Docket No. 76-647

GEORGE C. CHRISTOPHER & SON, INC.

OSHRC Docket No. 76-647

Occupational Safety and Health Review Commission

February 26, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Tedrick A. Housh, Jr., Regional Solicitor, USDOL

H. Allen Caldwell, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Paul E. Dixon is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Dixon vacated one subitem and affirmed the remaining items of a citation alleging that Respondent, George C. Christopher & Son, Inc. ("Christopher"), violated section 5(a)(2) of the Act by failing to comply with the machine guarding standards at 29 C.F.R. § § 1910.212(a)(1) and 1910.212(a)(3)(ii). n1 A total penalty of $200 was assessed. On review, Christopher takes exception to the judge's disposition of all but three subitems of the citation. n2 We vacate two subitems affirmed by Judge Dixon, but affirm the remainder of the judge's decision for the reasons stated below.

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n1 Sections 1910.212(a)(1) and (a)(3)(ii) provide as follows:

§ 1910.212 General requirements for all machines.

(a) Machine guarding - (1) Types of guarding.

One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are - barrier guards, two-hand tripping devices, electronic safety devices, etc.

* * *

(3) Point of operation guarding.

* * *

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

n2 Neither party has taken exception to those parts of the decision in which the judge affirmed subitems 1(b)(2)(c) and 1(b)(2)(d) and vacated subitem 1(b)(3)(d). In addition, there is no compelling public interest warranting Commission consideration of those subitems. Accordingly, the Commission will not review those dispositions. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).

[*2]

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Christopher is an employer engaged in structural steel fabrication at a plant in Wichita, Kansas. Following an inspection at its plant, the Secretary of Labor ("the Secretary") issued to Christopher a citation alleging that, contrary to section 1910.212(a)(1), the nip points and rotating parts of several shears and plate rolls were unguarded, and that, contrary to section 1910.212(a)(3)(ii), the points of operation of several shears, combination punches and shears, and ironworkers were unguarded. n3 Christopher also was cited under section 1910.212(a)(3)(ii) for failure to guard and to put nonslip pads on the pedals used to activate the ironworkers.

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n3 "Ironworker" is a general term that covers a variety of power tools that punch, shear, notch, cope, and form metals and other materials. Christopher objects to the judge's conclusion that ironworkers are governed by § § 1910.212(a)(1) and 1910.212(a)(3)(ii) because they are not among the machines listed in § 1910.212(a)(3)(iv), which states:

The following are some of the machines which usually require point of operation guarding:

(a) Guillotine cutters.

(b) Shears.

(d) Power presses.

(e) Milling machines.

(f) Power saws.

(g) Jointers.

(h) Portable power tools.

(i) Forming rolls and calendars.

The Commission has held, as Judge Dixon correctly noted, that the standard applies to all machines, regardless of whether they are included in the list. Irvington Moore, Division of U.S. Natural Resources, Inc., 75 OSAHRC 45/A2, 3 BNA OSHC 1018, 1974-75 CCH OSHD P19,523 (No. 3116, 1975), aff'd, 556 F.2d 431 (9th Cir. 1977). The list indicates only some of the machines that usually require point of operation guarding; the list is illustrative only.

[*3]

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The case was decided on a stipulation record. The parties agreed that there were no "positive physical guards" on the points of operation, nip points, and rotating parts of the cited machines. n4 Christopher had, however, posted signs warning of the dangers of the machines and indicating the proper method of operation. In addition, Christopher had color coded the moving parts, had supplied guards on other portions of the machines, and had conducted a continuing training program to inform employees of the proper ways to operate the machines and the dangers they present. All of these steps were stipulated to have "create[d] an awareness of the machine's danger and assist[ed] in the safe operation thereof." It was also stipulated that no employees had been injured from the unguarded portions of the machines during their normal operation over the previous fifteen years.

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n4 Christopher did not admit in the stipulation that the pedals activating the ironworkers were not guarded or padded. There is no evidence of record, therefore, to support the citations regarding subitems 1(b)(3)(b) and 1(b)(3)(c). Accordingly, these subitems are vacated.

[*4]

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The parties further stipulated that two of Christopher's vice-presidents and two of its attorneys would have testified that, at a meeting with the Area Director of the Occupational Safety and Health Administration ("OSHA") in Wichita following the inspection, the Area Director stated, with respect to the guarding of ironworkers, that OSHA would "be governed" by the standard set forth in the draft of a standard issued by the American National Standard Institute ("ANSI"), ANSI B11.5-1975, Safety Requirements for the Construction, Care, and Use of Iron Workers. One of Christopher's vice-presidents also would have testified that before the meeting Christopher was not aware of the draft ANSI standard, that it was not available, and that Christopher could have complied with the draft standard before the inspection if it had known of it. A second vice-president would have corroborated part of this testimony.

It was also stipulated that an assistant to one of Christopher's vice-presidents would have testified "that at certain times and under certain conditions certain of [its] machines cannot be [*5] guarded because of the nature of the work and type of material being put through said machines." (Emphasis in the original.) Finally, Christopher's vice-president for engineering would have testified that "attempts were made to develop guards which the employer felt might comply with the OSHA requirements but that they proved to be unsatisfactory as they were impractical for the type of work performed by the employer."

II.

Christopher argues that compliance with the cited standards was either impractical or impossible in that use of such guards would have rendered the equipment inoperable for its type of work. Christopher asserts that it complied with paragraph 11.2.1 of ANSI standard Z229.1-1973, Safety Requirements for Shops Fabricating Structural Steel and Steel Plate, n5 rather than the occupational safety and health standard at 29 C.F.R. § 1910.212(a)(3)(ii), because it is impossible to provide the point-of-operation guarding required by the OSHA standard.

