BY THE COURT:
Presently before the Court is (1) a petition on behalf of appellants for a stay of the effective date of certain Emergency Temporary Standards (ETS) for diving operations, signed and entered June 9, 1976, by the Assistant Secretary for Occupational Safety and Health, Department of Labor (the "Secretary"), and published in Volume 41, No. 116 of the Federal Register on June 15, 1976; (2) a motion on behalf of the United Brotherhood of Carpenters and Joiners of American to intervene in support of appellee; and (3) a similar motion to intervene on behalf of the American Federation of Labor-Congress of Industrial Organizations.
The motions to intervene are hereby granted. The Clerk is directed to file the joint opposition brief of the intervenors tendered to the Court. It has been considered by the Court on the motion to stay.
The motion to stay the ETS pending appeal is hereby granted.
The order from which this appeal is taken was entered by the Secretary in his declared exercise of the extraordinary powers contained in Section 6(c) of the Occupational Safety and Health Act of 1970 (the "Act").
The extraordinary powers granted to the Secretary in Section 6(c) of the Act
Appellants also show danger of irreparable harm with respect to certain requirements of the ETS. Appellee's assertion that such harm might be avoided by the ultimate and uncertain grant of variances from the standards,
Of course, nothing in this order constitutes a decision on the merits of the appeal. More emphatically, nothing in this order is to be taken as an expression by the Court that appropriate safety standards, presumably after full proceedings contemplated by Section 6(b) of the Act, would not be appropriate for this industry. The contrary rather clearly appears.
(1) The Secretary shall provide, without regard to the requirements of chapter 5 of Title 5, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.
(2) Such standard shall be effective until superseded by a standard promulgated in accordance with the procedures prescribed in paragraph (3) of this subsection.
(3) Upon publication of such standard in the Federal Register the Secretary shall commence a proceeding in accordance with subsection (b) of this section, and the standard as published shall also serve as a proposed rule for the proceeding. The Secretary shall promulgate a standard under this paragraph no later than six months after publication of the emergency standard as provided in paragraph (2) of this subsection.