dissenting.
I, and apparently the majority and every court that has considered the issue, agree that the use of personal sampling devices is reasonable. The majority, however, believes that the “reasonable investigative technique” language of 29 C.F.R. § 1903.7 fails to give fair warning of whether personal sampling devices are included. I cannot agree.
There is no evidence here that personal sampling is a more dangerous, intrusive, or otherwise unreasonable investigative technique than others. It seems to me, for example, that an employee would be safer wearing the sampling device than if instead an OSHA official wore the device and hovered nearby, attempting to duplicate that employee’s work experience. In fact, the only evidence I have seen referred to in the cases discussed by the majority demonstrates that personal sampling differs from other techniques in only one major respect — it is more efficient.
Nonetheless, the majority concludes that the Secretary has not stated with “ascertainable certainty” what is meant by the regulation he has promulgated. Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). I fail to see the uncertainty. As the majority itself notes, the express purpose of the Act was to assure “as far as possible” a safe and healthful working environment, 29 U.S.C. § 651(b); the Secretary of Labor is explicitly empowered to make reasonable inspections and investigations of places of employment and “all pertinent conditions” therein, 29 U.S.C. § 657(a). Pursuant to his statutory authority, the Secretary has promulgated 29 C.F.R. § Í903.7, which authorizes OSHA employees to “take environmental samples” and “employ reasonable investigative techniques.” There is, as the majority concedes, no potential double meanings in the language of the regulation as there was in the cases on which they rely. Moreover, the statutory concern with “as far as possible” ensuring a healthful work environment makes it not in the least uncertain that personal sampling devices used to measure the breathing zone of employees are within the scope of a regulation authorizing “reasonable investigative techniques.”
It is undisputed that for almost ten years the Secretary has interpreted the regulation to authorize the use of personal sampling devices. Giving deference to OSHA’s consistent interpretation, the majority could have held that OSHA has the authority to permit employees to wear personal sampling devices, even with the “fair warning” problem they but not I discern. The employers here have not been held in civil contempt and prospective application would not therefore offend due process:
It is axiomatic that defects in the constitutional sufficiency of a regulatory warning may be cured by authoritative interpretations which clarify obscurities or resolve ambiguities. Once such a construction has been provided, wholly prospective application of the rule thus established does not offend due process since the interpretive decision itself provides the requisite warning.
Diebold, Inc. v. Marshall, 585 F.2d 1327, 1338 (6th Cir. 1978).
I would reverse the judgment of the district court.