source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America v. Richard Anthony LEE, Appellant. UNITED STATES of America v. Ralph LEE, Appellant.
    Nos. 72-1711, 72-1712.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 13, 1973.
    Decided Nov. 16, 1973.
    Rehearing Denied Dec. 17, 1973.

      Anthony Z. Roisman, Washington, D. C. (appointed by this Court), for appellant in No. 72-1711.
    Ralph S. Spritzer, Philadelphia, Pa. (appointed by this Court), for appellant in No. 72-1712.
    David G. Larimer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., were on the brief for appellee. James E. Sharp, Asst. U. S. Atty., also entered an appearance for appellee.
    Before TAMM and ROBB, Circuit Judges, and JOHN H. PRATT United States District Judge for the United States District Court for the District of Columbia.

       Sitting by designation pursuant to 28 U.S.C. § 292(a).

   PER CURIAM:

On Friday evening, October 1, 1971, Linda Elizabeth Ammidown was raped and shot twice in the head and left to die under the East Capitol Street Bridge. On April 12, 1972, a six-count indictment arising out of this murder was filed in which appellants, Richard Anthony (Tony) Lee and his brother, Ralph Lee, were charged with conspiracy to commit murder in count one, first-degree premeditated murder in count two, first-degree felony murder committed while perpetrating the crime of kidnapping in count five, first-degree felony murder committed while perpetrating the crime of rape in count three, kidnapping in count six, and rape in count four. Trial commenced in the District Court on May 15, 1972, and on May 24 the jury found Tony Lee guilty on all counts; Ralph Lee was found guilty of conspiracy to commit murder and not guilty of the other charges. On June 21, 1972, the Court sentenced Tony Lee to death by electrocution for the convictions of first-degree premeditated'murder and the two counts of felony murder. He was also sentenced to fifteen years to life imprisonment for rape, fifteen years to life for kidnapping, and twenty months to five years for conspiracy, these sentences to run consecutively. Appellant Ralph Lee was sentenced the same day to twenty months to five years for conspiracy to commit murder. Both appellants appeal from those judgments on several grounds hereinafter set forth. We affirm.

The Evidence

Because of the nature and extent of appellants’ grounds for reversal, a brief review of the evidence is hereinafter set forth.

With respect to the rape and murder of the decedent, external examination showed that death was caused by two bullet wounds to the right side of the head, just behind the right ear. There were abrasions on both of the victim’s bare buttocks, and there was also an amount of dirt and gravel embedded in the buttocks. Examination of the external genitalia of the victim revealed the presence of intact sperm. Because of the manner in which the blood from Mrs. Ammidown’s head had been sprayed evenly on her thighs and because this blood was not smeared,, the District of Columbia Chief Medical Examiner testified that Mrs. Ammidown had been inseminated before she was shot and that she must have been in a sitting position when she was shot.

William Preston “Dutch” Johnson, who, with Robert L. Ammidown, decedent’s husband, was a principal Government witness, testified at considerable length concerning the origin of the plan to murder decedent which implicated both appellants. Johnson gave the details of a meeting in mid-Áugust, 1971, with appellant Ralph Lee, when the latter first broached the matter of killing “someone’s” wife, and subsequent meetings with appellant, Tony Lee, Ralph’s brother, concerning the planning of the proposed killing first scheduled to take place at the Flagship Restaurant and later at the Heeht Company’s parking lot in Arlington for a particular night, which plans were postponed. Later in the same month of August, Johnson accompanied both appellants to Southern Maryland, where Tony Lee referred to the man who “wanted his wife killed” and it was at this time that the name “Ammidown” was first mentioned by Tony Lee in talking to Ralph Lee. Several weeks later, Johnson read of Linda Ammidown’s murder on October 1. After confronting Tony Lee with the information which Lee described as “impossible,” Johnson attempted to extort money from Tony Lee and through Lee from Ammidown. Tony Lee then suddenly disappeared and Johnson’s subsequent efforts to deal directly with Ammidown by calling him at his Job Corps office led, with the help of skillful police work, in which Sgt. John J. Moriarity played a leading role, to the arrest of Johnson and certain others upon charges of extortion.

Robert L. Ammidown, the chief Government witness, gave a lengthy account of his role in the murder of his wife. Starting with a description of a deteriorating marital situation which was exacerbated by his wife’s control of their property and Ammidown’s affair with another woman, he recounted in detail his first meeting with Tony Lee two years prior to the murder, their numerous subsequent meetings concerning Tony Lee’S need of funds for investment in an old hotel at Wicomico, Maryland, and Ammidown’s unsuccessful efforts to assist him, which culminated in the conspiracy to kill Ammidown’s wife, which Tony Lee agreed to arrange. On the evening of the murder, October 1, Ammidown, after making prior arrangements with Tony Lee specific as to time, place and details of the prospective encounter with Tony Lee, dined with his wife at the Flagship Restaurant and while leaving the restaurant parking lot, was held up by Tony Lee at gun point. Tony Lee then forced his way into the car which was driven to a point near the East Capitol Bridge, took Linda Ammi-down out of the car to a point near the river, and returned to the car after raping her. Lee left the car again and shortly thereafter Ammidown heard a pistol shot, saw Tony Lee running away in the darkness, and ran to his wife now dead or dying. Ammidown then drove to a nearby gas station and reported the crime. All of the foregoing acts took place by prearrangement with Tony Lee and the purpose of the rape was to lend plausibility to the report that Ammi-down and his wife were victims of a criminal abduction.

Previous to his testimony at trial, Ammidown, as a result of Johnson’s arrest for extortion on October 17 and his mention of Tony Lee, had partially admitted his complicity in the murder. At that time he stated Lee had found out about his extra-marital affair and was blackmailing him and that the purpose of the murder was to obtain sufficient funds to buy the hotel at Wicomico for Lee. At trial, Ammidown admitted that this story was a fabrication.

Tony Lee, in his own defense, admitted his previous associations with Am-midown in connection with efforts to obtain financing of several business ventures but denied ever discussing the killing of Linda Ammidown with her husband or anyone else. He relied principally on an unsupported alibi which placed him in Southern Maryland at the precise time of the killing and presented two character witnesses as to his reputation for peace and good order and truth and veracity. Ralph Lee did not testify and presented no evidence in his defense.

From a careful reading of the entire transcript, we are satisfied that there was overwhelming evidence proving beyond a reasonable doubt the guilt of both appellants.

The Issues

Counsel have raised several issues on appeal: challenges to the alleged inconsistent and illegal jury verdict, the prosecutor’s allegedly prejudicial closing argument, the consecutive sentences imposed, the evidentiary rulings which allegedly denied effective assistance of counsel, the instructions on conspiracy, the alleged participation of the trial court in the prosecutorial function and his failure to recuse, and the validity of the death sentence imposed on Tony Lee in light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Only the latter two issues require comment. The arguments otherwise made are without merit, being either frivolous or unsupported by applicable authority. The contentions, however, have been accorded full consideration by the Court. See Local Rule 13(c).

The allegations of alleged improper participation in the prosecutorial function and failure to recuse have been considered carefully by the Court. The Court has given attention to the entire trial record and to the specific objections made in the context of such record. Upon full consideration, it is our conclusion that the defendants were fully accorded their rights to a fair trial and that the experienced trial court judge presided in an impartial manner and that appellants were accorded a fair trial. Accordingly, we find no substantial error in the trial proceedings.

The only other matter relating to the trial judge’s conduct of the trial concerns his advice to the jury in his charge that if it found Tony Lee guilty of murder and left the sentencing to him, he would impose the death penalty against Tony Lee. (Tr. 995-96) Such a statement, while somewhat unusual, is under the circumstances of this case at most harmless error, particularly in light of the overwhelming evidence against this appellant. See Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed. 2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

The obvious claim that such a statement prejudices Tony Lee’s right to a fair trial would appear to rest upon two bases: (1) Did the statement influence the jury in its deliberations on the issue of guilt or innocence- — a matter within the sole province of the jury? If so, the jury’s function was invaded by the trial judge and the appellant Tony Lee did not receive a fair trial. (2) Could such a statement have caused the jury’s inability to agree as to punishment with the result that it, in effect, was imposing the death sentence rather than the judge?

With respect to the question whether the statement influenced the jury in deciding the question of guilt or innocence, an examination of the charge in its entirety shows clearly that on repeated occasions the Court was careful to delineate the respective and separate functions of the Court and jury. Based on the totality of the rather lengthy charge, it cannot seriously be claimed that the jury had any doubts as to its function, nor is it reasonable to conclude that the Court’s brief statement as to the punishment it would impose in the event of the jury’s inability to agree affected in any way its deliberations on the central issue of appellant Tony Lee’s guilt concerning which the evidence was overwhelming. See United States v. Pittman, 441 F.2d 1098, 1099-1100 (9th Cir. 1971); United States v. Lauer, 287 F.2d 633, 635-636 (7th Cir.), cert. denied, 368 U.S. 818, 82 S.Ct. 34, 7 L.Ed.2d 24 (1961); United States v. Allied Stevedoring Corp., 241 F.2d 925, 934 (2d Cir.), cert. denied, 353 U.S. 984, 77 S.Ct. 1282, 1 L.Ed.2d 1143 (1957).

Turning to the question whether the Court’s statement might well have affected the jury in its deliberations as to punishment and caused its inability to agree, the answer, while not so easily obtained, is just as clear. Counsel for defendant argued with some force that, in failing to agree, the jury knew it was, in effect, ordering the death penalty. In this connection, it very well may have been that one or more members of the jury, all originally inclined to recommend life imprisonment, may have been so influenced by the Court’s statement that these individual jurors changed their position with the result that the jury previously unanimous was unable to agree on punishment and left to the Court the responsibility of sentence. The short answer to this claim of prejudice is the decision of the Supreme Court on June 29, 1972 in Furman v. Georgia, supra, outlawing the death penalty as constituting cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The trial judge’s statement was made on May 24, 1972 and the defendant was sentenced on June 21, 1972, both dates being prior to the Supreme Court’s decision. In other words, the statement, if error, was harmless because no prejudice resulted therefrom.

