concurring and dissenting.
I share the majority’s concern about the Secretary’s change in legal position on this issue after having conceded, for almost twenty years, that the Commission had the authority to reclassify violations as de minimis. Nevertheless, it is clear that an agency may, in appropriate circumstances, alter its previous interpretation of a statute. See Rust v. Sullivan, — U.S. - — , ——, 111 S.Ct. 1759, 1769, 114 L.Ed.2d 233 (1991); International Assoc. of Bridge, Structural and Ornamental Iron Workers, Local 3 v. NLRB, 843 F.2d 770, 776-77, 779 (3d Cir.), cert. denied, 488 U.S. 889, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988). And in the present case, I believe that recent changes in the legal landscape satisfactorily explain the Secretary’s altered position. See Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (hereinafter “CF & I”) (a reviewing court must defer to the Secretary’s, rather than the Commission’s, reasonable interpretation of an ambiguous regulation because the Secretary’s legislative and enforcement roles leave her better positioned to reconstruct the purpose of the regulation and to assess its effects); Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 106 S.Ct. 286, 88 L.Ed.2d 2 (1985) (the Secretary’s decision to *140withdraw a citation may not be reviewed by the Commission).
I also believe, based on both the specific provisions of the Occupational Safety and Health Act (“OSHA” or “the Act”) and its general structure, that the Secretary’s new position is legally correct. First, as I read the Act, § 658(a) explicitly gives the Secretary the discretion either to issue a citation or a notice in lieu of a citation regarding de minimis violations that do not directly or immediately impact employees’ safety or health. 29 U.S.C. § 658(a) (1988). In my view, this decision is part of the Secretary’s unreviewable prosecutorial (charging) discretion.
Second, I agree with the Secretary that the traditional view that the Act establishes three levels of severity for adjudicating violations — (1) serious, (2) not serious, and (3) de minimis 1-is mistaken. Rather, as I read it, the Act establishes only two severity levels for adjudicatory purposes — serious and not serious. The de minimis determination is not a third severity level, but a preliminary charging determination committed to the prosecutorial discretion of the Secretary, who may under 29 U.S.C. § 658(a) decide to issue either a citation or a de minimis notice for a certain subset of not serious violations; i.e., those de minimis violations that do not have a direct or immediate impact on employee health or safety.
Third, I also agree with the Secretary that the Commission’s broad grant of adjudicatory authority to “direct[] other appropriate relief,” 29 U.S.C. § 659(c) (1988), does not necessarily include the power to reclassify a violation as de minimis. It is unclear to me why such relief is either appropriate or necessary to the Commission’s performance of its general adjudicatory functions.
Finally, I believe the Secretary’s argument is correct in terms of the division of administrative functions established by OSHA. If the Commission has the authority to reclassify a violation as de minimis, it effectively has the power to review and overrule the Secretary’s original decision to issue a citation rather than a de minimis notice. The choice between a de minimis notice and a citation, however, involves both policymaking and prosecutorial decisions, functions that the Act delegates exclusively to the Secretary. I therefore disagree with the majority’s view that the Commission has the authority to reclassify a violation as de minimis.2
I.
I begin my analysis with the language of § 658(a):
If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a [valid OSHA standard or regulation], he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the chapter, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health.
29 U.S.C. § 658(a). As I read this language, the decision whether to issue a citation or a notice in lieu of a citation for a de minimis violation is explicitly committed to the discretion of the Secretary.
The section, purposefully I believe, draws a distinction between the Secretary’s discretionary authority (what the Secretary “may” *141do) and his mandatory authority (what the Secretary “shall” do). With one exception, the Secretary is required to issue a citation and to provide for abatement any time he discovers a violation. The one exception is that the Secretary may, in his discretion, prescribe procedures for issuing a notice instead of a citation for violations that are de minimis and bear “no direct or immediate relationship to safety or health.” Id.
If the Secretary chooses to exercise this discretion, a citation will not be issued. Instead, the Secretary will issue a notice “in lieu of a citation.” Id. The distinction is meaningful because, as discussed infra, a de minimis notice has none of the legal effects of a citation — most importantly, it cannot be a mechanism for forcing abatement. Thus, § 658(a) grants to the Secretary the initial charging discretion either to subject an employer to the legal ramifications of a citation or, instead, to issue what amounts to a warning through a de minimis notice. This initial charging decision is a classic example of the prosecutorial discretion committed to the Secretary under OSHA’s divided administrative responsibilities.
In Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 106 S.Ct. 286, 88 L.Ed.2d 2 (1985), the Supreme Court held that under OSHA’s division of administrative functions the Secretary had the unreviewable discretion to withdraw a previously issued citation. The Court reasoned:
It is the Secretary, not the Commission, who sets the substantive standards for the work place, and only the Secretary has the authority to determine if a citation should be issued to an employer for unsafe working conditions, 29 U.S.C. § 658. A necessary adjunct of that power is the authority to withdraw a citation and enter into settlement discussions with the employer.
Id. at 6, 106 S.Ct. at 288.3 It seems axiomatic that if “the Secretary has the [unreviewable] authority to determine if a citation should be issued to an employer,” even when the terms of the Act make the. issuance of citation mandatory, as they do for non-de minimis violations, then the decision to issue a citation for a de minimis violation, which the Act specifically makes discretionary, must also be unreviewable. Both decisions fall squarely within the heart of the Secretary’s prosecutorial function.
II.
Traditionally, the Commission has been viewed as having the adjudicatory authority to determine into which of three severity levels a violation falls-serious, not serious, or de minimis.4 Based on the structure of the Act, however, I do not believe that Congress intended to establish three levels of severity.
The Act’s only reference to a de minimis violation, and the reference on which the traditional view relies, is found in § 658(a), a provision that by its terms is concerned solely with the Secretary’s prosecutorial charging decisions. In contrast, the definitions for serious and not serious violations are located in § 666, a provision that governs the assessment of civil and criminal penalties and which explicitly provides a role for the Commission in assessing those penalties. 29 U.S.C. § 666 (1988 & 1991 Supp.).5 From a *142purely structural standpoint, it seems unlikely that if Congress had intended to establish three severity levels it would have established them in completely separate sections, sections that are dissimilar in terms of both their location within the Act and their subject matter. Moreover, it seems unlikely that Congress would place a definition for one of the primary issues in adjudication in a section which, in all other aspects, concerns only conduct by the Secretary that is wholly unreviewable, see Cuyahoga, 474 U.S. 3, 106 S.Ct. 286, 88 L.Ed.2d 2 (1985). From these structural factors, I conclude that Congress never intended de minimis to serve as a level of severity for purposes of adjudication. Rather, as I read the Act, it establishes only two severity levels for a cited violation: (1) “serious violation” and (2) “violation determined not serious.” See 29 U.S.C. §§ 666(b) & (c).
The conclusion that Congress intended only two severity levels for adjudicatory purposes is, I believe, further supported by the language of § 666. While § 666 specifically defines what constitutes a serious violation,6 there is no separate definition for what constitutes a not serious violation. By implication, not serious violations are therefore the set of all violations that do not fit within the definition of a serious violation; i.e., they are, as their name implies, all of those violations that are not serious.
In sum, as I read the Act, de minimis violations are a subset of not serious violations. With regard to this subset, the Secretary has the discretion to issue a citation or merely to issue a notice in lieu of a citation. If the Secretary chooses to issue a citation, however, these violations become, for adjudicatory purposes, indistinguishable from not serious violations. Such a conclusion, I believe, is compelled by the language and the structure of the Act, for a contrary holding would effectively eliminate the Secretary’s ability to effectuate his initial prosecutorial decision.
If the Secretary is to have the discretion under § 658(a) to choose between issuing a citation or a notice for the same technical violation, a result that I believe is compelled by the plain language of § 658(a), then, in order for that decision to be efficacious, the violation on which the Secretary has decided to issue a citation must be treated as a citation and not converted into a de minimis notice by the Commission. To hold otherwise would allow the Commission effectively to review the Secretary’s original decision to issue a citation rather than a de minimis notice, a result that I believe is barred by the reasoning in Cuyahoga, 474 U.S. 3, 106 S.Ct. 286, 88 L.Ed.2d 2 (1985). Accordingly, when, as in the present case, the Commission concludes that a violation has occurred, I would hold that it may not convert the Secretary’s decision to issue a citation on that violation into a legal nullity by reclassifying it as de minimis.
