author: HILL, Circuit Judge.

text:
    The AETNA CASUALTY AND SURETY COMPANY, a corporation, Plaintiff-Appellee, v. Clifford R. HUNT et al., Defendants-Appellees, and State Farm Mutual Automobile Insurance Company, Intervenor-Appellee, Wilford Lamar Teel et al., Intervenors-Appellants.
    No. 73-1071.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted July 11, 1973.
    Decided Oct. 24, 1973.
    Rehearing Denied Nov. 16, 1973.

      Jefferson G. Greer, Tulsa, Okl., for intervenors-appellants.
    Dale F. McDaniel, Tulsa, Okl., for plaintiff-appellee.
    E. D. Hieronymus, Tulsa, Okl., for defendant-appellee Independence Fire and Cas. Co.
    Joseph A. Sharp, Tulsa, Okl., for Inter-venor-appellee State Farm Mutual Auto. Ins. Co.
    Before PHILLIPS, HILL and DOYLE, Circuit Judges.
   HILL, Circuit Judge.

This is an appeal from a declaratory judgment entered by the United States District Court for the Northern District of Oklahoma sitting without a jury. Originally in this diversity action Aetna Casualty and Surety Company sought an adjudication that it was under no liability to defend or indemnify either Clifford Hunt, Mary Hunt, Charles Hunt or Dale Watson as a result of an automobile accident on September 14, 1969. State Farm Mutual Automobile Insurance Company and Independence Fire and Casualty Company were allowed to intervene as they sought similar declaratory judgments. Additionally, Wilford Teel and others were allowed to intervene as they had previously filed suit in Oklahoma state court against the defendants in the instant complaint seeking damages suffered as a result of the accident.

The majority of the evidence presented to the trial court was introduced by deposition. It appears from these depositions and other evidence that on September 14, 1969, defendant Dale Watson, while driving a 1963 Chevrolet automobile owned by Charles Hunt, attempted to pass another vehicle on State Highway 169 near Oologah, Oklahoma, and in that attempt struck headon the vehicle in which the Teel family was riding. As a result of that accident, two passengers in the Teel car were killed and two others were seriously injured.

The testimony indicates that earlier on September 14 a group of teenagers, including Charles Hunt, Michael Clinton, Dale Watson, Cinda Dudley and Linda Dudley, had met and gone riding in Hunt’s 1963 Chevrolet. Hunt allowed Cinda Dudley to drive at least near Oolo-gah Lake and possibly over a much greater distance. Hunt then allowed Clinton to drive until they finally arrived at Linda Dudley’s apartment. A short while later, Hunt allowed Clinton to take the car to visit a girlfriend while Hunt remained at the apartment with Dale Watson and the two girls. Clinton returned in the early evening and from this point the testimony is greatly confused and the evidence is generally contradictory.

Michael Clinton testified that when he returned to the apartment he did not leave the car; he honked and Linda Dudley appeared at the door, then returned to the apartment. Dale Watson then came out and told Clinton to scoot over because Hunt had given him permission to drive. Clinton slid over, rolled down the window and called to Hunt to verify that such permission had been given, but Watson drove off before Clinton received any reply.

Cinda Dudley testified that she did not hear the horn, but that Clinton icame to the door of the apartment and that she believed all three boys eventually went out to the car. Later Hunt returned to the apartment and the other boys left.

• Linda Dudley testified that she heard the car horn and that Watson went out to the car and then returned to the apartment to ask Hunt what time Hunt wanted them to come back. Linda believed that Hunt answered “later”.

Charles Hunt testified that he heard Clinton arrive but did not hear the horn; that he believed he was in the bathroom and that he apparently was not in the room when Dale Watson left the apartment.

Dale Watson had a history of mental deficiency and treatment for such dating back to childhood. Additionally, he suffered serious head injuries in the accident on the fourteenth and thus was unable to recount accurately the details of that day. His testimony was greatly confused and of little value. He did not even recall clearly that he met the girls or went to their apartment. He believed that he and Michael Clinton left from Hunt’s house, not the apartment. He did testify that Hunt had not given him permission to drive.

From the apartment, Dale Watson drove to Michael Clinton’s home where Michael stayed and then went on several missions of his own prior to the accident.

At the trial of this case, the parties advanced directly opposite interpretations of the evidence. The injured Teels alleged that these facts established liability on the part of Charles Hunt, Michael Clinton and Dale Watson. They further urged that the three insurance carriers were required to indemnify their insureds under provisions of the various policies in effect on September 14. The insurance carriers each denied any liability based upon policy language which limited their coverage to situations in which the automobile was operated with the permission of the owner, named insured or person in lawful control of the vehicle. They urged that the facts established that Dale Watson had taken the vehicle without permission and that none of the theories advanced by the Teels was applicable to this factual setting.

After the presentation of the depositions and the limited amount of oral testimony offered in this case, the trial court adjourned the proceedings to a later date and indicated it would take the matter under advisement. At this point it was assumed that oral arguments would be had at a later time, and the court in fact allotted specific time for the argument of appellants’ counsel. Subsequently, without notifying any of the parties, the court made findings of fact and conclusions of law and entered judgment for the insurance carriers on April 2, 1971. That ruling was appealed to this court and was reversed and remanded in an opinion dated August 17, 1972. Aet-na Cas. & Surety Co. v. Hunt, 10 Cir., 466 F.2d 1203. In that opinion the case was returned to the district court with instructions to allow additional evidence, grant oral arguments and reconsider the case. Upon return to district court, no additional evidence was offered and oral arguments were heard. The trial court again made findings and conclusions and entered judgment for the carriers. From that judgment the Teels now appeal. We have reviewed the evidence and must affirm.

Before proceeding with any discussion of the evidence in this case, however, we must note the various contentions of the parties as to the applicable standard of review in a case such as this. Appellants apparently urge, that Cherot v. United States Fidelity & Guar. Co., 264 F.2d 767 (10th Cir. 1959), allows this court to make an independent evaluation of all the evidence as the majority of it was presented in documentary form. Appel-lees, on the other hand, urge that because some oral testimony was received, the doctrine expressed in Cherot is completely inapplicable. Neither of these contentions is entirely correct.

In a series of cases, this court has held that in the absence of oral testimony the appellate court is equally as capable as the trial court of examining the evidence and drawing conclusions therefrom, and that we are under a duty to do so. The nature of documentary evidence is not changed by the fact that it is accompanied by other oral testimony. Where findings of fact by the trial court are based in large measure upon stipulations, depositions and other documentary evidence as in this case, they do not carry the same weight on appeal as findings based entirely on oral testimony. In dealing with all such documentary evidence, the trial court is denied its normal advantage of an opportunity to judge the credibility of the witnesses, but the duty of this court to evaluate the facts does not extend to the making of an independent evaluation without regard to the findings below. Though this lack of opportunity to observe the witnesses establishes the appellate court’s duty to evaluate documentary evidence in an equal capacity with the trial judge, we are loath to overturn the findings of a trial court unless they are clearly erroneous.

As to the particular holdings of the trial court in this case, the pivotal finding of fact in regard to all three insurance carriers is that Dale Watson did not have permission from anyone to operate the automobile. In fact, the court found that Watson forced himself into the driver’s seat of the vehicle and that he knowingly took the car without permission. Without discussing the individual policies in detail, we would indicate that we interpret them as did the trial court, so that if this finding of fact is upheld, the judgment for the insurance carriers must be affirmed. Under any of the theories of liability advanced by the Teels, if Watson took the car without permission then no liability can be established against the carriers, and they are entitled to a favorable declaratory judgment.

Despite the contradictions in the evidence, one fact is clear in all the statements. No one clearly testified that Watson received permission to drive from anyone. Charles Hunt denied he gave permission to Watson and in fact testified that earlier that day he told Watson he could not drive. All the other teenagers stated that they did not hear Charles give permission to Watson. There was clearly insufficient testimony to establish implied permission in this case. Though Watson had driven two other cars owned by the Hunt family previously, each time it was with the specific permission of Charles Hunt, and Charles had accompanied Watson on each occasion.

The appellants, in effect, wish us to read between the lines and provide evidence that they were unable to produce. To give effect to their suggestion that Charles Hunt wished to be alone with one of the girls for illicit purposes and thus arranged for Watson and Clinton to leave would require us to recreate the evidence on appeal to fulfill their optimistic beliefs. The trial court’s holdings are not clearly erroneous and are in fact the only plausible conclusions in light of the evidence. They must be affirmed.

Such findings by the trial court deny any assertion of permission or negligent entrustment. Therefore, the contention of the appellants that the policy issued to Clifford and Mary Hunt by Aetna should be reformed to include Charles Hunt as a named insured need not be discussed here as even if it were granted it could not change the result in this case.

Affirmed.

      . Aetna had issued a Family Automobile Policy to Clifford R. Hunt and Mary Hunt which named Charles Hunt, their son, as an “operator”. Its coverage included the. 1963 Chevrolet involved in the accident and provided in part as follows:
      “Aetna Casualty and Surety Company . . . [ajgrees with the insured, . . . : To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of: A. bodily injury, . . . including death resulting therefrom, . . . sustained by any person; B. injury to or destruction of property, . . . ; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, The following are Insureds . . . : (a) with respect to the owned automobile, (1) the named Insured and any resident of the same household, (2) any other person using such automobile with the permission of the named Insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and (3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured. . . .” (Emphasis added).