Finally, appellant Tony Lee challenges his sentence to death by electrocution for three counts of first-degree murder (counts 2, 3 and 5). He claims that imposition of the death sentence cannot stand after Furman v. Georgia, supra, which was decided after his sentencing. In the light of Furman the Government has recognized that a sentence of death under 22 D.C.Code § 2404 is illegal and has suggested that No. 72-1711 be remanded to the District Court for resentencing only as to Tony Lee’s three convictions for first-degree murder. The Court agrees.

Accordingly, these cases are affirmed in all respects and No. 72-1711 is remanded for resentencing.

It is so ordered.

      . Throughout the trial appellant Richard Anthony Lee was referred to as Tony Lee. To avoid confusion we shall also refer to him in that manner.

      . 22 D.C.Code § 105a.

      . 22 D.C.Code § 2401.

      . Id.

      . Id.

      . 22 D.C.Code § 2101.

      . 22 D.C.Code § 2801.

      . A companion case, United States v. Ammi-down, Nos. 72-1694 and 72-1695, is presently pending before this Court.

      . A very detailed summary of the evidence is contained in Government’s Brief pp. 2-21.

      . Those cases involved constitutional errors which were found harmless in the light of the overwhelming evidence against the defendant. That strict test has been met in this case where the Court should apply the harmless error doctrine because a mere non-constitutional error is alleged. The harmless error doctrine permits the Court to disregard any nonconstitutional error which does not affect the substantial rights of the defendant. 28 U.S.C. § 2111; Fed.R.Crim. P. 52(a).

       References to the jury’s function as the sole judge of the facts appear repeatedly. Tr. 931-32, 933-34, 945, 946, 952, 957, 968, 969-70, 971, 973, 975, 976, 978-80, 985, 991. References to the Court’s role in giving instructions on matters of law also are numerous. Tr. 931-32, 949, 953-54, 958-59, 959-60, 961, 963, 964, 967, 970, 971, 973, 975, 981, 983, 985, 990, 991.


author: WILKEY, Circuit Judge:

text:
    ENVIRONMENTAL DEFENSE FUND, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and William D. Ruckelshaus, Administrator, Respondents, Coahoma Chemical Company, Inc., Intervenors. ENVIRONMENTAL DEFENSE FUND, INC., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and William D. Ruckelshaus, Administrator, Respondents. COAHOMA CHEMICAL COMPANY et al., Petitioners, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent, EDF et al., Intervenors. OLIN CORPORATION, Petitioner, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. CAROLINA CHEMICALS, INC., et al., Petitioners, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. W. R. GRACE & CO. et al., Petitioners, v. William D. RUCKELSHAUS, Environmental Protection Agency, Respondent. OCTAGON PROCESS, INC., Petitioner, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency, Respondent.
    Nos. 72-1548, 72-1690, 72-2142, 72-2183, 73-1015, 73-1088, 73-2070.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 5, 1973.
    Decided Dec. 13, 1973.

      John F. Dienelt, Washington, D. C., with whom William A. Butler, East Se-tauket, N. Y., was on the brief for petitioners in Nos. 72-1548 and 72-1690 and Environmental Defense Fund, Inc., and others, petitioners in No. 72-2142.
    Robert L. Ackerly with whom Charles A. O’Connor, III, Washington, D. C., was on the brief for petitioners in Nos. 72-2142, 72-2183, 73-1015 and 73-2070.
    Stephen F. Eilperin, Atty., Dept, of Justice with whom Walter H. Fleischer, Atty., Dept, of Justice and Blaine Field
      ing, Atty., Environmental Protection Agency, were on the brief for respondents. Alan S. Rosenthal, Atty., Dept, of Justice and Michael C. Farrar, Atty., Environmental Protection Agency also entered appearances for respondents.
    Charles M. Crump, Memphis, Tenn., and Walkins C. Johnston, Montgomery, Ala., were on the brief for intervenors.
    Before TAMM, ROBINSON and WILKEY, Circuit Judges.
   WILKEY, Circuit Judge:

Coahoma Chemical Company, the Environmental Defense Fund, and other parties seek review of the 14 June 1972 Order of the Administrator of the Environmental Protection Agency (EPA) which cancelled, effective 31 December 1972, almost all registrations for the use of DDT, except for limited public health and- agricultural pest quarantine purposes. Coahoma, along with other producers and users, challenges the Order as going too far in banning most uses of DDT; the Environmental Defense Fund (EDF) challenges the Order as not going far enough by allowing a few uses to remain.

I. AGENCY ACTION

After a lengthy administrative review of DDT, a potent pesticide, the Order of 14 June 1972 was promulgated. The EDF first sought cancellation of DDT registrations under the Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA] in October 1969. More than a year later, and after two cases challenging the lack of Government action had been brought in and decided by this court, on 15 January 1971 the Administrator of EPA issued cancellation notices for all registrations of insecticides containing DDT. However, no suspension of use was required at this time.

EPA began evidentiary hearings on DDT in August 1971. A month later an Advisory Committee, appointed at the request of the registrants' (i. e., users and producers) of DDT, issued a report confirming the hazards caused by DDT and recommending suspension or rapid decrease in use. In one of several preliminary judicial skirmishes between the parties, this court ordered EPA to reconsider its decision not to suspend use of DDT pending the outcome of the cancellation proceedings; reconsideration resulted in no change by EPA. We later in effect gave EPA a 15 April 1972 deadline before which to conduct meaningful administrative proceedings.

The EPA hearings terminated in March 1972, after seven months of testimony from a broad spectrum of the pub-lie, and in April the Hearing Examiner filed his Recommended Findings, Conclusions, and Orders. The Hearing Examiner concluded that all cancellation notices should be withdrawn, and registrations of DDT should continue, except for non-military mothproofing and DDD fruit spray.

The Administrator chose to review the case personally (instead of delegating this as he normally would to the Judicial Officer), and after oral argument and written briefs concluded on 14 June 1972 that DDT was sufficiently dangerous to require its use to be banned for most purposes. The Administrator delayed the effective date of his Order for six months, so that users of DDT could be educated in the proper use of alternative pesticides.

The statutory basis for the EPA action lies in the Federal Insecticide, Fungicide, and Rodenticide Act, FIFRA. This Act requires registration of every economic poison distributed or sold in the United States. Registration is to be denied if the substance does not comply with the provisions of the Act, and misbranding of the substance is a prohibited action. Misbranding is defined in the statute to have occurred, “if in the case of an insecticide when used as directed or in accordance with commonly recognized practice it shall be injurious to living man or other vertebrate animals, or .vegetation, except weeds, to which it is applied, or to the person applying such economic poison. A later formulation of this requirement was incorporated in the Federal Environmental Pesticide Control Act of 1972, which requires denial of registration unless the substance “will perform its intended function without unreasonable adverse effects on the environment,” and unless “when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.” The FIFRA provisions further require that the order of the Administrator cancelling registrations must be based on substantial evidence of record developed at a hearing, if a public hearing is held, and the order must set forth detailed findings of fact.

The Administrator’s Order is • challenged on two grounds: (1) is it based on substantial evidence in the record; (2) does it comply with the requirements of the National Environmental Policy Act (NEPA) ? For the reasons explicated in Parts II and III below, to both questions our answer is affirmative.

II. JUDICIAL REVIEW OF THE ADMINISTRATOR’S ORDER

A. The Test

Explicitly established in the substantive legislation are the standards for judicial review. Once the Administrator has made a final order "concerning the registration of a pesticide, that order is appealable to the United States Court of Appeals. The FIFRA statute directs the Court of Appeals to sustain the find-. ings of the Administrator with respect to questions of fact if “supported by substantial evidence when considered on the record as a whole.” The 1972 amendments further elaborate the scope of judicial review:

The coui’t shall consider all evidence of record. The order of the Administrator shall be sustained if it is supported by substantial evidence when considered on the record as a whole

The two versions provide standards of review which are somewhat different, in that the court under the 1970 language need only support findings of fact by the Administrator if based on substantial evidence, but the 1972 language requires the court to support orders of the Administrator which are based on substantial evidence. The 1972 amendment was enacted and effective on 21 Octobei 1972, four months after the Administrator issued his Order in question here, but well before our judicial review. While the parties seem to assume that the 1970 version is controlling for purposes of our review, the 1972 statute has no provision denying application to judicial review of prior orders of the Administrator. We read the 1972 amendment as establishing a standard effective for judicial review commencing after 21 October 1972, and therefore applicable in the case at bar.

In any event, the provisions for judicial review under both the 1970 and 1972 language clearly require the court to determine whether the findings of fact of the Administrator are based upon substantial evidence when considered on the record as a whole. Thus we must apply a traditional type of substantial evidence test, albeit one based on an extraordinarily voluminous record. “Substantial evidence” was long ago defined by Chief Justice Hughes as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co v. NLRB. And since the statute requires the whole record to be considered as in Universal Camera Corp. v. NLRB:

The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. [This does not mean] that even as. to matters not requiring expertise a court may displace the Board’s choice between two fairly conflicting views, even, though the court would justifiably have made a different choice had the matter been before it de novo.

The Supreme Court has more recently recognized in Consolo v. Federal Maritime Commission that there may be inconsistent conclusions which can be drawn from the same record, each of which may be supported by substantial evidence. Thus, “substantial evidence”

is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.

