dissenting.
I respectfully dissent from the majority’s conclusion that application of 29 C.F.R. § 1910.212(a)(3)(h) (1980) to the hydraulic presses utilized by Faultless was commensurate with due process.
At issue in this case is whether Faultless had the requisite notice that the point of operation of its hydraulic molding presses “expose[d] an employee to injury.” 29 C.F.R. § 1910.212(a)(3)(h) (1980). To meet the requirements of due process, a regulatory standard must provide the employer a “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” United *1191States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947). Regulatory language that, on its face, is clearly applicable would provide such notice. Because we judge a standard in light of its application to the facts of a case, see United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 599, 9 L.Ed.2d 561 (1963), any facial ambiguity might be clarified by the employer’s actual experience with the activity in question. Finally, an industrial custom of guarding presses such as those utilized by Faultless would be deemed to have put the Company on notice that the hazard which triggers section 1910.212 existed in their operation. See, e.g., B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1369 & n.10 (5th Cir. 1978) (quoting 116 Cong.Rec. 38377 (1970) (remarks of Rep. Daniels)).
The majority opinion finds the language of section 1910.212 so “clearly applicable” to the presses in question that it does not inquire further. I disagree, for reasons discussed below, with this conclusion. Further, Faultless’s actual experience with the machines did not constitute notice that a hazard existed. I therefore think that industrial practice was a relevant consideration in this case. Had the ALJ considered the prevailing custom in reaching his decision, which he did not, he would necessarily have concluded from the record that hydraulic mold presses are not usually guarded. I cannot agree therefore that Faultless had a sufficient warning, measured by any “common understanding or practice,” that its presses required guarding pursuant to section 1910.212.1
First, I will explain why I do not find the language of 29 C.F.R. § 1910.212(a)(3)(H) (1980) conclusive. The majority finds the regulation a “clearly applicable, unarguable and specific regulation on the subject in question” (emphasis in original) by emphasizing selected language of the regulation. A mere change of emphasis, however, illustrates why the regulatory language alone did not necessarily warn Faultless that its presses required guarding. The title of the pertinent section is “General requirements for all machines.” 29 C.F.R. § 1910.212 (1980) (emphasis added). Subdivision (a)(3)(ii) states, in part: “The point of operation of machines whose operation exposes an employee to injury, shall be guarded.” 29 C.F.R. § 1910.212(a)(3)(ii) (1980) (emphasis added). A later subdivision listing “some of the machines which usually require point of operation guarding” includes “power presses.” 29 C.F.R. § 1910.-212(a)(3)(iv)(d) (1980) (emphasis added).
The majority reads section 1910.212 as though any machine falling within the technical definition of a power press must have point of operation guards. This reading ignores the fact that the regulation is applicable only if an employee is exposed to injury. Further, the fact that power presses “usually” create the requisite hazard is not equivalent to a statement that all power presses do so.2 Faultless apparently con-*1192eluded that their hydraulic molds were among the small class of power presses not creating a hazard and therefore not requiring guarding pursuant to 29 C.F.R. § 1910.-212(aX3)(ii) (1980). This conclusion is not precluded by the language of the regulation. We must therefore determine whether Faultless’s experience with the presses should have put it on notice that a hazard existed.
Nothing in the record suggests that Faultless should have recognized a potential for injury. First, the presses had an extremely slow closure speed, moving approximately one inch per second or slower. They have little in common with the rapidly moving machines, such as punch presses, that one normally associates with the term “power press.” Second, it is significant that no employee had been injured by the molds since records were first kept in 1970, despite 900,000 hours of use and an estimated 1.8 to 2.7 million closures. Third, the Company had a clearly articulated rule that employees were not to reach into an activated press but rather were to move immediately to the next machine after commencing the closure cycle. The ALJ did not discredit the testimony as to this rule nor did he find that the Company either implicitly encouraged or willingly permitted employees to ignore it. The ALJ relied on the fact that the policy was not conclusive as to whether employees did in fact reach into the machines, referring to the testimony of La Mar who claimed that he had seen employees do so.