      . State Farm Mutual had issued a liability policy to Lester C. and Evelyn Watson, the parents of Dale Watson, which covered a 1965 truck and a 1964 automobile. It provided in part that:
      “State Farm Mutual Automobile Insurance Company . . . agrees with the named insured, (1) To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury sustained by other persons, and (B) property damage, caused by accident arising out of the ownership, maintenance or use ... of the owned automobile....... such insurance as is afforded by this policy with respect to the owned automobile under: (1) coverages A and B applies to the use of a non-owned automobile by: (a) the first person named in the declaration or, (b) if residents of the same household, his spouse or the relatives of either, . . . provided, such use, operation, occupancy or custody is with the permission of the owner or person in lawful possession of such automobile.’’ (Emphasis added).

      . Independence Fire and Casualty had issued a liability policy to Leo Clinton, the father of Michael Clinton, which covered a 1963 automobile and which provided in part:
      “Independence Fire and Casualty Company . . . agrees with the insured . . . : . . . To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: A. bodily injury, . . . including death resulting therefrom, . . . ; B. injury to or destruction of property, . . . ; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, .......The following are insureds: . . . (b) with respect to a non-owned automobile, (1) the named insured, (2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission. . . .”

      (Emphasis added).

      . Commercial Standard Ins. Co. v. Universal Underwriters, 282 F.2d 24 (10th Cir. 1960) ; Cherot v. United States Fidelity & Guar. Co., 264 F.2d 767 (10th Cir. 1959) ; Blackner v. McDermott, 176 F.2d 498 (10th Cir. 1949).


source: Caselaw Access Project

author: GIBBONS, Circuit Judge. SEITZ, Chief Judge

license: Public Domain

text:
    In re GRAND JURY PROCEEDINGS. In re Jacqueline SCHOFIELD, Witness, Appellant.
    No. 73-1520.
    United States Court of Appeals, Third Circuit.
    Argued July 2, 1973.
    Decided Sept. 11, 1973.

      Joseph A. Torregrossa, Philadelphia, Pa., for appellant.
    Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Before SEITZ, Chief Judge, and GIBBONS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from an order adjudging the appellant Schofield in civil contempt and committing her to the custody of the United States Marshal until such time as she purges herself by furnishing handwriting exemplars and by allowing her fingerprints and photograph to be taken by the Government. See 28 U.S.C. § 1826.

On April 5, 1978 Mrs. Schofield was served with a subpoena commanding her to appear at 4042 United States Courthouse, 9th and Market Streets, Philadelphia, Pa. for the purpose of testifying in a grand jury investigation. As appears on its face, the subpoena, on a standard printed Cr. Form No. 20, was issued by the Office of the Clerk, Eastern District of Pennsylvania, signed by a deputy clerk. As provided in Fed.R. Crim.P. 17(a), it was delivered in blank to the office of the United States Attorney, who filled in the blanks before it was served. The return of service shows that it was served by an F.B.I. agent. See 18 U.S.C. § 3052. The subpoena is captioned

“United States of America v. Grand Jury Investigation.”

It discloses that it was issued on the application of the United States. It commands Mrs. Schofield to appear at the time and place designated “to testify in the above-entitled case.” It contains no other information about the nature or purpose of the proceeding.

Mrs. Schofield appeared at the designated time and place. She was not asked to testify, but was directed by the United States Attorney (1) to submit handwriting exemplars, and (2) to allow her fingerprints and photograph to be taken. She requested an opportunity to confer with counsel and after so conferring on April 13,1973 she refused to comply with the same requests made before the grand jury.

On April 19, 1973 the United States Attorney made a motion in the district court requesting that it order Mrs. Schofield “to submit and furnish, pursuant to any reasonable requests, examples of her handwriting and/or handprint-ing; fingerprints; and allow her photograph to be taken.” In support of this application the Government represented :

“1. That JACQUELINE SCHO-FIELD was called by the United States on April 13, 1973 to provide handwriting examples, fingerprints and her photograph to the Federal Grand Jury.
2. That the said JACQUELINE SCHOFIELD did appear before the said Grand Jury and did refuse to comply with the said request.
3. That the said JACQUELINE SCHOFIELD had no right or privilege, under either the 4th or 5th amendment of the United States Constitution to refuse to comply with said requests.”

No other information, aside from legal argument, was furnished to the court in support of the motion. On April 19, 1973, without making any findings of any kind, the district court entered an order

“that the defendant, Jacqueline Scho-field, shall within ten days of the date of this Order present herself at the office of the Federal Bureau of Investigation, . . . and shall submit and furnish, pursuant to any reasonable requests, samples of her handwriting and/or handprinting; fingerprints ; and shall allow her photograph to be taken . . . . ”

The order permitted counsel to be present during her processing by the F. B.I. Mrs. Schofield did not comply with the order, and the United States Attorney obtained from the district court an order directing her to show cause why she should not be adjudged in civil contempt. In support of the order to show cause the United States Attorney showed only the facts set forth above. On the return day the district court determined that Mrs. Schofield had violated the order of April 19, 1973. Without making any other findings the court adjudged her in civil contempt and directed her confinement until she purged herself by submitting to the order. This appeal followed.

At all times during the proceedings in the district court Mrs. Schofield urged that before she be required to comply with the Government’s requests (1) the Government state the purpose and necessity for requesting of Mrs. Schofield handwriting exemplars, fingerprints and photographs, and (2) that if the Government has in its possession documents allegedly signed by her, she be permitted to examine them. At all times during the proceedings below, and on this appeal, the Government has taken the position that it need disclose, either to the court or to the witness, no more than appears on the face of the grand jury subpoena.

Fed.R.Crim.P. 17(g) provides:
“CONTEMPT. Failure by any person without adequate excuse to obey á subpoena served upon him may be deemed a contempt of the court from which the subpoena issued
. . . ."

The rule makes no distinction between civil and criminal contempts. Thus a recalcitrant witness presumably could be charged with a criminal contempt pursuant to Fed.R.Crim.P. 42(b). Moreover, Rule 17(g) on its face appears to make a subpoena self executing. Title III of the Organized Crime Control Act of 1970, P.L. 91-452, 28 U.S.C. § 1826(a), however, provides:

“Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement . . . until such time as the witness is willing to give such testimony or provide such information.”

House Report (Judiciary Committee) No. 91-1549, Sept. 30, 1970 says:

“Title III is intended to codify present civil contempt practice with respect to recalcitrant witnesses in Federal grand jury and court proceedings.” 2 U.S.Code Cong. & Ad.News, 91st Cong., 2d Sess. 4008 (1970).

Thus, for a civil contempt the two-step procedure of a subpoena followed by a court order is required. A subpoena is not, for civil contempt purposes, self executing. Moreover, the witness may be held in contempt only when his refusal is “without just cause.” This appeal, then, requires a determination of the procedural steps which must be followed and the factual showing which must be made before a district court may adjudge a witness in civil contempt pursuant to 28 U.S.C. § 1826(a) and Fed.R. Crim.P. 17(g).

The Government, citing United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L. Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed. 2d 99 (1973), contends that the district court should not make, or permit the witness to make, any inquiry, or require the Government to make any showing, beyond the facts set forth above. The district court apparently agreed. That holding gives much too broad a compass to the holdings in Dionisio and Mara. Those cases did not involve the district court’s supervisory power over the proper use of its process in a grand jury proceeding, the supervisory power of this court over the manner in which the district court supervises the proper use of its process, or the substantive and procedural law of civil contempt.

In Dionisio each grand jury witness was advised that he was a potential defendant in a criminal prosecution. Each was asked to examine a transcript of a lawfully intercepted wire conversation and to read the transcript into a recording device. Dionisio refused to do so, asserting that such a procedure violated his rights under the fourth and fifth amendments. The Government’s petition for enforcement established that the voice exemplars were essential and necessary to the grand jury investigation and that they would be used solely as a standard of comparison in order to determine whether or not the witness was the person whose voice was intercepted. The Seventh Circuit, relying on Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), held that before a grand jury subpoena could issue for such a purpose there must be preliminary showing in open court of probable cause for its issuance. In re Dionisio, 442 F.2d 276 (7th Cir. 1971). Compare the above with United States v. Doe, 457 F.2d 895 (2d Cir. 1972). In Mara the Government sought handwriting exemplars. Its enforcement petition, presented to the court ex parte, and supported by an affidavit of an F.B.I. agent setting forth the basis for seeking the exemplars, established that the handwriting exemplars were essential and necessary to the grand jury investigation and would be used solely to determine whether Mara was the author of certain writings. The Seventh Circuit reversed. Relying on its Dionisio holding it held that an ex parte proceeding was inadequate and that in addition to the need for comparison the Government must establish that exemplars were unavailable from another source. In re September 1971 Grand Jury (Richard J. Mara), 454 F.2d 580 (7th Cir. 1971). In both cases the Supreme Court reversed. The holding in Dionisio is clear:

“Since the Court of Appeals found an unreasonable search and seizure where none existed, and imposed a preliminary showing of reasonableness where none was required, its judgment is reversed and this case is remanded to that Court for further proceedings consistent with this opinion.” 410 U. S. at 18, 93 S.Ct. at 773.

Its holding in Mara reiterates that in Dionisio. Both hold that the fourth amendment does not require any preliminary showing for the issuance of a grand jury subpoena, either to compel testimony, or to compel production of voice or handwriting exemplars. Neither, however, involves any question as to the propriety of the grand jury’s investigation, the legitimacy of the purpose for issuing the subpoena, or any nonconstitutional objection to its enforcement. Indeed Justice Stewart’s opinion for the Court in Dionisio quite carefully circumscribes its holding by explicitly reiterating the power of the district courts to control the use of grand jury subpoenas referred to in Justice Powell’s concurring opinion in Branz-burg v. Hayes, 408 U.S. 665, 709-710, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The issues raised by this appeal were not presented to or passed upon by the Supreme Court in Dionisio and Mara.