The Supreme Court went on to point out that the substantial evidence test “frees the reviewing courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute.” Other courts have stressed that where questions involve a special expertise of an agency, such as in detailed scientific proceedings, the agency deserves special deference from the courts, although careful review is of course always required

In the case at bar our task is made somewhat simpler than the agency’s by adhering conscientiously to the proper scope of judicial review of administrative action, i. e., we as a court are confronted with a problem in administrative law, not in chemistry, biology, medicine, or ecology. It is the administrative agency which has been called upon to hear and evaluate testimony in all scientific fields relevant to its ultimate question of permission or prohibition of the sale and use of DDT. The EPA Administrator had an opportunity to make a careful study of the record of seven months of public hearings and the summaries of evidence prepared for him, heard oral argument, and now has arrived at a decision to ban most uses of DDT. It is his decision which we must review; we are not to make the same decision ourselves. We are concerned with how he did it and on how much evidence. Since there is no challenge to procedure here, our problem narrows down to whether his decision is supported by substantial evidence based on the record as a whole.

B. The Evidence

A review of the evidence in this case, as summarized by all the briefs, indicates that the situation is as described in Consolo: there is a great mass of often inconsistent evidence which was developed at the hearing; this evidence is substantial enough to support the conclusions of the Administrator, although it possibly might support contrary conclusions as well. Considering the evidence in the record as a whole, we cannot say that the Administrator’s decision was not based on substantial evidence, even if the hazardous nature of DDT has not been proved beyond a reasonable doubt. Sufficient evidence has been adduced to show potentially great dangers from DDT, and the Administrator’s decision to cancel the DDT registrations is well within his statutory authority.

Specifically, the Administrator states that DDT is hazardous because of several of its inherent properties: its persistence, mobility, and lipid solubility. He contends that the alternatives to DDT do not have such properties, although he concedes that the alternatives may be more acutely toxic in the short run. He presents detailed evidence concerning the human hazards which may arise from DDT (carcinogenicity and muta-genicity of DDT), and also details the environmental hazards (effects on phytoplankton, beneficial agricultural insects, aquatic invertebrates, fish, and birds). He concludes that an unacceptable risk to man and his environment is posed by continued use of DDT, aside from the few carefully controlled uses concerning public health and agricultural quarantine purposes, which he permits.

These findings and the evidence on which they are based are vigorously challenged by Coahoma and other DDT users. While their evidence might be sufficient to have allowed the Administrator to have decided the other way, and permit DDT to continue, their evidence is not sufficient to vitiate the actual decision of the Administrator as not having been based on substantial evidence in the record as a whole.

Since the Administrator here decided contrary to the conclusions of the Hearing Examiner, the question arises concerning the proper deference to be given to the Hearing Examiner’s report. As the Supreme Court indicated in Universal Camera, the hearing examiner’s findings and opinion are to be considered as part of the evidence of record, both by the Administrator and by the reviewing court.

We do not require that the examiner’s findings be given more weight than in reason and in the light of judicial experience they deserve. The “substantial evidence” standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an ^impartial, experienced examiner who has observed the witnesses and lived with the ease has drawn conclusions different from the Board’s than when he has reached the same conclusion. . . . The significance of his report, of course, depends largely on the importance of credibility in the particular case.

Later, in FCC v. Allentown Broadcasting Corp. the Court indicated that where responsibility for decision was placed on the Board, it would be inconsistent to require the Board to adopt an examiner’s findings unless rejection would be “clearly erroneous.” However, the Court did not elaborate on the proper standard to be applied. Subsequently in an opinion by Judge Tamm in Cinderella Career and Finishing Schools, Inc. v. FTC, this Circuit held that the agency or administrator deciding a case “must consider [the decision of the examiner] and the evidence in the record upon which it is based, rather than dismissing the proceedings at the hearing out of hand.”

Applying the law to the facts at hand, we conclude that the Administrator has given sufficient weight to the hearing examiner’s report. The Administrator reviewed the report of the examiner and the exceptions to the report filed by the EPA staff. He decided the case on the basis of the record developed at the hearings, additional briefs, oral argument, and specially prepared summaries. The case appears to be one where the demeanor of witnesses is not particularly important, and where the examiner himself had no particular expertise, for he was a coal mine accident specialist. The Administrator could derive a proper appreciation of the effect of cross-examination in the case by a reading of the record. Thus we conclude that sufficient weight was given to the examiner’s report.

In another aspect of the question of the substantiality of the evidence, Coa-homa, et al., urge that the Administrator’s findings are insufficient in that they are -based to a large extent on data which does not directly and specifically relate to the use of DDT to combat the boll weevil and the bollworm in the cotton growing areas of the Southeast. It is true that much of the evidence in the record concerning dangers of DDT does not specifically relate to this one area or to the use on cotton crops. However, it is not necessary to have evidence on such a specific use or area in order to be able to conclude on the basis of substantial evidence that the use of DDT in general is hazardous. The Administrator has pointed to evidence in the record showing that use of DDT except in minuscule amounts in highly controlled circumstances should be curtailed because of unreasonable risks to health and the environment. Reliance on general data, consideration of laboratory experiments on animals, etc., provide a sufficient basis to support the Administrator’s findings, even with regard to each special use of DDT.

On the other hand, EDF challenges the Administrator’s decision to allow use of DDT in controlling certain public health problems or in agricultural quarantines as not being based on substantial evidence. Specifically EDF contends that there is no need to retain these uses of DDT, and that the usual dangers of DDT are present in these particular uses. The Administrator finds that these uses may be necessary to combat potential, severe public health problems, and so DDT registrations for these purposes should be allowed. The necessity arises from the fact that alternative pesticides are also under EPA review, that situations may arise where the alternatives are not effective, and that DDT must be available. Because the allowance of continued registration does not mean continued use, except where certified to be necessary, the Administrator concludes that the benefits of continued registration outweigh the risks inherent in such a minuscule use. This view has support in the record as a whole, and thus satisfies the substantial evidence test.

The entire Order of the Administrator is supported by substantial evidence when the record as a whole is considered. Under a proper application of the substantial evidence test, as formulated by the Supreme Court and by this Circuit, we affirm the Administrator’s Order. We stress again that from an administrative law perspective we simply conclude that the Administrator’s Order is adequately supported by evidence in the record. We do not decide whether we, ourselves, would ban DDT, nor should we so decide. We have, however, carefully reviewed the decision of the Administrator, and conclude that it should be affirmed.

III. COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

The second challenge to the EPA’s action raised by petitioners Coahoma Chemical Co., et al., concerns the failure of EPA to file a specific report under the National Environmental Policy Act of 1969 (NEPA). That statute requires that

to the fullest extent possible . all agencies of the Federal Government shall . . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —(i) the environmental impact of the proposed action. . . .

This has been interpreted to require an agency to prepare an environmental impact statement whenever the agency’s proposed action will have a significant effect on the environment.

There is little doubt but that the action of EPA in withdrawing DDT registrations will have a substantial effect on the human environment — indeed, that was the very purpose of the EPA action. The court is asked to consider two other, somewhat interrelated questions concerning NEPA. First, is the EPA an agency subject to the requirements of the statute when it undertakes environmental actions such as the cancellation of DDT registrations here? Second, has EPA in effect complied with the requirements, despite the lack of a formal NEPA impact statement?

Petitioners Coahoma Chemical Co., et al., urge that EPA is not exempted from the NEPA requirements. They stress the statutory language requiring ALL agencies to comply, and note that there is no specific language in either NEPA or FIFRA which exempts EPA in this or any other set of circumstances. They note two District Court cases which indicate that all agencies, even the environmental ones, are covered by the NEPA requirements. Furthermore, they contrast the action of Congress in providing a specific exemption for EPA in the Federal Water Pollution Control Act Amendments of 1972, with the absence of a provision in the 1972 FIFRA amendments enacted three days later.

On the other hand, EPA contends that NEPA does not apply to the “environmentally protective regulatory activities of the Administrator conducted under the registration cancellation provision of the FIFRA.” Instead, EPA believes that the case is controlled by this Circuit’s decision in Portland Cement Ass’n v. Ruckelshaus. EPA limits its brief to the contention that NEPA does not apply to this type of action, although it states in footnote that perhaps NEPA is not applicable to any of EPA’s environmentally protective regulatory activities.

Portland Cement involved EPA’s promulgation of stationary source standards for cement plants pursuant to the Clean Air Act. The EPA action was challenged in part because the agency did not file a NEPA statement in conjunction with the promulgation of standards. Judge Leventhal noted that “there is a serious question whether NEPA is applicable to environmentally protective regulatory agencies. There is no express exemption in the language of the Act or Committee Reports.” We analyzed the pertinent legislative history, concluded that it was inconclusive, and then looked to the purpose and policies underlying NEPA. The goal of NEPA was of course to protect the environment, which it did through “a broadly applicable measure that only provides a first step.” In Portland Cement we thought that this goal might best be served by exempting certain activities from the formal requirements of filing NEPA reports. While we were not there willing to decide whether there was a broad exemption for all EPA environmental actions, we concluded that the actions taken in that case under the Clean Air Act were exempt from NEPA, because the Clean Air Act “requires the functional equivalent of a NEPA impact statement.” The Clean Air Act required the Administrator to supply a statement of reasons for his proposed standard, which statement should set forth the environmental considerations, both pro and con, and thus the Act seemed to “strike a workable balance between some of the advantages and disadvantages of full application of NEPA.” Furthermore, opportunity for public comment was provided, as was opportunity for court review.

The rationale we first developed in Portland Cement is applicable here as well,, and an exemption from the strict letter of the NEPA requirements is thus appropriate. The explicit language in FI FRA requires that pesticides be deregistered if they will be injurious to man and his environment. The substantive standard established by the statute places great emphasis on the quality of man’s environment. Additionally, the precedural standards provide full opportunity for thorough consideration of the environmental issues, and for ample judicial review. In this particular case, lengthy hearings- were held, during which public comment was solicited, and a wide scope of environmental aspects were considered. Thus the functional equivalent of a NEPA investigation was provided, for all of the five core NEPA issues were carefully considered: the environmental impact of the action, possible adverse environmental effects, possible' alternatives, the relationship between long- and. short-term uses and goals, and any irreversible commitments of resources — all received attention during the hearings and decision-making process. The law requires no more.

