OPINION OF THE COURT
GIBBONS, Circuit Judge.
The American Federation of Labor and Congress of Industrial Organizations and the Industrial Union Department, AFL-CIO (Petitioners), by a petition filed pursuant to § 6(f) of the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 655(f), challenge the action of the Secretary of Labor (the Secretary) in promulgating on December 3, 1974 a revision of the safety standards applicable to mechanical power presses. The Secretary as respondent, and two intervenors, the Chamber of Commerce of the United States and the American Metal Stamping Association, defend the revised standards, as does the Associated Industries of New York State, Inc. as amicus. The National Machine Tool Builders Association as amicus supports the petitioner's challenge. At issue is the Secretary's decision to eliminate the "no hands in dies" standard for mechanical power presses, adopted in 1971 and appearing at 29 C.F.R. § 1910.217(d)(1)-(2) (1974).
In § 6(a) of the Act the Secretary was authorized and directed to promulgate by rule as an occupational safety and health standard any "national consensus standard" unless he determined that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. 29 U.S.C. § 655(a). "National consensus standard" is defined in § 3(9) of the Act as one adopted and promulgated by a nationally recognized standards-producing organization.
On January 26, 1973 the Secretary announced in the Federal Register the receipt of two petitions
38 Fed.Reg. 2465(1973). The Secretary invited comments on the proposed action by February 24, 1973.
The point made in the petitions for revocation was that ANSI Standard B 11.1-1971 provided for redundant safeguards against the hazard of injury to the operator's hands during the power stroke of a mechanical press. Section (c)(1), 29 C.F.R. § 1910.217(c)(1)(i) provided that "[i]t shall be the responsibility of the employer to provide and insure the usage of `point of operation guards' or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press." Guards or fixed barriers are intended to prevent the entry of hands or fingers into the point of operation during the power stroke of the press.
On March 14, 1974 the Secretary gave notice of proposed modifications of the mechanical power press regulations. The notice proposed tightened standards relating to guards and devices,
Thirty-three interested parties appeared and testified at the hearing, including representatives of the Chamber of Commerce, the American Metal
On December 3, 1974 the Secretary adopted the final power press standard substantially in the form proposed in his March 14, 1974 notice.
I. SCOPE OF REVIEW
In Synthetic Organic Chemical Manufacturers Association v. Brennan, 503 F.2d 1155 (3d Cir. 1974), cert. denied, 420 U.S. 973, 95 S.Ct. 1396, 43 L.Ed.2d 653 (1975) (Synthetic Organic I), we outlined the five-step process under § 6(f) that we will follow in reviewing the Secretary's action in promulgating a permanent safety standard.
From this language the petitioner reasons that whenever the Secretary departs from a national consensus standard his rulemaking is deprived of the presumption of validity afforded by § 6(f), and he must satisfy us, by factfinding supported by evidence, that the departure from the consensus will better effectuate the purposes of the Act. Thus we must initially determine whether to review the administrative action by the standards announced in Synthetic Organic I or by a stricter standard.
At the outset we note that petitioners' position with respect to the proper interpretation of § 6(b)(8) is a two-edged
In the context of upgrading national consensus standards — especially those relating to chemical processing, where we are now only on the frontier of scientific understanding and recognition of the multitude of latent health hazards that exist
Of course, where Congress has made clear its intention that factual determinations are a condition precedent to rulemaking, we have enforced the congressional mandate. For example, § 6(c)(1) of the Act, 29 U.S.C. § 655(c)(1), requires that the Secretary, before promulgating an emergency temporary health and safety standard, determine (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful, and (B) that an emergency standard is necessary to protect them from such danger. In Dry Color Manufacturers' Association Inc. v. Department of Labor, 486 F.2d 98, 102 (3d Cir. 1973) we held that an emergency temporary standard would be set aside unless both findings were made and were supported by substantial evidence. Thus if in § 6(b)(8) Congress clearly intended to impose on the Secretary a higher burden of proof, or to require of us a more stringent standard of judicial review than would otherwise apply to a safety standard, we would be bound to act accordingly.
But we find no such clear expression of congressional intention. In the first place the language of § 6(b)(8) speaks in terms of a statement of reasons, not in terms of factual support for those reasons. The language of § 6(b)(8) is thus more directly related to the generally applicable statement of reasons requirement contained in § 6(e) than to the generally applicable evidentiary standard requirement of § 6(f). Compare § 6(c)(1). We conclude that the purposes of the Act, considered together with the statutory language Congress chose to express that purpose, support the Secretary's statement of the standard of review applicable in this case.
We recognize, of course, that ordinary rules of statutory construction may be eclipsed by a clear and unmistakable declaration of intent in the legislative history.