In considering those issues it is well to start with some fundamental propositions. First, although federal grand juries are called into existence by order of the district court, Fed.R.Crim. P. 6(a); 18 U.S.C. § 3331, they are “basically ... a law enforcement agency.” United States v. Cleary, 265 F.2d 459, 461 (2d Cir.), cert, denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959). They are for all practical purposes an investigative and prosecutorial arm of the executive branch of government. See 8 J. Moore, Federal Practice ¶ 6.02[1], [6] (2d ed. Cipes ed. 1972). Second, although like all federal court subpoenas grand jury subpoenas are issued in the name of the district court over the signature of the clerk, they are issued pro forma and in blank to anyone requesting them. Fed.R.Crim.P. 17(a). The court exercises no prior control whatsoever upon their use. Third, although grand jury subpoenas are occasionally discussed as if they were the instrumentalities of the grand jury, they are in fact almost universally instrumentalities of the United States Attorney’s office or of some other investigative or prosecutorial department of the executive branch. Grand jury subpoenas then, when they are brought before the federal courts for enforcement, for all practical purposes are exactly analogous to subpoenas issued by a federal administrative agency on the authority of a statute, without any prior judicial control. In ICC v. Brimson, 154 U.S. 447, 485, 14 S.Ct. 1125, 38 L.Ed. 1047 (1894), the Supreme Court stated that an administrative agency could not self enforce its subpoenas by fine or imprisonment, thereby insulating them from judicial review, but must seek a judicial enforcement order. Penfield Co. v. SEC, 330 U.S. 585, 67 S.Ct. 918, 91 L. Ed. 1117 (1947), recognizes that civil contempt is the appropriate means for compelling obedience to such an enforcement order. In Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 216, 66 S.Ct. 494, 90 L.Ed. 614 (1946), the Court indicated that an administrative subpoena and a grand jury subpoena performed essentially the same function, and stated:

“The result therefore sustains the Administrator’s position that his investigative function, in searching out violations with a view to securing enforcement of the Act, is essentially the same as the grand jury’s, or the court’s in issuing other pretrial orders for the discovery of evidence, and is governed by the same limitations. These are that he shall not act arbitrarily or in excess of his statutory authority, but this does not mean that his inquiry must be ‘limited . . . by . . . forecasts of the probable result of the investigation . . .’ 282; cf. Hale v. Henkel, 201 U.S. 43. Nor is the judicial function either abused or abased, as has been suggst-ed, by leaving to it the determination of the important questions which the Administrator’s position concedes the courts may decide.
327 U.S. 186, 216-217, 66 S.Ct. 494-509 (footnotes 55-56 omitted).

The enforcement mechanism of 28 U.S. C. § 1826(a) is the same as that for the typical administrative subpoena. There is no indication that Congress intended the role of the court to be different in one case from the other. And the federal courts have never lent their enforcement machinery to an executive branch investigative body in the manner of a rubber stamp. Since the Brimson case it has been clear that in passing on the application for enforcement of a subpoena the court acts judicially in a case or controversy. See 154 U.S. at 489, 14 S. Ct. 1125. It is true that orders enforcing administrative subpoenas are considered final and appealable, ICC v. Brim-son, supra, whereas a grand jury witness must be adjudged in contempt to obtain an appealable order. E.g., Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). But Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), makes clear that a court’s determination under 28 U.S.C. § 1826(a) of the existence or nonexistence of just cause for refusing to obey a subpoena entails the same full judicial consideration as in the administrative subpoena cases. Indeed Gelbard holds that because a grand jury witness does not have an opportunity, prior to his appearance, to file appropriate motions addressed to his subpoena, 28 U.S. C. § 1826(a) must be construed as affording him the opportunity of presenting all defenses properly available to him, 408 U.S. at 59-60, 92 S.Ct. 2357.

Among the defenses which may be presented in resisting a subpoena are the obvious constitutional defenses of unreasonable search and seizure, e.g., Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 370, 50 L.Ed. 652 (1906); cf. Gelbard v. United States, supra, and self incrimination, e.g., Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L. Ed. 1118 (1951). But many nonconstitutional defenses also are available, including undue breadth, e.g., Brown v. United States, 276 U.S. 134, 48 S.Ct. 288, 72 L.Ed. 500 (1928), improper inclusion of irrelevant information, e.g., McGarry v. S.E.C., 147 F.2d 389 (10th Cir. 1945), lack of authority to conduct the investigation in issue, e.g., Electric Bond & Share Co. v. S. E. C., 303 U.S. 419, 58 S.Ct. 766, 82 L.Ed. 526 (1938), and improper issuance of a given subpoena, e.g., ICC v. Goodrich Transit Co., 224 U.S. 194, 32 S.Ct. 436, 56 L. Ed. 729 (1912). If the court concludes that an administrative subpoena has been issued for the purpose of developing a criminal case it will decline enforcement. See, e.g., Donaldson v. United States, 400 U.S. 517, 532-533, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971); Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. 508,11 L.Ed.2d 459 (1964); United States v. Salter, 432 F.2d 697, 700 (1st Cir. 1970); United States v. Roundtree, 420 F.2d 845, 847 (5th Cir. 1969); United States v. DeGrosa, 405 F.2d 926, 928 (3d Cir. 1969), cert, denied, 394 U.S. 973, 89 S.Ct. 1465, 22 L.Ed.2d 753 (1969); United States v. O’Connor, 118 F.Supp. 248, 250 (D.Mass.1953). In the grand jury context a court will not enforce a subpoena if its purpose is to gather evidence for a pending criminal indictment or information. See, e.g., Beverly v. United States, 468 F.2d 732, 743 (5th Cir. 1972); United States v. George, 444 F.2d 310, 314 (6th Cir. 1971); In re Grand Jury Investigation (General Motors Corp.), 32 F.R.D. 175, 181 (S.D.N.Y.), appeal dismissed, 318 F.2d 533 (2d Cir.), cert, denied, 375 U.S. 802, 84 S.Ct. 25, 11 L.Ed.2d 37 (1963); United States v. Pack, 150 F. Supp. 262, 263 (D.Del.1957); cf. United States v. Fisher, 455 F.2d 1101, 1104 (2d Cir. 1972). A court will not enforce a grand jury subpoena if the grand jury is not pursuing an investigation in good faith or is motivated by a desire to harass an individual. See United States v. Dionisio, 410 U.S. at 10, 93 S.Ct. 764, citing Branzburg v. Hayes, supra; United States v. Mara, 410 U.S. 43 n.5, 47 n.9, 93 S.Ct. 774 (Marshall, J., dissenting) ; Branzburg v. Hayes, 408 U.S. at 707-708, 709-710, 92 S.Ct. 2646 (Powell, J., concurring); Hale v. Henkel, 201 U.S. at 65, 26 S.Ct. 370; Bursey v. United States, 466 F.2d 1059, 1080 (9th Cir. 1972); United States v. Gurule, 437 F.2d 239, 241 (10th Cir. 1970), cert, denied, 403 U.S. 904, 91 S.Ct. 2202, 29 L. Ed.2d 679 (1971). The court will not enforce a grand jury subpoena used only to compel a witness to appear in the United States Attorney’s office. Durbin v. United States, 221 F.2d 520 (D.C.Cir. 1954). Although we have described these defenses to an enforcement proceeding as nonconstitutional, improper use of a subpoena does have constitutional overtones, for as Judge Friendly observed in United States v. Doe, 405 F.2d 436, 438 (2d Cir. 1968), “[e]ven though evidence is not within a testimonial privilege, the due process clause protects against the use of excessive means to obtain it.”

It is clear, then, that as a matter of substantive law the role of the district court in a civil proceeding looking to the enforcement of a subpoena — any subpoena — -is not so circumscribed as the Government here suggests. The limited role that the Government would have the district court play in the enforcement process is illuminated by a colloquy which took place at the oral argument of this appeal. Hypothesizing an instance in which a United States attorney concluded that it might be in the interest of national security to have in the government files mug shots, fingerprints and handwriting exemplars of all members of a radical student organization at a local university, and proceeded to obtain them by the use of subpoenas identical to that issued here a member of the court asked the United States attorney if the district court’s inquiry in an enforcement proceeding should be as limited as he suggested. As might be expected, the reply was that no United States attorney ever would do such a thing— which perhaps is true — but that in order to prevent delay in the grand jury process the scope of inquiry in all cases should be the same. Clearly the Supreme Court in Dionisio and Mara did not so intend, for if it did it overruled sub silentio a large body of established caselaw in which the courts have sought to confine the use of subpoenas within appropriate bounds.

At the same time we recognize that as with administrative subpoenas, United States v. Powell, 379 U.S. 48, 58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), a presumption of regularity attaches to the grand jury’s proceedings, and hence to a grand jury subpoena. See, e.g., Beverly v. United States, supra. Given that presumption, the party objecting to enforcement has the burden of making some showing of irregularity. Usually, however, and almost universally in the case of grand jury subpoenas, all the relevant information is in the hands of the government enforcement agency. Here the administrative subpoena cases give guidance on that problem, for courts have recognized that a party seeking to show an abuse of the subpoena process can use discovery proceedings to meet his burden. See United States v. Newman, 441 F.2d 165 (5th Cir. 1971); United States v. Salter, 432 F.2d at 700; United States v. Roundtree, 405 F.2d at 852. Complicating the discovery problem in grand jury subpoena cases, however, is Fed.R.Crim.P. 6(e), providing for secrecy of matters occurring before the grand jury.

