TROJAN STEEL COMPANY

OSHRC Docket No. 2885

Occupational Safety and Health Review Commission

July 18, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Abraham Gold, dated January 18, 1974, has been before this Commission for review pursuant to 29 U.S.C. 661(i) for more than a year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide this case at this time.

The Commission is equally divided on whether the Judge correctly vacated items 10 and 11(a) of the citation which alleged that the respondent had failed to comply with 29 C.F.R. 1910.104(b)(3)(iii) and 1910.212(a)(3)(ii), respectively.

Chairman Moran agrees with the Judge's disposition of the case. In regard to item 10, he notes that 29 C.F.R. 1910.104(b)(3)(iii) was not promulgated until May 28, 1971, the date on which the regulation was filed with the Office of the Federal Register. See 44 U.S.C. 1507 and 36 Fed. Reg. 10714 (1971). In the Chairman's opinion, section 1910.104(b)(3)(iii) is void for lack of proper promulgation because the content thereof was not a national consensus standard on the date of promulgation in that its [*2] source standard was superseded by another standard of the National Fire Protection Association on May 19, 1971. See 29 U.S.C. 655(a). Chairman Moran also observes that the Judge's disposition of item 11(a) is consistent with the Commission precedent established in Secretary v. Stevens Equipment Co., 2 OSAHRC 1501 (1973), which should not be disturbed.

Commissioner Cleary would reverse the Judge's decision on both items for the reasons given in his separate opinion.

Accordingly, the decision of the Judge is affirmed by an equally divided Commission. This decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

CLEARY, COMMISSIONER: Trojan Steel, respondent, is engaged in manufacturing steel products for use in warehouses and construction. Its plant at Charleston, West Virginia, was inspected by a compliance officer on February 22 and 26, 1973. Based upon the compliance officer's investigative findings, the Secretary of Labor, complainant, issued a citation alleging thirteen non-serious violations of the Act as well as a notification of proposed penalties totalling $470. Respondent notified the Secretary that it wished [*3] to contest two of the alleged non-serious violations, items 10 and 11 (a) n1 and their corresponding proposed penalties. The uncontested items of the citation have become final orders of this Commission pursuant to section 10(a) of the Act.

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n1 Complainant alleged that respondent was in non-serious violation of the Act for its failure to comply with the standards at 29 CFR 1910.104(b)(3)(iii) with respect to its bulk oxygen storage tanks [item 10] and 29 CFR 1910.212(a)(3)(ii) with respect to its mechanical power press [item 11(a)].

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A hearing on the contested items was held before Judge Gold on September 19, 1973. In his decision, the Judge vacated both contested items and their proposed penalties. I disagree with the Judge's findings.

I

Adjacent to its plant, respondent maintains a bulk oxygen storage tank positioned approximately twenty-two inches from the building's exterior wall. Complainant alleges that the storage of bulk oxygen under such conditions is a violation of the Act for failure to comply with [*4] the standard at 29 CFR 1910.104(b)(3)(iii). The standard provides as follows:

1910.104 Oxygen

(b) Bulk oxygen systems

(3) Distance between systems and exposures

(iii) Fire resistive structures. Twenty-five feet from any structures with fire-resistive exterior walls or sprinklered buildings of other construction, but not less than one-half the height of adjacent side wall of the structure.

This standard essentially requires that bulk oxygen systems be situated at least twenty-five feet from the exterior wall of a building.

This "occupational safety and health standard" was adopted by the Secretary of Labor on April 27, 1971, and published in the Federal Register on May 29, 1971, (36 FR 10466, 10528). The standard was at that time a "national consensus standard" within the meaning of section 3(9) of the Act. See the preamble to the cited Federal Register document. The exact source of the standard is National Fire Protection Association (NFPA) No. 566-1965. At its annual meeting held on May 19, 1971, the National Fire Protection Association adopted NFPA No. 50-1971, which superseded the earlier NFPA No. 566-1965.

On October 4, 1972, the [*5] Secretary of Labor republished his occupational safety and health standards (Oct. 18, 1972, 37 FR 22102). According to the preamble of the published document the purpose was: (1) to publish fully in one place the occupational safety and health standards in order to reflect many changes made during the year and thereby to improve their usefulness and facilitate their enforcement; (2) to correct a number of typographical and clerical errors in the text of the standards; and (3) to publish indices with the standards, which are intended to permit quicker access to pertinent standards. The preamble expressly stated that no substantive changes were made in the standards, and therefore no notice of proposed rulemaking or opportunity for public participation was afforded.