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n5 The American National Standards Institute ("ANSI") standard at Z229.1, paragraph 11.2.1 provides as follows:

11. General Requirements for All Machines and Equipment

* * *

11.2 Safeguarding Machines and Equipment

11.2.1 Safeguards. Safeguards (guards or devices) shall be installed and used when the application or manufacturing process requires the operator or any other employee to be in the danger area of the point of operation of the machine. If the application or manufacturing process is such that point-of-operation guarding is impractical, appropriate warning signs shall be used to make all persons aware of the dangers at point of operation.

[*6]

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Christopher's claim that compliance with ANSI Z229.1 fulfills its obligation under the Act raises the issue of what the phrase "appropriate standards therefor" in section 1910.212(a)(3)(ii) refers to. In order to permit the parties to fully address these issues and a number of collateral issues, the Commission issued an order requesting briefs on those issues.

A review of the origin of section 1910.212(a)(3)(ii) and its promulgation as an OSHA standard is important to an understanding of these mattters. The source of 29 C.F.R. § 1910.212(a)(3)(ii) is 41 C.F.R. § 50-204.5(c)(2). 29 C.F.R. § 1910.221. Section 50-204.5(c)(2) was adopted in 1969 by the Secretary of Labor under the Walsh-Healey Public Contracts Act, 41 U.S.C. § § 35-45 ("the Walsh-Healey Act"). n6 Section 50-204.5(c)(2) ("the Walsh-Healey point of operation guarding standard") has never been amended. It states:

§ 50-204.5 Machine guarding.

* * *

(2) Where existing standards prepared by organizations listed in § 50-204.2 provide for point of operation guarding such standards shall prevail. [*7] Other types of machines for which there are no specific standards, and the operation exposes an employee to injury, the point of operation shall be guarded. The guarding device shall be so designed and constructed so as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

The list of organizations in section 50-204.2(a), which is referred to in section 50-204.5(c)(2), read, after a minor, insubstantial amendment in January of 1970, as follows:

§ 50-204.2 General safety and health standards; incorporation by reference.

(a) Every contractor shall protect the safety and health of his employees by complying with the applicable standards, specifications, and codes developed and published by the following organizations:

American National Standards Institute Incorporated

National Fire Protection Association.

American Society of Mechanical Engineers.

American Society for Testing and Materials.

United States Governmental Agencies, including by way of illustration the following publications of the indicated agencies:

(1) U.S. Department of Labor

Title 29 (CFR):

Part 1501 -- Safety and Health Regulations for Ship Repairing.

Part [*8] 1502 -- Safety and Health Regulations for Shipbuilding.

Part 1503 -- Safety and Health Regulations for Shipbreaking.

Part 1504 -- Safety and Health Regulations for Longshoring.

* * *

34 Fed. Reg. at 788-789; 34 Fed. Reg. at 7947; 35 Fed. Reg. 1015 (1970). Section 50-204.2(a) was later amended. None of the ANSI standards Christopher claims it complied with was in existence while the first version of section 50-204.2(a) existed. ANSI Z229.1-1973 was approved by ANSI on January 18, 1973; ANSI B11.4-1973 was approved on August 16, 1973; and ANSI B11.5-1975 was approved on September 18, 1975.

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n6 34 Fed. Reg. 788, 789 (1969) (adoption); 34 Fed. Reg. 2207 (1969) (effective date postponed); 34 Fed. Reg. 7946, 7948 (1969) (new effective date given). The Walsh-Healey Act was passed by Congress in 1936. It requires that no part of a contract with the federal government exceeding $10,000 be performed "under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of said contracts." 41 U.S.C. § 35(e). For a discussion of the Walsh-Healey Act, and the safety and health standards issued under the Walsh-Healey Act, see General Motors Corp., 81 OSAHRC 13/C10, 9 BNA OSHC 1331, 1981 CCH OSHD P25,202 (No. 79-4478, 1981).

[*9]

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The Occupational Safety and Health Act was enacted on December 29, 1970, and became effective on April 28, 1971. Section 6(a) of the Act commanded the Secretary of Labor to "promulgate as an occupational safety and health standard any national consensus standard, and any established federal standard, unless he determines that the promulgation of such a standard would not result in improved safety and health for employees." n7 Section 3(9) of the Act defined a national consensus standard as "any occupational safety and health standard . . . which has been adopted and promulgated by a nationally recognized standards-producing organization. . . ." n8 Section 3(10) of the Act defined an established federal standard as "any operational occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act." n9

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n7 Section 6(a) of the Act, 29 U.S.C. § 655(a), provides:

Without regard to chapter 5 of title 5, United States Code or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.

n8 Section 3(9) of the Act, 29 U.S.C. § 652(9), provides:

The term "national consensus standard" means any occupational safety and health standard or modification thereof which (1), has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies.

ANSI standards are national consensus standards. See Newport News Shipbuilding & Drydock Co., 9 BNA OSHC 1085, 1088-89, 1980 CCH OSHD P25,003, pp. 30,889-890 (No. 76-171, 1980), following Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d 199, 203 (9th Cir. 1980).

n9 Section 3(10) of the Act, 29 U.S.C. § 652(10), provides:

The term "established Federal standard" means any operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act.

