dissenting as follows:
It is important at the outset to note what is not at stake in this appeal. Nothing we do here can restore the lives of the two victims of this industrial accident. Our decision will not affect the survivors’ compensation rights. An affirmance of the Commission’s decision vacating the citation will not prevent the agency from correcting a continuing hazard if one exists. By giving proper notice and following its own minimum procedures, the agency can take all the necessary steps to deal with the problems that legitimately concern it.
What technically is at stake is a $300 civil penalty. What more importantly is at risk, however, is something so fundamental to our selected order of liberty that it is twice expressly incorporated into the Constitution — due process. This appeal focuses on the cornerstone of due process — the right to timely notice and the opportunity to be heard at a time calculated to best serve the interests of the accused1 and the cause of truth. C. F. & I. was not afforded these due process rights whether the agency’s actions are measured by the broad standards of the Constitution or even by the more limited standards of the agency’s own regulations.
This accident occurred at a large industrial site owned by C. F. & I. Steel Corporation. While work was being performed at the site by State, Inc., an independent contractor, an explosion in the basic oxygen furnace area caused the deaths of two State, Inc. employees. In compliance with the legal requirements governing a site owner in such circumstances, C. F. & I. notified the Occupational Safety and Health Administration (OSHA) of the deaths and the agency decided to investigate. What followed is the rub.
PRELIMINARY QUESTIONS
What are the agency’s own minimum standards of conduct in pursuing an investigation?
Sections 8(a) and (e) of the Occupational Safety and Health Act require that agency inspectors present “appropriate credentials to the owner” before commencing an inspection, and that a representative of the *815employer “be given an opportunity to accompany the [inspectors] during the physical inspection of any workplace . for the purpose of aiding such inspection.” 29 U.S.C. §§ 657(a), (e) (1970). The Secretary’s own regulations further require:
At the beginning of an inspection, Compliance Safety and Health Officers shall present their credentials to the owner, operator, or agent in charge at the establishment; explain the nature and purpose of the inspection; and indicate generally the scope of the inspection and the records . . . which they wish to review.
29 C.F.R. § 1903.7(a) (1977). The regulations also refer to the opportunity to accompany agency inspectors as “the right of accompaniment.” Id. at § 1903.8(d). The courts have confirmed the obvious — that these minimum standards are mandatory. See e. g., Chicago Bridge & Iron Co. v. OSHRC, 535 F.2d 371, 375 (7th Cir. 1976).
What had been the agency’s past practice on which C. F. & I. might reasonably have relied?
At all 20 plus previous inspections of C. F. & I. the inspectors always presented their credentials at the outset. Record, vol. 2, at 283. At all previous inspections opening conferences with C. F. & I. had been held. Id. at 281-82. The primary purpose of an opening conference is to provide notice of the inspection and an explanation of its scope and purpose to those “in charge at the establishment.” See 29 C.F.R. § 1903.-7(a) (1977). At all previous inspections the management officials in charge of the inspected areas had been allowed to accompany and had accompanied the inspectors. Record, vol. 2, at 283; id., vol. 3 (report of admin, law judge at 9).
What did the agency do in this case?
The administrative law judge found what the uncontradicted testimony showed — that “[credentials were not presented.” Record, vol. 3 (report of admin, law judge at 8); see id., vol. 2 at 263. An opening conference was held with the top management of State, Inc., but it is uncontradicted that C. F. & I. safety personnel “were specifically told no C. F. & I. personnel were to be in that conference.” Id., vol. 2, at 264. There is sharp conflict as to whether a C. F. & I. employee may nonetheless have been present, but the conference was stated to be for State, Inc. only and was “never represented to be an opening conference with C. F. & I.” Id. at 306. In fact, the only conference ever held with C. F. & I. management personnel was the closing conference after the inspection had been concluded and the determination had been made to “probably” cite C. F. & I. Id. at 262-63, 289, 301. C. F. & I. management personnel responsible for the basic oxygen furnace area did not accompany the inspectors. Id., vol. 3 (report of admin, law judge at 9). C. F. & I.’s safety officer testified he did not arrange for their presence because “[w]e were told this was strictly a State, Incorporated, investigation and CF & I personnel would not be needed.” Id., vol. 2, at 265. The first time the inspectors requested the presence of C. F. & I. management was at the closing conference. Id. at 262.
What did the expert commission charged with the fact finding and rule interpretation functions decide were the facts?
The Commission2 found:
no question exists that [C. F. & I.] was not informed that it was going to be inspected until the day after it had occurred.
. [C. F. & I.] was effectively foreclosed from any opportunity to have its representative accompany the compliance officer during the inspection.
In fact, the actions of [the inspectors] led [C. F. & I.] to believe that it would not be inspected. Consequently, [C. F. & I.] had no cause to attempt to *816assert its right to accompany the inspectors.
C. F. & I. Steel Corp., 4 OSHC 1649, 1649-50 (1976) (emphasis in original). The majority erroneously characterizes these findings as “conclusions of law.”
What authority does this court have to interfere with the decision of the Commission to set aside the citation?