The Judge held that NFPA No. 566-1965 ceased to be a "national consensus standard" after May 19, 1971, and therefore the Secretary of Labor lacked authority to adopt that standard in October 1972 without first complying with the rulemaking procedure prescribed under section 6(b) of the Act.

The Commissioners are divided in their views as to whether the Commission has the power to review rulemaking actions of the Secretary [*6] of Labor in the setting of standards. I would conclude that the Commission lacks such power. U.S. Steel Corp., Nos. 2975 & 4349 (November 14, 1974) (concurring opinion). Chairman Moran would conclude that the Commission may at least review questions of ultra vires actions by the Secretary. See Tobacco River Lumber Co., No. 1694 (April 23, 1975). Under these circumstances whether the Judge erred in this holding should be considered because of a lack of judicial precedent on the question.

I conclude that the Judge erred. In republishing the standard in question in October 1972, the Secretary of Labor did not change its terms. Not even clerical changes were made. The nub of the question posed by the Judge's holding is whether section 6(b) requires the Secretary of Labor to use the cumbersome procedure set forth therein merely to keep a rule that he already has adopted because a private organization has changed a private standard upon which the Secretary's rule is based. I think not. To hold differently would in effect delegate unlawfully rulemaking power to the private organization. Any private organization that had adopted a "national consensus standard" [*7] that was subsequently adopted as an "occupational safety and health standard" would hold a power to negate the action of the Secretary of Labor. See Moore Constr. Co., No. 1592 (April 15, 1974) (Administrative Law Judge). Aside from being a dubious delegation of regulatory power, this would also permit major changes in rules without complying with section 6(b) of the Act, the very thing the Judge was concerned about.

Also, as to the entire document which was published in October 1972 and which did contain clerical changes, it seems plain that the Secretary of Labor was proceeding under the authority in 5 U.S.C. section 553(b)(3)(B). Under this provision of the Administrative Procedure Act, an agency may dispense with general rulemaking procedure when, for good cause, it finds such notice and public procedure to be impractical, unnecessary or contrary to the public interest. This provision of the APA is not replaced by section 6(b) of our Act. Under the terms of 5 U.S.C. section 559, Congress has indicated that the provisions of the Administrative Procedure Act are not to be modified by subsequent legislation, except to the extent that the modification is expressed. Section [*8] 6(b) of our Act does not expressly modify the cited APA provision. See 29 CFR 1911.5, the Secretary's rule reflecting this reading of the APA and section 6(b).

Respondent's oxygen system, which was used primarily for welding operations, was situated approximately 2 to 3 feet from the building's exterior wall. At its shortest point, the wall stood 12 feet high. n2 Hence the oxygen system was not 25 feet from a fire resistive structure and was less than 6 feet, or half the height of the adjacent side wall, from the building. Hence, I would find a violation of 29 CFR 1910.104(b)(3)(iii).

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n2 It should also be noted that the tank itself was between 12 and 15 feet high.

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II

Respondent has on its premises and uses in its manufacturing process a mechanical power press that is designed to punch various size holes in pieces of steel. The record establishes that, at the time of the inspection on February 22 and 26, 1973, the machine's point of operation, an opening of approximately one inch, was not guarded. [*9] On this basis, complainant issued a citation alleging respondent's failure to comply with the standard published at 29 CFR 1910.212(a)(3)(ii). n3

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n3 The standard provides as follows:

1910.212 General requirements for all machines

(a) Machine guarding

(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.

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Respondent contends that the standard at 29 CFR 1910.212(a)(3)(ii) is inapplicable to its work condition because the standards in 29 CFR 1910.217 deal specifically with mechanical power presses and a specific standard will prevail over an otherwise applicable general standard. n4 That being so, respondent continues, then 29 [*10] CFR 1910.217(a)(2) n5 relieves it of the necessity of complying with the standards in section 1910.217 until August 31, 1974.

