c284:No. 78-2221

BAZELON, Senior Circuit Judge,
concurring in the result only:
I write separately because I seriously doubt that application of notice and comment procedures can depend entirely on neat, discrete categories. The labels associated with exceptions to 5 U.S.C. § 553 have “fuzzy perimeters” and depend on distinctions “ ‘enshrouded in considerable smog.’ ” Thus, I find it harder to criticize the agency for not analyzing correctly the import and legal status of the action challenged here.
Nonetheless, the Occupational Safety and Health Administration has announced in no uncertain terms its intention to charge employers with a statutory violation based on its new view of a statutory provision. See majority opinion at pp. 466-467. This announcement is prospective and definitive, factors which strongly suggest that, at least without more, it is not merely a “general statement of policy” exempt from § 553. See, e. g., American Bus Ass’n v. ICC, 627 F.2d 525, at 531-533 (D.C.Cir.1980); Guardian Federal Savings and Loan Ass’n v. Federal Savings and Loan Insurance Corp., 589 F.2d 658, 666 (D.C.Cir.1978). And, although it serves as an interpretation of existing law, it also effectively enunciates a new requirement heretofore nonexistent for compliance with the law. In this fashion, OSHA is exercising the authority Congress delegated to it to “ ‘fill up the details’ by the establishment of administrative rules and regulations, the violation of which could be punished by fine.” United States v. Grimaud, 220 U.S. 506, 517, 31 S.Ct. 480, 483, 55 L.Ed. 563 (1911). If left undisturbed by this court, this agency action would wield a significant change in the practices which private employers must follow and in the enforcement steps the agency must take. Under these circumstances, I believe that advance notice and opportunity for public participation are vital if a semblance of democracy is to survive in this regulatory era.
. Pacific Gas & Electric Co. v. FPC, 506 F.2d 23, 38 (D.C.Cir.1974).
. American Bus Ass’n v. ICC, 627 F.2d 525, at 529 (D.C.Cir.1980) (quoting Noel v. Chapman, 508 F.2d 1023, 1030 (2d Cir. 1975), on distinction between general statement of policy and rule requiring publication).

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