530 F.2d 109
38 A.L.R.Fed. 485, 3 O.S.H. Cas.(BNA) 1820,
1975-1976 O.S.H.D. ( 20,316
AMERICAN FEDERATION OF LABOR & CONGRESS OF INDUSTRIAL
ORGANIZATIONS and Industrial Union Department,
AFL-CIO, Petitioners,
v.
Peter J. BRENNAN, Secretary of Labor, et al., Respondents,
Chamber of Commerce of the United States and American Metal
Stamping Association, Intervenors.
No. 75--1105.
United States Court of Appeals,
Third Circuit.
Argued Oct. 28, 1975.
Decided Dec. 31, 1975.
J. Albert Woll, Robert C. Mayer, George H. Cohen, Robert M. Weinberg, Bredhoff, Cushman, Gottesman & Cohen, Laurence S. Gold, Washington, D.C., for petitioners.
William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, Judith A. Burghardt, Richard T. Galgay, Attys., U.S. Dept. of Labor, Washington, D.C., for respondents.
Vincent J. Apruzzese, of counsel; Maurice J. Nelligan, Jr., Springfield, N.J., on the brief; Apruzzese & McDermott, A Professional Corp., Springfield, N.J., for intervenors, Chamber of Commerce of the United States and American Metal Stamping Assn.
John S. Koch, Jonathan M. Weisgall, Covington & Burling, Washington, D.C., for National Machine Tool Builders Ass'n, amicus curiae.
Charles E. Cooney, Jr., Syracuse, N.Y., of counsel; Costello, Cooney & Fearon, Syracuse, N.Y., for Associated Industries of New York State, Inc., amicus curiae on behalf of respondents Peter J. Brennan, and others.
Before BIGGS, GIBBONS and WEIS, Circuit Judges.
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. In 1971 the Secretary, acting pursuant to § 6(a), adopted a large number of standards which had been promulgated by the American National Standards Institute, Inc. (ANSI), an organization which has served as a clearinghouse for the development of voluntary standards by agreement among maker, seller and user groups. Among the ANSI standards which the Secretary adopted was its standard B 11.1--1971, Safety Requirements for the Construction, Care and Use of Mechanical Power Presses. This standard was a revision of a safety code for mechanical power presses which had first been promulgated in 1922 and had been revised several times thereafter. Standard B 11.1--1971, a revision adopted by ANSI on February 17, 1971, however, although it carried forward many features of the earlier mechanical power press safety codes, departed radically from those codes in one very significant respect. The 1971 standard announced its central purpose to be the elimination of 'the necessity of having the operator place his hands or fingers within the point of operation, thus minimizing his exposure to point of operations hazards.' When it promulgated the no hands in dies standard the B 11 standards committee did not anticipate that its code would, by virtue of the enactment of OSHA and the Secretary's action, become a mandatory federal standard rather than a precatory guideline for the affected industries.
On January 26, 1973 the Secretary announced in the Federal Register the receipt of two petitions to revoke 29 C.F.R. § 1910.217(d)(1)--(2). The announcement disclosed:A major contention of the petitioners is that the point of operation guards or point of operation devices required by 29 CFR 1910.217(c) adequately protect an operator of a mechanical power press from an injury that could result from his hands being placed at the point of operation of the press. Since the guards or devices are designed to prevent either an operator's hands or fingers from entering the area at the point of operation or the stroking of the press, it is contended that the design and construction requirements for mechanical power presses in 29 CFR 1910.217(d)(1) and (2) would serve the same purpose and provide substantially the same protection. Hence petitioners argue that these provisions require great expenditures without adding significant protection.
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. Devices are intended to prevent or interrupt the power stroke of the press if the operator's hands are in the point of operation, or to prevent the operator from placing his hands in the point of operation during the power stroke by requiring that they be elsewhere. What the original section (d)(1) required, in addition to mechanical safeguarding, was that the operator's hands remain outside the die not only during the power stroke cycle of the press but also during the feeding cycle. Thus the effect of section (d)(1) was to prevent hand feeding of any mechanical press. Feeding under standard (d)(1) could be accomplished only by automatic or semiautomatic feeding, or by the use of hand tools.