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n4 The standard at 29 CFR 1910.5(c)(1) provides, in part, as follows:

1910.5 Applicability of standards

(c)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process.

n5 At the time of the hearing in this case, 29 CFR 1910.217(a)(2) read as follows:

1910.217 Mechanical power presses

(a) General requirements

(2) Former installations. All mechanical power presses installed prior to August 31, 1971, shall be brought into conformity with the requirements of this section not later than August 31, 1974.

The standard has since been amended (December 3, 1974, 39 FR 41841) and presently provides as follows:

1910.217 Mechanical power presses

(a) General requirements

(2) Former installations. The requirements of this section shall apply to all mechanical power presses installed prior to August 31, 1971, except that the requirements of paragraphs (b) [mechanical power press guarding and construction] and (c)(5) [Point of operation guards -- Unitized tooling] of this section shall be complied with by November 1, 1975.

[*11]

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Judge Gold agreed with respondent and vacated complainant's citation for the non-serious violation as well as its corresponding proposed penalty. The Judge found that "[i]nasmuch as the power press . . . qualifies as a 'former installation' within the contemplation of 1910.217(a)(2)," respondent cannot be held in violation of either the standard at 29 CFR 1910.212(a)(3)(ii), since it is supplanted by the more specific standards in section 1910.217 or the standards in section 1910.217 before September 1, 1974. I disagree.

The delay-in-effective-date provision at 29 CFR 1910.217(a)(2) was before this Commission for interpretation in Stevens Equipment Co., No. 1060 (April 27, 1973). In that case, it was alleged that Stevens Equipment Co. violated the Act for its failure to comply with the standard at 29 CFR 1910.217(c)(1)(i). n6 The question before the Commission in Stevens, as in the case before us, was whether the standard at 29 CFR 1910.217(a)(2) prevented the enforcement of the standards at 29 CFR 1910.217, as they would apply to "[f]ormer installations," until August [*12] 31, 1974. The majority, the Chairman and former Commissioner Burch, found that it did, and thus vacated the citation and proposed penalty. In dissent, former Commissioner Van Namee was of the opinion that the standard at 29 CFR 1910.217(c)(1)(i) applied to the "use" of mechanical power presses and therefore, was to become effective according to the provisions at 29 CFR 910.217(a)(3). n7 I would overrule the majority in Stevens, insofar as it deals with the interpretation of the standards at 29 CFR 1910.217, for the reasons set forth in former Commissioner Van Namee's dissenting opinion. I would therefore find that the standard at 29 CFR 1910.217(c)(1)(i) was effective on the date respondent's place of business was inspected and applicable to the mechanical power press at issue.

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n6 The standard reads as follows:

1910.217 Mechanical power presses

(c) Safeguarding the point of operation

(1) General requirements. (i) It shall be the responsibility of the employer to provide and insure the usage of 'point of operation guards' or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press. See Table 0-10.

n7 The standard provides as follows:

1910.217 Mechanical power presses

(a) General requirements.

(3) All installations. The requirements of this section pertaining to the care and use of mechanical power presses shall apply to all mechanical power press operations as of February 15, 1972.

[*13]

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The standard at 29 CFR 1910.212(a)(3)(ii), under which respondent was actually cited, provides for safety measures that are nearly identical to those called for by 29 CFR 1910.217(c)(1)(i) except, of course, that the latter is more specifically applicable to mechanical power presses. It is undisputed that the point-of-operation on respondent's mechanical power press was not guarded on the inspection date.

Complainant, however, did not cite respondent under the standard at 29 CFR 1910.217(c)(1)(i). Thus, before respondent can be found in violation of the Act for non-compliance with 1910.217(c)(1)(i), the record must be examined to determine whether the pleadings may be amended to conform to the evidence pursuant to Rule 15(b) of the Federal Rules of Civil Procedure. n8 Rule 15(b) gives a court the authority to make such an amendment on its own motion. Not only does an adjudicative body have the right to amend pleadings on its own motion, it has an affirmative duty to consider issues that are raised by the evidence, even if not specifically pleaded. American Boiler Mfrs. [*14] Ass'n v. N.L.R.B., 366 F.2d 815, 821 (8th Cir. 1966); Michigan Consol. Gas Co. v. F.P.C., 283 F.2d 204, 224 (D.C. Cir. 1960); Underwriters Salvage Co. v. Davis & Shaw Furn. Co., 198 F.2d 450, 453 (10th Cir. 1952).