S.2193, the bill which ultimately became OSHA, was reported from the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare without any § 6(b)(8). This section was added to the bill by way of amendment on November 17, 1970. The sponsor of the amendment was Senator Javits, who had introduced a parallel administration bill, and who had sponsored several other amendments to S.2193. His explanation of the amendment's purpose is quoted in the margin.
Although § 6(e) of the Act imposes a general obligation upon the Secretary to state the reasons for any action he has taken with respect to any health and safety standard,
We conclude, then, that § 6(b)(8) is no more than a particularization of the general statement of reasons requirement of § 6(e), and that whether or not a permanent standard differs substantially from an existing national consensus standard, the Secretary's promulgation of such a standard is reviewable in the manner outlined in Synthetic Organic I.
II. VALIDITY OF THE REVOCATION OF THE NO HANDS IN DIES STANDARD.
The Secretary's statement of reasons for revoking the no hands in dies standard is set forth in the margin.
(A) The substantial evidence contention
In addressing this objection we will review the Secretary's reasons (which we paraphrase) seriatim.
(1) The no hands in dies standard would not prevent employees from actually placing their hands in the point of operation.
According to the record evidence the effectiveness of a no hands in dies standard depends, in large measure, upon the voluntary cooperation of individual employees. Unlike guards or devices, the no hands in dies standard does not actually prevent the press operator from putting his hands in the point of operation. Many power press workers are paid at piece rates, and there is evidence that compliance with the standard will frequently result in a marked decrease in productivity.
(2) Accident statistics are not helpful in determining the effectiveness of "no hands in dies" when compared with appropriate safety devices and guards.
Evidence of the effectiveness of various power press safety plans was of two varieties: (1) written comments and oral testimony, and (2) a 1969 Liberty Mutual Insurance Company Study of 389 power press accidents.
(3) Safety methods other than no hands in dies provide adequate employee protection at the point of operation.
Comments and testimony of many power press employees suggest that power presses which permit manual feeding — "hands in dies" — can by guards and safety devices be made virtually accident proof.
(4) "No hands in dies" will create additional health and safety hazards.
The evidence suggests that the alternatives to hand feeding are automatic or semi-automatic feeding or manual feeding by hand tools. The Secretary found that the use of automated feeding systems would expose operators to another source of injury — the feeder. There is testimony that some pinch-point accidents at feeding machines could cause amputations (a common result of power press accidents) as well as injuries of a less serious variety. There is evidence, moreover, that manual feeding with hand tools is not highly productive and would often be ignored by piece-rate press operators.
(5) Universal implementation of the no hands in dies standard is technologically impossible.
There is evidence that automated feeding is at the present level of technology incompatible with as much as 47% of all power press operations.
(6) The economic costs associated with no hands in dies are prohibitive.
There is abundant evidence that the implementation of the "no hands in dies" standard would be enormously costly in the gigantic metal stamping industry, and would probably result in the elimination of many mechanical power press job shops and a substantial loss of jobs. As with the finding on technological feasibility, petitioner does not seriously dispute the substantiality of this evidence, and principally confines his objection to the finding's relevance under OSHA.
We conclude that each of the Secretary's reasons for his departure from the no hands in dies standard, whatever its legal merit may be, is supported by substantial evidence in the record as a whole. Thus we now address petitioner's legal challenges.
B. Relevancy of the Secretary's Reasons
Petitioner contends that the Secretary's reliance on technological and economic infeasibility, even though his findings to that effect are supported by substantial evidence, was impermissible in standard setting proceedings under OSHA.
(1) Technological infeasibility
Acknowledging that for many applications the no hands in dies standard is technologically infeasible, and that the result of its universal application will be
Although we hold that the Secretary may, consistent with the statute, consider the technological feasibility of a proposed occupational health and safety standard promulgated pursuant to § 6(a), we agree with the Second Circuit in Society of Plastics Industry, Inc. v. OSHA, supra, that, at least to a limited extent, OSHA is to be viewed as a technology-forcing piece of legislation.
(2) Economic infeasibility
This court has not yet considered whether OSHA permits the Secretary, in adopting standards, to take into account the likely economic impact of those standards. The text of the statute does not address the point specifically, and the legislative history is at best cloudy. In Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 499 F.2d 467 (1974), Judge McGowan addresses the issue:
Id. at 477-78 (some footnotes omitted).
Judge McGowan has, we believe, arrived at a proper construction of the statute. Congress did contemplate that the Secretary's rulemaking would put out of business some businesses so marginally efficient or productive as to be unable to follow standards otherwise universally feasible.