The relevant statutes provide: “The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.” 29 U.S.C. § 660(a) (1970). “The reviewing court shall . hold unlawful and set aside agency action, findings, and conclusions found to be . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2) (1976). When these standards of review are applied in this case as we have consistently applied them in the past, we have no alternative but to affirm.
DISCUSSION
Entry by government officials onto private property for inspection purposes ordinarily requires issuance of a warrant, even for purely administrative inspections. See v. City of Seattle, 387 U.S. 541, 545, 87 U.S. 1737, 18 L.Ed.2d 943 (1967); Camara v. Municipal Court, 387 U.S. 523, 534, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). In Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 90 S.Ct. 774, 777, 25 L.Ed.2d 60 (1970), the Supreme Court explained: “Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow .the Fourth Amendment and its various restrictive rules apply.” Even when statutory or regulatory procedures are substituted for Fourth Amendment warrant requirements, these procedures must “provide substantially the same assurances [as a warrant].” United States v. Martinez-Fuerte, 428 U.S. 543, 565, 96 S.Ct. 3074, 3086, 49 L.Ed.2d 1116 (1976). Any “regulatory inspection system” seeking to avoid application of the Fourth Amendment warrant requirement must insure that inspections are “carefully limited in time, place, and scope.” United States v. Biswell, 406 U.S. 311, 315, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972).
The issue of the constitutionality of warrantless OSHA inspections is presently before the Supreme Court in Marshall v. Barlow’s, Inc., 430 U.S. 964, 97 S.Ct. 1642, 52 L.Ed.2d 354 (1977), noting prob. juris, in 424 F.Supp. 437 (D.Idaho 1976) (three-judge panel). Whether or not warrants are required for OSHA inspections, the sections 8(a) and (e) procedures should be meticulously followed to minimize the risk of unreasonable intrusion. See Brennan v. Buckeye Indus., Inc., 374 F.Supp. 1350, 1354 (S.D.Ga.1974).
A principal purpose of the search warrant is to give notice of authority to search. The presenting of credentials in an OSHA inspection likewise gives notice of the inspection’s lawfulness and of the inspector’s right to investigate. A warrant also gives notice of limits on the scope of a search. The section 8(a) explanation of scope and purpose of the inspection at the opening conference serves this purpose in an OSHA inspection.3 The procedure would be constitutionally inadequate if the employer were “left to wonder about the purposes of the inspector or the limits of his task.” United States v. Biswell, 406 U.S. at 316, 92 S.Ct. at 1596. Giving notice of accidents as required by law cannot remotely be considered a waiver of these notice requirements without raising other serious constitutional problems.
*817Individuals subjected to a search have the right to insure that it is kept scrupulously within its declared limits, whether the search is based on consent or warrant. United States v. Dichiarinte, 445 F.2d 126, 129-30 & n. 3 (7th Cir. 1971); see United States v. Peterson, 524 F.2d 167, 178 (4th Cir. 1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99, 424 U.S. 925, 96 S.Ct. 1136, 47 L.Ed.2d 334 (1976); cf. State v. Martelle, 252 A.2d 316, 321 (Me.1969) (tenant had right to be present during warrant search of apartment). Even if a principal purpose of the section 8(e) walkaround right is to aid the inspection, this statutory right also functions as a key safeguard in providing employers the opportunity to monitor inspections to insure they are kept within their declared scope. Indeed, the Secretary requires inspectors to honor all employer objections to any part of an inspection until the disputes are resolved under established procedures. 29 C.F.R. § 1903.4 (1977). The walkaround right also helps employers protect their interests by giving opportunity for on the spot input and clarification to aid the inspectors in their evaluations. See 29 C.F.R. § 1903.7(e) (1977).
Effective exercise of these rights to object, clarify, or otherwise guard his interests presupposes employer awareness that he is being inspected. That is, substantial compliance with section 8(e) cannot be achieved when an employer is not informed that he is under scrutiny or made aware of the scope of the investigation. Since section 8(e) itself does not require notice of an inspection or its authority and scope, section 8(e) must be read together with section 8(a). Satisfactory compliance with section 8(e) depends on adherence to the notice requirements of section 8(a), for only when an employer is aware that an inspection is intended, that the inspectors have proper authority and that the scope of the inspection is limited will an employer be able to guard the interests protected by section 8(e).
Sections 8(a) and (e) were not complied with in this case. No credentials were presented. In fact, the C. F. & I. safety officer, although previously acquainted with the inspectors, did not know the lead inspector was authorized to make safety inspections. C. F. & I. was not only “left to wonder about the purposes of the inspector or the limits of his task,” see United States v. Biswell, 406 U.S. at 316, 92 S.Ct. 1593, which alone would invalidate the inspection, it was actively misled into believing it was not being inspected by assurances that the inspection “was strictly a State, Incorporated, investigation.” Record, vol. 2, at 265.