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n8 The Federal Rules of Civil Procedure govern Commission proceedings. section 12(g) of the Act and Rule 2(b) of the Commission's Rules of Procedure. Rule 15(b), in pertinent part, provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such an amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues.

Fed. R. Civ. P. 15(b).

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I conclude that the guarding issue was tried with the implied consent of the parties, and would conform the pleadings [*15] accordingly. Godwin-Bevers Co., Inc., No. 1373 (January 7, 1975) (dissenting opinion) that discusses the application of Rule 15(b) to Commission proceedings. Moreover, it should be noted that the Commission's hearings are subject to the formal adjudication provisions of the APA. Commission Rule 72. Under these provisions, an agency may find that a party's conduct violates a provision of law different from that specified in the notice so long as the underlying facts have been alleged and the shift in legal theory does not prejudice the party. N.L.R.B. v. Majestic Weaving Co., 344 F.2d 854, 861-862 (2d Cir. 1966); N.L.R.B. v. Pecheur Lozenge Co., 209 F.2d 393, 402 (2d Cir. 1953), cert. denied, 347 U.S. 953 (1954). I find no prejudice here because the guarding issue was plainly tried.

[The Judge's decision referred to herein follows]

GOLD, JUDGE: This action arose under Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659(c)) and came on for hearing on September 19, 1973 at Charleston, West Virginia.

On April 10, 1973 the Secretary issued a citation which charged Respondent with 13 non-serious violations of safety [*16] standards. Respondent contested only items 10 and 11(a), set forth below. All other items in the citation and penalties proposed therefor became a final order of the Commission pursuant to Section 10(a) of the Act (29 U.S.C. 659(a)).

Item

Standard or regulation

Description of alleged

Date on which

number

allegedly violated

violation

alleged violation

must be corrected

10

29 CFR 1910.104

The bulk oxygen storage

May 24, 1973

(b)(3)(iii)

tank located near the

west wall of the shop

is less than 25 feet from

the exterior wall.

11 n1

29 CFR 1910.212

The point of operation of

May 24, 1973

(a)(3)(ii)

machines, whose operation

exposes an employee to

injury, was not guarded

on the following equipment:

(a) Punch press in the

shop area.

A penalty of $50.00 was recommended for each of these two items. The cited standards under consideration state:

Subpart H -- Hazardous Materials

1910.104 Oxygen.

(b) Bulk oxygen systems.

(3) Distance between systems and exposures.

(iii) Fire resistive structures. Twenty-five feet from any structures with fire-resistive exterior walls or sprinklered buildings of other construction, but not less than one-half the [*17] height of adjacent side wall of the structure.

Subpart 0 -- Machinery and Machine Guarding

1910.212 General requirements for all machines.

(a) Machine guarding.

(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.

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n1 The citation alleged a violation of Part 1910.212(a)(3)(i), but was amended by the complaint.

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In answer to the Complaint, Respondent Corporation admitted that it employs about 125 personnel at its plant at Charleston, West Virginia where it fabricates metal products and manufactures warehouse and building products; that it regularly receives raw supplies from outside West Virginia and ships and sells its finished products [*18] outside said state; that it is engaged in a business affecting commerce, within the meaning of Section 3(5) of the Act, and is subject to the jurisdiction of the Commission.

A compliance officer of the Department of Labor inspected the plant on February 22 and 26, 1973.

In 1964 a bulk oxygen system was installed for Respondent by the Linde Division of Union Carbide Corporation, which owns, maintains and operates the system, and furnishes the oxygen for it. The oxygen tank sits on a concrete pad and is enclosed with a metal link fence (Exhs. C-1, R-6, R-7), which is locked. The Linde Division retains the key to the lock.

The tank is 22 inches from the west side of Respondent's building and 30 Inches from the corrugated metal wall of a shed which is on the north side of the tank. The shed is actually an extension of the building, and is used only as a storage area. The system is guarded on the west side by three 6-inch pipes embedded in concrete (Exh. R-7). There is a distance of 11 feet, 6 inches from the nearest uninsulated part of the system to a door opening in the west wall of the building (Exh. R-7).

Adjacent to the tank is an asphalt parking lot, with cars parked about [*19] 15-20 feet from the tank. The tank is 12-15 feet high.