The issues in this case, then, relate not to the district court’s substantive powers in an enforcement proceeding under 28 U.S.C. § 1826(a), but to the procedures appropriate to such a proceeding. That section applies both to court proceedings and to grand jury proceedings. Obviously the enforcing court has greater latitude in the matter of discovery in cases relating to the enforcement of subpoenas for proceedings as to which Rule 6(e) does not apply. On the other hand, because such proceedings are not secret it may be argued that in such cases the party resisting enforcement should be required to make a greater affirmative showing of the likelihood of abuse of process before he is afforded discovery. Certainly the fact of grand jury secrecy suggests that the party seeking enforcement of a grand jury subpoena be required to make some minimum showing of the existence of a proper purpose before it can trigger the. enforcement machinery of the judicial branch.

The few courts which have considered the matter have not acted uniformly. In George v. United States, 319 F.Supp. 598, 599 (E.D.Mich.1970), aff’d, 444 F. 2d 310, 314 (6th Cir. 1971), a witness subpoenaed before a grand jury sought to enjoin his interrogation on the ground that the Government was using the grand jury as a means of obtaining discovery for use in a pending criminal case. The district court obtained from the Government an affidavit disclosing the purpose of the grand jury’s investigation, which it examined in camera. Based on the in camera examination the court concluded that the investigation was aimed at returning a new indictment which would supersede the one previously returned. In In re Grand Jury Subpoena to Central States, 225 F. Supp. 923 (N.D.Ill.1964), on a motion to quash subpoenas duces tecum as unreasonable and harassing, the district court held an in camera meeting with the grand jury to determine the nature and scope of its investigation. The district court opinion denying the motion to quash states:

“In the interest of justice and pursuant to my aforementioned supervisory power I have, as I indicated I would at the close of the oral arguments, met and conferred with the August 1963 Grand Jury. My purpose in holding this in camera meeting was and is to determine the intended scope and purpose behind investigations here challenged. I shall in the future and to the extent I deem necessary, continue meeting with this Grand Jury to inquire as to their progress. If it should ever become apparent to me that the Grand Jury is functioning improperly or abusing the rights of those appearing before it I will of course take necessary and appropriate action. Moreover, should petitioners at any time in the future feel that subsequently issued subpoenas or grand jury conduct are oppressive and abusive they are welcome to come in by motion, as they have here, and again, to the extent of the law set forth in this memorandum, seek the aid of this Court.” 225 F.Supp. at 925-926.

We need not in this case lay down inflexible procedures to govern all challenges to enforcement of any grand jury procedure, for the information here sought is both limited and unique. The Government wants only handwriting exemplars, fingerprints and a mug shot. It has no general right to any of these things. Authority for obtaining them exists, if at all, solely because they are somehow relevant to the grand jury’s investigation of an offense falling within its jurisdiction. In view of the fact that information which would justify obtaining the handwriting exemplars, fingerprints, and a mug shot, is in the Government’s sole possession, we think it reasonable that the Government be required to make some preliminary showing by affidavit that each item is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose. We impose this requirement both pursuant to the federal courts’ supervisory power over grand juries and pursuant to our supervisory power over civil proceedings brought in the district court pursuant to 28 U.S.C. § 1826(a). We do not rule out the possibility that the Government’s affidavit may be presented to the court in camera, but we do hold that Rule 6(e) does not require in camera presentation. There is a difference between disclosing “matters occurring before the grand jury” and disclosing that the matters requested by the subpoena are relevant to an investigation it is conducting. Thus unless extraordinary circumstances appear, the nature of which we cannot anticipate, the Government’s supporting affidavit should be disclosed to the witness in the enforcement proceeding. See United States v. Dionisio, supra. If after such disclosure the witness makes application to the district court for additional discovery in the enforcement proceeding the court must in deciding that request weigh the quite limited scope of an inquiry into abuse of the subpoena process, and the potential for delay,against any need for additional information which might cast doubt upon the accuracy of the Government’s representations. Finally, it may appropriately be noted that since the Government has no general right to retain files of handwriting exemplars, fingerprints and mug shots, any enforcement order may properly, on the witness’ request, provide that if these materials do not prove to be relevant to the grand jury’s inquiry, or to a resulting indictment, they be returned to the witness or destroyed.

The judgment finding Mrs. Schofield in contempt will be reversed and the case will be remanded to the district court for further proceedings consistent with this opinion.

SEITZ, Chief Judge

(concurring).

I agree with the opinion of the court that in order to invoke the district court’s powers to enforce obedience to a grand jury subpoena, the government must initially make by affidavit or otherwise some minimal sworn showing of a proper purpose. Indeed, in both Mara and Dionisio, the government did in fact make a showing of a proper purpose, although it is unclear from the factual situation in Dionisio whether the showing there was sworn.

It seems to me that such a minimal requirement is almost indispensable if citizens are to be afforded minimum protection against the possible arbitrary exercise of power by a prosecutor through use of the grand jury machinery. See Campbell, Eliminate the Grand Jury, 64 J.Crim.Law & Criminology 174 (1973). Nor do I believe the minimal showing requirement here imposed is incompatible with Dionisio and Mara.

I also agree that the government showing should be disclosed to the witness unless the court finds a compelling reason for nondisclosure. I believe the government’s disclosure, if the district court is satisfied as to its sufficiency, cannot be made the subject of an adversary hearing by the witness. Such- a hearing would lead to the type of mini-hearing which the Supreme Court condemned in Dionisio. I emphasize my position on this point because if I read the opinion of the court correctly, it does not negate the possibility that the minimal showing of proper purpose can be factually litigated by the witness.

Since the government here made no showing of a proper purpose, the judgment should be reversed without prejudice to the government’s right to renew its petition for enforcement accompanied by the requisite showing. If this is done, the enforcement order will follow unless the witness raises and establishes some properly cognizable legal defense. Certainly, it is clear her Fourth and Fifth Amendment claims would not be valid defenses in view of Dionisio and Mara.

I therefore concur in the reversal of the finding of contempt.

      . No opinion was filed by the district court.

      . Compare Fed.R.Crim.P. 41(c).

      . See, e.g., 15 U.S.C. § 50 (Federal Trade Commission) ; 15 U.S.C. § 78ff (Securities & Exchange Commission) ; 26 U.S.C. § 7602 (Internal Revenue Service) ; 49 U.S.C. § 20 ¶ 7 (Interstate Commerce Commission).

      . The issues of authority to conduct the investigation, relevancy of the materials sought, and breadth of the demand are neither minor nor ministerial matters. ...”


author: INGRAHAM, Circuit Judge:

text:
    Alice PLETZ and Rennert Travel Service, Inc., Plaintiffs-Appellees, v. CHRISTIAN HERALD ASSOCIATION, INC., Defendant-Appellant.
    No. 72-1923.
    United States Court of Appeals, Fifth Circuit.
    Oct. 23, 1973.
    Rehearing Denied Nov. 15, 1973.

      Joe P. Smyer, San Antonio, Tex., for defendant-appellant.
    Franklin D. Houser, Gordon W. Jones, Jr., San Antonio, Tex., for plaintiffs-ap-pellees.
    Before JONES, GODBOLD and IN-GRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

This is a Texas diversity case arising out of the breach of an alleged exclusive agency agreement between defendant-appellant Christian Herald Association, Inc., and the plaintiffs-appellees Alice Pletz and Rennert Travel Service, Inc. Plaintiff Pletz operates the Rennert Travel Service, Inc., located in San Antonio, Texas. Mrs. Pletz has been engaged in the travel service business since the latter part of 1949. Beginning in 1960, Mrs. Pletz began to operate religiously oriented tours in conjunction with several religious organizations.

The defendant Christian Herald was incorporated as a non-profit organization in New York. From its conception, the Christian Herald Association has published a layman’s magazine entitled “The Christian Herald Magazine” and serves as a central agency for religiously oriented travel tours.

This case was tried before a jury and ' it returned a verdict for the plaintiffs in the amount of $51,250. We affirm as to Christian Herald’s liability in this case, but reverse and remand on damages.

The first issue before us- is whether the district court properly submitted to the jury the issue on the existence of an exclusive agency relationship. Although there was no formal agreement between the parties, the plaintiffs introduced several letters in an attempt to establish the exclusive agency relationship. The trial court apparently determined that an agency relationship existed, but submitted to the jury the issue whether there was an exclusive agency relationship.

It is true that the interpretation of a clear and unambiguous written instrument is a question of law for the court to decide. Hennigan v. Chargers Football Co., 431 F.2d 308, 314 (5th Cir., 1970); City of Pinehurst v. Spooner Add’n. Water Co., 432 S.W.2d 515, 518 (Tex.1968). The court, however, may conclude that the instrument is ambiguous and thus allow the jury to resolve the ambiguity by determining the underlying intent of the parties as a matter of fact. Trinity Universal Ins. Co. v. Ponsford Bros., 423 S.W.2d 571 (Tex.1968). A close examination of the correspondence here in question reveals that the instruments were ambiguous regarding the exclusiveness of the agency relationship. The language of the letters was capable of more than one meaning. Jones v. Home Transp. Co., 422 F. 2d 179, 181 (5th Cir., 1970). The court properly submitted this issue to the jury.

Whether the court erred in submitting to the jury the issue of service mark infringement is the second issue before us. Mrs. Pletz, on breach of the exclusive agency agreement, was compelled to organize her own tours in an attempt to avoid financial disaster. Mrs. Pletz was unable to promptly obtain letterheads with an original design for use in her business and, therefore, had temporary letterheads printed bearing the ship, train, airplane and world emblem used by Christian Herald on its stationery. Plaintiffs introduced evidence of other travel agency advertisements showing the wide use of these insignia by other agencies.