When it is clear that the NEPA objections are being raised by parties who have had ample opportunity to express their views, when there has been functional compliance, the Portland Cement rationale should certainly apply, and the agency action should be exempted from the strict letter of NEPA requirements. As we wrote recently, “To require a ‘statement,’ in addition to a decision setting forth the same considerations would be a legalism carried to the extreme.”

Our recent decision in Arizona Public Service Co. v. FPC, which requires an of agency to at least file a statement reasons as to why an impact statement is not necessary, is inapposite to the case at bar. In Arizona Public Service the Federal Power Commission did not look carefully at the environmental questions, but merely concluded in one sentence that there was no environmental impact. That is a far cry from the instant case,, where the whole focus of the agency action has been on the environmental aspects of the use of DDT. The reason for the failure to file a formal NEPA impact statement need not be explicitly stated here, for it is apparent on the face of the agency’s action.

We conclude that where an agency is engaged primarily in an examination of environmental questions, where substantive and procedural standards ensure full and adequate consideration of environmental issues, then formal compliance with NEPA is not necessary, but functional compliance is sufficient. We are not formulating a broad exemption from NEPA for all environmental agencies or even for all environmentally protective regulatory actions of such agencies. Instead, we delineate a narrow exemption from the literal requirements for those actions which are undertaken pursuant to sufficient safeguards so that the purpose and policies behind NEPA will necessarily be fulfilled. The EPA action here meets this standard, and hence this challenge to the EPA action is rejected.

IV. CONCLUSION

On review of the decision and Order of the EPA Administrator, we find it to be supported by substantial evidence based on the record as a whole. Furthermore, we find that EPA has provided the functional equivalent of a formal NEPA report. Therefore, the two challenges raised concerning the Administrator’s decision to cancel DDT registrations are rejected and the Administrator’s action is affirmed.

      . Environmental Defense Fund (EDF) Appendix at 50.

      . The chemical name for DDT is 1,1,1-tri-chloro-2,2-bis (pchlorophenyl) ethane. EDF Appendix at 105.

      . 7 U.S.C. §§ 135-135k (1970). Originally FIFRA was enforced and administered by the Secretary of Agriculture. However, a reorganization in 1970 placed responsibility in the Administrator of EPA. gee Reorganization Plan No. 3 of 1970, in Appendix to Title 5, U.S.C.

      . Environmental Defense Fund v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970) [The court granted EDF standing to contest the failure to cancel all DDT registrations and remanded to the Secretary of Agriculture to reconsider and give reasons.] ; Environmental Defense Fund v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971) [The court directed the Administrator of EPA, now in charge of FIFRA, to initiate cancellation proceedings because of substantial questions of safety of DDT, and to reconsider suspension of use.].

      . EPA PR Notice 71-1. Also TDE, a related chemical, suffered cancelled registrations by PR Notice 71-5.

      . FIFRA establishes an elaborate procedure for registrants who wish to challenge proposed cancellations. Registrants may request an advisory committee of scientific experts be selected by the National Academy of Sciences to review the proposed action. Additionally, registrants may file objections and request a public hearing. 7 U.S.C. § 135b (c). Both options were utilized here.

      . Environmental Defense Fund v. Ruckel-shaus, Order (No. 71-1256, 22 Sept. 1971).

      . Environmental Defense Fund v. Ruckel-shaus, Order (No. 71-1256, 9 Dec. 1971).

      . The official title for the Hearing Examiner is now Administrative Law Judge. See 37 Fed.Reg. 16787 (1972); 5 C.F.R. § 930, Sub-part B (1973).

      . EDF Appendix at 100.

      . Examiner’s Proposed Orders, in EDF Appendix at 207-218.

      . See Brief of Respondent, William D. Ruckelshaus, et al., at 21.

      . See Brief of Petitioner, Environmental Defense Fund, et al., at 30.

      . 7 U.S.C. § 135b(a) (1970).

      . 7 U.S.C. § 135b (c).

      . 7 U.S.C. § 135a(a) (5).

      . 7 U.S.C. § 135(z) (2) (g).

      . 7 U.S.C. § 136a(c) (5) (C) (Supp. II, 1972).

      . 7 U.S.C. § 136a(c) (5) (D). The statute defines “unreasonable adverse effects” as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.” 7 U.S.C. § 136(bb).

      . 7 U.S.C. § 135b (c) (1970).

      . 7 U.S.C. § 135b (d) (1970).

      . 7 U.S.C. § 136n(b) (Supp. II, 1972).

      . Brief of Petitioner, Coahoma Chemical Co., at 15; Brief of Petitioner, EDF, at 32.

      . During seven months of hearings, 125 witnesses appeared to testify and 365 exhibits were placed in evidence. The transcript of the hearings was over 9,000 pages long. Brief of Petitioner, Coahoma Chemical Co., at 5.

      . 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938).

      . 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951).

      . 383 U.S. 607, 620, 86 S.Ct. 1018, 1027, 16 L.Ed.2d 131 (1966).

      . IUd.

      . See, e. g., Deutsch v. United States Atomic Energy Commn., 130 U.S.App.D.C. 339, 401 F.2d 404 (1968).

      . The public disclosure of these summaries is sought under the Freedom of Information Act, 5 U.S.C. § 552 (1970), in a companion case, Montrose Chemical Corp. v. Ruckel-shaus, Nos. 73-1443 and 73-1444.

      . See Brief of Respondent, Ruckelshaus, at 28-43.

      . See id. at 43-85.

      . See id. at 86.

      . See id. at 106.

      . 340 U.S. 474, 496, 71 S.Ct. 456, 469, 95 L.Ed. 456 (1951).

      . 349 U.S. 358, 75 S.Ct. 855, 99 L.Ed. 1147 (1955).

      . 138 U.S.App.D.C. 152, 157, 425 F.2d 583, 588 (1970).

      . See note 30, supra.

      . Brief of Respondent, Ruckelshaus, at 16.

      . It appears that most of the DDT now in use in the United States is for control of cotton pests, primarily the bollworm. In fact, at least 70% of all DDT is used in the cotton-growing areas, especially the Southeast. Brief of Respondent, Ruckelshaus, at 86. The Intervenors, National Cotton Council of America, et al., suggest in their Brief at 4 that cotton accounts for an even greater percentage of use. Their figure of 99% reflects the cancellation of registrations for a variety of uses in 1969-1971.

      . See notes 32-34, supra. For the EPA’s argument directed towards cotton pests, see Brief of Respondent, Ruckelshaus, at 86-99.

      . Brief of Petitioner, EDF, at 91-92.

      . Brief of Respondent, Ruckelshaus, at 106-107.

      . 42 U.S.C. § 4332(2) (C) (1970). The statement is required to include consideration of
      (i) the environmental impact of the proposed action,
      (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
      (iii) alternatives to the proposed action,
      (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
      (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

        Id.

      . The two cases noted by Coahoma are Kalur v. Resor, 335 F.Supp. 1 (D.D.C.1971) [re Corps of Engineers], and Anaconda v. Ruckelshaus, 352 F.Supp. 697 (D.Colo.1972) [re EPA]. The first of these cases was dismissed as moot by this Circuit. See Portland Cement Ass’n v. Ruckelshaus, 158 U.S.App.D.C. 308, 318 n. 41, 486 F.2d 375, 385 n. 41 (1973). The second case was observed by us in Portland Cement to have a “myopic” view. Ibid.

      . 33 U.S.C. § 1371(c) (Supp. II, 1972).

      . The FIFRA amendments are contained in the Federal Environmental Pesticide Control Act of 1972, 7 U.S.C. § 136 (Supp. II, 1972). A similar argument was put forth in the Portland Cement case, but was dismissed by the court there as providing a “hazardous basis for inferring the intent of the earlier Congress.” 158 U.S.App.D.C. at 315, 486 F.2d at 382, citing to United States v. Southwestern Cable Co., 392 U.S. 157, 170, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968).

      . Supplemental Brief of Respondent Ruckel-shaus, at 2.

      . 158 U.S.App.D.C. 308, 486 F.2d 375 (1973).

      . Supplemental Brief of Respondent, Ruck-elshaus, at 2-3, n. 1. The EDF supports the limited stand of EPA. Supplemental Brief of Petitioner, EDF, at 13.

      . 42 U.S.C. § 1857c-6 (1970).

      . 158 U.S.App.D.C. at 314, 486 F.2d at 381.

      . Id. at 316, 486 F.2d at 383.

      . Id. at 317, 486 F.2d at 384.

      . Id. at 319, 486 F.2d at ,386.

      . See note 44, supra.

      . As EPA points out, the NEPA objection was only first raised in the briefs to this court; in none of the earlier proceedings was any mention made of NEPA requirements. The raising of the objection so late in the proceedings makes the Coahoma position look more like a delaying tactic than a real -concern with the environment. However, our recent decision in Arizona Public Service Co. v. FPC, 157 U.S.App.D.C. 272, 280, 483 F.2d 1275, 1283 (1973), noted that “the tardiness of the parties cannot excuse an agency from complying with its responsibilities under NEPA.”

      . Id. at 1280-1281.

      . International Harvester Co. v. Ruckel-skaus, 155 U.S.App.D.C. 411, 446, 478 F.2d 615, 650 n. 130 (1973). The court in International Harvester noted that
      the requirements of NEPA should be subject to a “construction of reasonableness.” Although we do not reach the question whether EPA is automatically and completely exempt from NEPA; we see little need in requiring a NEPA statement from an agency whose raison d’etre is the protection of the environment and whose decision on suspension is necessarily infused with the environmental considerations so pertinent to Congress in designing the statutory framework.