The inspectors failed to provide C. F. & I. with any opening conference explanation of the inspection’s scope and purpose as required by the agency’s own regulations. “[W]e surely must require the agency to adhere to its own pronouncements, or explain its departures from them.” Squaw Transit Co. v. United States, (10th Cir. 1978), 574 F.2d 492, at 496. This is particularly true when its announced procedures are intended to justify warrantless searches by allegedly providing “substantially the same assurances [as a warrant].” United States v. Martinez-Fuerte, 428 U.S. at 565, 96 S.Ct. at 3086.
C. F. & I. was deprived of its right under the regulations to designate its “authorized” representative to accompany the inspection team. See 29 C.F.R. § 1903.8(b) (1977). Indeed, the inspectors declared that “CF & I personnel would not be needed.” Record, vol. 2, at 265. Mere presence and passive observance by the employer’s safety officer or his assistant during portions of the inspection are clearly insufficient to fulfill the intended designs of section 8(e), especially in the absence of proper section 8(a) notice that the investigation was directed at C. F. & I. Having been excluded from the opening conference and having been told that C. F. & I. was not being investigated and that presence of management personnel was not needed, the safety officer can hardly be said to have been present as a section 8(e) protector of employer rights.
The majority seeks to excuse the agency’s failures by saying that “[b]efore the inspection was carried out, it was not possible for *818the inspectors to advise C. F. & I. that they might be cited.” It was also not possible to advise State, Inc. at that time that it might be cited, yet the inspectors provided State, Inc. with required notice, explanations and right of accompaniment. Certainly, it is not too much to expect that inspectors present credentials and explain the nature and scope of the inspection to all employers present at the same site. Since upon arrival the inspectors could not know which, if either, employer was guilty of any violations, the reasonable approach would have been to make their intrusion lawful as to both by giving the statutory notice, the explanation of scope and purpose, and the walkaround right to both employers.
It is not the prerogative of this court to excuse failure — only to determine whether the Commission was arbitrary in its decision not to disregard the agency’s failure to conform to the statutory mandates. The findings of the Commission are supported by overwhelming evidence in the record. Indeed, had the Commission opted for a contrary result, there would be insufficient evidence in the record to sustain the findings. If sections 8(a) and (e) are the intended bulwarks against unreasonable intrusions from OSHA inspections, then the level of alleged compliance in this case falls far short of that which would be sufficient.
The majority seeks to saddle C. F. & I. with the onus of proving it was prejudiced by the agency’s failings. Whether substantial compliance with sections 8(a) and (e) is adequate employer protection when coupled with a showing by the Secretary that the employer was not prejudiced by any minor breach might be questioned. But certainly, under these facts where noncompliance is so glaring, the Secretary should not be able to insulate careless disregard of statutory rights by a rule requiring an affirmative showing of specific prejudice by the employer. To require an employer to prove how his representative’s presence would have affected an inspection would be an impossible burden rendering the statutory requirements a nullity.
The Commission vacated the citation because no evidence was offered which was not tainted by the disregard of the walkaround right. C. F. & I. Steel Corp., 4 OSHC at 1650 n. 6. There is less impact from evidence suppression in such administrative hearings than in criminal cases because the inspectors can return and reinspect, employing proper procedures. The Secretary argues that return inspections impose an unreasonable strain on the agency’s already limited manpower. Appellant’s Brief at 27. The best solution is to follow proper procedures the first time, but lack of personnel certainly should be no justification for riding rough shod over employer rights. The fault for delay lies with the agency; the remedy lies there also. It is novel indeed to argue in effect that procedures which serve as the employers’ Fourth Amendment protections are merely desirable and must yield if enforcement officers find them inconvenient due to a shortage of personnel.
The risk of mortal injury described in this case is grave. Where such risks exist in violation of the Act, their swift abatement is imperative. The gravity of a violation, however, should not cause this court to blink at the disregard of key procedural safeguards.
. This appeal involves only a civil penalty, but any OSHA investigation might also result in imposition of criminal sanctions. See 29 U.S.C. §§ 666(e)-(g) (1970). The need for proper notice at the beginning of an investigation is even more compelling because of this risk of criminal penalty particularly when, as the majority notes, “[bjefore the inspection was carried out, it was not possible for the inspectors to advise C. F. & I. that they might be cited” — either civilly or criminally.
. It is, of course, the findings of the majority, not the dissenting, commissioners which are binding on this court.
. Compliance with the § 8(a) notice of authority and purpose requirements is essential to allow opportunity for timely objection to the lawfulness of the inspection as a whole. See 29 C.F.R. § 1903.4 (1977). Some courts have held that when an employer objects to inspection, a warrant must be obtained before inspection will be permitted. See, e. g., Dunlop v. Hertzler Enterprises, Inc., 418 F.Supp. 627, 631 (D.N.M.1976) (three-judge panel), appeal docketed, No. 76-2020 (10th Cir. Nov. 5, 1976); Brennan v. Gibson’s Prod., Inc., 407 F.Supp. 154, 162 (E.D.Tex.1976) (three-judge panel). Failure to provide § 8(a) notice of an inspection would preclude an employer’s exercise of the right to object.