The west wall of Respondent's building is of fire resistive construction; up to a height of about three feet it consists of cinder block reinforced on both sides with about six inches of concrete; above three feet and up to 12-15 feet it is cinder block; and then it is plexiglass and corrugated metal to its full height of 25-30 feet. (Exh. R-6).

The oxygen is used with acetylene for welding operations in the interior of the building; most of the welding takes place about 150 feet from the tank, but occasionally there is some welding in a part of the building only 30 feet away.

Respondent has challenged the validity of the standard cited in item 10, which requires a distance of at least 25 feet between a bulk oxygen system and fire resistive structures.

The authority of the Secretary to prescribe occupational safety and health standards is found in Section 6 of the Act, 29 U.S.C. 655.

Section 6(a) directs that within two years after the effective date of the Act n2 the Secretary shall by rule promulgate as a standard any national consensus standard and any established Federal standard, n3 unless he determines [*20] that such standard would not result in improved safety or health. In the event of conflict among such standards this subsection requires that he promulgate the standard which assures the greatest protection to employees. Section 6(a) specifically waives adherence to the basic procedural safeguards for rule making required by Section 6(b) of the Act and the Administrative Procedure Act (5 U.S.C. 553). The usual safeguards include publication of proposed rules in the Federal Register, opportunity for interested persons to present their views, and opportunity for a public hearing.

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n2 The Act was approved December 29, 1970 and took effect on April 28, 1971 or 120 days after date of enactment. See Section 34 of P.L. 91-596, set out as a note under 29 U.S.C. 651.

n3 Pertinent definitions in Section 3 of the Act, 29 U.S.C. 652, read:

(9) 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.

(10) 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.

[*21]

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Under Section 6(b)(1)-(4) the Secretary may promulgate, modify, or revoke a standard after complying with the safeguards noted above. Whenever the Secretary promulgates, pursuant to Section 6(b), a standard which differs substantially from an existing national consensus standard, Section 6(b)(8), 29 U.S.C. 655(b)(8), requires the Secretary to publish in the Federal Register, at the same time, a statement of the reasons why the adopted standard will better effectuate the purposes of the Act than the national consensus standard.

Section 6(c) permits the Secretary to provide emergency temporary standards, for a period not to exceed six months, without regard to the safeguards required by the Administrative Procedure Act.

The standard cited in item 10 of the amended citation was originally adopted by the Secretary of Labor on April 27, 1971 and published in the Federal Register on May 29, 1971. n4 In the preamble to Part 1910, and at 1910.1, the Secretary stated that the standards were promulgated pursuant to Section 6(a) of the Act. n5 The source of 29 CFR 1910.104(b)(3)(iii) was listed in [*22] Part 1910.115 as NFPA n6 No. 566-1965, Standard for the Installation of Bulk Oxygen Systems at Consumer Sites.

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n4 36 F.R. 10528.

n5 36 F.R. 10466, 10467.

n6 National Fire Protection Association.

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The Secretary also declared in the preamble:

The national consensus standards are occupational safety and health standards adopted and promulgated either by the American National Standards Institute (ANSI) or by the National Fire Protection Association (NFPA) under procedures whereby it can be determined that persons interested and affected by the scope or provisions of the standards have reached substantial agreement on their adoption. I have determined that those standards have been adopted and promulgated under such procedures. Accordingly, pursuant to this determination, after consultation with other appropriate Federal agencies, and in accordance with section 3(9) of the Act, I do hereby designate as national consensus standards those standards in Part 1910 which are standards adopted and promulgated by either the [*23] American National Standards Institute or the National Fire Protection Association.

As pertinent here, NFPA No. 566-1965 stated at Section 5-1-2:

5. Distance between Bulk Oxygen Systems and Exposures.

5-1-2. 25 feet from any structures with fire-resistive exterior walls or sprinklered buildings of other construction, but not less than one-half the height of adjacent side wall of the structure.

In 1971 the Secretary took the language of the 1965 national consensus standard and incorporated it into the safety standard at 29 CFR 1910.104(b)(3)(iii).