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, but also proposed the elimination of the no hands in dies requirement. The notice fixed May 13, 1974 as the date upon which a public hearing on the proposed rulemaking would commence.
Thirty-three interested parties appeared and testified at the hearing, including representatives of the Chamber of Commerce, the American Metal Stamping Association, several large corporate power press users, the UAW and the AFL-CIO. Labor representatives uniformly opposed at this hearing revocation of the no hands in dies standard, as did manufacturers of mechanical power presses. Both groups heavily relied upon statistical evidence to strengthen the case against revocation. Industrial users of power presses uniformly supported the Secretary's proposed action. In addition to oral testimony the Secretary received over 300 written comments and 90 hearing exhibits. The rulemaking proceedings were closed on June 26, 1974.
On December 3, 1974 the Secretary adopted the final power press standard substantially in the form proposed in his March 14, 1974 notice. Pursuant to § 6(b)(8) of the Act, 29 U.S.C. § 655(b)(8), the Secretary published a statement of reasons describing why the rule as adopted would better effectuate the purposes of OSHA than the national consensus standard it supplanted. The significant parts of that statement are quoted in Part II of this opinion. The petitioner seeks review of the December 3, 1974 action.
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. The petitioner contends that in this instance the scope of our review is far less circumscribed than under § 6(f), which provides that 'determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.' It points to § 6(b)(8) of the Act, 29 U.S.C. § 655(b)(8):
Whenever a rule promulgated by the Secretary differs substantially from an existing national consensus standard, the Secretary shall, at the same time, publish in the Federal Register a statement of the reasons why the rule as adopted will better effectuate the purposes of this chapter than the national consensus 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 sword. In this instance the departure from a national consensus standard involves the elimination of a redundant safety requirement, the retention of which arguably would enhance employee safety. But petitioner's interpretation of § 6(b)(8) would impose on the Secretary the same burden of proof in those instances where he concluded that it was desirable and feasible to modify an existing national consensus standard by proposing new and more rigorous health and safety requirements. There are literally hundreds of national consensus standards. Many of these represent only the lowest common denominator of sharply-divided opinion; others represent a state of the art which does not take into account emerging developments in the technology of safety, or in the field of health science. Congress made unmistakably clear its intention that national consensus standards should constantly be upgraded to reflect advances in science and technology. Adoption of privately promulgated national consensus standards was viewed as an interim measure, to provide uniform minimum national standards pending plenary action by the Secretary.
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--imposing on the Secretary the burden of proof suggested by petitioners would have major consequences not necessarily consistent with the remedial purpose of OSHA. Experimentation, extrapolation and prognostication may suggest various conclusions, the correctness of which is not likely to be susceptible of easy resolution. Saddling the Secretary with the burden of proving to our satisfaction the scientific superiority of every departure from a national consensus standard--a burden which in many instances he cannot meet--might well in the long run compromise the cause of safety in the workshop. In Synthetic Organic I we pointed out the difficulty of attempting to measure a legislative policy decision against a merely factual yardstick. The difficulty remains, as does our lament, whether the standard under review supplants a national consensus standard or is wholly new.
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. But we do not believe that petitioner can take great comfort in the legislative history of § 6(b)(8). In fact, our review of the sparse legislative history of that provision only fortifies our conviction that the Secretary has correctly read the statute.
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. Petitioners would have us hold that the remarks, and particularly the first paragraph, plainly manifest a congressional intent to require the Secretary to establish that a revised health and safety standard 'will better effectuate the purposes' of OSHA. We believe the key language is contained in the third paragraph: 'this amendment ought to be adopted so that the people will have an explanation of why the Secretary is doing what he is doing.' The purpose of § 6(b)(8) is to require the Secretary to make particular reference to his reasons for rejecting the consensus standard as well as stating his reasons for adopting his own standard.