As an element of proving service mark infringement, the proponent must demonstrate that the similarity between the marks would mislead and confuse the public. American Foods, Inc. v. Golden Flake, Inc., 312 F.2d 619, 623 (5th Cir., 1963). The question of consumer confusion is one of fact to be determined by the jury. Id. at 624. Accordingly, the jury’s determination in this case that there was no confusing or deceptive similarity is amply supported by the evidence.

Appellant’s final contention is that the award of $51,250 damages is excessive and unsupported by the evidence. The objective in awarding damages, of course, is to place the injured party in a position as good as if the contract had been fully performed. 5 A. Corbin, Contracts § 1002, at 31 (1964). More specifically, Mrs. Pletz is entitled to the net commissions paid to the other agents with whom Christian Herald began to organize tours plus out-of-pocket expenditures made in reliance on performance of the contract. See C. McCormick, Damages 585 (1940). See generally Boyle v. Bond, 88 U.S.App.D. C. 178, 187 F.2d 362, 363 (1951); Park v. Swartz, 110 Tex. 564, 222 S.W. 156 (1920); Carrico v. Stevenson, 135 S.W. 260 (Tex.Civ.App.1911, no writ). Whether this measure of damages has been exceeded is therefore the essential issue.

Our scope of review of jury damage awards is narrow. Absent a clear abuse of discretion in denying a motion for new trial, we must adhere to the jury’s determination. When the evidence as shown in the record, however, is insufficient to support the award, the jury’s award would be erroneous and a new trial must be had. Ward v. Buehler, 472 F.2d 1170, 1171 (5th Cir., 1973); Glazer v. Glazer, 374 F.2d 390, 413 (5th Cir., 1967), cert, den., 389 U.S. 831, 88 S.Ct. 100, 19 L.Ed.2d 90; Whiteman v. Pitrie, 220 F.2d 914, 919 (5th Cir., 1955); Wright & Miller, Federal Practice and Procedure § 2820 (1973).

It is therefore necessary to consider the sufficiency of the evidence underlying the jury’s award of damages. In conducting a review of the evidence, we are bound to “accept all evidence in favor of the verdict as true and to give such evidence the benefit of all permissible inferences that would help sustain the jury’s award.” Lyle v. Bentley, 406 F.2d 325, 328 (5th Cir., 1969); see Hughes v. Moran, 325 S.W.2d 829, 830-831 (Tex.Civ.App., Ft. Worth 1959, writ ref’d n.r.e.).

With these principles before us, we turn to the record. The question of damages was examined during the trial of this case only twice. Testimony was elicited setting forth three principal elements of damages. First, Mrs. Pletz testified that she would have realized the travel agent’s average 20% commission on the total amount paid by Christian Herald to the other travel agencies with whom it began to deal after breach of the agreement. Based upon 20% of $203,499.65, the total amount paid to other agents, the first element of damages was calculated to be $40,699.80. The second element of damages was reimbursement for the thirty tickets Mrs. Petz had already purchased and scheduled to be used in a tour that had to be cancelled when the exclusive agency agreement was breached. Estimated at $370 per ticket, the second element of damages was calculated to be $11,088. The third element of damages was reimbursement for the forty unused tickets, which Mrs. Pletz purchased and had not sold, estimated at $350 per ticket. This figure was stated to be $14,000. A total of these three figures is $65,787.80, although Mrs. Pletz testified before the jury that the total was $66,827.80. There was also evidence of damages sustained in addition to these figures when plaintiffs attempted to sell the tickets for which they committed themselves, but no precise numerical calculations were offered to show the amount of damage. These additional expenses included employment of a full-time staff member, mailing, printing and trips to other areas for negotiations. The parties stipulated that the amount of damages awarded to the plaintiffs, if any, would be reduced by $16,000 credit owed to Christian Herald.

We cannot be sure of the subjective deliberations of the jury, but it is significant that the maximum figure of damages stated before the jury of $66,827.80 reduced by $16,000 credit owed to Christian Herald is remarkably close to the $51,250 award of damages actually rendered in this case. In light of this observation, proof of the out-of-pocket expenses incurred in attempting to sell the unused tickets for which no precise figures were given apparently had little influence on the jury’s verdict. But as the defendant points out, these figures upon which the jury seemed to principally rely may include a double recovery for commissions. This is true because it is unclear from the testimony at trial whether the estimated loss on the seventy tickets was limited to out-of-pocket costs, or whether the estimated value of each ticket included the commission Mrs. Pletz would have received if the contract had been performed. The defendant asserts that the out-of-pocket expense per ticket is $60 rather than the estimated $350 for each unused ticket and $370 for each of the tickets that was to be used on the cancelled tour. If the defendant is correct and the estimated value of the ticket includes the anticipated commission, Mrs. Pletz would be recovering her commission twice: once on the basis of 20% of the total amount paid to other agents and once based on reimbursement of the seventy tickets she purchased. If such a double recovery has been obtained, it obviously violates the rule that damages in contract are to compensate to the full extent of contractual performance, but no more.

We have no choice but to reverse this case regarding the damage issue and remand for proceedings to determine the appropriate amount of damages. The record is simply unclear. The questioning at trial did not clearly elicit from Mrs. Pletz testimony demonstrating her actual expenditures made in reliance upon the contract. Nor did counsel for either party request jury instructions that would clarify the confusion. For this court to determine whether or not Mrs. Pletz has recovered her commission twice would be mere speculation and conjecture. Therefore, we are compelled to reverse in regard to the issue of damages and remand for proceedings not inconsistent with this opinion.

Affirmed in part; reversed and remanded in part.


author: VAN DUSEN, Circuit Judge. McLAUGHLIN, Circuit Judge

text:
    DRY COLOR MANUFACTURERS’ ASSOCIATION, Inc., et al., Petitioners, v. DEPARTMENT OF LABOR et al., Respondents. OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, and Health Research Group, Petitioners, v. Peter BRENNAN, Secretary United States Department of Labor and John Stender, Assistant Secretary, Occupational Safety and Health Administration, United States Department of Labor, Respondents. AEROJET-GENERAL CORPORATION, an Ohio corporation, Petitioner, v. Peter J. BRENNAN, Secretary of Labor, and John H. Stender, Assistant Secretary of Labor for Occupational Safety and Health, Respondents.
    Nos. 73-1361, 73-1383 and 73-1638.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 10, 1973.
    Decided Oct. 4, 1973.

      Donald L. Morgan, Charles F. Lettow, Cleary, Gottlieb, Steen & Hamilton, Washington, D. C., for petitioners in No. 73-1361.
    Alan B. Morrison, Washington, D. C., for petitioners in No. 73-1383.
    Robert Barnard, Donald L. Morgan, Eric Schwartz, Cleary, Gottlieb, Steen & Hamilton, Washington, D. C., for petitioners in No. 73-1638.
    Irving Jaffe, Acting Asst. Atty. Gen., Walter H. Fleischer and James C. Hair, Jr., Attys., U. S. Department of Justice, Washington, D. C., for respondents.
    Before McLAUGHLIN, VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

These cases are before the court upon petitions (filed in May and June 1973) to review an order of the Assistant Secretary of Labor for Occupational Safety and Health, published on May 3, 1973, 38 Fed.Reg. 10929, issuing an Emergency Temporary Standard on Certain Carcinogens, 29 C.F.R. § 1910.93c. The temporary standard prescribes plant operating procedures and equipment, work practices and procedures for preventing exposure to 14 chemicals said to be carcinogens. This court has jurisdiction to review and set aside the standard pursuant to section 6(f) of the Occupational Safety and Health Act of 1970, 29 U.S. C. § 655(f).

In No. 73-1361, petitioners are Dry Color Manufacturers’ Association, Inc., Sun Chemical Corporation, Inmont Corporation, H. Kohnstamm & Co., Inc., Allied Chemical Corporation, Chemetron Corporation, The Upjohn Company, Lakeway Chemicals, Inc. and Hercules, Incorporated (hereinafter “Dry Color”). Each is a manufacturer, user, or an association of users of 3,3'-dichloro-benzedine (DCB), one of the 14 chemicals. Petitioner in No. 73-1638, Aerojet-General Corporation (hereinafter “Aerojet”) is a user of ethyleneim-ine (El), another of the 14 chemicals subject to the Emergency Temporary Standard. The petitioners in these two cases (hereinafter “industry petitioners”) raise as objections to the Emergency Temporary Standard that: (1) there is not substantial evidence in the record to show that the use'of DCB and El, respectively, satisfies the provisions of subsection 6(c)(1) of the Occupational Safety and Health Act of 1970, 29 U. S.C. § 655(c)(1), as to the conditions necessary to justify the promulgation of an emergency temporary standard; (2) the findings of fact and statement of reasons for the standard contained in the standard’s preamble are inadequate; and (3) the Assistant Secretary violated the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2) (C), by failing to prepare an environmental impact statement prior to issuance of the standard. In addition, the industry petitioners have challenged the Department of Labor’s Certification of Record, charging that a substantial portion of the documents contained therein were never actually considered by the Department in its decision to issue the Emergency Standard and, therefore, should not be included in the record.

Petitioners in No. 73-1383 are Oil, Chemical and Atomic Workers Union, many of whose members work in plants that manufacture or use chemicals subject to the Emergency Temporary Standard, and the Health Research Group, a non-profit organization engaged in public interest research and advocacy on health issues, including occupational health. These petitioners (hereinafter “employee petitioners”) contend that the Emergency Temporary Standard falls short of preventing the impairment of worker health which the Act requires and seek to have this court order the implementation of a use permit system that would achieve zero exposure.