[*10]

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On May 29, 1971, the Secretary, acting under the Walsh-Healey Act, amended the Walsh-Healey regulation at section 50-204.2(a) to read in part:

(a) Every contractor shall protect the safety and health of his employees by complying with the standards described in the subparagraphs of this paragraph whenever a standard deals with an occupational safety or health subject or issue involved in the performance of the contract.

(1) U.S. Department of Labor -- Title 29 CFR --

Part 1501 -- Safety and Health Regulations for Ship Repairing.

Part 1502 -- Safety and Health Regulations for Shipbuilding.

Part 1503 -- Safety and Health Regulations for Shipbreaking.

Part 1504 -- Safety and Health Regulations for Longshoring.

Part 1910 -- Subpart C through Subpart S (national consensus standards).

* * *

36 Fed. Reg. 9868-9869 (1971) (emphasis added). The Secretary replaced the incorporation by reference of private safety and health standards such as ANSI standards with the incorporation by reference of the national consensus standards he had adopted under section 6(a) of the Act and published in Subparts [*11] C through S of 29 C.F.R. Part 1910.

On that same day, the Secretary adopted a new Part 1910 of Title 29 of the Code of Federal Regulations. 36 Fed. Reg. 10466 (1971). The new Prt 1910 contained occupational safety and health standards adopted under section 6(a) that were either national consensus standards or established federal standards. The Secretary characterized as national consensus standards "those standards in Part 1910 which are standards adopted and promulgated by either the American National Standard Institute ('ANSI') or the National Fire Protection Association ('NFPA')." Id. He characterized as established federal standards those "operative occupational safety and health standards in effect on April 28, 1971, and established by the Department of Labor pursuant to . . . the Walsh-Healey Public Contracts Act, as amended (41 U.S.C. 35)." Id. At 29 C.F.R. § 1910.212(a)(3)(ii), a section in Subpart O of Part 1910, the Secretary promulgated a point of operation guarding standard ("the OSHA point of operation guarding standard") that read as follows:

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding [*12] device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

36 Fed. Reg. at 10466, 10632. The source of this standard is 41 C.F.R. § 50-204. 5(c)(2). The other point of operation guarding standards adopted in Subpart O of Part 1910 were derived from ANSI standards. 36 Fed. Reg. at 10466. See 29 C.F.R. § 1910.221. n10

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n10 The section provides:

§ 1910.221 Sources of standards.

The standards contained in this Subpart O are derived from the following sources:

Section	Source
§ 1910.212	41 CFR 50-204.5.
§ 1910.213	ANSI 01.1-1954 (R1961),
	Safety Code for Woodworking Machinery.
§ 1910.214	ANSI 01.1-1954 -- (R1961),
	Safety Code for Woodworking Machinery.
§ 1910.215	ANSI B7-1 -- 1970, Safety Code for
	Abrasive Wheels.
§ 1910.216	ANSI B28.1-1967, Safety Code for Mills
	Calenders in the Rubber and Plastic
	Industries.
§ 1910.217	ANSI B11.1-1971, Safety Standard for
	Construction, Care and Use of
	Mechanical Power Presses.
§ 1910.218	ANSI B24.1 1971, Safety Standards
	for Forging.
§ 1910.219	ANSI B15.1-1953 -- (P1958)
	Safety Code for Mechanical Power
	Transmission Apparatus.

[*13]

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III.

In his response to the request for briefs, the Secretary claims that "any appropriate standards" refers to "applicable specific standards." He argues that the phrase "appropriate standards therefor" is informational and refers employers to other OSHA point of operation guarding standards that might apply to their machines. If no other OSHA standard applies, then the requirement of section 1910.212(a)(3)(ii) that guarding to so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle comes into play. The Secretary relies on the Commission's decision in Kroehler Mfg. Co., 78 OSAHRC 88/B9, 6 BNA OSHC 2045, 1978 CCH OSHD P23,110 (No. 76-2120, 1978), in which the Commission held that under section 1910.212(a)(3)(ii) an "appropriate standard must be an applicable specific standard." The Secretary also argues that the legislative history of the Walsh-Healey machine guarding standard "makes it clear that the only standards of private organizations which were incorporated by reference into Part 1910 of 29 C.F.R. were specific [*14] national consensus standards that were either published in Part 1910 as an OSHA standard . . . or explicitly incorporated by reference in an OSHA standard . . . ." He notes that 41 C.F.R. § 50-204.5(c)(2) referred to 41 C.F.R. § 50-204.2 which in turn referred to standards published by a number of standards producing organizations. However, the Secretary points out that on the same day Part 1910 was published, 41 C.F.R. § 50-204.2 was amended to delete the referece to private standards producing organizations. The Secretary contends that since section 1910.212 derives at least partially from the Walsh-Healey standard, it would be anomalous to suggest that ANSI standards would be incorporated sub silentio into a standard, the source of which had been cleansed of any reference to ANSI. The Secretary also maintains that ANSI Z229.1-1973, the only ANSI standard Christopher mentions that was in effect during the two year period in which the Secretary could adopt ANSI standards under section 6(a) of the Act, was a discretionary rather than a mandatory standard. Promulgation of such a standard would, the Secretary argues, be contrary to section 6(a) of the Act, which requires [*15] the Secretary to adopt established federal standards and national consensus standards unless he determines that such promulgation would not result in improved safety and health for specifically designated employees. In short, the Secretary argues that the phrase "any appropriate standards therefor" does not incorporate any ANSI standards by reference.