III.
Erie Coke also proffers, and the majority appears to adopt, the argument that the broad delegation of remedial powers to the Commission in § 659(c) necessarily includes the authority to reclassify a violation as de minimis. Subsection (c) provides, in relevant part, that “[t]he Commission shall thereafter issue an order based on findings of fact, affirming, modifying, or vacating the Secretary’s citation or proposed penalty, or directing other appropriate relief....” 29 U.S.C. § 659(e). Erie Coke understandably has not argued that reclassifying a violation as de minimis amounts to the affirmance, modification, or vacatur of a citation. Since the reclassification eliminates the legal ramifications of a citation, it cannot be argued that it is an affirmance or modification. Nor is it a vacatur of the citation since the Commission *143specifically affirms the existence of a violation.
Accordingly, the Commission’s actions, if they are authorized, must be authorized by its general grant of residual remedial power, namely, the ability to direct “other appropriate relief.” But the argument that “other appropriate relief’ necessarily includes the power to reclassify a violation as de minimis, without further elaboration, seems coneluso-ry. In its submission, Erie Coke never explains why the Commission must have the power to reclassify a violation as de minimis or why reclassifying a violation as de minimis is “appropriate relief’ within the language and structure of the Act.
At best, Erie Coke seems to argue that determining the severity level of the violation is a necessary part of the Commission’s adjudicatory function. While I do not believe that it necessarily follows that the Commission must have the power to determine the severity of the violation, I agree that OSHA in fact does give that authority to the Commission.7 As discussed above, however, as I read the Act it creates only two levels of severity for purposes of adjudication — (1) those violations that meet the definition of a serious violation and (2) all other violations that do not meet the definition of a serious violation and are therefore classified as not serious.
In sum, I can think of no structural or policy reason why the Commission must have the power, as part of determining the severity level of the violation, to conclude that, although a violation has occurred, it is not important enough to require abatement. As intimated above and discussed more fully below, that determination would seem to be a policy decision for which the Secretary, not the Commission, is responsible.
IV.
Finally, the Secretary’s position is supported by the overall structure of the Act. First, it is important to recognize that reclassifying the violation as de minimis is,.in its practical and legal effects, tantamount to finding that there has been no violation. While a de minimis finding technically affirms the existence of a violation, the effect of the reclassification is to eviscerate the Secretary’s ability to enforce the underlying regulation. Indeed, because a de minimis notice is not a citation, it can neither be accompanied by a penalty (a fine) nor be the basis for forcing the employer to abate the violation. Super Excavators, Inc., 1991 WL 218314, at *3 (OSHRC Oct. 18, 1991) (Docket No. 89-2253). Moreover, a de minimis notice' “does not become part of an employer’s history of previous violations.” Id. Therefore, it cannot serve as the basis for a finding of willful or repeated violations under 29 U.S.C. § 666(a); nor can it be considered in judging *144the appropriateness of future civil penalties under 29 U.S.C. § 666(j). See Super Excavators, 1991 WL 218314, at *3.8
Second, since reclassifying a violation as de minimis effectively eliminates the Secretary’s ability to force compliance with the regulation, allowing such a procedure seems contrary to both the employer’s general obligation to comply with the regulation and OSHA’s scheme for seeking a variance. An employer, at least in the first instance, has an unequivocal obligation to “comply with occupational safety and health standards promulgated under this chapter.” 29 U.S.C. § 654(a)(2) (1988). While an employer may seek a variance from the Secretary, see 29 U.S.C. § 655(d) (1988), and may assert certain affirmative defenses for noncomplianee before the Commission, see 29 C.F.R. § 2200.36 (1992), the initial presumption and obligation to comply remains. Thus, in General Electric Co. v. Secretary of Labor, 576 F.2d 558 (3d Cir.1978), we held that an employer could not' assert the affirmative defense of “greater hazard” without first having sought á variance from the Secretary or showing that it would have been inappropriate to. do so. Id. at 561. As we explained, by eliminating the incentive to seek a variance, we would be creating a risk that “some employers will believe incorrectly that their working conditions are safer than those prescribed in the standards [and we would be] allowing an employer to take chances not only with his money, but with the lives and limbs of his employees.” Id. (emphasis in original). In so holding, we affirmed that the purpose of the Act is to protect the health and safety of employees and that the Secretary was presumptively in the best position to evaluate the means by which to achieve this purpose.