La Mar also testified that he had suggested guarding the machines approximately ten years earlier. The record does not establish, however, that La Mar ever informed Faultless, prior to his testimony before the ALJ, that he had witnessed employees reaching into the machines. His verbal suggestion regarding guarding was that Faultless “install something of a guarding nature for the employees to be unable to reach in these presses once they’ve been activated.” The suggestion was apparently made in response to a “good ideas” program instituted by the Company and pursuant to which some employees were compensated for their suggestions. Under these circumstances, La Mar’s “idea” that the machines might be guarded is not evidence that the machines were hazardous in the first place, a conclusion evidently shared by Faultless.3 Even if La Mar’s testimony is an accurate record of his observations, there is no evidence in the record that Faultless was aware, prior to the hearing before the ALJ, that their non-discretionary safety rule was being disobeyed.
The speed at which the presses closed and the safety record at Faultless convince me that Faultless did not err in concluding that the molds failed to create the exposure to injury that is a prerequisite to the guarding duty embodied in 29 C.F.R. § 1910.-212(a)(3)(ii) (1980).
If the regulatory language, considered on its face and in light of the employer’s experience, has failed to provide actual notice that the activity is subject to the provision, one should consider the prevailing custom in the industry. E.g., B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1369 & n.10 (5th Cir. 1978) (quoting 116 Cong.Rec. 38377 (1970) (remarks of Rep. Daniels)). I do not suggest that industrial practice should negate the applicability of an otherwise clearly relevant regulation.4 The significance of industrial custom is that it will in some cases imply the notice that is otherwise lacking. Further, if no one in the industry recognizes the relevance of a particular regulation, that fact furthers the conclusion that a reasonable employer would not have foreseen its applicability.
*1193In this case, reference to industrial custom would not have remedied the lack of notice. Faultless presented testimony by two persons extremely familiar with their industry. Both testified that they had never seen guards on machines such as those used by Faultless.
The majority opinion strenuously rejects the relevance of industrial practice to a ease in which the pertinent regulation is clearly applicable and specific. Although I agree with this proposition as a general statement of law, as noted supra, I disagree with the majority’s reliance on it in the case at bar because I do not find that section 1910.212 gave the employer such actual notice. I think industrial practice is relevant here because it furthers the conclusion that a reasonable employer would not have found sufficient warning of the provision’s applicability in the regulatory language.
The majority has distinguished a number of cases that considered industrial practice on the bare conclusion that they involved more “general” regulations or statutes than section 1910.212.5 A closer examination of these cases demonstrates that at least two turned on the precise question at issue here: whether the employer had notice that his activity constituted a hazard. Both Donovan v. Royal Logging Co., 645 F.2d 822 (9th Cir. 1981), and R. L. Sanders Roofing Co. v. OSHRC, 620 F.2d 97 (5th Cir. 1980) (per curiam), involved citations pursuant to the general duty clause, 29 U.S.C. § 654(a)(1) (1976). That clause requires an employer 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.” Donovan applied a “reasonably prudent employer” standard, 645 F.2d at 831, to determine whether a rollover was a foreseeable hazard to operators of earthmoving machinery.6 Sanders referred to the “common knowledge of safety experts who are familiar with the circumstances of the industry or the activity in question,” 620 F.2d at 99, in determining whether falling off a flat roof was a recognized hazard to roofers. Both courts therefore gave consideration to the industrial context in deciding whether the employer had the required notice that the activity in question created a hazard subject to regulation.
Another case directly on point, which is not cited by the majority, is McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974). In McLean, the citation had been issued pursuant to 29 C.F.R. § 1910.132(a) (1980), which requires the wearing of protective equipment “wherever it is necessary by reason of hazards of processes or environment.” McLean dock employees transferred freight varying in weight from 10 to 1500 pounds. Seventy percent of the transfers were made by hand or with the use of dollies. The employees were not required to wear any protective footwear. Ten foot injuries had been reported in the three years prior to inspection. Because section 1910.132(a) referred to “hazards,” the Fourth Circuit quoted and analyzed the general duty statute, 29 U.S.C. § 654(a)(1) (1976), which is quoted supra. The court stated that the test was “ ‘whether or not a reasonable person would recognize a hazard of foot injuries to dockmen, * * *.’ ” Id. at 10 (quoting Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974)). The court made clear that this “reasonable man” standard might reflect industrial custom by quoting a portion of the Congres*1194sional Record: “ ‘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.’ ” 503 F.2d at 11 n.5 (quoting 116 Cong.Rec. 38377 (1970) (remarks of Rep. Daniels)). Applying this test, the McLean court found that application of the regulation was consistent with due process.