In its supplemental brief, Christopher also argues that ANSI standards are not incorporated by reference in the present OSHA standard or in the present Walsh-Healey standard. Christopher points out that neither 29 C.F.R. § 1910.221, which gives the source of 29 C.F.R. § 1910.212(a)(3)(ii) as 41 C.F.R. § 50-204.5(c)(2), nor the present version of 41 C.F.R. § 50-204.2(a) makes any mention of ANSI standards. Christopher also asserts that the reference to "national consensus standards" in the present version of section 50-204.2 fails to identify the material that would be incorporated by reference with the degree of specificity required by 1 C.F.R. § § 51.6-51.7 and does not indicate the address of organizations from which copies of the standards could be obtained as required by 1 C.F.R. § 51.8(a).

Christopher does take issue with the [*16] Secretary's adoption of 29 C.F.R. § 1910.212(a)(3)(ii). Christopher contends that the Secretary failed to adopt 41 C.F.R. § 50-204.5(c)(2) verbatim but made significant changes. In Christopher's view, the language of the Walsh-Healey standard affords an employer a much clearer idea of his duties. It refers to standards published by organizations that provide for point of operation guarding and requires guarding that meets a performance criterion only if none of those organizations has issued specific standards. Christopher argues that in contrast, section 1910.212(a)(3)(ii) does not specifically identify what are "appropriate standards therefor." Christopher contends that this change creates ambiguity and confusion. Relying on Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977) ("Kennecott"), Christopher contends that the Secretary's failure to promulgate 41 C.F.R. § 50-204.5 verbatim renders the standard unenforceable.

Christopher disagrees with the holding of Rockwell International Corp., 81 OSAHRC 118/A2, 9 BNA OSHC 1092, 1980 CCH OSHD P24,979 (No. 12470, 1980) ("Rockwell"), that section 1910.212(a)(3)(ii) can be read to convey the same meaning [*17] as 41 C.F.R. § 50-204.5(c)(2). Christopher contends, contrary to Rockwell, that the phrase "standards prepared by organizations listed in § 50-204.2" does not mean the same as "appropriate standards therefor." Christopher also questions whether standards can be "appropriate standards" if they were not developed by the organizations listed in section 50-204.2. Christopher suggests that the Secretary may have intended the phrase "standards prepared by organizations listed in § 50-204.2" to mean "specific standards," which in turn was supposed to mean the phrase "appropriate standards therefor." However, Christopher argues that it is not required to guess what the Secretary meant when he promulgated the OSHA standard in the manner he did. n11

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n11 As a second ground for its contention that the adoption of section 1910.212(a)(3)(ii) by the Secretary was improper, Christopher argues that section 1910.212(a)(3)(ii) was not derived from an established federal standard as defined in section 3(10) of the Act, note 9 supra. Christopher contends that the phrase "presently in effect" in section 3(10) refers to occupational safety and health standards adopted by an agency and in effect on the date of enactment of the Act, December 29, 1970. Christopher contends that the drafters of the Act intended that the "presently in effect" language referring to agency standards should be read in parallel with the phrase "in force on the date of enactment of the Act" that pertains to congressionally-adopted standards. Christopher therefore argues that by promulgating the Walsh-Healey standards as they read on April 28, 1971, instead of on December 29, 1970, the Secretary did not adopt an established federal standard, and, accordingly, that section 1910.212(a)(3)(ii) is invalid. Christopher apparently is of the view that the Walsh-Healey standards differed on those dates.

[*18]

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IV.

Section 5(a)(2) of the Occupational Safety and Health Act requires employers to comply with occupational safety and health standards "promulgated under this Act." Thus, an employer does not necessarily satisfy his duty under section 5(a)(2) by complying with a private standard, such as an ANSI standard, if the private standard has not been adopted as an occupational safety and health standard under the Act. n12 However, section 1910.212(a)(3)(ii) requires employers to comply with "appropriate standards" for point-of-operation guarding. The question therefore arises whether the ANSI standards Christopher mentions are such standards. In Rockwell, we held that the phrase "any appropriate standards therefor" in the OSHA standard would be interpreted "as referring to the standards prepared by organizations listed in section 50-204.2." 9 BNA OSHC at 1097, 1980 CCH OSHD at p. 30,845. We examined the history of section 1910.212(a)(3)(ii) in light of the principle that in adopting established federal standards under section 6(a) the Secretary could not make substantive changes in them, n13 and [*19] upheld its validity by reading the OSHA standard to be consistent with its Walsh-Healey ancestor. We reserved decision, however, on which version of the list in section 50-204.2(a) would be referred to in applying section 1910.212(a)(3)(ii) because that issue was neither raised by the parties nor necessary to the resolution of that case. The first version of that list incorporates ANSI standards by reference; the second version cross-references OSHA standards, including those in Subparts C through S of Part 1910.

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n12 See Clifford B. Hannay & Sons, Inc., 78 OSAHRC 12/A2, 6 BNA OSHC 1335, 1978 CCH OSHD P22,525 (No. 15983, 1978) (new edition of National Electrical Code). Cf. Dayton Tire & Rubber Co., 80 OSAHRC 95/D4, 8 BNA OSHC 2086, 2091, 1980 CCH OSHD P24,842, p. 30,638 (No. 16188, 1980) (forthcoming ANSI standard), pet. for rev. filed, No. 80-3755 (6th Cir. Nov. 25, 1980).

n13 Diebold, Inc. v. OSHRC, 585 F.2d 1327, 1332 (6th Cir. 1978); C.R. Burnett & Sons, Inc., 80 OSAHRC 111/A2, 9 BNA OSHC 1009, 1019, 1980 CCH OSHD P24,964 (No. 78-1103 & 78-1105, 1980).