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, the scope of § 6(e) is not necessarily co-extensive with that of § 6(b)(8). Before he may adopt any standard the Secretary must, under the former provision, state reasons demonstrating that he has given consideration to factors relevant under the statute. But if his standard differs substantially from an existing national consensus standard he must go further, and attempt to show as well what reasons there are for the departure. If the reasons for the departure are based in whole or in part on factual matters susceptible of evidentiary development, they must, as in any other case, be supported by substantial evidence in the record as a whole.
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. The petitioner does not urge that the modification was adopted after inadequate notice, or that the Secretary neglected to consider presently available alternatives. Petitioner does urge (A) that the reasons set forth by the Secretary are not supported by substantial evidence, (B) that some of the reasons relied on are not relevant under the Act, and (C) that the statement of reasons is generally inadequate to support the action taken. Because Synthetic Organic I establishes this court's competence to hear objections of this nature to the Secretary's action, we now turn to the merits of petitioner's arguments.
(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. The evidence also suggests that the natural human tendency to take short cuts to increase productivity will produce evasion of a no hands in dies regulation. In addition, hands will be placed in the point of operation to clear stuck work or correct a malfunction. This determination by the Secretary is supported by substantial evidence.(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. We believe that the record amply supports the Secretary's position that the written comments and oral testimony were inconclusive on the issue of the relative safety of the no hands in dies standard in comparison with safety devices and guards. And although the Liberty Mutual Insurance Company Study does suggest that no hands in dies may provide greater safety than some kinds of safety guards and devices, we do not believe this study supports the inference that no hands in dies is likely to provide a greater degree of safety than the Secretary's revised regulation. We therefore conclude that the Secretary's determination is supported by substantial evidence. Whether such a comparison is relevant under OSHA is a matter discussed below in Part IIC.
(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. The Secretary points out that the proven features of these guards and devices have been incorporated into his final safety standard. Certainly his determination that they are effective is supported by substantial evidence. Again, the relevancy of this determination will be discussed below.
(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. The Secretary's determination that no hands in dies would expose power press operators to additional safety hazards is supported by substantial evidence. This determination must, of course, be related to finding (3) above that there indeed exists an adequate alternative to such a standard.
(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. Some stock is too large, too small, too bulky or too flimsy for mechanized handling. Other types of stock--with unusual configurations or special coating and finishing, for example--simply cannot be accommodated on many power presses now in operation. The use of hand tools appears to be impossible for some very large and very small stock, which may be incompatible with automated feeders as well. Indeed, petitioner does not seriously dispute the substantiality of the evidence supporting this finding. As developed more fully in Part IIB(1) of this opinion, petitioner vigorously disputes that OSHA permits the Secretary in setting standards to take into account considerations of technological feasibility.
(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 erliance 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 the elimination of some businesses and some jobs, petitioner urges that this is exactly the result the Congress sought to accomplish. Neither this court nor, so far as our research discloses any other court, has construed OSHA in so Procrustean a fashion. Undoubtedly the most certain way to eliminate industrial hazards is to eliminate industry. But the congressional statement of findings and declaration of purpose and policy in § 2 of the Act shows that the upgrading of working conditions, not the complete elimination of hazardous occupations, was the dominant intention. In an enforcement context we have noted that while Congress in enacting OSHA intended to reduce the number of workplace injuries, it did not intend to impose strict liability on employers for unavoidable occupational hazards. Brennan v. OSHRC, 502 F.2d 946, 951 (3d Cir. 1974). We do not question that there are industrial activities involving hazards so great and of such little social utility that the Secretary would be justified in concluding that their total prohibition is proper if there is no technologically feasible method of eliminating the operational hazard. But although Congress gave the Secretary license to make such a determination in specific instances, it did not direct him to do so in every instance where total elimination of risk is beyond the reach of present technology. Section 6(b)(5) of the Act, dealing with standards for toxic materials, explicitly confines the Secretary's rulemaking authority within technologically feasible boundaries. See Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1308 (2d Cir.), cert. denied, 421 U.S. 992, 95 S.Ct. 1988, 44 L.Ed.2d 482 (1975). If the Secretary may consider technological feasibility with respect to the elimination of hazards from toxic materials, then a fortiori he must be permitted to do so with respect to other hazards under the more general language of § 6(a).
