Docket No. 8597

GATE CITY STEEL CORPORATION

OSHRC Docket No. 8597

Occupational Safety and Health Review Commission

February 3, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Altero D'Agostini, Regional Solicitor, USDOL

Jess B. Hawley, III, for the employer

OPINION:

DECISION

BY THE COMMISSION:

On November 25, 1974 Judge Henry C. Winters rendered his decision vacating a citation charging respondent with a serious violation of the Occupational Safety and Health Act of 1970. The citation alleged non-compliance with 29 CFR § 1910.212(a)(3)(ii) because respondent failed to equip two press brakes with point of operation guards. On December 26, 1974 the Secretary's petition for discretionary review was granted.

The Judge held that this standard did not apply to press brakes, and that it was invalidly adopted as an occupational safety and health standard. No hearing was held on the merits of the citation.

Our decisions in Irvington-Moore Div., U.S. Nat'l Resources, Inc., No. 3116 (April 7, 1975) and Diebold, Inc., Nos. 6767, 7721 & 9496 (January 22, 1976). compel us to reverse the Judge's order.

Accordingly, this case is remanded for further proceedings not inconsistent with this opinion.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

For the reasons given in his decision, which is attached hereto [*2] as Appendix A, I agree with Judge Winters' finding that 29 C.F.R. § 1910.212(a)(3)(ii) does not apply to press brakes. Furthermore, the majority's reliance on Secretary v. Diebold, Inc., Docket No. 6767, January 22, 1976, and Secretary v. Irvington Moore, Division of U.S. Natural Resources, Inc., 16 OSAHRC 608 (1975), is erroneous for the reasons I stated in those decisions. See also my dissenting opinion in Secretary v. Gem-Top Mfg., Inc., 16 OSAHRC 591 (1975).

APPENDIX A

DECISION AND ORDER

William W. Kates, for Complainant

Jess B. Hawley III, for Respondent

Henry C. Winters, Judge

STATEMENT OF THE CASE

This is an action under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) to affirm a citation and proposed penalty of $600.

Citation Number Two, which was issued June 11, 1974 following an inspection on June 6, 1974 of a metal fabrication shop operated by Respondent at Boise, Idaho, charges Respondent with a serious violation of 29 CFR 1910.212(a)(3)(ii) for failure to equip two press brakes with point of operation guards.

Notification of Proposed Penalty, issued June 11, 1974, proposes a penalty of $600 for Citation Number [*3] Two.

The complaint, filed July 15, 1974, seeks to have such citation and proposed penalty affirmed. The answer, filed August 7, 1974, denies the allegation of violation and, by way of affirmative defenses, alleges (1) the complaint fails to state a cause of action against Respondent; (2) the standard at 29 CFR 1910.212(a)(3)(ii) and section 5(a)(1) of the Act to not apply to Respondent; and (3) compliance with such standard would prevent the functional operation of the press brakes.

By order of August 26, 1974 this Judge set a prehearing conference to be held at the opening of the hearing. At the opening of the hearing at Boise, Idaho on October 1, 1974, a brief prehearing conference was held. It was stipulated that the Respondent is engaged in a business affecting interestate commerce, Respondent filed a motion to vacate Citation Number Two for the reason that the standard at 29 CFR 1910.212 has no application to point of operation guarding of press brakes because of the provisions of 29 CFR 1910.5(c) and of 29 CFR 1910.217(a)(5).

The motion to vacate was taken under advisement. The hearing was adjourned without receiving evidence. The parties have filed briefs as to the [*4] merits of the motion to vacate the citation.

No employee or employee representative entered an appearance as a party to this proceeding.

DISCUSSION, FINDINGS, AND CONCLUSIONS

The Respondent at all times herein pertinent was and is engaged in a business affecting commerce. This Commission has jurisdiction of the parties and of the subject matter of this action.

This Judge, having considered the briefs filed by the parties, concludes that Respondent's motion to vacate Citation Number Two should be granted.

The standard at 29 CFR 1910.212 was promulgated under the Act as one of several established federal standards which were in effect on April 28, 1971 n1, and is speciically based upon the standard at 41 CFR 50-204.5 which was originally promulgated under the Walsh-Healey Public Contracts Act, as amended, (41 U.S.C. 35) n2.

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n1 See preamble to Part 1910 in 36 Federal Register 10466 (May 29, 1971).

n2 See 29 CFR 1910.221.

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When the standard at 41 CFR 50-204 in effect on April 28, 1971 was adopted as an OSHA standard, [*5] the language of that part of the existing standard dealing specifically with point of operation guarding was changed quite drastically. In order that these changes can be readily discerned, there are set forth below the pertinent portions of the corresponding provisions of both standards.

Walsh-Healey standard	OSHA Standard
	1910.212 General requirements for
	all machines.
	(a) Machine guarding.
59-204.5 Machine guarding.	(1) Types of guarding.
(a) One or more methods	One or more methods
of machine guarding shall	of machine guarding shall
be provided to protect	be provided to protect
the operator and other	the operator and other
employees in the machine	employees in the machine
area from hazards such	area from hazards such
as those created by point	as those created by point
of operation, ingoing nip	of operation, ingoingnip
points, rotating parts,	points rotating parts,
flying chips and sparks.	flying chips and sparks.
Examples of guarding methods	Examples of guarding methods
are -- barrier guards, two-head	are -- barrier guards, two-head
tripping devices, electronic	tripping devices, electronic
safety devices, etc.	safety devices, etc.