McLean makes clear that when the due process issue is whether an employer had notice that a hazard existed, the inquiry is the same as that necessitated by the “recognized hazard” language of 29 U.S.C. § 654(a)(1) (1976). Donovan and Sanders should not therefore be so readily dismissed as involving a “general” standard. Further, McLean, Donovan, and Sanders all recognized that an employer’s conduct must be judged by some objective standard. Such an objective standard is precisely what is lacking in the case at bar.
Five other cases that referred to industrial custom are also distinguished by the majority as involving “very general statutory or regulatory commands.” S&H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (Former 5th Cir. 1981); Kropp Forge Co. v. Secretary of Labor, 657 F.2d 119, 124 n.10 (7th Cir. 1981);7 B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978); American Airlines, Inc. v. Secretary of Labor, 578 F.2d 38 (2d Cir. 1978); Cape & Vineyard Division, New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975). Each of these cases involves the means of compliance required of an employer once it is determined that a hazard exists. Four of the cases involve regulations requiring personal protective equipment that make no statement as to the kinds of equipment required or the degree of protection necessary.8 Kropp involved a citation pursuant to 29 C.F.R. § 1910.95(b)(3) (1980) which required only a “continuing effective hearing conservation program.” Kropp was found in violation by the Commission because its hearing program did not involve six elements deemed essential by the Commission but nowhere cited in the regulation. By contrast, section 1910.212(a), at issue here, does provide some examples of appropriate guarding devices. I readily agree that the regulation with which we are concerned is more specific as to the appropriate means of compliance than the regulations pertinent to the cases cited above. I do not think that this greater specificity is at all relevant, however, to the question whether the employer had notice that a hazard or potential for injury existed.
The majority follows the holding of A. E. Burgess Leather Co. v. OSHRC, 576 F.2d 948 (1st Cir. 1978), in concluding that the degree of specificity . of section 1910.-212(a)(3)(ii) precludes consideration of industry practice. In Burgess, the employers admitted that their beam dinker created some risk. They questioned whether it created the “potential for injury” that triggers the regulatory section and whether a feasible means of mitigation existed. Like Faultless, the employers in Burgess demonstrated the machine’s perfect safety record. The Commission concluded that the risk was sufficient to require guarding and that a means of abatement existed. On review, the First Circuit discussed those cases that have looked to industry practice and concluded that such reference was unnecessary in the case before it.
The Burgess court denied the petition for review because “substantial evidence that the beam dinker exposed its operator to injury, and therefore violated the Act, existed in the record.” Id. at 951. The First Circuit panel did not discuss whether the employers had sufficient warning, prior to issuance of the citation, that the dinker constituted a hazard. The mode of analysis in Burgess is that employed by the majority in the instant case: the findings of the *1195Commission, pursuant to an administrative hearing, are deemed synonymous with what the employer should have known. Like the Fifth Circuit in B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978), I do not find this approach consistent with due process:
The Commission here purported to decide what the reasonable employer in B&B’s industry would have done under the conditions for which B&B was cited. The Commission’s conclusion is inaccurate because it is based entirely upon the opinion of people employed by the Government and depends not at all upon the evidence drawn from the people employed by the industry. This application of the reasonable person rule stands the principle on its head.... In other words, the Commission would assert the authority to decide what a reasonable prudent employer would do under particular circumstances, even though in an industry of multiple employers, not one of them would have followed that course of action.
Id. at 1370.9
I do not question the Secretary’s power to require guards on hydraulic mold presses. I do suggest, however, that such a requirement must be imposed pursuant to the rule-making provision of the Occupational Safety and Health Act, 29 U.S.C. § 655(b) (1976), rather than through the adjudicatory process.10 Faultless did not have sufficient warning, prior to its being cited for a violation of 29 C.F.R. § 1910.212(a)(3)(ii) (1980), that its presses required guarding pursuant to that section. The regulatory language, both on its face and in light of Faultless’s experience with its machines, failed to provide adequate notice. Prevailing custom in the industry could not have cured the lack of notice; rather, it could only have reinforced Faultless’s conclusion that its machines did not require guarding. To enforce the citation in the instant case violates the employer’s right to due process.