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. Thus the Secretary would not be justified in dismissing an alternative to a proposed health and safety standard as infeasible when the necessary technology looms on today's horizon. Nevertheless, we are satisfied that the Secretary in this case has placed this factor in its proper perspective. The Secretary found, and we believe there is substantial evidence to support such a finding, that compliance with no hands in dies is not technologically feasible in the 'near future.' This finding necessarily implies consideration both of existing technological capabilities and imminent advances in the art. We do not believe that the Act imposes any heavier obligation.
(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:
There can be no question that OSHA represents a decision to require safeguards for the health of employees even if such measures substantially increase production costs. This is not, however, the same thing as saying that Congress intended to require immediate implementation of all protective measures technologically achievable without regard for their economic impact. To the contrary, it would comport with common usage to say that a standard that is prohibitively expensive is not 'feasible'. Senator Javits, author of the amendment that added the phrase in question to the Act, explained it in these terms:
As a result of this amendment the Secretary, in setting standards, is expressly required to consider feasibility of proposed standards. This is an improvement over the Daniels bill, which might be interpreted to require absolute health and safety in all cases, regardless of feasibility, and the Administration bill, which contains no criteria for standards at all.
S.Rep.No.91--1282, 91st Cong., 2d Sess., at 58; Legis.Hist. at 197.
The thrust of these remarks would seem to be that practical considerations can temper protective requirements. Congress does not appear to have intended to protect employees by putting their employers out of business--either by requiring protective devices unavailable under existing technology or by making financial viability generally impossible.
This qualification is not intended to provide a route by which recalcitrant employers or industries may avoid the reforms contemplated by the Act. Standards may be economically feasible even though, from the standpoint of employers, they are financially burdensome and affect profit margins adversely. Nor does the concept of economic feasibility necessarily guarantee the continued existence of individual employers. It would appear to be consistent with the purposes of the Act to envisage the economic demise of an employer who has lagged behind the rest of the industry in protecting the health and safety of employees and is consequently financially unable to comply with new standards as quickly as other employers. As the effect becomes more widespread within an industry, the problem of economic feasibility becomes more pressing. For example, if the standard requires changes that only a few leading firms could quickly achieve, delay might be necessary to avoid increasing the concentration of that industry. Similarly, if the competitive structure or posture of the industry would be, otherwise adversely affected--perhaps rendered unable to compete with imports or with substitute products--the Secretary could properly consider that factor. These tentative examples are offered not to illustrate concrete instances of economic unfeasibility but rather to suggest the complex elements that may be relevant to such a determination.
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 business so marginally efficient or productive as to be unable to follow standards otherwise universally feasible. But we will not impute to congressional silence a direction to the Secretary to disregard the possibility of massive economic dislocation caused by an unreasonable standard. An economically impossible standard would in all likelihood prove unenforceable, inducing employers faced with going out of business to evade rather than comply with the regulation. The Act does vest the Secretary with authority to enforce his regulations, but the burden of enforcing a regulation uniformly ignored by a majority of industry members would prove overwhelming. We therefore conclude that the Secretary may in the weighing process consider the economic consequences of his quasi-legislative standard-setting. We reject the petitioner's contrary contention.
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, while it may be true that a statistical comparison of no hands in dies operations with operations guarded by approved guards and devices produces inconclusive results, the comparison is hardly relevant to a standard involving redundant safeguards. Certainly the finding that guards and devices provide effective protection is relevant, as is the finding that use of automatic or semi-automatic feeders introduces additional hazards. But what is lacking, since the Secretary seems to have taken an 'either-or' approach, is any comparison of the net safety effect of a redundant requirement. It may well be that the pinch-point hazards of automatic feeders is slight in comparison with the safety gains from no hands in dies operation. There is, however, no finding to this effect.
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.
III. Conclusion
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.