        Hid.

      . 157 U.S.App.D.C. 272, 483 F.2d 1275 (1973).

      . 483 F.2d at 1282.


author: J. SKELLY WRIGHT, Circuit Judge:

text:
    NATIONAL REALTY AND CONSTRUCTION COMPANY, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent, Secretary of Labor, Party Respondent.
    No. 72-1978.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 24, 1973.
    Decided Dec. 13, 1973.

      Peter S. Latham, Washington, D. C., with whom I. H. Waehtel, Washington, D. C., was on the brief, for petitioner.
    Jean A. Staudt, Atty., Dept, of Justice, with whom Walter H. Fleischer, Atty., Dept, of Justice, and Baruch A. Fellner and Al. J. Daniel, Jr., Attys., Dept, of Labor, were on the brief, for respondent.
    Before WRIGHT and ROBB, Circuit Judges, and MATTHEWS, Senior District Judge.

       Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. § 294(c) (1970).

   J. SKELLY WRIGHT, Circuit Judge:

' We review here an order of the Occupational Safety and Health Review Commission which found National Realty and Construction Company, Inc. to have committed a “serious violation” of the “general duty clause” of the Occupational Safety and Health Act of 1970, for which a civil fine of $300 was imposed. Unable to locate substantial evidence in the record to support the Commission’s finding of a violation, we reverse.

I. THE PROCEEDINGS AND THE EVIDENCE

The 1970 Act provides for the fining and, in aggravated cases, the imprisonment, of any employer in interstate commerce who fails to eliminate avoidable hazards to the life, limb or health. of his workers. Though novel in approach and sweeping in coverage, the legislation is no more drastic than the problem it aims to meet.

The one-the-job health and safety crisis is the worst problem confronting American workers, because each year as a result of their jobs over 14,500 workers die. In only four years time, as many people have died because of their employment as have been killed in almost a decade of American involvement in Vietnam. Over two million workers are disabled annually through job-related accidents.

The economic impact of occupational accidents and diseases is overwhelming. Over $1.5 billion is wasted in lost wages, and the annual loss to the Gross National Product is over $8 billion. Ten times as many man-days are lost from job-related disabilities as from strikes * * *.

* * * [T]hese problems seem to be getting worse, not better.

An employer’s duties under the Act flow from two sources. First, by 29 U. S.C. § 654(a)(2), he must conform to the detailed health and safety standards promulgated by the Secretary of Labor under 29 U.S.C. § 655. Second, where no promulgated standards apply, he is subject to the general duty to

furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

29 U.S.C. § 654(a)(1). Breach of the general duty opens an employer to fines of up to $1,000 per violation, some fine in this range being mandatory if the violation is “serious,” 29 U.S.C. § 666(b) and (c). Employer duties are enforced through citations and proposed penalties issued by the Secretary of Labor, contested matters being adjudicated by the Commission, an independent body of safety experts.

On September 24, 1971 the Secretary cited National Realty for serious breach of its general duty

in that an employee was permitted to stand as a passenger on the running board of an Allis Chalmers 645 Front end loader while the loader was in motion.

After National Realty filed timely notice of contest, the Secretary entered a formal complaint charging that National Realty had

permitted the existence of a condition which constituted a recognized hazard that was likely to cause death or serious physical harm to its employees. Said condition, which resulted in the death of foreman O. C. Smith, arose when Smith stood as a passenger on the running board of a piece of construction equipment which was in motion.

At an administrative hearing, held before an examiner appointed by the Commission, William Simms, the Labor Department inspector who cited National Realty, testified in person, and counsel read into the record a summary of stipulated testimony by several employees of National Realty. The evidence is quickly restated.

On September 16, 1971, at a motel construction site operated by National Realty in Arlington, Virginia, O. C. Smith, a foreman with the company, rode the running board of a front-end loader driven by one of his subordinates, Clyde Williams. The loader suffered a stalled engine while going down an earthen ramp into an excavation and began to swerve off the ramp. Smith jumped from the loader, but was killed when it toppled off the ramp and fell on him. John Irwin, Smith’s supervisor, testified that he had not seen the accident, that Smith’s safety record had been very good, that the company had a “policy” against equipment riding, and that he — Irwin—had stopped the “4 or 5” employees he had seen taking rides in the past two years. The loader’s driver testified that he did not order Smith off the vehicle because Smith was his foreman; he further testified that loader riding was extremely rare at National Realty. Another company employee testified that it was contrary to company policy to ride on heavy equipment. A company supervisor said he had reprimanded violators of this policy and would fire second offenders should the occasion arise. Simms, the inspector, testifed from personal experience that the Army Corps of Engineers has a policy against equipment riding. He stated he was unaware of other instances of equipment riding at National Realty and that the company had “abated” its violation. Asked to define abatement, Simms said it would consist of orally instructing equipment drivers not to allow riding.

The hearing examiner dismissed the citation, finding that National Realty had not “permitted” O. C. Smith to ride the loader, as charged in the citation and complaint. The examiner reasoned that a company did not “permit” an activity which its safety policies prohibited unless the policies were “not enforced •or effective.” Such constructive permission could be found only if the hazardous activity were a “practice” among employees, rather than — as here — a rare occurrence. Upon reviewing the hearing record, the Commission reversed its examiner by a 2-1 vote, each commissioner writing separately. Ruling for the Secretary, Commissioners Burch and Van Namee found inadequate implementation of National Realty’s safety “policy.” Rejecting the hearing examiner’s factual findings in part, Commissioner Burch stated that it was “incredible” that an oral safety policy could have reduced equipment riding to a rare occurrence. Commissioner Van Namee reasoned that the Smith incident and the “4 or 5” occurrences shown on the record “put respondent on notice that more was required of it to obtain effective implementation of its safety policy” The majority commissioners briefly suggested several improvements which National Realty might have effected in its safety policy: placing the policy in writing, posting no-riding signs, threatening riders with automatic discharge, and providing alternative means of transport at the construction site. In dissent, Commissioner Moran concluded that the Secretary had not proved his charge that National Realty had “permitted” either equipment riding in general or the particular incident which caused Smith’s death.

II. THE ISSUES

Published regulations of the Commission impose on the Secretary the burden of proving a violation of the general duty clause. When the Secretary fails to produce evidence on all necessary elements of a violation, the record will — as a practical consequence — lack substantial evidence to support a Commission finding in the Secretary’s favor. That is the story of this case. It may well be that National Realty ■ failed to meet its general duty under the Act, but the Secretary neglected to present evidence demonstrating in what manner the company’s conduct fell short of the statutory standard. Thus the burden of proof was not carried, and substantial evidence of a violation is absent.

A. The Relative Unimportance of the Charge

The citation and complaint stated that National Realty breached its general duty by permitting Smith to ride the loader. This charge was doubly unfortunate. Permission usually connotes knowing consent, which is not a necessary element of a general duty violation. Second, the charge overemphasized a single incident rather than directly indicting the adequacy of National Realty’s safety precautions regarding equipment riding. Nevertheless, the pleadings were not so misleading as to foreclose the Secretary from litigating the statutory sufficiency of National Realty’s safety program. In the circumstances, the word “permitted” could fairly have been read to suggest merely a wrongful failure to prevent the Smith incident, rather than a knowing authorization of his conduct. Moreover, any ambiguities surrounding the Secretary’s allegations could have been cured at the hearing itself. So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue. This follows from the familiar rule that administrative pleadings are very liberally construed and very easily amended. The rule has particular pertinence here, for citations under the 1970 Act are drafted by non-legal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his inspectors.

B. The Statutory Duty to Prevent Hazardous Conduct by Employees

Thus, despite the awkwardness of his charges and pleadings, the Secretary could properly have produced evidence at the hearing on the question whether National Realty’s safety policy failed, in design or implementation, to meet the standards of the general duty clause. Under the clause, the Secretary must prove (1) that the employer failed to render its workplace “free” of a hazard which was (2) “recognized” and (3) “causing or likely to cause death or serious physical harm.” The hazard here was' the dangerous activity of riding heavy equipment. The record clearly contains substantial evidence to support the Commission’s finding that this hazard was “recognized” and “likely to cause death or serious physical harm.” The question then is whether National Realty rendered its construction site “free” of the hazard. In this case of first impression, the meaning of that statutory term must be settled before the sufficiency of the evidence can be assessed.

Construing the term in the present context presents a dilemma. On the one hand, the adjective is unqualified and absolute: A workplace cannot be just “reasonably free” of a hazard, or merely as free as the average workplace in the industry. On the other hand, Congress quite clearly did not intend the general duty clause to impose strict liability: The duty was to be an achievable one. Congress’ language is consonant with its intent only where the “recognized” hazard in question can be totally eliminated from a workplace. A hazard consisting of conduct by employees, such as equipment riding, cannot, however, be totally eliminated. A demented, suicidal, or willfully reckless employee may on occasion circumvent the best conceived and most vigorously enforced safety regime. This seeming dilemma is, however, soluble within the literal structure of the general duty clause. Congress intended to require elimination only of preventable hazards. It follows, we think, that Congress did not intend unpreventable hazards to be considered “recognized” under the clause. Though a generic form of hazardous conduct, such as equipment riding, may be “ree-ognized,” unpreventable instances of it are not, and thus the possibility of their occurrence at a workplace is not inconsistent with the workplace being “free” of recognized hazards.

Though resistant to precise definition, the criterion of preventability draws content from the informed judgment of safety experts. Hazardous conduct is not preventable if it is so idiosyncratic and implausible in motive or means that conscientious experts, familiar with the industry, would not take it into account in prescribing a safety program. Nor is misconduct preventable if its elimination would require methods of hiring, training, monitoring, or sanctioning workers which are either so untested or so expensive that safety experts would substantially concur in thinking the methods infeasible. All preventable forms and instances of hazardous conduct must, however, be entirely excluded from the workplace. To establish a violation of the general duty clause, hazardous conduct need not actually have occurred, for a safety program’s feasibly curable inadequacies may sometimes be demonstrated before employees have acted dangerously. At the same time, however, actual occurrence of hazardous conduct is not, by itself, sufficient evidence of a violation, even when the conduct has led to injury. The record must additionally indicate that demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred.