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Christopher contends, however, that Rockwell erroneously held that the phrase "appropriate standards therefor" refers to standards prepared by organizations listed in section 50-204.2(a). We have re-examined Rockwell in light of Christopher's arguments and we agree. n14

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n14 The conclusions reached here in regard to Rockwell concern only the interpretation of section 1910.212(a)(3)(ii) set out there. Our other holdings in that decision, including our holding that the Commission has authority to consider the validity of a standard's promulgation, are not affected.

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First, when the Secretary adopted section 1910.212(a)(3)(ii), he deleted the express reference in section 50-204.5(c)(2) to the list of organizations in section 50-204.2(a). This signifies that the language of section 1910.212(a)(3)(ii) was intended not to refer employers to the list of organizations in section 50-204.2(a). It also seems quite unlikely that the [*21] Secretary would have implicitly referred employers -- who were then unfamiliar with the new OSHA standards in Title 29 of the Code of Federal Regulations -- to a list of organizations in a different volume of the Code of Federal Regulations. Second, on the same day he adopted section 1910.212(a)(3)(ii), the Secretary also amended the list in section 50-204.2(a) by deleting references to ANSI and other independent standards-producing organizations; thus, the old list would no longer have appeared in future editions of the Code of Federal Regulations. Indeed, on that same day, the Secretary directly adopted under OSHA many of the ANSI standards formerly incorporated by reference in the first version of section 50-204.2(a). These events suggest that the Secretary did not intend to refer employers to the old version of the list.

Third, for the Secretary to have required employers to refer to the old version of the list would have violated the regulations of the Director of the Federal Register that were in effect when the Secretary adopted section 1910.212(a)(3)(ii). 1 C.F.R. § § 20.10-20.12 (1971) required an unequivocal statement of incorporation, identification of incorporated [*22] material and a statement of the material's availability. Yet, when section 1910.212(a)(3)(ii) was adopted, section 50-204.2(a) no longer incorporated ANSI standards by reference, Part 50-204 no longer identified and described ANSI standards as matters referred to, and the part did not indicate the availability of the ANSI standards. Requiring employers to refer to the old list would probably have also violated the APA's requirement that "a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published." 5 U.S.C. § 552(a)(1).

Fourth, if the phrase "appropriate standards therefor" in section 1910.212(a)(3)(ii) is interpreted to refer to the second version of section 50-204.2(a), an employer under the Act would refer to a Walsh-Healey regulation that in turn refers to OSHA standards published alongside section 1910.212. The Secretary cannot possibly have intended such a useless circularity.

We therefore hold that the phrase "any appropriate standards therefor" refers only to "applicable specific standards" n15 published or incorporated by reference as occupational safety and health [*23] standards in Title 29 of the Code of Federal Regulations. We think that it is implicit that only such standards would have been referenced in section 1910.212(a)(3)(ii). It is unlikely, at the least, that the Secretary would have had employers look to standards not published or incorporated by reference as OSHA standards. The holding of Rochwell that "appropriate standards therefor" refers to standards adopted by organizations listed in 41 C.F.R. § 50-204.2 is therefore overruled.

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n15 Kroehler Mfg. Co., 78 OSAHRC 88/B9, 6 BNA OSHC 2045, 2046-2047, 1978 CCH OSHD P23,110, pp. 27,929-930 (No. 76-2120, 1978).

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Christopher argues, however, that the OSHA standard is invalid because it is different from its source standard. We are unconvinced.

Whether a standard is validly promulgated does not turn on differences in language. The Secretary was not required by section 6(a) of the Act to promulgate national consensus or established federal standards verbatim. Deering-Milliken, Inc. v. OSHRC, 630 F.2d [*24] 1094, 1110 (5th Cir. 1980). The proper inquiry is whether the Secretary made a substantive change when he transformed the Walsh-Healey standard into an OSHA standard. See id. The burden of proving that a substantive change was made is on Christopher. See Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1558, 1976-77 CCH OSHD P21,023, p. 25,276 (No. 3635, 1976), rev'd on other grounds, 561 F.2d 82 (7th Cir. 1977).

The OSHA point of operation guarding standard, 29 C.F.R. § 1910.212(a)(3)(ii), requires that an employer comply with applicable point of operation guarding standards published in Part 1910 or, if there are none, with the general performance criterion. The source of section 1910.212(a)(3)(ii), 41 C.F.R. § 50-204.5(c)(2), required compliance with point of operation guarding standards published by organizations listed in section 50-204.2(a), or if none of those standards applied, with a general performance criterion identical to that in section 1910.212(3)(ii). The issue is therefore whether Christopher has shown that a point of operation guarding standard incorporated by reference in section 50-204.2(a) was not adopted under the Occupational Safety and [*25] Health Act.

Our consideration is, however, confined to the first version of the list of organizations in section 50-204.2(a). Section 3(10) permitted the Secretary to adopt only those federal standards "presently in effect." Yet, only the first version of the list was in effect on both the Act's date of enactment, December 29, 1970, and effective date, April 28, 1971. Moreover, the Secretary stated that the established federal standards he adopted were those in effect on April 28, 1971. 36 Fed. Reg. 10466 (1971). Therefore, we will look to 41 C.F.R. § § 50-204.2(a) and 50-204.5(c)(2), and the standards they incorporated by reference as they stood no later than April 28, 1971. n16

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n16 Because the Walsh-Healey regulations were identical on both the date of enactment of the Act and the Act's effective date, it is unnecessary to decide here which of those dates "presently in effect" refers to. We also do not decide here whether standards adopted by ANSI after the publication of the first version of the list in § 50-204.2(a) were incorporated by reference under the Walsh-Healey regulations.

