dissenting.
In the past ten years at least three circuits have criticized these regulations. See Lloyd C. Lockrem, Inc. v. United States, 609 F.2d 940 (9th Cir.1979); Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368 (10th Cir.1979); D. Federico Co., Inc. v. OSHRC, 558 F.2d 614 (1st Cir.1977). Two of these circuits have rejected the position the Secretary and the Commission urge us to adopt in the present matter. See Lloyd C. Lockrem, Inc., 609 F.2d at 943-44; Kent Nowlin Construction Co., 593 F.2d at 370-71. In spite of the obvious problems that the regulations create, the Secretary has refused to adopt simple clarifying amendments. The Secretary and the Commission continue to insist that the specific excavation requirements cover trenching operations. Despite misgivings, the majority upholds the Commission’s interpretation of these regulations. I respectfully dissent because I believe the Commission’s interpretation of the excavation and trenching regulations is unreasonable, and because the Secretary and the Commission insist on perpetuating a problem that, for safety’s sake, should be cured.
The Secretary has a duty to draft regulations that afford employers fair warning of what is required of them under the Act. In re Metro-East Manufacturing Co., 655 F.2d 805, 810-11 (7th Cir.1981). This includes the “responsibility to state with ascertainable certainty what is meant by the standards [the Secretary] has promulgated.” Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir.1976). “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.” Id; see also Marshall v. Anaconda Co., 596 F.2d 370, 376 (9th Cir.1979).
This case presents a classic example of the Secretary pursuing what he may have intended but did not adequately express. The excavation and trenching regulations are set out in the Code of Federal Regulations under the following headings:
Subpart P — Excavations, Trenching, and Shoring
§ 1926.650 General protection requirements.
§ 1926.651 Specific excavation requirements.
§ 1926.652 Specific trenching requirements.
§ 1926.653 Definitions applicable to this subpart.
29 C.F.R. §§ 1926.650-653 (1986). The requirements for excavations and trenching are clearly set out as mutually exclusive. That is the only possible interpretation since the Secretary has separated the excavation requirements from the general requirements, and then has placed the term “specific” prior to both “excavation” and “trenching.”
Nonetheless, the Secretary and the Commission claim support for their interpretation because a trench is defined as a “narrow excavation.” See 29 C.F.R. § 1926.-653(n). I fail to see how an employer is expected to glean reasonable notice from this definition that the specific trenching requirements are merely a subcategory of the specific excavation requirements. The definition of an excavation does not even support this position. 29 C.F.R. § 1926.-653(f) provides that, under certain circumstances, “an excavation may become a trench.” (Emphasis added).
In spite of the way the regulation is written, the Secretary and the Commission argue that their interpretation should be deemed reasonable because otherwise many protective features in the excavation requirements would not apply to trenches. It would seem, however, that if they want to achieve that reasonable result, they should change the regulations so that the regulations can be reasonably interpreted. Common sense may cause a trench digger to initiate some of the protections required for excavations, but these regulations do not adequately instruct him to do so.
The government has submitted a number of documents with its briefs which underscore the distinction between excavations and trenches. For example, two recent OSHA news releases discuss safety for *52“trenching and excavation.” A trenching and excavation checklist recites safety precautions before, during and after trenching or excavation. A Department of Labor publication entitled Employer-Employee Safe Practices for Excavations & Trenching Operations contains numerous references to “trenches and/or excavations.” Construction safety standards from the Department of Interior clearly distinguish “open excavations” and “trench excavations.” The Corps of Engineers’ general safety requirements clearly label rules for general excavations and additional rules for trench and shaft excavations. Presumably these documents are supposed to substantiate the government’s contention that all trenches are excavations and are thus subject to the excavation requirements. Instead, these documents emphasize that excavations and trenches are not one and the same. These documents would further lead the employer to conclude that the “specific” requirements for excavations and trenches are different.
At oral argument, the government informed us that the regulations are being “reviewed” in anticipation of their being amended. Part of that review should include a closer look at some of the exhibits the government submitted as a supplement to its brief. The general safety requirements of the Corps of Engineers (submitted with the government’s brief), under the overall heading of “Excavations,” has subheadings entitled “General,” “Trench Excavation,” and “Excavation of Small Diameter Shafts.” This seems to be a better way to notify employers of the general requirements which apply to all excavations and the additional requirements that apply to specific types of excavations. Because the Secretary has not drafted regulations that give an employer fair warning of what is required of him, I would reverse the order of the Commission.