C. Deficiencies in This Record

The hearing record shows several incidents of equipment riding, including the Smith episode where a foreman broke a safety policy he was charged with enforcing. It seems quite unlikely that these were unpreventable instances of hazardous conduct. But the hearing record is barren of evidence describing, and demonstrating the feasibility and likely utility of, the particular measures which National Realty should have taken to improve its safety policy. Having the burden of proof, the Secretary must be charged with these evidentiary deficiencies.

The Commission sought to cure these deficiencies sua sponte by speculating about what National Realty could have done to upgrade its safety program. These suggestions, while not unattractive, came too late in the proceedings. An employer is unfairly deprived of an opportunity to cross-examine or to present rebuttal evidence and testimony when it learns the exact nature of its alleged violation only after the hearing. As noted above, the Secretary has considerable scope before and during a hearing to alter his pleadings and légal theories. But the Commission cannot make these alterations itself in the face of an empty record. To merit judicial deference, the Commission’s expertise must operate upon, not seek to replace, record evidence.

Only by requiring the Secretary, at the hearing, to formulate and defend his own theory of what a cited defendant should have done can the Commission and the courts assure evenhanded enforcement of the general duty clause Because employers have a general duty to do virtually everything possible to prevent and repress hazardous conduct by employees, violations exist almost everywhere, and the Secretary has an awesomely broad discretion in selecting defendants and in proposing penalties. To assure that citations issue only upon careful deliberation, the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures.

Because the Secretary did not shoulder his burden of proof, the record lacks substantial evidence of a violation, and the Commission’s decision and order are, therefore,

Reversed.

      . Decision and Order of the Occupational Safety and Health Review Commission, OSHRC Docket No. 85, Sept. 6, 1972. Review by this court is available under 29 U. S.C. § 660(a) (1970).

      . Occupational Safety and Health Act of 1970, § 2 et seq., Pub.L. 91-596, 84 Stat. 1590, 29 U.S.C. § 651 et seq. (1970). The general duty is created by § 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1). “Serious violation” is defined by § 17 (k) of the Act, 29 U.S.C. § 666(j).

      . The Secretary of Labor had proposed a penalty of $800. Despite the reduction by the Commission, National Realty claims that the computation of the penalty was arbitrary and capricious. We need not reach this issue.

      . The Commission’s factual findings are conclusive “if supported by substantial evidence on the record considered as a whole.” 29 U.S.C. § 660(a).

      . The penalty structure is set out at 29 U.S. C. § 666. While most violations of the Act, or of regulations promulgated under it, give rise only to “civil penalties,” willful violations of the regulations resulting in death give rise to heavy criminal fines and possible imprisonment.

      . The Act differs from traditional workmen’s compensation laws in that it penalizes maintenance of unsafe conditions rather than merely imposing tort liability for actual injuries suffered by employees. (The Act has no effect on any workmen’s compensation law, see 29 U.S.C. § 653(b)(4).) Prior federal legislation imposing penalties on employers for failure to remove hazards to the health and safety of employees was limited to employers supplying the Government and to a restricted class of industries and activities. See, e. g„ 30 U.S.C. §§ 801-960 (1970); 41 U.S.C. §§ 35-45 (1970). The 1970 Act applies to all persons, including corporations but excluding federal and state governments, engaged in interstate commerce. 29 U.S.C. § 652 (4), (5).

      . H.R.Rep.No.91-1291, Committee on Education and Labor, 91st Cong., 2d Sess., 14-15, U.S.Code Cong. & Admin.News 1970, p. 5377 (July 9, 1970).

      . Hundreds of such standards have been promulgated. See, e. g., 29 C.F.R. §§ 1910, 1915-1919, 1923-1926 (Jan. 1, 1972), The Act authorizes the Secretary to enter into agreements with the states whereby their own standards will supersede federal regulations and state enforcement will supplant federal enforcement. 29 U.S.C. § 667. Enforcement of the general duty clause, however, will remain a federal responsibility.

      . Specific, promulgated standards preempt the general duty clause, but only with respect to hazards expressly covered by the specific standards. 29 C.F.R. § 1910.5(f).

      . The Commission is composed of three members who are appointed by the President with the advice and consent of the Senate. They must be “persons who by reason of training, education, or experience are qualified to carry out the functions of the Commission.” 29 U.S.C. § 661(a).

      . In addition to referring to the general duty clause by its statute section number, the citation described the violation as follows:
      On or about Sept. 16, 1971, employer did fail to provide his employee employment which was free from recognized hazards which caused and were likely to cause death or serious physical harm to his employees in that an employee was permitted to stand as a passenger on the running board of an Allis Chalmers 645 Front end loader while the loader was in motion. As the loader was proceeding down an unguarded earthen ramp, it went out of control and the employee-passenger jumped from the loader and was fatally injured when the loader rolled over on him.

      . In its answer to the Secretary’s complaint National Realty raised six “affirmative defenses,” claiming (1) that its written code of safety regulations prohibited equipment riding; (2) that the deceased was a foreman and thus not an “employee” of the company; (3) that the violation was not serious; (4) that occasional equipment riding is not “within the reasonable control” of the company ; (5) that, absent specific regulations, the company had “no reason to know” that equipment riding violated the Act; and (6) that the $800 penalty was excessive since the accident was caused by the misconduct of the deceased. During the hearing National Realty dropped its claim that its no-riding policy was contained in written regulations. Claim (2) is no longer asserted by the company.

      . The nature of the stipulation is somewhat murky. Both counsel conceded that the summaries read into the record accurately conveyed what the witnesses would have said if called personally. Whether the stipulation encompassed a mutual concession that the witnesses were telling the truth is less clear. At any rate, the witnesses did not contradict each other on any material factual issue, and neither counsel challenged the veracity of any of the testimony.

      . The evidence was - accurately characterized by the hearing examiner, Judge Harold A. Kennedy, in Hearing Examiner’s Report and Decision, Secretary of Labor v. National Realty and Construction Co., Inc., OSHRC Docket No. 85, 6-9 (Dec. 29, 1971). We have also consulted submitted portions of the transcript of the hearing.

      . The citation required that the violation be corrected “immediately.” Failure to correct a cited violation by the prescribed deadline is itself a punishable violation of the Act. 29 U.S.C. § 666(d).

      . Hearing Examiner’s Report and Decision, supra note 14, at 14-16.

      . Decision and Order, supra note 1. The opinions are by Commissioner Burch for the Commission, Commissioner Van Namee concurring and Commissioner Moran dissenting. The Commission heard no new testimony and took no new evidence.

      . We do not adopt the Judge’s [i. e., hearing examiner’s] conclusions of law for the reasons set forth below. We do adopt the Judge’s findings of fact to the extent that they are consistent with the following.

      Decision and Order, supra note 1, opinion of Commissioner Burch, at 1. (Emphasis added.)

      . Id. at 3.

      . Decision and Order, supra note 1, opinion of Commissioner Van Namee, at 5. Perhaps crucial to this reasoning was the Commissioner’s statement that
      when management [i. e., Smith] violates its own safety rules, it must be concluded that management was on notice that its policy had not been effectively implemented. Indeed, it must be concluded that the policy itself had not been effectively implemented.

        Ibid.

      . Decision and Order, supra note 1, opinion of Commissioner Burch, at 3; opinion of Commissioner Van Namee, at 6 n. 8. The casual nature of these proposals is evident from Commissioner Van Namee’s statement:
      Given the record in this case, it is inappropriate to state the specific action (s) respondent should have taken.

        Ibid.

      . Decision and Order, supra note 1, opinion of Commissioner Moran, at 5. Commissioner Moran further concluded that evidence was lacking that equipment riding is a “recognized” hazard “likely to cause death or serious physical harm.” Id. at 6-7.

      . 29 C.F.R. § 2200.33 (Jan. 1, 1972).

      . A reviewing court will typically be concerned only with the Secretary’s production burden. The burden of proof presumably also includes the burden of persuading the Commission, or its hearing examiner, by a preponderance of the evidence, but a reviewing court must uphold a Commission finding supported by substantial evidence, and the Commission’s view on the preponderance of the evidence is otherwise final.

      . Commissioner Moran would require proof to conform strictly to the charge. Decision and Order, supra note 1, opinion of Commissioner Moran, at 3. The Commission majority paid little attention to the wording of the charge and concentrated on the terms of the general duty clause itself. See, e. g., id., opinion of Commissioner Burch, at 3.

      . Webster defines the verb “permit,” when used transitively, to mean
      1: to consent to expressly or formally: grant leave for or the privilege of * * * 2: to give (a person) leave * * * 3 archaic: to give over * * * 4: to make possible * sjc *
      Used intransitively, the verb means
      1: to give an opportunity * * * 2: ADMIT * * *.
      Webster’s Third New International Dictionary 1683 (Unabridged 1961).

      . As indicated in note 26 supra, “permit” may simply mean “to make possible” or “to give an opportunity.” Thus a building may be said to permit an unobstructed view and a loose .window may be said to permit entry by burglars. When the permitting agency is not a natural person, this minimal meaning is usual, for any connotations of knowing consent would be anomalous. National Realty, a corporation, is not of course a natural person. In addition, permission often means only a failure to prevent in situations where the permitting party has considerable physical or social capacity to control the permitted party. Thus a parent may be said to have “permitted” his child to play in the street even though the parent was ignorant of the child’s behavior. This usage may be loose, but it is common enough. An employer, of course, enjoys vast physical authority over his employees and their workplace, a fact which Congress stressed in drafting the general duty clause. See, e. g., S.Rep.No. 91-1282, 91st Cong., 2d Sess., 9 (Oct. 6, 1970), U.S.Code Cong. & Admin.News 1970, p. 5177, and H.R.Rep.No.91-1291, supra note 7, at 21.

      . NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 350, 58 S.Ct. 904, 82 L.Ed. 1381 (1938); Golden Grain Macaroni Co. v. FTC, 9 Cir., 472 F.2d 882, 885-886 (1972); L. G. Balfour Co. v. FTC, 7 Cir., 442 F.2d 1, 19, 21 (1971); Swift & Co. v. United States, 7 Cir., 393 F.2d 247 (1968).

      . Professor Davis states the rule with characteristic verve:
      The most important characteristic of pleadings in the administrative process is their unimportance. And experience shows that unimportance of pleadings is a virtue. * * *
      1 K. Davis, Administrative Law Treatise § 8.04 at 523 (1958). See also Tashof v. FTC, 141 U.S.App.D.C. 274, 437 F.2d 707 (1970).

      . NLRB v. Fant Milling Co., 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243 (1959); NLRB v. International Union of Operating Engineers, Local 925, 5 Cir., 460 F.2d 589 (1972); NLRB v. Pallette Stone Corp., 2 Cir., 283 F.2d 641 (1960).

      . Allowing subsequent amendment of a citation’s charges will not disturb the central function of the citation, which is to alert a cited employer that it must contest the Secretary’s allegation or pay the proposed fine. In the typical case, the more inaccurate or unhappily drafted is a citation, the more likely an employer will be to contest it. But a citation also serves to order an employer to correct the cited condition or practice, and a failure to so correct is a punishable violation. 29 U.S.C. § 666(d). Obviously an employer cannot be penalized for failing to correct a condition which the citation did not fairly characterize. Thus, before penalizing a failure to correct a cited violation, the Commission must satisfy itself that the citation defines the “uncorrected” violation with particularity. 29 U.S.C. § 658(a).

      . An activity may be a “recognized hazard” even if the defendant employer is ignorant of the activity’s existence or its potential for harm. The term received a concise definition in a floor speech by Representative Daniels when he proposed an amendment which became the present version of the general duty clause:
      A recognized hazard is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry. In other words, whether or not a hazard is “recognized” is a matter for objective determination; it does not depend on whether the particular employer is aware of it.
      116 Cong.Ree. (Part 28) 38377 (1970). The standard would be the common knowledge of safety experts who are familiar with the circumstances of the industry or activity in question. The evidence below showed that both National Realty and the Army Corps of Engineers took equipment riding seriously enough to prohibit it as a matter of policy. Absent contrary indications, this is at least substantial evidence that equipment riding is a “recognized hazard.”

      . Presumably, any given instance of equipment riding carries a less than 50% probability of serious mishap, but no such mathematical test would be proper in construing this element of the general duty clause. See Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L.Rev. 988, 997-998 (1973). If evidence is presented that a practice could eventuate in serious physical harm upon other than a freakish or utterly implausible concurrence of circumstances, the Commission’s expert determination of likelihood should be accorded considerable deference by the courts. For equipment riding, the potential for injury is indicated on the record by Smith’s death and, of course, by common sense.

      . Though the Senate and House committee reports on the Act stated that the general duty clause incorporated “common law principles,” the standard of care imposed by the clause was not characterized in terms of reasonableness. Rather, the reports speak of a
      general and common duty to bring no adverse effects to the life and health of their employees throughout the course of their employment.
      H.R.Rep.No.91-1291, supra note 7, at 21; S.Rep.No.91-1282, supra note 27, at 9, U. S.Code Cong. & Admin.News, 1970, p. 5186. (Emphasis added.) Overtones of the reasonableness standard are to be found only in the Act’s definition of a serious violation, see note 41 infra. That employers must take more than merely “reasonable” precautions for the safety of employees follows from the great control which employers exert over the conduct and working conditions of employees. See H.R.Rep.No.91-1291, id., and S.Rep.No.91-1282, id.

      . The Act’s purpose is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions * * *.” 29 U.S.C. § 651. (Emphasis added.) The House committee report, dealing with an earlier but not pertinently distinct version of the general duty clause, stated:
      An employer’s duty under Section 5(1) is not an absolute one. It is the Committee’s intent that an employer exercise care to furnish a safe and healthful place to work and to provide safe tools and equipment. This is not a vague duty, but is protection of the worker from preventable dangers.
      H.R.Rep.No.91-1291, supra note 7, at 21. These persuasive indications aside, the very word duty implies an obligation capable of achievement. See Restatement (Second) of Torts § 4 (1965).

      . This is not to say that an employer’s statutory responsibility for a hazard vanishes, or is even diminished, because the hazard was directly caused by an employee. The Act provides “that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions.” 29 U.S.C. § 651(b)(2). An employer has a duty to prevent and suppress hazardous conduct by employees, .and this duty is not qualified by such common law doctrines as assumption of risk, contributory negligence, or comparative negligence.
      The committee does not intend the employee-duty [to comply with the occupational safety and health standards promulgated under the Act] provided in section 5(b) to diminish in anyway [sic] the employer’s compliance responsibilities or his responsibility to assure compliance by his own employees. Final responsibility for compliance with the requirements of this act remains with the employer.
      S.Rep.No.91-1282, supra note 27, at 10-11, U.S.Code Cong. & Admin.News, 1970, p. 5187. The employer’s duty is, however, qualified by the simple requirement that it be achievable and not be a mere vehicle for strict liability.

      . This is not to say that a safety precaution must find general usage in an industry before its absence gives rise to a general duty violation. The question is whether a precaution is recognized by safety experts as feasible, not whether the precaution’s use has become customary. Similarly, a precaution does not become infeasible merely because it is expensive. But if adoption of the precaution would clearly threaten the economic viability of the employer, the Secretary should propose the precaution by way of promulat-ed regulations, subject to advance industry comment, rather than through adventurous enforcement of the general duty clause. Finally, in an abundance of caution we emphasize that an instance of hazardous employee conduct may be considered preventable even if no employer could have detected the conduct, or its hazardous character, at the moment of its occurrence. Conceivably, such conduct might have been precluded through feasible precautions concerning the hiring, training, and sanctioning of employees.

      . The hearing examiner thought that National Realty owed its supervisory personnel a lesser duty of care than was owed to rank-and-file employees. Hearing Examiner’s Report and Decision, supra note 14, at 12. This involves a double misconception. Because the behavior of supervisory personnel sets an example at the workplace, an employer has — if anything — a heightened duty to ensure the proper conduct of such personnel. Second, the fact that a foreman would feel free to breach a company safety policy is strong evidence that implementation of the policy was lax.

      . See note 21 supra. If these suggestions emanated from the Secretary’s counsel at the hearing, the record does not show it. No evidence supporting the proposals was introduced.

      . It is patently unfair for an agency to decide a case on a legal theory or set of facts which was not presented at the hearing. See Bendix Corp. v. FTC, 6 Cir., 450 F.2d 534, 542 (1971); Rodale Press, Inc. v. FTC, 132 U.S.App.D.C. 317, 407 F.2d 1252 (1968). The Commission suggested that National Realty should have posted “no-riding” signs or reduced its safety policy to writing, but the Secretary introduced no testimony indicating the value of such .precautions relative to “orally” disseminated safety policies. The Commission suggested that National Realty should have provided alternative means of transp'oration in the construction site, but the Secretary introduced no evidence indicating the feasibility and probable value of doing so. The Commission suggested that National Realty should have instructed drivers not to allow riders on their vehicles, but the Secretary introduced no evidence that National Realty had failed to issue such instructions, or that National Realty’s instructions were less frequent or forceful than experts regard as necessary to a sound safety program. The Commission suggested that riders arid drivers involved in riding incidents should have been discharged, but the Secretary neither suggested this sanction nor offered testimony on its appropriateness or probable utility. In short, the Commissioners attempted to serve as expert witnesses for the Secretary. This is not their role. The Secretary should have called his own expert or experts at the hearing.

      . Such precautions will not, of course, make the broad commands of the general duty clause any more precise and clear to prospective violators of the clause. But any statute or rule of law imposing general obligations raises certain problems of fair notice. Since this case arose, the Secretary has promulgated some specific regulations governing the safety precautions to be used by the construction industry. 29 C.F.R. § 1926. With respect to the general duty clause itself, the Commission can ameliorate the fair notice problem by attending carefully to the statutory definition of a “serious violation”:
      [A] serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
      29 U.S.C. § 666(j). When the hazard involved is a form of hazardous conduct by employees, an employer’s safety program is in “serious” violation of the general duty clause only if (1) the misconduct involves a substantial risk of harm and is substantially probable under the employer’s regime of safety precautions, or (2) the employer, with the exercise of reasonable diligence, could have known that its safety program failed the standards of the clause by failing to preclude the occurrence of preventable misconduct. If either condition applies, it is hardly unfair for the Commission to assume that the defendant-employer had at least constructive notice that the law required more than was being done. Only if a violation is serious is a penalty necessarily imposed. Compare 29 U.S.C. § 666(b) with 29 U.S.C. § 666(c). While the Commission has the clear authority to impose a penalty even if the violation is not serious, a zero penalty, coupled with an abatement order, would obviously be the proper response where the Commission determined that the defendant-employer had no notice, i. e., no duty to know, that its safety regime was defective.
      Given our disposition of this case, there is no occasion to decide if National Realty’s violation, properly proved, would be “serious.”


text:
    NATIONAL ASSOCIATION OF INSURANCE AGENTS, INC., Petitioner, v. The BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, Respondent, The National Association of Life Underwriters, Intervenor.
    No. 72-1938.
    United States Court of Appeals, District of Columbia Circuit.
    Jan. 9, 1974.