* * *	* * *

(c) Point of operation guarding.	(c) Point of operation guarding.

* * *	* * *

(2) Where existing standards prepared	(ii) The point of operation of
by organizations listed in Section	machines whose operation exposes
50-204.2 provide for point ofoperation	an employee to injury, shall be
guarding such standards shall prevail	guarded. The guarding device shall
Other types of machines for which there	be in conformity with any appro-
are no specific standards, and the	private standards therefor, or, in
operation exposes an employee to	the absence of applicable specific
injury, the point of operation shall be	standards, shall be so designed
guarded. The guarding device shall be	and constructed as to prevent the
so designed and constructed so as to	operator from having any part of
prevent the operator from having any	his body in the danger zone during
part of his body in the danger zone	the operating cycle.
during the operating cycle.

[*6]

It is necessary to consider the language of the Walsh-Healey standard in order to understand what is meant by the terms "appropriate standards" and "applicable specific standards" as these terms are used in the OSHA version of the Walsh-Healey existing standard. In and of themselves these terms are vague and indefinite. When they are viewed in the light of the source standard, however, it is clear that "any appropriate standard" or "applicable specific standard" means any "existing standard prepared by organizations listed in section 50-204.2 providing for point of operation guarding." The only organization which is listed in 41 CFR 50-204.2 and which on April 28, 1971 or thereafter had standards in effect pertaining to point of operation guarding of press brakes was American National Standards Institute (ANSI) n3.

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n3 ANSI was referred to in section 50-204.2 as "United States of America Standards Institute".

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The only ANSI standard which was in effect on April 28, 1971 and which could be said to have reference to [*7] point of operation guarding of press brakes is the ANSI standard pertaining to Mechanical Power Presses. A press brake is a particular kind of mechanical power press. The ANSI standard pertaining to mechanical power presses which was in effect on April 28, 1971 was promulgated under the Act as a national consensus standard and codified as 29 CFR 1910.217 n4.

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n4 29 CFR 1910.221.

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The ANSI standard pertaining to mechanical power presses specifically excluded from the requirements of the section certain types of power presses, including press brakes. See 29 CFR 1910.217(a)(5). So, immediately after the provisions of 29 CFR 1910.212 and 29 CFR 1910.217 were promulgated as OSHA standards, there was no standard in effect requiring point of operation guarding of press brakes. The Walsh-Healey general standard (which became 1910.212) provided that the more specific ANSI standard (which became 1910.217) shall prevail. The more specific ANSI standard by excluding press brakes from its requirements thereby determined in [*8] effect that there should be no point of operation guarding standards applicable to press brakes.

ANSI at the time it issued the standards forming the source of 1910.217 had no standards in effect governing the construction care and use of press brakes. Consequently, when the ANSI framers excluded press brakes from the specific standards governing the construction care and use of power presses, it was clearly the intent to exclude press brakes from any safety standard. This is more evident when it is realized that ANSI did subsequently on February 15, 1973 adopt standards for the construction care and use of power press brakes n5.

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n5 See Judge's Exhibit No. 1. By letter of October 11, 1974 to all parties, this Judge announced he would take official notice of American National Standard Safety Requirements for the Construction Care and Use of Power Press Brakes, ANSI-B11.3-1973 approved February 15, 1973 including the forward thereof. No party has objected to such official notice or consideration of such standard, although offered an opportunity to so object.

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If one were to interpret the terms "any appropriate standard" and "applicable specific standard" as these terms are used in 1910.212 as referring to standards in effect at any given time and not limited to those in effect when 1910.212 was adopted as an OSHA standard and not limited to existing OSHA standards, then the more specific standard of ANSI-B11.3-1973 would take precedence over the general requirements of 1910.212. The citation does not allege a violation of the requirements of ANSI-B11.3-1973 n6.

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n6 The experts who participated in the approval of ANSI-B11.3-1973 recognized that the work performed on power press brakes does not allow the use of point-of-operation die-guards or devices in many instances. (See section 6.1.1 of ANTI-B11.3-1973 at page 46 of Judge's Exhibit No. 1.) They also recognized that only the employer can regulate the general-and special-purpose dies and be responsible for their safe use and the manner in which they are operated. The standard allows the employer 36 months from the approval date of the standard to provide dies which will eliminate the exposure of the operator's hands or fingers to the hazards within the point of operation. (See section 6.1.1.1 of such standard)

[*10]

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The Secretary cannot by adopting existing federal standards and national consensus standards and integrating them into a comprehensive regulatory scheme make then into something substantially different than they were before being adopted without complying with the rule-making provisions of the Administrative Procedure Act (5 U.S.C. 553), which was not done here n7.

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n7 See preamble to Part 1910 in 36 Federal Register 10466 (May 29, 1971).

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Applying any of the reasonable interpretations of 29 CFR 1910.212, this Judge is compelled to the conclusion that such standard was not intended to apply to point of operation guarding of press brakes. Respondent's motion to vacate the citation and proposed penalty should be granted.

ORDER

Accordingly, IT IS ORDERED that Citation Number One, issued June 11, 1974, and Notification of Proposed Penalty, issued June 11, 1974, be and they are hereby vacated; and the complaint be and it is hereby dismissed. [*11]

Dated at Seattle, Washington this 25th day of November 1974.

HENRY C. WINTERS, Judge