement was sufficiently tough, not that it felt that nothing less would do or, if so, why. The other comments alleged by the brief to support the regulation are similarly taken out of context. The only legitimate reliance is on (1) the codes of five states, Arkansas, Michigan, New Hampshire, New Jersey, and Tennessee, of which the Department could take official notice but to which petitioner opposes twelve, Alabama, Connecticut, Illinois, Indiana, Massachusetts, Minnesota, New York, Oklahoma, Oregon, Pennsylvania, Virginia and Wisconsin, and (2) the code of the ANSI, the Building Officials and Code Administrators (BOCA) Basic Plumbing Code and the National Plumbing Code. The record sheds no light on the nature or interests of the latter organizations and the names of at least the last two convey the impression that they may have been formulating desirable standards for new construction rather than necessary changes in existing buildings. The endorsements of these codes by some industry officials were in support of the proposed relaxation of requirements for office buildings and not, as respondents' brief would lead one to believe, affirmative approval of the provisions for industrial buildings.
We are far from saying that the Department is not free to impose the advanced standards of some states simply because these are outnumbered. As said in Senate Report No. 91-1282, 91st Cong., 2d Sess., p. 4, U.S.Code Cong. & Admin.News, p. 5180, "the efforts of the more vigorous states are inevitably undermined by the shortsightedness of others," and one of the great functions now served by the Commerce Clause is to enable Congress to prevent this. The point is rather that when the Department imposes a standard considerably more stringent than that which
Quite apart from the lack of evidence to support the standards and their consequent arbitrary and capricious nature, we must remand the case because of the Department's failure to live up to its own regulation, 29 C.F.R. § 1911.18(b), requiring, in language that goes beyond the letter but fulfills the spirit of 5 U.S.C. § 553(c) and 29 U.S.C. § 655(e), that any standard shall be accompanied by a statement which "will show the significant issues which have been faced, and will articulate the rationale for their solution." All that the Department said was, 38 F.R. 10932:
Apart from what we deem a considerable overstatement in the third sentence, this wholly failed to "articulate the rationale" for the solution the Department had adopted. As Judge McGowan said in Automotive Parts & Accessories Ass'n v. Boyd, 132 U.S.App.D.C. 200, 208, 407 F.2d 330, 338 (1968), in reference to the requirement of 5 U.S.C. § 553(c) of "a concise general statement" of the basis of rules adopted after informal rulemaking:
While emphasizing that the judicial task in the review of informal rulemaking differed from that in the review of adjudication or rulemaking on the record, he added:
Although the court sustained the standard at issue in Automotive Parts, it did so on the basis of evidence and explanation far more convincing than here.
We must confess we are not so sanguine as was Judge McGowan whether judicial review of legislative standards resulting from informal rulemaking will ultimately prove to be feasible. Courts may well end up doing much less than Congress intended or, a more likely and graver threat in these days of judicial activism, much more than Congress had wished. Despite our dissatisfaction with the Department's performance here, if we were free to make the choice of policy much could be said for the wisdom of Mr. Justice Brandeis in Pacific States Box & Basket Co. v. White, 296 U.S. 176, 186, 56 S.Ct. 159, 163, 80 L.Ed. 138 (1935), that "where the regulation is within the scope of authority legally delegated, the presumption of the existence of facts justifying its specific exercise attaches alike to statutes, to municipal ordinances, and to orders of administrative bodies." But it is plain that this was not the policy choice that Congress made in enacting OSHA and many other regulatory statutes of the last decade. With the agencies and the courts in a new form of uneasy partnership, compare Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 15, 62 S.Ct. 875, 86 L.Ed. 1229 (1942), the former must take reasonable steps to enable the latter to carry out the task that Congress has imposed upon them. See Hamilton, supra, 2 Recommendations and Reports of the Administrative Conference of the United States at 891-894; 60 Calif.L.Rev. at 1333-36. The provisions of 29 C.F.R. §§ 1911.5(a) (2) and 1911.18(b) were commendable steps by the Department in that direction. Unhappily the performance here did not meet the promise. When Congress has required us to review standards established by the Department—as we see it, under the substantial evidence test—we must insist on something more than an ipse dixit, now sought to be supported by references by counsel, compare Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 443-444, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965), to the codes of a small minority of the states without the slightest explanation why these are to be preferred over the majority. In a case where a proposed standard under OSHA has been opposed on grounds as substantial as those presented here, the Department has the burden of offering some reasoned explanation. As Mr. Justice White said in Burlington Truck Lines, Inc. v. United States, supra, 371 U.S. at 174, 83 S.Ct. 239, 249, although, to be sure, in the context of a licensing order, the agency "must act with a discriminating awareness of the consequences of its action. It has not done so here."
The portion of 29 C.F.R. § 1910.141(d) (2) relating to the number of lavatories required for industrial employment is vacated, and the cause is remanded to the Department of Labor for further proceedings consistent with this opinion.
He adds in a footnote:
Although there may be cases where line-drawing may be harder than Professor Davis' language would indicate, this is not one of them. No one was a party to the establishment of the consensus standard, and there was no hearing. Apart from this, the only fact that could have been established was that the ANSI standard met the requirements of 29 U.S.C. § 652(9) for a "national consensus standard," an issue of no relevance to review of the standard set under § 655(b).
Respondents' brief somehow manages—more accurately, does not manage—to convert this criticism, in the various forms in which it was made, into an advocacy of the proposal.