. The ALJ made no reference to any standard of common understanding such as a “reasonable employer.” He did not even make a specific finding of either law or fact that the employer had prior notice that the presses required guarding. He did conclude, as a matter of law, that “Respondent’s molding press is covered by the standard designated as 29 C.F.R. 1910.-212(a)(3)(ii).’’ In my view, that finding does not address, let alone resolve, the question whether the employer should reasonably have recognized the applicability of section 1910.212 prior to the date it was found in violation thereof.
In a recent case, Judge Godbold similarly rejected the Commission’s equation of its finding that safety equipment was required pursuant to 29 C.F.R. § 1926.28(a) (1980) with a finding that a reasonable employer would have foreseen the need for such precautions. S&H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (Former 5th Cir. 1981).
. Other courts have recognized what should be clear from the regulatory language, that guards on power presses are required only if the employee is actually exposed to injury. Diebold, Inc. v. Marshall, 585 F.2d 1327, 1333 (6th Cir. 1978) (“section 1910.212 [is] a general ‘catchall’ or ‘gap-filler’ intended to impose a point of operation guarding requirement in any case where a hazard exists and guarding is feasible.” (emphasis added));' Irvington Moore v. OSHRC, 556 F.2d 431, 436 (9th Cir. 1977) (“If the operation of the machine does not expose employees to injury, no guard is required under .212.”).
. La Mar testified that, after the Company failed to act on his suggestion, he was told “in a roundabout way ... that [the machines] were safe.”
. It is clearly within the power of the Secretary to promulgate regulations setting a more stringent safety standard than that commonly employed by the industry. E.g., B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1371 & n.13 (5th Cir. 1978) (quoting Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1309 (2d Cir. 1975), cert. denied, 421 U.S. 992, 95 S.Ct. 1998, 44 L.Ed.2d 482). Allowing prevailing industrial practice to displace such regulations would be contrary to Congressional intent.
. Because we must examine a standard in light of its application, see United States v. National Dairy Products Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 599, 9 L.Ed.2d 561 (1963), I find it difficult to understand how the majority can distinguish arguably analogous cases merely by labeling the pertinent regulations as more general. If we were to attribute weight to labels, however, it is noteworthy that section 1910.212 is titled “general requirements” and that several courts have referred to the generality of the provision. Diebold, Inc. v. Marshall, 585 F.2d 1327, 1333 (6th Cir. 1978); Irvington Moore v. OSHRC, 556 F.2d 431, 435-36 (9th Cir. 1977); Long Mfg. Co. v. OSHRC, 554 F.2d 903, 905, 908-09 (8th Cir. 1977).
. The Donovan court was also concerned with whether a reasonable employer would have alleviated the hazard, if one existed, by a particular means, the use of seatbelts.
. The Kropp court referred to industrial custom only insofar as it found no evidence thereof contained in the record.
. S&H Riggers & Erectors and B&B Insulation involved citations pursuant to 29 C.F.R. § 1926.28(a) (1980). American Airlines and Cape & Vineyard were decided pursuant to 29 C.F.R. § 1910.132(a) (1980).
. The majority opinion notes that B&B Insulation was criticized by the Third Circuit in Voe-gele Co. v. OSHRC, 625 F.2d 1075, 1078-79 (3d Cir. 1980), for its excessive reliance on industry practice. In S&H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (Former 5th Cir. 1981), the court recently clarified that it did not find industry practice conclusive but only one probable component of an objective standard.
. See, e.g., Kropp Forge Co. v. Secretary of Labor, 657 F.2d 119, 124 n.10 (7th Cir. 1981); S&H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1277-78 (Former 5th Cir. 1981); R. L. Sanders Roofing Co. v. OSHRC, 620 F.2d 97, 101 (5th Cir. 1980) (per curiam); B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1371-72 (5th Cir. 1978).