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Christopher has not, however, directed us to any point of operation guarding standard that was then incorporated by reference in the first version of section 50-204.2(a). The ANSI standards Christopher does bring to our attention were not then in existence. n17 Accordingly, we conclude that Christopher has failed to show that the standard is invalid because a substantive change was made.

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n17 The Commission attempted to discover whether there were any point of operation guarding standards incorporated by reference in the first version of § 50-204.2 that had not been promulgated as OSHA standards under section 6(a) of the Act. Although we conducted an extensive search, we were unable to discover any such standards. Because the burden of proof is on the employer, and Christopher has failed to bring any such standard to our attention, we can only conclude for the purposes of this case that there are no such standards.

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Christopher also argues [*27] that in varying section 1910.212(a)(3)(ii) from its source, the Secretary created ambiguity and confusion because he did not clearly identify which standards were "appropriate standards therefor." When Christopher was cited for failing to comply with section 1910.212(a)(3)(ii), we had not defined "appropriate standards therefor" as clearly as we do here. However, we note that Christopher did not indicate any confusion concerning "appropriate standards" in its brief to the judge. In that brief, which it adopted as part of its brief before the Commission, Christopher stated that:

The Occupational Safety and Health Administration has failed to adopt any "specific standards" relating to the particular type of machines involved in this Complaint. A literal reading of the alternative requirement set forth above clearly indicates that positive guards completely restricting the machine operator from any reasonable possibility of accident are necessary.

Thus, Christopher knew what "appropriate standards therefor" meant and recognized that none existed for its machines.

In order to prove noncompliance with 29 C.F.R. § 1910.212(a)(3)(ii), the Secretary must demonstrate that the point [*28] of operation is unguarded and that the operation of the machine exposes an employee to injury. See Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978). To prove noncompliance with section 1910.212(a)(1) as to Christopher, the Secretary must show that employees in the machine area were not protected from hazards created by ingoing nip points and rotating parts. Christopher does not argue on review that the points of operation did not expose employees to injury or that the nip points and rotating parts were not hazardous. Christopher has taken no exception to the judge's findings on the point, n18 but claims that the use of awareness barriers under ANSI Z229.1-1973 constitutes compliance with sections 1910.212(a)(1) and 1910.212(a)(3)(ii). Christopher points to a record of no injuries for fifteen years as an indication that awareness guarding meets the requirements of the standard. Christopher also contends that awareness guarding is the only type of guarding possible for its machines because the guarding required by the standard would render the machines inoperable.

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n18 Judge Dixon found, from the description of the machines in the stipulations and the photographs, that during their operation the dies could amputate or crush the arms, hands and fingers of Christopher's employees.

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The cited machines lacked the guarding devices required by the standards. n19 As we concluded earlier, ANSI Z229.1-1973 is not applicable under the Act. Christopher's reliance on "awareness barriers," which depend upon employee behavior for protection, is misplaced. The standards require that guarding be provided by a device that itself prevents the operator from endangering himself. They do not permit an employer to depend instead on the skill or attentiveness of his employees. Hughes Brothers, Inc., 6 BNA OSHC at 1834, 1978 CCH OSHD at p. 27,718. The absence of a history of injury does not relieve an employer of his duty under the standards to prevent future injuries if, as here, there are hazards to which employees are exposed. See A.E. Burgess Leather Company, Inc., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD P21,573 (No. 12501, [*30] 1977), aff'd, 576 F.2d 948 (1st Cir. 1978). We therefore find that Christopher did not comply with sections 1910.212(a)(1) and 1910.212(a)(3)(ii). We now turn to whether Christopher has established an affirmative defense.

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n19 Christopher also contends that the punching stations on its ironworkers are equipped with strippers that serve as adjustable restrictors and comply with section 1910.212(a)(3)(ii). There is no mention in the stipulated record of the existence of the strippers or of their adequacy as guards.

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In order to establish the affirmative defense of impossibility of compliance, an employer must demonstrate that (1) compliance with the standard would preclude performance of required work and (2) alternative means of protection are unavailable. M.J. Lee Construction Co., 79 OSHARC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979). Whether it is impractical to provide guarding is not the inquiry. Hughes Brothers, Inc., 6 BNA at 1836, 1978 CCH OSHD at p. 27,720. The only evidence [*31] in the stipulated record is that "certain" unnamed machines under "certain" unspecified conditions could not be guarded because of the nature of the work for which the machines were used. This furnishes insufficient ground to find impossibility for we would have no basis to know which citation items to vacate and which to affirm. We therefore conclude that Christopher has failed to prove the first element of the defense of impossibility.

Christopher further contends, regarding this defense, that the area director agreed that it was impossible to guard the cited machines with positive physical guards. The stipulated record does not indicate such a concession by the area director, however. Christopher also contends that the area director stated that OSHA would be governed by the "awareness barrier" guarding procedures as set forth in the draft in ANSI B11.5. However, because the area director's statement was made after the violations are alleged to have occurred, Christopher could not have relied on that statement to its detriment.

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n20 Commissioner Cottine concurs regarding the impossibility of reliance in this case. However, he would further note that an erroneous interpretation of law by an area director is not binding on the Secretary or the Commission. See United States Steel Corp., 77 OSAHRC 12/C3, 2 BNA OSHC 1343, 1974-75 CCH OSHD P19,047 (Nos. 2975 and 4349, 1974), appeal dismissed, 517 F.2d 1400 (3d Cir. 1975). See also Holman Erection Co., Inc., 77 OSAHRC 196/A2, 5 BNA OSHC 2078, 1977-78 CCH OSHD P22,318 (No. 13529, 1977).