This conclusion, I believe, is equally applicable as between the Secretary and the Commission. The Supreme Court’s holding in CF & I that deference should be given to the Secretary’s interpretation of a regulation over that of the Commission was based primarily on an evaluation of the Secretary’s role and position within the division of powers created by OSHA. CF & I, 499 U.S. at 152-56, 111 S.Ct. at 1176-79. As the Court explained:
The Secretary enjoys readily identifiable structural advantages over the Commission in rendering authoritative interpretations of OSH Act regulations. ■ Because the Secretary promulgates these standards, the Secretary is in a better position than is the Commission to reconstruct the purpose of the regulations in question. Moreover, by virtue of the Secretary’s statutory role as enforcer, the Secretary comes into contact with a much greater number of regulatory problems than does the Commission, which encounters only those regulatory episodes resulting in contested citations. Consequently, the Secretary is more likely to develop the expertise relevant to assessing the effect of a particular regulatory interpretation.
Id. at 152-53, 111 S.Ct. at 1176-77 (citation omitted).
The same structural advantages exist here. Because the Secretary is charged with responsibility for promulgating and interpreting the regulations, and because of the Secretary’s greater contact with the problems caused by noncompliance through his enforcement responsibilities, the Secretary is better positioned to understand the safety issues involved with noncompliance and to evaluate the need for enforcement. The Secretary, in turn, effectuates these fundamental policy decisions through the exercise of his prosecutorial discretion.
If the Secretary decides to issue a citation rather than a de minimis notice, he must, perforce, have concluded that the health and safety considerations at issue warrant the *145enforcement of the regulation.9 In reclassifying a violation as de minimis, the Commission invades and overrides these prosecutorial and policymaking functions, which are reserved to the Secretary under the structure of the Act. See CF & I, 499 U.S. at 154, 111 S.Ct. at 1178 (“Insofar as Congress did not invest the Commission with the power to make law or policy by other means, we cannot infer that Congress expected the Commission to use its adjudicatory power to play a policymaking role.” (emphasis in original)); Cuyahoga, 474 U.S. at 6, 106 S.Ct. at 288 (“It is apparent that the Court of Appeals’ decision is inconsistent with the detailed statutory scheme which contemplates that the rights created by the Act are to be protected by the Secretary. It is also clear that enforcement of the Act is the sole responsibility of the Secretary.”); see also CF & I, 499 U.S. at 153, 111 S.Ct. at 1177 (“The Senate Committee Report explained that combining legislative and enforcement powers in the Secretary would result in ‘a sounder program’ because it would make a single administrative actor responsible both for ‘for-mulat[ing] rules ... and for seeing that they are workable and effective in their day-today application,’ and would allow Congress to hold a single administrative actor politically ‘accountable for the overall implementation of that program.’ ” (quoting S.Rep. No. 91-1282, 91st Cong., 2d Sess. 8 (1970), reprinted in 1970 U.S.C.C.A.N. 5177, 5184-85)).
In sum, by reclassifying a citation as de minimis, the Commission eviscerates the Secretary’s ability to force an employer to comply with validly issued regulations and thereby effectively substitutes its judgment for the Secretary’s as to the need to enforce that standard.10
For the reasons discussed above, I respectfully dissent.
. See, e.g,, Fluor Constructors, Inc. v. Occupational Safety and Health Review Comm'n, 861 F.2d 936, 942 (6th Cir.1988) ("The Act establishes three levels of violations' — serious, nonserious, and de minimis.”); Keco Indus., Inc., 11 O.S.H.C. (BNA) 1832, 1834 (Feb. 29, 1984) (Under the Act, violations are classified in three levels of severity: serious, not serious, and de minimis.).
. I agree, however, with the majority’s treatment of the jurisdictional issue and join in the majority opinion on that point. Because I conclude that the Commission does not have the authority to reclassify a violation as de minimis, I do not reach the question whether the employer must plead the de minimis nature of the violation as an affirmative defense.