On October 4, 1972 the Assistant Secretary of Labor revised Part 1910, stating in the preamble: n7

The purpose of the revision is (1) to publish fully in one place the present occupational safety and health standards contained therein in order to reflect many changes made during the current year and thereby to improve their usefulness and facilitate their enforcement; (2) to correct a number of typographical and clerical errors in the text of the standards; and (3) to publish indexes with the standards, which are intended to permit quicker access to pertinent standards.

Since this revision does not make any substantive [*24] changes in the standards, it is not necessary to provide notice of proposed rulemaking, opportunity for public participation therein, nor any delay in effective date. For the same reason, good cause is found for not following the regular procedure for rulemaking provided in 5 U.S.C. 553 and for making this revision effective immediately.

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n7 37 F.R. 22102 (October 18, 1972).

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In the 1972 revision, 29 CFR 1910.104(b)(3)(iii) retains its original wording, and again NFPA No. 566-1965 is cited (at Section 1910.115) as the source of the standard.

However, NFPA No. 566-1965 was superseded by NFPA 50-1971 on May 19, 1971. Section 5-1-2 was amended at that time to read as follows:

5. Distance between Bulk Oxygen Systems and Exposures

5-1-2. Not less than one foot (or other distance to permit system maintenance) from buildings of other than wood frame construction, including fire resistive, heavy timber, noncombustible, and ordinary construction.

The 25-foot distance requirement in 29 CFR 1910.104(b)(3)(iii) was not [*25] a national consensus standard requirement on and after May 19, 1971. The Secretary therefore lacked authority to promulgate or enforce a safety standard with such distance requirement without first fully complying with the rule making procedures prescribed by the Congress in Section 6(b) of the Act. In light thereof, it is found that 29 CFR 1910.104(b)(3)(iii) was ineffective at the time when Respondent's plant was inspected on February 22 and 26, 1973; hence, there was no violation as to item 10, n8 and the charge will be vacated.

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n8 Actually, Respondent met the requirements of the national consensus standard in effect in February, 1973, the bulk oxygen system being at least 22 inches from fire resistive structures.

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The other contested charge is item 11(a), which alleges a violation of Part 1910.212(a)(3)(ii) for failure to guard the point of operation of a punch press.

The press in question is a mechanical power punch press, which was installed in its present location about 15 years ago. General requirements [*26] for guarding of machines are contained in 29 CFR 1910.212, but mechanical power presses are specifically covered by Part 1910.217. Under 29 CFR 1910.5(c), if a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any general standard which might otherwise be applicable. The standard specifically regulating the safeguarding of the point of operation of mechanical power presses is 29 CFR 1910.217(c)(1), which preempts the general standard at 1910.212(a)(3)(ii).

In accordance with 29 CFR 1910.217(a)(2) Respondent is relieved of the necessity of complying with 1910.217(c)(1) until August 31, 1974. Section 217(a)(2) of Part 1910 reads:

(2) Former Installations. All mechanical power presses installed prior to August 31, 1971, shall be brought into conformity with the requirements of the section not later than August 31, 1974.

Inasmuch as the power press had been installed prior to August 31, 1971 it qualifies as a "former installation" within the contemplation of 1910.217(a)(2), and Respondent cannot be deemed in violation of 1910.217(c)(1) at any time prior to September 1, 1974. In any event, Respondent [*27] is not citable under 29 CFR 1910.212(a)(3)(ii) as a matter of law, since that standard, being general in nature, is preempted by 1910.217(c)(1), a specific standard applicable herein. Item 11(a) will also be vacated.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the meaning of Sections 3 and 4(a) of the Occupational Safety and Health Act of 1970.

2. The standard at 29 CFR 1910.104(b)(3)(iii) had no legal effect as a safety standard on and after May 19, 1971, not having been promulgated in accordance with the rule making procedures required by Section 6(b) of the Act.

3. The standard at 29 CFR 1910.212(a)(3)(ii) is inapplicable herein to point of operation guarding of mechanical power punch presses, said standard being general in character and therefore preempted by the specific standard at 29 CFR 1910.217(c)(1).

4. Respondent was not in violation of Section 5(a)(2) of the Act on February 22 or 26, 1973 for noncompliance with 29 CFR 1910.104(b)(3)(iii) or 29 CFR 1910.212(a)(3)(ii).

ORDER

It is ORDERED that items 10 and 11(a) of the amended citation and the penalties proposed [*28] therefor be and the same are hereby VACATED.