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Christopher contends that section 1910.212 is vague because it does not specify an approved method of guarding. It states that it therefore relied on the ANSI standards for guidance as to what methods of guarding would meet the Secretary's requirements. Judge Dixon found this assertion unpersuasive, noting that the standard gives examples of guarding methods and thus provides guidelines for employers. n21

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n21 See note 1 supra.

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The Commission has repeatedly rejected the argument that the performance criterion of section 1910.212(a)(3)(ii) is unenforceably vague. See, e.g., Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1900, 1975-76 CCH OSHD P20,333, p. 24,250 (No. 6767, 1976), rev'd on other grounds, 585 F.2d 1327 (6th Cir. 1978); n22 K & T Steel Corp., 76 OSAHRC 31/A2, 3 BNA OSHC 2026, 2027, 1975-76 CCH OSHD P20,445, p. 24,414 (No. 5769, 1976). On the contrary, the criterion is unequivocal: the guarding device must prevent the operator from having any part of his body in the danger zone during the operating cycle. Section 1910.212(a)(1) is similarly unambiguous: employees must be protected from the hazards of nip points and rotating parts. See PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 897 (1st Cir. 1981). An employer can easily tell from the performance criteria of these standards whether his machines are in compliance, and indeed Christopher has labored under no uncertainties on this point. Christopher's problem is not uncertainty over whether it is in compliance -- it knows that it is not -- but the difficulty of compliance, [*34] a matter that goes to the defense of impossibility. A standard is not impermissibly vague because an employer must exercise judgment in determining how its requirements are to be met. See Western Waterproofing Co., 78 OSAHRC 68/D11, 7 BNA OSHC 1625, 1629, 1979 CCH OSHD P23,785, pp. 28,862-3 (No. 1087, 1979). Sections 1910.212(a)(1) and 1910.212(a)(3)(ii) give sufficient notice of the performance required.

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n22 The Sixth Circuit held in Diebold that the standard at 29 C.F.R. § 1910.212 standing alone was not impermissibly vague, and that the standard was vague only when it was applied to press brakes and read in conjunction with § 1910.217. The Court's holding concerning press brakes is not relevant to this case.

In the last sentence of § 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5), Congress required the Secretary to use performance criteria for health standards "[w]henever practicable." On the value of performance criteria to employers, see the Commission decision in Diebold, 3 BNA OSHC at 1900, 1975-76 CCH OSHD at p. 24,250.

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Christopher also argues that, because of the alleged vagueness of the standards, it lacked knowledge of the "presence of the violation" within the meaning of section 17(k) of the Act. It argues that it neither knew nor could have known with the exercise of reasonable diligence that its use of warning signs and safety training to guard the machines did not abate the violative conditions. This argument lacks merit. As we have said above, the standards are not vague; as Christopher acknowledges, they require more than warning signs and safety training. It is also well settled that the knowledge element of section 17(k) of the Act refers to knowledge of the physical conditions that constitute a violation, not to knowledge of the requirements of the law. Charles A. Gaetano Construction Corp., 78 OSAHRC 24/A2, 6 BNA OSHC 1463, 1465 n.3, 1978 CCH OSHD P22,630, p. 27,303 n.3 (No. 14886, 1978).

VI.

Christopher's final contention is that the violation should be characterized as nonserious rather than serious. In support of this argument, Christopher cites several Commission decisions in which similar violations were cited as nonserious by the Secretary. [*36] The Commission has held that the Secretary's characterization of a violation in another case is not controlling in a case before the Commission. See Fleming Foods of Nebraska, Inc., 77 OSAHRC 196/C12, 6 BNA OSHC 1233, 1978 CCH OSHD P22,889 (No. 14484, 1977).

Christopher further relies on language in the Secretary's Field Operations Manual to support its contention that should violations exist in this case, they are nonserious. The Manual at one time provided a definition of "substantial probability" that would have made a violation serious only if, among other things, industry experience indicated that death or serious physical harm would result from an accident caused by a violative condition. The Commission has held that the guidelines provided by the Manual do not have the force and effect of law, nor do they accord important procedural or substantive rights to individuals. See FMC Corporation, 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD P22,060 (No. 13155, 1977). Accordingly, any variance from the instructions in the Manual by the Secretary is not a basis for changing the characterization of a violation.

In addition, Christopher's reliance on its [*37] accident-free record as evidence of the nonserious nature of the violation is misplaced. The probability that an accident might occur is not a consideration in determining the seriousness of a violation. Instead, the inquiry is whether, in the event of an accident, there is a substantial probability that the result would be death or serious physical harm. California Stevedore & Ballast Co., 73 OSAHRC 39/B5, 1 BNA OSHC 1305, 1974-74 CCH OSHD P16,520 (No. 14, 1973), aff'd, 517 F.2d 986 (9th Cir. 1975).

There was no agreement between the parties as to what the probable injuries would be if an accident occurred on the cited machines. The injuries that Judge Dixon found would be caused are serious, however. It was also stipulated that the compliance officer who inspected the worksite recommended that the citation be characterized as serious, but there is no indication as to what the testimony of any of Christopher's witnesses would have been regarding the probable consequences of an accident. The parties stipulated that the photographs of the machines that were admitted accurately represent conditions at the plant on the day of inspection. The photographs show that the [*38] machines are used to form, punch, and perform other shaping and cutting operations on metal. We therefore find that there was a substantial probability that serious physical injury, such as amputation or crushing, could have resulted from the violative conditions.