The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., (hereinafter “the Act”) provides for the issuance of both permanent and emergency temporary standards. Under subsection 6(b) of the Act, 29 U.S.C. § 655(b), the Secretary may promulgate permanent standards by following rule-making procedures similar to those prescribed by the Administrative Procedure Act, 5 U.S.C. § 551 et seq., with the added assistance of a statutorily authorized Advisory Committee if deemed necessary. Under subsection 6(c), 29 U.S.C. § 655(c), on the other hand, emergency temporary standards become effective immediately upon publication in the Federal Register; the hearing, public comment, and other provisions of the Administrative Procedure Act do not apply. After issuing an emergency temporary standard, the Secretary must begin a permanent rule-making process and complete that process by issuing a permanent standard within six months of the publication of the emergency temporary standard.

Subsection 6(c)(1) of the Act commands the Secretary to issue an emergency temporary standard “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,” 29 U.S.C. § 655(c)(1). Subsection 6(e) provides that “[w]henever the Secretary promulgates any standard, ... he shall include a statement of his reasons for such action,” 29 U.S.C. § 655(e), and subsection 6(f) directs courts reviewing a standard that “[t]he determinations of the Secretary shall b,e conclusive if supported by substantial evidence in the record considered as a whole,” 29 U.S.C. § 655(f).

The Emergency Temporary Standard in question was originally published by the Occupational Safety and Health Administration (“OSHA”) on May 3, 1973, after about one year of consulting with the National Institute for Occupational Safety and Health (“NIOSH”) and receiving data and commentary from other interested groups. The Emergency Temporary Standard was based on the following findings, which are stated in the preamble of the standard and constitute the entire statement of reasons for its issuance:

“On the basis of all the relevant information before us, it is hereby found that: (1) the 14 carcinogens listed in the emergency temporary standard are toxic and physically harmful; (2) that exposure to any of the 14 substances poses a grave danger to employees; (3) that employees are presently being exposed to the substances; and (4) that the emergency temporary standard set forth below is necessary to protect the employees from such exposure.” 38 Fed.Reg. 10929.

The standard goes on to prescribe plant operating procedures and equipment, work practices and procedures for preventing exposure of employees to the 14 chemicals found to cause cancer, together with a timetable of effective dates. In promulgating the standard, OSHA stated that as soon as possible a draft environmental impact statement would be filed with the Council on Environmental Quality and that a copy of the proposed rules would be sent to the Environmental Protection Agency for its comments under section 309 of the Clean Air Act, 42 U.S.C. § 1857 et seq. A draft environmental impact statement prepared by OSHA was received by the Council on Environmental Quality on May 21, 1973.

On July 27, 1973, OSHA issued a revision of the Emergency Temporary Standard, 38 Fed.Reg. 20074-20076, which became effective July 30, 1973. This revision was prompted by its receipt of “numerous comments, objections, and recommendations,” which caused OSHA to determine “that certain changes in the standard are necessary to tailor the requirements for different types of workplaces and work operations, and to clarify the standard.” Most of the changes are clarifications of pre-existing requirements; few substantive changes have been made. The revised standard deals more particularly with different work operations, such as isolated environment operations, closed system operations and open vessel operations, and the different control measures necessary to protect employees engaged in each category of operation are specified. In making these changes, OSHA expressly reconfirmed the “original findings concerning the toxicity of all the fourteen substances listed in the standard, the grave danger resulting from exposure to any of them,” and that “the standard as revised is necessary and sufficient to protect employees from the grave danger from exposure to any of the substances.”

I.

The Emergency Temporary Standard in question here was appropriately issued if there is substantial evidence in the record to support OSHA’s determination (A) that the 14 chemicals listed in the standard are carcinogenic and, therefore, that exposure of employees to them presents a “grave danger from exposure to substances or agents determined to be toxic or physically harmful,” and (B) that the emergency standard “is necessary to protect employees from such danger,” 29 U.S.C. § 655(c)(1) and (f).

Turning first to the finding of carcinogenicity, the independent studies of Pliss, Saffiotti and Stula all support the conclusion that DCB causes cancer in rodents (rats and hamsters). Dry Color’s criticisms of these studies, while significant, do not necessarily reduce their conclusions to the level of insubstantial evidence. The ease for the carcinogenicity of El, however, is weaker. The Walpole study with rats was carried out almost 20 years ago and that of Innes is unclear as to whether the tumors produced in mice were malignant and specifically cautions against extrapolating from his data as to the carcinogenic effect in rodents to that in man. In addition, when on May 23, 1972, OSHA first wrote to NIOSH requesting all available information on nine allegedly carcinogenic chemicals, El was not on that list. And the petition for a temporary emergency standard that employee petitioners filed with OSHA at the end of 1972 did not include El, despite the fact that it had been listed in NIOSH’s publication in the Federal Register in July 1972.

Nevertheless, assuming for the sake of argument that both DCB and El cause cancer in rodents, the question remains as to what conclusions can be drawn as to their carcinogenicity in man. Dry Color has pointed out that scientists generally agree that the carcinogenic effect of DCB is produced not by the chemical itself, but by a metabolite of DCB produced by rodents. Yet in the independent studies of Meigns and Troll, DCB was found to be resistant to metabolic change in dogs, which have a metabolic system very similar to man. Aerojet has pointed to reports other than Innes’ that also stress that the evidence from animal experiments has not yet established that El is carcinogenic in man. And all industry petitioners emphasize that during the years of industrial experience with these two chemicals, approximately 60 years with DCB and 30 with El, not a single case of cancer has been reported in an employee that can be attributed to exposure to them.

For its part, the Department of Labor has argued that the industrial experience is not conclusive because of the small size of the statistical sample and the relatively short time span of the studies relied on by industry petitioners. The Department also has pointed out that while it has not yet been demonstrated that dogs or humans produce harmful metabolites of DCB, neither has it been shown that they do not. The Department admits, however, that there is no reliable data on the carcinogenicity of DCB or El in humans. Thus, its entire case depends on an extrapolation from the data gathered in rodent experiments, and to justify that extrapolation the Department relies heavily on the April 22, 1970, Report of the Ad Hoc Committee on the Evaluation of Low Levels of Environmental Chemical Carcinogens to the Surgeon General. That Report recommends that “[a]ny substance which is shown conclusively to cause tumors in animals should be considered carcinogenic and therefore a potential cancer hazard for man.” Although this recommendation does not command unanimous agreement, it does appear to constitute substantial evidence in support of the Department’s position. The problem, however, is that the Report is not part of the record, and there is no evidence in the published notice of May 3, 1973, that this Report was relied on.

Based on this summary of the evidence, we conclude that the most that can be said is that DCB and El pose a “potential” cancer hazard to man. Although the danger of cancer is surely “grave,” subsection 6(c)(1) of the Act requires a grave danger of exposure to substances “determined to be toxic or physically harmful.” The amount and quality of the evidence necessary to provide “substantial” support for such a finding will necessarily vary depending on the facts of each case. OSHA need not wait until workers have actually been harmed to issue an emergency temporary standard. Extrapolation from animal experiments may in appropriate cases be used to establish a sufficient probability of harm to man. However, while the Act does not require an absolute certainty as to the deleterious effect of a substance on man, an emergency temporary standard must be supported by evidence that shows more than some possibility that a substance may cause cancer in man. On this record, the evidence supplies no more than some possibility that DCB and El may cause cancer in man.

From the foregoing analysis, it is apparent that we have doubts — more serious as to El than to DCB — as to whether there is substantial evidence in the record to support OSHA’s finding that DCB and El are carcinogenic in man and, therefore, subject employees “to grave danger from exposure to substances or agents determined to be toxic or physically harmful . . . .” Nevertheless, it is not necessary to rule definitively on this question at this time. As discussed below, we find that the statement of reasons for the issuance of the Emergency Temporary Standard in question is inadequate, and we are troubled by doubts as to whether all the documents included by OSHA in its certification of the record were actually considered in the course of making its decision to issue the Emergency Temporary Standard. In the absence of a more complete and detailed statement of reasons from OSHA and a record upon which we can confidently rely, we have concluded that a final ruling on the question of whether there is substantial evidence to support the finding that DCB and El are carcinogenic would be inconsistent with the statutory language and settled principles of judicial review in the field of administrative law. See below at pages 105-106. For this reason, we also find it unnecessary to rule on the claim of industry petitioners that there is not substantial evidence in the record to show that the Emergency Temporary Standard in question was “necessary to protect employees” from the danger found to exist. We must note, however, that in order to provide immediate protection to employees exposed to a grave danger, emergency temporary regulations may necessarily be somewhat general. Some room must be left for further refinement in the subsequent permanent standard. It cannot be expected that every procedure or practice will be strictly necessary as to every substance, type of use, or plant operation. Nevertheless, it is expected that even an emergency temporary standard not overlook those obvious distinctions among the chemicals to be regulated, uses and plant practices that make certain regulations that are appropriate in one category of cases entirely unnecessary in another.

II.

Subsection 6(e) of the Act specifically mandates that “[w]henever the Secretary promulgates any standard, . . . he shall include a statement of the reasons for such action, which ' shall be published in the Federal Register.” 29 U.S.C. § 655(e). This requirement is designed to serve several general functions: it provides an internal check on arbitrary agency action by insuring that prior to taking action an agency can clearly articulate the reasons for its decision; it makes possible informed public criticism of a decision by making known its underlying rationale; and it facilitates judicial review of agency action by providing an important part of the record of the decision. Furthermore, the statement-of-reasons requirement of subsection 6(e) complements the requirement of subsection 6(c)(1) that certain factual findings be made by the Secretary of Labor prior to promulgation of an emergency temporary standard. Congress contemplated that emergency temporary standards would be developed and issued without the benefit of ordinary standard-setting procedures involving public comment and open hearings in the interest of permitting rapid action to meet emergencies. But, by the language of subsection 6(e), it clearly refused to eliminate the general requirement of articulation of the reasons for such action as an essential safeguard to emergency temporary standard-setting.