. The Court continued, contrasting the role of the Commission:
The Commission's function is to act as a neutral arbiter and determine whether the Secretary's citation should be enforced.... Its authority plainly does not extend to overturning the Secretary’s decision not to issue or to withdraw a citation.
.... Such a procedure would also allow the Commission to make both prosecutorial decisions and to serve as the adjudicator of the dispute, a commingling of roles that Congress did not intend.
Id.
. In the present case, not only did the Commission view itself as having the authority to determine into which of the severity levels the violation fell, it placed the burden of proof to show that the violation was more than de minimis on the Secretary. See Secretary of Labor v. Erie Coke Corp., No. 88-611, slip op. at 17-19 (OSHRC Apr. 10, 1992).
.Subsection (j) provides:
The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravily of the violation, the good faith of the employer, and the history of previous violations.
29 U.S.C. § 666(j).
. The Act provides:
For purposes of this section, 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(k).
. The case law makes it clear that just because particular actions by the Commission could be classified as adjudicative in nature does not mean that the Commission will in fact have that authority. Instead, the courts must look to the unique division of functions adopted by Congress for the implementation of OSHA and evaluate whether the Secretary or the Commission was intended to carry out that function. See CF & I, 499 U.S. 144, 111 S.Ct. 1171 (rejecting the court of appeals’ view that, because the power to declare what the law is is among the normal complement of adjudicative powers, courts should defer to the Commission's interpretation of the regulation rather than the Secretary’s, and holding instead that courts must defer to the Secretary’s interpretation because OSHA delegates legislative and policymaking functions exclusively to the Secretary); Cuyahoga, 474 U.S. at 5, 106 S.Ct. at 287 (rejecting the argument of the court of appeals that, because the Secretary had filed a complaint and answer, the Commission had assumed control over the case and therefore had authority to review the Secretary's withdrawal of the citation, and holding instead that the ability to withdraw a citation during litigation was a necessary adjunct to the Secretary’s exclusive and unreviewable prosecutorial responsibilities).
In both CF & I and Cuyahoga, the Supreme Court decided that functions arguably delegated to the Commission’s adjudicatory authority were not actually so delegated because allowing the Commission to decide these issues would trench upon functions specifically assigned to the.Secretary. Similarly, I believe that permitting the Commission to reclassify a violation as de min-imis would allow it to determine whether or not a regulation should be enfqrced by requiring abatement of its violation.. This is a decision expressly delegated to the Secretary's discretion through § 658(a), see supra at Part I, and which, in any case, clearly falls within the Secretary's exclusive policymaking and enforcement duties, see infra at Part IV.
. The nature of a de minimis violation as a legal nullity is reflected in the fact that it cannot be challenged before the Commission. As the Commission explained in Super Excavators :
Because the Secretary's citation to Super has been amended to a de minimis notice, there is no penalty or order that Super abate the practice cited. Because there are no legal consequences flowing from such a notice, we conclude that there is no legal controversy before us. We therefore will not address Super’s arguments going to the merits of whether there was a violation.
Id. (emphasis added); see also 29 U.S.C. § 659 (reviewable actions all flow from the issuance of a citation).
. Additionally, the Secretary’s initial decision to promulgate the regulation evinces his policy determination that compliance with the standard will promote employee health and safety. See 29 U.S.C. § 652(8) (1988) ("The term 'occupational safety and health standard’ means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”); cf. General Electric, 576 F.2d at 561 (holding that an employer must have sought a variance or explained why it would have been inappropriate to do so before asserting a defense of a greater hazard because an employer's opinion as to the relative safety merits of compliance with a regulation cannot, at least in the first instance, be substituted for that of the Secretary).
. It is also noteworthy that the Secretary’s position in this case does not eviscerate or unduly limit the Commission’s power. The only result of not allowing the Commission to reclassify a violation as de minimis is that it can no longer eliminate the abatement requirement when a violation has occurred. The Commission still retains the ultimate authority to determine whether or not a violation has occurred, to evaluate any applicable affirmative defenses, and to reduce or eliminate any fine associated with the citation.