Although we do not take into account the probability that an accident might occur in determining the seriousness of a violation, it is a factor in deciding the gravity and, in turn, the appropriate penalty. Judge Dixon assessed a penalty of $200, instead of the $600 proposed by the Secretary. The gravity of the violation is low, as evidenced by the absence of injuries in the past fifteen years and the partial protection afforded by the warning signs and respondent's safety training program. We take into consideration these factors as well as Christopher's good faith efforts to protect its employees, and conclude that the reduced penalty of $200 is appropriate.

Finally, we note that while ANSI B11.4-1973 and B11.5-1975 are not OSHA standards, they may nevertheless be used to guide Christopher's abatement efforts, particularly in view of the Secretary's stipulation that under certain conditions some of Christopher's machines [*39] cannot be guarded. On June 30, 1981, OSHA issued an enforcement directive concerning ironworkers, OSHA Instruction STD 1-12.27, 1 BNA OSHR Reference File 21:8259, 1980-81 CCH Emp. S. & H. Guide Developments P12,274 (1980). The directive stated that "29 C.F.R. § 1910.212 [was] the appropriate standard to apply to ironworker machines . . . [but that] ANSI B11.5-1975 should be consulted when considering a citation under § 1910.212 . . . on an ironworker machine . . . [because it] provide[s] useful guidance in evaluating and correcting ironworker hazards." Similarly, on February 23, 1981, OSHA issued an enforcement directive concerning metal cutting shears, OSHA Instruction STD 1-12.25, 1 BNA OSHR Reference File 21:8256, 1980-81 CCH Emp. S. & H. Guide Developments P12,219 (1980). The directive orders OSHA officials to accept awareness barrier guards specified in ANSI B11.4 on metal cutting sheets where "it is impossible to employ a fixed guard or point of operation device due to the diversity of operations performed on the shear." While we must reject Christopher's impossibility defense because this record does not support it, we will, under the unusual circumstances of this case, [*40] exercise our discretionary authority under section 10(c) of the Act, 29 U.S.C. § 659(c), to grant "other appropriate relief." We shall therefore order the parties to confer on what abatement steps would be acceptable in light of these directives.

Accordingly, the judge's decision is reversed with respect to subitems 1(b)(3)(b) and 1(b)(3)(c), alleging failure to guard and pad the pedals on the ironworkers, and these subitems are vacated. The remainder of his decision is affirmed to the extent it is consistent with this opinion. A penalty of $200 is assessed. The parties are directed to exchange information on the difficulty of compliance, and to confer within thirty days on what abatement steps would be acceptable for the cited machines in light of OSHA Instructions STD 1-12.25 and 1-12.27.

SO ORDERED.

CONCURBY: ROWLAND (In Part)

CONCUR:

ROWLAND, Chairman, concurring in part:

I join in the majority's opinion except with respect to its discussion of the subitems alleging violations of 29 C.F.R. § 1910.212(a)(1), i.e., subitems (a)(1)(a)-(d), (a)(2)(a)-(b), and (a)(3)(a)-(b) of item 1 of serious citation 2. I would affirm these violations but for different reasons.

I agree with the majority's [*41] view that section 1910.212(a)(1) is not vague because its plain language puts employers on fair notice that they must provide guarding methods for nip points and rotating parts that will protect employees. I think that employers generally appreciate the hazards posed by nip points and rotating parts and will ordinarily recognize whether the guarding methods they employ protect their employees.

However, in concluding that section 1910.212(a)(1) is not vague, my colleagues rely on PBR, Inc. v. Secretary of Labor, 643 F.2d 890 (1st Cir. 1981). That decision, as well as the decision it cites, A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 951 (1st Cir. 1978), concerned point-of-operation guarding and construed section 1910.212(a)(1) in light of the specific point-of-operation standard, section 1910.212(a)(3)(ii). But Christopher has been cited under section 1910.212(a)(1) with respect to nip points and rotating parts -- not points of operation. I cannot agree that, at least with respect to nip points and rotating points, the requirement of section 1910.212(a)(1) ought to be construed together with that of section 1910.212(a)(3)(ii). In order to guard nip points and rotating [*42] parts under section 1910.212(a)(1), an employer is required to provide "one or more methods of machine guarding . . . to protect the operator and other employees in the machine area." Section 1910.212(a)(3)(ii) on the other hand imposes a more specific requirement that addresses only the problem posed by points of operation. It requires guarding that will "prevent the operator from having any part of his body in the danger zone during the operating cycle." It therefore cannot be said that the guarding required to protect against rotating parts and nip points under section 1910.212(a)(1) is necessarily that required for points of operation by section 1910.212(a)(3)(ii).

For this same reason, it also does not follow that rotating parts and nip points must be protected, as the Commission holds, "by a device that itself prevents the operator from endangering himself"; nor can I join the implication in the lead opinion that section 1910.212(a)(1) requires "positive physical guards." The standard requires only that one or more methods of machine guarding be provided to "protect" the operator and other employees from the hazards of nip points and rotating parts. It therefore ought [*43] to be enough to say that the employees were not protected against hazards of nip points and rotating parts. It has not been disputed before the judge or before the Commission that hazards existed or that the machines lacked guards meeting the standard's requirement. The record was stipulated, and these matters have not been a point of controversy. Indeed, the focus of controversy has been elsewhere. See Commission Rule 92(d), 29 C.F.R. § 2200.92(d)(issues ordinarily limited to those raised before the judge). For these reasons, I concur.