The question before us is whether the statement of reasons included in the preamble to the Emergency Temporary Standard in question is adequate to satisfy subsection 6(e). There are no cases applying this provision of the Act to guide our decision. However, it is an increasingly accepted principle of administrative law, even when there is no statutory requirement for a statement of reasons, that “the basis for decision should appear clearly on the record, not in conclusory terms but in sufficient detail to permit prompt and effective review.” Furthermore, the informal or expeditious nature of the administrative procedure leading to an action or decision should not induce courts to relent in their demand for an adequate statement of reasons. Thus, in Kennecott Copper Corp. v. Environmental Protection Agency, 149 U.S.App.D.C. 231, 462 F.2d 846 (1972), the court remanded the record to the Director of the Environmental Protection Agency “to supply an implementing statement that will enlighten the court as to the basis on which he reached the . . . [particular] standard [he issued].” Id. at 850.

The only statement of reasons offered by OSHA and contained in the preamble to the Emergency Temporary Standard consists of the finding that the 14 chemicals listed in the standard are carcinogens and the conclusion, reciting the language of subsection 6(c)(1) of the Act, that the conditions necessary for the issuance of an emergency temporary standard have been met. We find this statement of reasons inadequate. In the context of a voluminous factual record, such a conclusory statement of reasons places too great a burden on interested persons to determine and challenge the basis for the standard, and makes possible in any subsequent judicial review the use of post hoc rationalizations that do not necessarily reflect the reasoning of the agency at the time the standard was issued.

In particular, we find the statement of reasons here insufficient in two respects. First, it fails to set forth the basis for its finding that the 14 chemicals listed in the standard are carcinogens. To satisfy subsection 6(e), the statement of reasons should indicate which data in the record is being principally relied on and why that data suffices to show that the substances covered by the standard are harmful and pose a grave danger of exposure to employees. This could have been accomplished here by a brief statement in the May 3, 1973, notice that certain scientific data (citing the record documents) showed that DCB and El produced cancer in rodents and supported the conclusion that they were therefore carcinogenic in man. Second, the statement of reasons failed to offer any explanation as to why this particular standard is “necessary to protect the employees from such exposure.” We do not mean to say that every procedure must be justified as to every substance, type of use or production technique. But we do read subsection 6(e) as requiring at least a general explanation as to why the procedures prescribed were chosen in light of the recommendations of scientific experts and other governmental bodies, the types of industrial practices with these chemicals, and the alternative kinds of regulations considered by OSHA.

Because of these deficiencies in the statement of reasons, the Emergency Temporary Standard will be vacated and remanded to OSHA as to DCB and El. This court has been asked to review the adequacy of the statement of reasons only with respect to DCB and El, and hence no relief is requested in the proceedings now before the court on these petitions with respect to the other 12 chemicals listed in the standard. However, if OSHA decides to issue another emergency temporary standard on carcinogenic chemicals dealing with DCB and El, rather than await issuance of the permanent standard to be made on or before November 3, 1973, it should on remand issue a statement of reasons that satisfies the requirement of subsection 6(e) as to these chemicals. However, we do not contemplate that this decision will interfere with the current proceedings before OSHA to promulgate a permanent standard for carcinogens.

III.

The remaining issues raised in this ease may be dealt with briefly. Industry petitioners contend that OSHA violated the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq., by failing to prepare an environmental impact statement prior to the promulgation of the standard. Paragraph 102(2) (C) of NEPA, 42 U. S.C. § 4332(2) (C), and the Guidelines of the Council on Environmental Quality on the Preparation of Environmental Impact Statements, 36 Fed.Reg. 7724 (April 23, 1971), require all federal agencies to prepare an environmental impact statement in connection with major federal actions significantly affecting the quality of the human environment and to complete that statement before action is taken. We see no reason to create a general exemption for OSHA from this requirement. The decision in Portland Cement Association v. Ruckel-shaus, 158 U.S.App.D.C. -, 486 F.2d( 375 (1973), was a carefully limited one, creating a narrow exemption from the requirements of NEPA for the environmentally protective regulatory activities of the Environmental Protective Agency under a statute — the Clean Air Act— which provides effective procedures to accomplish NEPA’s purposes. Nevertheless, while the NEPA requirement of an environmental impact statement applies to ordinary standards promulgated under the Occupational Safety and Health Act, an exception should be made for the Emergency Temporary Standard involved in this ease. The process by which NEPA statements are produced and circulated is a lengthy one. To require its completion before the promulgation of an emergency temporary standard would impair the purpose of subsection 6(c) to provide speedy protection from grave dangers to the health of employees. No doubt any exemption of emergency temporary standards under this Act from the requirement of an environmental impact statement involves some sacrifice of the policy behind NEPA. However, that sacrifice is mitigated somewhat by the fact that an emergency temporary standard must be replaced within six months by a permanent standard, for which a completed impact statement is required, and it is, in any case, justified by the need to accommodate the provisions of NEPA with those of the Occupational Safety and Health Act. We therefore have concluded that where, as here, OSHA begins the process contemplated by NEPA by issuing a draft environmental impact statement within a reasonable time after issuing an emergency temporary standard, the requirements of NEPA are sufficiently satisfied.

Industry petitioners have also moved to strike certain documents certified in the record by OSHA, charging that the Department of Labor never had before it and did not consider many of the items upon which they and their brief rely to support the standard. The Department of Labor replied in oral argument that since NIOSH (although an institute of HEW) was by statute the scientific advisor to OSHA, OSHA could rely on summaries and recommendations from NIOSH and certify as part of the record any item considered by NIOSH. In view of our remand of the standard to OSHA, we need not rule on the motions to strike and amend the certification of the record, since on remand OSHA will have to create a new record for any standard governing the use of DCB and El. However, it would be the better practice, in the absence of unusual circumstances, for OSHA, in certifying the record on any petition filed with this court, to designate specifically any items certified which have not been read by it prior to its publication of standards, such as those where it relies on summaries prepared by NIOSH.

Finally, employee petitioners argue that the Emergency Temporary Standard falls short of preventing the impairment of worker health which the Act requires and seek to have this court order the implementation of a use permit system that would achieve zero exposure. Although there appears to be substantial evidence to support the adequacy of the procedures prescribed by the standard to protect workers’ health, it is unnecessary to decide this issue at this time in light of our disposition of the case.

The Emergency Temporary Standard will be vacated and remanded to OSHA insofar as it concerns DCB and El, and the petition in No. 73-1383 will be denied without prejudice in accordance with the foregoing opinion. Petitioners’ motion in No. 73-1361 to strike certain items from the certification of record and respondents’ motion in all cases for leave to amend the certification of record will be denied as moot.

McLAUGHLIN, Circuit Judge

(dissenting) .

In 1970, the Occupational Health and Safety legislation became law. The Congress of the United States declared it to be their purpose and policy to assure, so far as possible, every working man and woman in the nation safe and healthful working conditions. To achieve this goal, Congress empowered the United States Secretary of Labor to implement regulatory standards.

On May 3, 1973, pursuant to the congressional mandate set forth in the Occupational Safety and Health Act, 29 U. S.C. §§ 651-678 (the Act), the Secretary of Labor promulgated an Emergency Temporary Standard regulating employee exposure to fourteen (14) substances which the Secretary determined to be carcinogenic (cancer-causing). Several manufacturers and users of two (2) of these substances, dichlorobenze-dine (DCB) and ethyleneimine (El), petitioned this court to vacate the Emergency Temporary Standard in so far as it applied to these substances.

These petitioners contend that there was no substantial evidence in the Secretary’s findings to show that employees are subjected to grave danger from exposure to substances or agents determined to be toxic or physically harmful as required by 29 U.S.C. § 655(c)(1) and that the Secretary’s reasons for issuing the Emergency Temporary Standard were inadequate. The majority opinion agrees with these propositions and thereby vacates the Emergency Temporary Standard’s provisions relative to DCB and El. I must respectfully dissent.

The record before us contains the results of various scientific experiments which stand for the proposition that ingestion of DCB and El may cause cancerous tumors to develop in the anatomical structures of mice and rats. These findings led the Secretary to conclude that DCB and El could possibly produce similar results in the human anatomy and he therefore issued the Emergency Temporary Standard. The Act requires that, upon judicial review of any standard promulgated pursuant to its provisions, “determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.” 29 U.S.C. § 655(f). Stated another way, there must be substantial evidence in the record to justify setting aside the Standard. Here, the Secretary has taken affirmative action to protect and preserve human life. Petitioners have asked this court to invalidate that action. Obviously the petitioners must bear the burden of proof, i. e. they must be able to show by substantial evidence that their conduct does not jeopardize the health of their workers. They, however, merely assert that since there is inconclusive scientific data proving DCB and El to be carcinogenic in man, the Standard should be set aside. Those assertions cannot be reasonably accepted as substantial evidence and clearly the Standard should remain.

Subsection (c)(1)(A) of Section 655 of the Act provides that “The Secretary shall provide * * * 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 * * The majority takes the position that the phrase “determined to be toxic or physically harmful” requires the Secretary to establish, by substantial evidence, that a substance is potentially harmful and that a showing of some possibility of harm would not justify the issuance of an Emergency Temporary Standard. To decide whether Congress empowered the Secretary to regulate a substance or agent because it is possibly harmful, probably harmful, or actually harmful is to engage in a futile exercise in semantics. My reading of the Act and its legislative history makes one thing abundantly clear: Congress intended to protect the health and safety of the American worker. Therefore, I would hold that even a scintilla of evidence which tends to prove a substance carcinogenic in man or animal justifies the issuance of an Emergency Temporary Standard.

