dissenting:
There is little doubt that, following appropriate rulemaking procedures, the Secretary of Labor could have promulgated an MRP benefits regulation assuring employees transferred to non-lead-exposed areas not only their pre-transfer hourly wage, but also guaranteed overtime, shift differentials, paid lunch hours, etc. The Secretary did not, however, give employers fair notice that “earnings,” as used in 29 CFR § 1910.1025(k)(2)(ii), would be so construed. I therefore respectfully dissent from Judge Goldberg’s able and persuasive opinion. I would hold the broadened MRP “earnings” standard void for failure to comport with due process and the requirements of notice and comment rulemaking.
MRP provisions enacted prior to the lead standard protected only an employee’s hourly rate of pay. Federal Coal Mine & Safety Act of 1969, 30 U.S.C. §§ 801-962, at § 843(b)(3); the asbestos standard, 29 C.F.R. § 1910.1001(d)(2)(iv)(e); proposed coke oven emission standard, 41 Fed.Reg. 46780. The Secretary’s first proposed lead-exposure standard, interestingly, contained no MRP provision. 40 F.R. 45934. When he extended the comment period to consider an MRP provision, he referred interchangeably to maintaining the “rate of pay” of a transferred employee and protecting the employee so there would be no “loss of earnings.” 42 Fed.Reg. 46547, 46549 (September 17,1977). This language used in regard to the lead standard MRP rate retention program parallels that of the preceding statute and regulations. The majority acknowledge that the interchangeable use of “rate of pay” and “earnings” in the preamble to the final regulation is *324“inartful.” 1 I think it is more than that. Despite the Secretary’s later discovery of expanded protection for MRP-transferred employees, no comments were received from industry during the lead MRP rule-making concerning the impact of MRP on such diverse matters as paid lunch hours, overtime not actually worked, or transfers for disciplinary reasons.2
The majority cite the preamble to the final rule as evidence of the Secretary’s intent to broaden the definition of “earnings” from prior usage. However, what may have been predictable at the time the final rule was issued was not necessarily predictable during the comment period. During the comment period, the best indication of the Secretary’s intentions to interested parties was his prior usage of the terms. Moreover, the Secretary admits that “earnings” had a much narrower meaning when previously used.
One year after promulgating the lead standards, the Secretary issued an explanatory bulletin that first propounded an expanded definition of “earnings” for MRP purposes. This definition holds employers responsible for a broad range of MRP payments they did not previously know they would bear.3 The payments will be expensive, inasmuch as they may afford more compensation to transferred employees than they previously received.4 Their application is ambiguous, because the Secretary’s case-by-case approach does not inform employers exactly when and how compensation beyond the employee’s usual hourly rate must be paid. Should overtime, for example, be paid to a transferred employee based on that employee’s personal prior overtime record, the average historical overtime record for the department from which he transferred, or the average overtime during the period while he is transferred? One need not exhaustively recount the possible forms of “compensation” covered by MRP — the Christmas party, the production bonus, etc. — or the myriad ways in which such compensation could be computed to conclude that the Secretary’s definition of “earnings”, adopted by the majority, represents a complex and significant graft onto the scope of MRP protection.
The potential cost of expanded MRP benefits to employers, the inherent ambiguity of the construction urged by the Secretary, and the departure from the Secretary’s pri- or use of “earnings” synonymously with “rate of pay” all strongly suggest that the Secretary should have afforded precise, pri- or notice of his rulemaking intentions to the public. Rulemaking by afterthought is unfair. Two purposes of notice and comment rulemaking are to afford interested persons the opportunity to participate in the agency regulatory process and to expose the agency to the practical implications of its actions. Chamber of Commerce of United States v. OSHA, 636 F.2d 464, 470-71 (D.C.Cir.1980). That the Secretary did not adequately open this issue for evaluation is nowhere more evident than in the fact that not a single comment was *325received from industry, during the rule-making, explaining the difficulties in expanding MRP protection beyond an employee’s hourly rate of pay. The purposes of notice and comment rulemaking were plainly unfulfilled.
Due process also counsels against enforcing the Secretary’s citations against these appellees. Our Court has not hesitated to vacate enforcement proceedings initiated by the Secretary on unclear regulations. As we have said, “An employer ... is entitled to fair notice in dealing with his government. Like other statutes and regulations which allow monetary penalties against those who violate them, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents____ If a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express.” Diamond Roofing v. OSHRC, 528 F.2d 645 (5th Cir.1976). More recently, we emphasized that “Due process mandates that an employer receive notice of the requirements of any OSHA regulation before he is cited for an alleged violation.” S & H Riggers and Erectors v. OSHRC, 659 F.2d 1273, 1279 (5th Cir.1981).
In my view, the Secretary’s construction of “earnings,” following a clear history in which that term was used to mean hourly rate retention, cannot be expanded to include non-hourly-rate MRP provisions without notice and comment rulemaking procedures. The Secretary’s contrary contention here bids fair to place him on a level with Humpty Dumpty. “When I use the word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.” Lewis Carroll, Through the Looking Glass. Publishing an explanatory bulletin on lead MRP benefits a year after the regulation was implemented cannot repair the Secretary’s failure to engage in proper rulemaking. The Secretary’s definition of “earnings,” in these circumstances, is therefore unreasonable. I respectfully dissent.
. In the preamble to the lead standard, 43 Fed. Reg. 52952ff and 54354, the Secretary stated "in most cases this [the requirement to maintain earnings, etc.] will simply mean that an employer must maintain the rate of pay of a worker transferred to a low-lead-exposure job," (emphasis added).
. The Secretary's ambiguous response in declining the steelworkers’ request for a definition of "earnings," 43 Fed.Reg. 54466, can hardly been said to have alerted employers that a considerably broader MRP provision was about to be implemented. In any event, this response accompanied publication of the final lead standard, including its MRP provision, and came too late to permit effective opposition by industry.
. 44 Fed.Reg. 60980, 60987 (Oct. 23, 1979). Indeed, the fact that the Secretary issued this appendix after rejecting the United Steel Workers’ request for a similarly expansive definition in the original rule is evidence that the appendix represents a change in the regulations. This type of change cannot be accomplished with a mere appendix. Rather, full notice and comment procedures must be followed.
. As the appellees here contend, the Secretary's citations require them, e.g., to pay overtime for hours not worked, to pay eight and a half hours' wages for an eight hour work day (to compensate for previous paid lunch periods), and to pay employees who were transferred solely because they failed to comply with safety procedures designed to lessen their lead exposure.