      Herbert E. Marks and Thomas J. Ba-cas, Washington, D. C., were on the brief for petitioner.
    William N. Albus, Washington, D. C., was on the brief for intervenor.
    Harlington Wood, Jr., Asst. Atty. Gen., and Walter H. Fleischer, and Robert S. Greenspan, Attys., Dept, of Justice, were on the brief for respondent.
    Before BAZELON, Chief Judge, and McGOWAN and MacKINNON, Circuit Judges.
   PER CURIAM:

This petition for direct review under Section 9 of the Bank Holding Company Act (12 U.S.C. § 1848) seeks to set aside a rule issued by the Federal Reserve Board which purports to interpret one of its own regulations (12 C.F.R. §§ 225.4(a)(9) and 225.128). It is variously asserted that, in doing so, the Board acted improperly without notice and hearing, failed to articulate adequate reasons, and lacked the support of substantial record evidence. The Board, in addition to challenging these assertions, contends that we are without jurisdiction to review the rule in question. We look to the setting in which the controversy arose.

The 1970 amendments to the Bank Holding Company Act extended its coverage to one-bank holding companies, and authorized the Federal Reserve Board to exempt from the general prohibition against engaging in non-banking activities such “activities which the Board after due notice and opportunity for hearing has determined (by order or regulation) to be so closely related to banking or managing or controlling banks as to be a proper incident thereto.” 12 U.S.C. § 1843(c) (8). The Board in 1971 gave notice of a proposed regulation identifying a number of activities to be considered permissible for bank holding companies, including “acting as insurance agent or broker principally in connection with extensions of credit . . . ,” and invited public comment on its proposal. Petitioner participated actively in the hearings held on this proposal, urging among other things that the Board be more specific in its delineation of permissible insurance activities. Following the hearings, the Board promulgated in August, 1971, a regulation which enumerated permissible types of insurance activities. Thereafter petitioner challenged applications filed with the Board by individual bank holding companies for approval to engage in certain insurance activities, claiming that such activities fell outside the scope of the legislative authorization.

The Board did not approve any of the bank holding companies’ applications, nor schedule hearings on them. In September, 1972, the Board issued the'rule under attack here, setting forth its views on the meaning of some of the terms used in its regulation of August, 1971. This was done without prior notice or opportunity to comment, and it is this rule that petitioner, and intervenor National Association of Life Underwriters, urge us to set aside. Petitioner filed its brief in January, 1973. In March, 1973, the Board scheduled hearings on the individual bank applications pending before it, as to which petitioner had manifested its purpose actively to oppose.

Petitioner’s claim is essentially that the 1972 rule has the effect of a “determination” that particular insurance activities are permissible for bank holding companies, and thus is subject to the notice and hearing requirements of 12 U.S.C. § 1843(c) (8), pp. 1269, 1270, supra. This court long ago recognized the difference, in terms of the necessity for notice and hearing, between regulations having the force of law, on the one hand, and interpretative rules, on the other:

Administrative officials frequently announce their views as to the meaning of regulations. Generally speaking, it seems to be established that ‘regulations’ . . . are those which create law, usually implemen-tary to an existing law, whereas interpretative rules are statements as to what the administrative officer thinks the regulation means. (Emphasis supplied). Gibson Wine Co. v. Snyder, 90 U.S.App.D.C. 135, 194 F.2d 329 (1952).

This difference is also reflected in the Administrative Procedure Act, 5 U.S.C. § 553(b) (3) (A), wherein it is specifically stated that the notice and hearing requirements of that statute do not apply to “interpretative rules.” See K. Davis, Administrative Law Treatise, §§ 5.03-5.-04 (1958).

The statement emanating from the Board sought to be reviewed here appears to fall within the interpretative rule category, as distinct from the earlier regulation promulgated by the Board after notice and hearing. The latter begins with the statement that “[t]he following activities have been determined by the Board to be so closely related to banking, or managing or controlling banks as to be a proper incident thereto . . . ,” and goes on to enumerate such activities. The 1972 rule under challenge, in contrast, begins with the observation that “[i]n the course of administering this 1971 regulation, a number of questions have arisen concerning the scope and terms of the Board’s regulation. The Board’s views on some of these questions are set forth below.” Throughout the following part of the rule, the Board’s views are stated in terms of “the Board regards . . . ” or “the Board generally will regard . . .,” and there is no suggestion that these views have the finality or force of the specifications made in the earlier regulation.

This circumstance, in addition to appearing to refute the claim that the rule was improperly issued without notice and hearing, raises a very serious question indeed with respect to its reviewability under Section 9 of the act. That statute uses the standard language of review of “an order” by an aggrieved party, and it explicitly contemplates review on a record made before the Board. Thus it would appear very doubtful indeed that the direct review of agency action by this court, authorized by Section 9, extends to the rule that is the subject of the petition.

In any event, in light of petitioner’s ability to oppose, in the hearings required to be held before any bank holding company can be permitted to engage in insurance activities, particular applications of the 1971 regulation with the gloss of the 1972 rule, and the clear contemplation of the Act that Board adjudication based upon an adversary hearing record is the only available avenue to such permission, only the strongest showing of the immediate and inescapable effect of the mere announcement of the Board’s interpretation of its duly promulgated regulation would suffice to advance review to the abstract stage at which it is now being sought. Obviously petitioner would find it more convenient to make its objection generally rather than in the context of each particular application proceeding. But that in no way distinguishes the challenged regulation from other clearly interpretative, unreviewable regulations such as those issued routinely by the Internal Revenue Service.

This petition for review, thus, seems premature at best. Petitioner does not deny that it can oppose before the Board and seek court review of particular application approvals, should there be any, with which it disagrees. Its argument that the challenged rule forecloses particularized challenges before the Board —at least with any hope of being considered on the merits — is unsupported and unsupportable. See note supra.

Dismissed.

       In its brief in this court, the Board characterizes its rule as “provisional and tentative in nature,” as not intended “to irrevocably commit the Board ... to a position,” and as simply a guide “which could be relatively easy to modify if the Board is later persuaded that its interpretation is inadvisable . . .” The Board is, thus, hardly in a position to rely on the rule as foreclosing, in individual application proceedings, any interested party from contesting the validity of the interpretation, with judicial review available of the resulting order of approval if it fails to persuade the Board.
      Indeed, the Board in its brief expressly disclaims any such foreclosure.


author: By the Court:

text:
    Ernest Jackson COTTLE, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant.
    No. 72-1673.
    United States Court of Appeals, Fifth Circuit.
    Feb. 22, 1974.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellant.
    Moe B. Safer, Jacksonville, Fla. (Court-appointed), for petitioner-appel-lee.
    Before BROWN, Chief Judge, TUT-TLE, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINS-WORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   By the Court:

The Court on its own motion having taken the case for rehearing en banc, the en banc Court is dissolved and the cause remanded to the panel for disposition. [For panel disposition see- F. 2d-] See Gagnon v. Scarpelli, 1973, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; Wainwright v. Cottle, 1973, 414 U.S. 895, 94 S.Ct. 221, 38 L.Ed.2d 138.


author: By the Court :

text:
    Roy Alton LANE, Petitioner-Appellant, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent-Appellee.
    No. 72-1747.
    United States Court of Appeals, Fifth Circuit.
    Feb. 22, 1974.
    . William A. Clineburg, Jr., Atlanta, Ga. (Court-appointed), for petitioner-appellant.
    John W. Stokes, Jr., U. S. Atty., P. Bruce Kirwan, William P. Gaffney, Asst. U. S. Attys.', Atlanta, Ga., for respondent-appellee.
    Before BROWN, Chief Judge, RIVES, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINS-WORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   By the Court :

The Court on its own motion having taken the case for rehearing en banc 5 Cir., 488 F.2d 534, the en bane Court is dissolved and the cause remanded to the panel for disposition. See Gagnon v. Scarpelli, 1973, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; Wainwright v. Cottle, 1973, 414 U.S. 895, 94 S.Ct. 221, 38 L.Ed.2d 138.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FLORIDA-TEXAS FREIGHT, INC., Respondent, Truck Drivers, Chauffeurs, Helpers Local Union No. 100, Intervenor.
    No. 73-1775.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 30, 1974.
    Decided Feb. 7, 1974.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, William Wachter, Douglas S. McDowell, Attys., National Labor Relations Board, Washington, D. C., on brief for petitioner.
    Robert O. Smith, Cincinnati, Ohio, on brief, for respondent: Florida-Texas Freight, Inc.
    Sorrell Logothetis, Knee, Snyder & Parks, Dayton, Ohio, on brief, for in-tervenor: Truck Drivers, Chauffeurs & Helpers Local Union No. 100.
    Before MeCREE and LIVELY, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   ORDER

In this ease the National Labor Relations Board seeks enforcement of its order issued against the respondent Florida-Texas Freight, Inc. and reported at 203 N.L.R.B. No. 74. The Board found that the respondent had violated § 8(a)(5) of the Act by unilaterally sub-contracting work without adequate notice to and consultation with the in-tervenor union. Florida-Texas maintains that the reason for sub-contracting was economic and that its decision to do so did not result from anti-union animus. We note that the Company did not file exceptions to the finding of the Administrative Law Judge that it had committed Section 8(a)(1) violations prior to the representation election which occurred just a few months prior to the dispute over sub-contracting. The Company also maintains that it attempted to bargain on the issue of sub-contracting and that the agreement signed with the sub-contractor contained a cancellation clause which would permit the Company to rehire its former employees for the work of the unit if an agreement were reached with the Union. No union contract was signed.

Based upon examination of the record, briefs and arguments in this case, we are of the opinion that the findings of the Board are supported by substantial evidence and we are therefore bound by them. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We are of the further opinion that these findings justify the legal conclusions reached by the Board. Accordingly, we hereby order enforcement of the Board’s order.