Subsection (e) of Section 655 of the Act provides that “Whenever the Secretary promulgates any standard * * * under this chapter, he shall include a statement of the reasons for such action, which shall be published in the Federal Register.” The majority would have it that the Secretary’s statement of reasons in the Emergency Temporary Standard published in the May 3, 1973 issue of the Federal Register is inadequate. I cannot possibly agree. The unmistakable intent of subsection (e) is to require the Secretary to inform the public of the reasons for his actions. On May 3, 1973, users and manufacturers of DCB and El were put on notice that their products were to be regulated by the federal government. They were not left to second guess the Secretary’s reasons or motives for taking such action. They were informed on said date that the Secretary had determined the substances to be carcinogenic. Nothing more should be required. If we were to try and force' the Secretary to issue an exhaustive statement explaining and supporting his motives, the Emergency Temporary Standard would become an ineffective mechanism. All of the relevant data utilized by the Secretary in making his determination was available to interested parties upon their request. The petitioners had notice of the Secretary’s reasons for the issuance of the Emergency Temporary Standard and those same petitioners had access to the scientific data which was the foundation for the Secretary’s decision. The Secretary’s action promptly and properly fulfilled the statutory requirement, it should not be disturbed.

For the reasons set forth above, the order of the Assistant Secretary of Labor for Occupational Safety and Health as published in the May 3, 1973 issue of the Federal Register, 38 Fed.Reg. 10929 should be upheld.

      . The Act also provides for an interim, national-consensus standard-setting authority which expired April 28, 1973.

      . Because of the disposition we make in this case, we need not recount in greater detail the specific contents of the standard.

      . Industry petitioners argue that there must also be substantial evidence to support OSHA’s determination that employees are in fact being exposed to those harmful substances. Although subsection 6(c)(1) readily lends itself to such a reading, that interpretation would render ineffective the provision for emergency temporary standards. The purpose of subsection 6(c) (1) is to provide immediate protection in cases where there is a grave danger of harm to employees. This necessarily requires rather sweeping regulation. OSHA cannot be expected to conduct on-the-spot investigations of every user to determine if exposure is occurring. In cases where OSHA determines that a substance is sufficiently harmful that a grave danger would be created by exposure, OSHA must be allowed to issue necessary regulations. In other words exposure can be assumed to be occurring at any place where there is a substance that has been determined to be sufficiently harmful to pose a grave danger and where the regulations that have been determined to be necessary to meet that danger are not in effect. This interpretation of subsection 6(e)(1) is supported by the existence of subsection 6(d), which provides that any affected employer may obtain a variance from any standard if he can show that “the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard.”

      . When NIOSH published a notice in the Federal Register on July 6, 1972, soliciting comments on certain “known or suspected carcinogenic substances” for the purpose of developing criteria documents to assist OSHA in setting standards, it included El in that notice, and when on July 14, 1972, NIOSH wrote to OSHA in response to OSHA’s letter of May 23, 1972, NIOSH enclosed a five-sentence statement summarizing the Walpole and Innes reports concerning animal experiments with El.

      . The Report is reproduced in Hearings on the Federal Environmental Pesticide Control Act Before the Subcommittee on Agricultural Research and General Legislation of the Senate Committee on Agriculture and Forestry, 92d Cong., 1st Sess., pp. 677-697 (1971), and in Hearings Before the Subcommittee on Executive Reorganization and Government Research of the Senate Committee on Government Operations, 92d Cong., 1st Sess., pp. 180-198 (1971).

      . The Department also quotes from a scientific article as follows: “A chemical that is reliably and definitely carcinogenic in one or two species very likely will be so in other species, including man.” Weisburger & Weisburger, “Chemicals As Causes of Cancer,” Chemical Eng. News 44:124 (1966) at p. 127. It may be doubted whether El can be considered dangerous to man under this test, since although it does “cause tumors” in animals, there is some question as to whether it is “definitely carcinogenic.”

      . Compare FDA Draft Environmental Impact Statement, Rulemaking on Selenium in Animal Feeds, NTIS #EIS 73 049-D (filed with the Council on Environmental Quality, May 3, 1973).

      . It has long been settled that in reviewing an agency’ action and the adequacy of an agency’s articulation of its action, including findings of fact and reasoning processes, courts must look to the record that was considered by the agency and to the factual findings and reasoning of the agency — not to post hoc rationalizations of counsel or even agency members and not to evidentiary materials that were not considered by the agency. See, e.g., Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ; N.L.R.B. v. Metropolitan Life Ins. Co., 380 U.S. 438, 443—444, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965) ; Burlington Truck Lines v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). Furthermore, where, as here, the statute authorizing the agency action specifically requires that such action be supported “by substantial evidence in the record considered as a whole” [emphasis added], it is clear that OSHA may not go beyond the record in promulgating a standard or in supporting a standard in any subsequent judicial review. Cf. United States v. Allegheny-Ludlum Steel, 406 U.S. 742, 756-757, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972). The Weisburger article, supra note 6, is in the record, but in the disputed portion that industry petitioners claim was never actually considered by the Department in promulgating the temporary emergency standard. See below at pp. 108-109.

      . Such extrapolation will carry most weight in cases where it is the chemical substance itself that produces cancer. In cases such as this one, where the carcinogenic effect of a substance is due to a metabolite of that substance, the value of experimental data showing a carcinogenic effect in animals will depend to a large extent on a further showing that the dangerous metabolite is likely to be produced in animals, such as dogs, whose metabolic system is reasonably similar to that of man. See p. 103, supra.

      . The Report of the Senate Committee on Labor and Public Welfare provides the following interpretation of subsection 6(c) :
      “Because of the obvious need for quick response to new health and safety findings, Section 6(c) mandates the Secretary to promulgate temporary emergency standards if he find that such a standard is needed to protect employees who are being exposed to grave dangers from potentially toxic materials or harmful physical agents . . . .” (Emphasis added.)
      S.Rep. No. 91-1282, 91st Cong., 2d Sess., p. 7 (1970). This language, however, should not be read to mean that a showing of mere speculative possibility that a substance is harmful to man is sufficient to call into effect the summary procedure of subsection 6(c). It is clear from the Act that Congress considered that the ordinary process of rulemaking would be that provided for in subsection 6(b), dealing with permanent standards; emergency temporary standards should be considered an unusual response to exeeptional circumstances. The courts should not permit temporary emergency standards to be used as a technique for avoiding the procedural safeguards of public comment and hearings required by subsection 6(b). Especially where the effects of a substance are in sharp dispute, the promulgation of standards under subsection 6(b) is preferable since the procedure for permanent standards is specifically designed to bring out the relevant facts,

      . The requirement of a statement of reasons applies not only to standard-setting, but also to other rulemaking or decisionmak-ing functions, such as grants of exemption, extensions of time to meet requirements, and actions to compromise, mitigate or settle any penalty.

      . Environmental Defense Fund v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093, 1100 (1970).

      . The court in Kennecott Copper found that the regulation there satisfied the provision in § 4 of the APA for a “concise general statement” of the basis and purpose of a regulation, but nevertheless remanded “[i]n the interest of justice, . . . and in aid of the judicial function.” This distinction does not in any way diminish the force of the court’s decision to remand for a clarification of the factual basis of the regulation. In addition, the case before us is not governed by § 4 of the APA but by subsection 6(e) of the Occupational Safety and Health Act, which we read as imposing a more stringent requirement for a statement of reasons. The opinion of the court in Kennecott Copper also stresses the need to avoid imposing cumbersome and time-consuming procedures that would hinder a new agency in the discharge of its novel and sensitive tasks. We fully agree, but like the court in Kennecott Copper hold that the need for expedition cannot excuse the lack of an adequate statement of reasons.

      . Respondents have pointed out that in Kennecott Copper Corp. v. Environmental Protection Agency, supra, the court merely remanded the record and specified that its action would not halt or delay the on-going proceedings for state adoption of plans to meet and maintain the standard in question. In view of our considerable doubts as to whether there is sufficient evidence in the record to support the finding that DCB and El are carcinogenic in man, we find that the more drastic remedy of vacating the standard is appropriate,

      . Cf. Upper Pecos Ass’n v. Stans, 452 F.2d 1233, 1236-1237 (10th Cir. 1971); Port of New York Authority v. United States, 451 F.2d 783, 788-790 (2d Cir. 1971).

      . It is true, as industry petitioners contend, that the Secretary of Labor is under no statutory time limit within which he must make the decision to issue an emergency temporary standard and that in this case that decision was under consideration for a year before the standard was promulgated. It does not follow, however, that the Department of Labor could easily have prepared a final draft of an environmental impact statement before issuing its standard. It may take considerable time to determine whether a grave danger of exposure to the harmful materials exists. Then the Department must decide what are the appropriate standards. Only at that point is it possible to begin preparing an impact statement. But that is precisely the point at which it becomes appropriate to issue the emergency temporary regulations.

      . By “considered” we take it is meant “read;” a document merely included on a bibliography sent, by NIOSH to OSHA and not actually read by anyone in either agency would clearly not belong in the record.

      . Respondents have also moved to amend the certification of the record by adding two studies “inadvertently omittedthe studies involved are those of Walpole and Innes, upon which respondents rely for their finding that El causes tumors in rats and mice.

      . Certain aspects of the standard are utilized by both the Commonwealth of Pennsylvania and Great Britain in their regulations concerning carcinogenic chemicals, and other aspects are derived from preventative measures that have been- suggested by many of the scientific experts whose reports are contained in the record.