C. Adequacy of the Statement of Reasons
Although the statement of reasons quoted in note 26 supra in most respects satisfies the requirements of Synthetic Organic I, in this instance, because the Secretary's standard substantially differs from a national consensus standard, we have indicated that § 6(b)(8) imposes a specific additional requirement. The Secretary must disclose the reasons why his rule will better effectuate the purposes of the Act. We have found that the six reasons listed by him are supported by substantial evidence. We do not, however, find that they adequately disclose why his rule will better effectuate OSHA's purposes.
What the Secretary has done in setting forth his reasons is to assume, contrary to the text of ANSI Standard B 11.1-1971, that no hands in dies on the one hand and guards and devices on the other are alternative rather than cumulative approaches to the elimination of point of operation injuries. Thus while it may be true that no hands in dies alone will not prevent employees from placing their hands in the point of operation, it is not true that coupled with guards or devices the standard would not eliminate the practice. Similarly,
The same "either-or" defect appears with respect to the Secretary's discussion of technological and economic feasibility. Granted that universal application of the no hands in dies standard is not technologically or economically feasible, it does not follow that a universal departure from the national consensus standard would better effectuate the purposes of OSHA. Certainly the record suggests that there are many mechanical power press applications in which the no hands in dies standard will be both technologically and economically feasible. Nowhere does the Secretary discuss the reason why a partial departure from the national consensus standard would be inappropriate. Nowhere does he discuss the possibility of utilizing the variance procedures of § 6(b)(6), 29 U.S.C. § 655(b)(6) for relief in specific instances of infeasibility. There may be adequate reasons for rejecting either approach, but we do not know them. Unless they are disclosed we cannot properly perform our reviewing function.
We conclude that the Secretary's statement of reasons does not adequately disclose why the rule he adopted will better effectuate the purposes of OSHA than would the national consensus standard which it supplants. The cause will be remanded to the Occupational Safety and Health Administration of the Department of Labor for the preparation of a more complete statement of reasons in accordance with this opinion.
The incidence of power press-related injuries has reached intolerable levels. The American Metal Stamping Association, a trade association of employers who use power presses, has estimated that 3 out of every 500 workers who operate power presses will suffer a point of operation injury (caused by the die, the tooling used in a press for cutting or forming material). It is further estimated that over a 30-year period 1 in every 5 power press operators will suffer a debilitating injury, often amputation of a hand or a portion of a hand. See letter from National Machine Tool Builders Association to OSHA, Pet.App. at 199. The no hands in dies standard is an innovative response to the urgent problem of workplace injury.
In 1973, pursuant to a request from the Secretary of Labor, ANSI's B 11 committee agreed to reconsider its no hands in dies standard. Several drafts have been prepared but presently the committee is in a position where it can neither obtain consensus on a revision nor reaffirm the no hands in dies standard. As the intervenor observes, "[t]oday the [national consensus] standard is with us; only the concensus [sic] is missing." Brief of Chamber of Commerce of the United States and American Metal Stamping Association at 23-24.
The intervenors argue that because the no hands in dies standard is no longer supported by a consensus, revocation by the Secretary is appropriate. But the B 11.1 standard remains as the last statement of ANSI, so the procedural formalities outlined in § 6(b)(8) of the Act, 29 U.S.C. § 655(b)(8), must be observed.
Furthermore, § 6(f), 29 U.S.C. § 655(f), requires that a petition to review a new standard be filed within 60 days of promulgation. A petition for review would have been the appropriate vehicle for challenging the claimed consensus for any national standard. Since no timely petition was filed in this case, we are foreclosed from considering the issue on this appeal. See Associated Indus. v. United States Dept. of Labor, 487 F.2d 342, 350-51 (2d Cir. 1973).
29 C.F.R. § 1910.217(d), 39 Fed.Reg. 41848 (1974).
503 F.2d at 1160.
116 Cong.Rec. 37623 (1970).
Several proponents of the no hands in dies standard testified that such a standard would better protect employees than guards and devices, but this was opinion evidence without statistical substantiation.
Percent of Type of Guarding Accidents Accidents No guards or devices provided 135 34.9 Guards or devices provided but not used 50 12.9 Guards or devices provided and used but protection not adequate 96 24.9 Guards or devices improperly adjusted, maintained or installed 59 15.2 Set up, test operating and repairing 49 12.6
Hart, "Power Press Accidents — A Management Problem," Metal Stamping, July, 1969, at 16.
In this study, a sizeable majority of the accidents occurred on machines equipped with safety guards and devices.
S.Rep.No.91-1282, 91st Cong., 2d Sess., 1970 U.S.Code Cong. & Admin.News 5180.