GARLAND CALL POLE COMPANY

OSHRC Docket No. 2028

Occupational Safety and Health Review Commission

May 8, 1975

[*1]

Before Moran, Chairman; and CLEARY, Commissioner

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Thomas J. Donegan, dated November 27, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated three charges alleging that the respondent violated 29 U.S.C. 654(a)(2) by its failure to comply with occupational safety standards which are published as 29 C.F.R. 1910.265(c)(22), 1910.106(e)(6)(i), and 1910.265(d)(4)(iv). We affirm the Judge's decision on the latter standard and reverse his decision on the remaining two standards.

After being cited for the aforementioned violations, the respondent timely filed a notice of contest in which it clearly indicated that it wished to contest both the citation and the penalty proposed for the violation alleged under section 1910.265(d)(4)(iv) and only the penalties proposed for the other two violations. Twenty-two days thereafter, the respondent affirmed in its answer to the complaint that this was all that it desired to contest. About three weeks later, the respondent filed an amended answer in which all three violations were denied. The judge subsequently granted the respondent's [*2] motion to amend its notice of contest to encompass the two citations which had not originally been contested. Review was directed on the question of whether the Judge erred in granting these amendments. We answer the question in the affirmative.

An employer cited for violating the Act has 15 working days after receipt of the notification of proposed penalty to contest the citation or the penalty proposed therefor. 29 U.S.C. 659(a). If the employer contests only the penalty within that time period and if, as here, no employee or representative of employees has contested the abatement period specified in the citation within such time, the citation becomes a final order of the Commission in all respects and is not thereafter reviewable by the Commission. Secretary v. Occupational Safety and Health Review Commission and Bill Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973); Secretary v. Florida East Coast Properties, Inc., 6 OSAHRC 404 (1974). Accordingly, the Judge acted beyond his authority in permitting the respondent to amend its notice of contest and in vacating the violations related thereto.

The complainant proposed a $500.00 penalty for each of the [*3] violations which were improperly vacated by the Judge. However, since the respondent contested these proposals, he is entitled to an independent assessment of an appropriate penalty by the Commission. Secretary v. Dreher Pickle Co., 2 OSAHRC 497 (1973).

The respondent was cited for failing to comply with 29 C.F.R. 1910.265(c)(22) because several moving parts on a debarker, a machine which removes bark from wooden poles, were not guarded. The operator of the debarker ran the machinery from inside a small shack, and he was instructed to stop the machine before leaving the shack. The other employees in the pole yard were assigned to jobs that were not located within close proximity to the debarker. They would frequently pass it, but only when it was not in operation. On several occasions before the complainant's inspection, the respondent attempted to obtain guards from the manufacturer of the debarker, but was advised that they were still in the process of designing them. After the inspection, the respondent had a local concern construct a wooden barrier for the debarker.

The citation for noncompliance with 29 C.F.R. 1910.106(e)(6)(i) alleged that arc welding and oxygen [*4] and acetylene cutting were performed within close proximity to open cans of oil and gasoline contained in a nonsafety can which were stored in a storage room. A special cabinet, located away from the storage room, was provided by the respondent for the storage of inflammables. The gasoline and oil that were found in the storage room had been placed there by "human error." The respondent's policy was that welding was to be performed only in a location called the "roadway" which was a safe distance from the storage room.

At the time of the inspection, the respondent employed three workers at its pole yard. The respondent's average annual profit before taxes for the three years preceding the inspection was less than $20,000.00. The respondent had not previously been cited for violating the Act. It fully cooperated with the inspector, promptly abated the violations for which it was cited, demonstrated a genuine concern for the safety of its employees, and had implemented several safety actions on its own initiative.

Considering the above facts in conjunction with the entire record and giving due consideration to the factors enumerated in 29 U.S.C. 666(i), we conclude [*5] that a penalty of $50.00 should be assessed for noncompliance with 29 C.F.R. 1910.265(c)(22) and that a penalty of $200.00 is appropriate for the failure to comply with 29 C.F.R. 1910.106(e)(6)(i).

So much of the Judge's order as vacates the citations for noncompliance with 29 C.F.R. 1910.265(c)(22) and 1910.106(e)(6)(i) is set aside. A penalty of $50.00 is assessed for the former violation, and a penalty of $200.00 is assessed for the latter violation. The Judge's vacation of the remaining charge is affirmed.

[The Judge's decision referred to herein follows]

DONEGAN, JUDGE: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act).

At the Respondent's worksite 3 employees are engaged in the storage and debarking of logs, which are then classified and sold as utility poles. As a result of an inspection on November 6, 1972, of this worksite and place of employment under the ownership, operation, and control of the Respondent located on Leslie Avenue in Idaho Falls, Idaho, a Citation for a serious violation Number 1, a Citation for a serious violation Number [*6] 2, and a Citation Number 1 for non-serious violations (6 items) were issued to the Respondent on December 18, 1972, under the authority vested in the Complainant by Section 9(a) of the Act. It is alleged in these Citations that the Respondent had violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 of the Act.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act a "Notification of Proposed Penalty" was issued to the Respondent on December 18, 1972, which proposed a total penalty of $1,000 for the two alleged serious violations ($500 each for Citations Number 1 and 2), and a total penalty of $75 for the non-serious violations alleged in Citation Number 1 which consists of 6 Items (Item 1 -- $50, Item 2 -- $0, Item 3 -- $0, Item 4 -- $0, Item 5 -- $25, and Item 6 -- $0).

The Respondent, by a letter dated January 8, 1973, timely contested the proposed penalties of $500 for each of the alleged serious violations, and the alleged violation and proposed penalty of $25 of Item 5 of the alleged non-serious violations as follows:

GARLAND [*7] CALL POLE COMPANY, ROUTE #3 BOX 161, IDAHO FALLS, IDAHO 83401

January 8, 1973

U.S. Department of Labor, Occupational Safety and Health Administration, 921 S.W. Washington Street, Portland, Oregon, 97205

Dear Sirs:

In reference to the report we received December 20, 1972, of an inspection made on our facilities, I wish to contest the following;

A. Citation of serious violation no. 1 of 2. I wish to contest the $500.00 penalty assessed this citation.

B. Citation for serious violation no. 2 of 2. I wish to contest the $500.00 penalty assessed this violation.

C. Citation no. 5 of 6. I wish to contest both the citation and the $25.00 penalty assessed.

I will await to hear from you as to the time and date my case will be heard by the Review Board.

Respectfully,

Bill K. Shurtleff, President

Mr. Shurtleff's letter of January 30, 1973, which apparently is in response to the Complaint filed on January 17, 1973 is as follows: n1

GARLAND CALL POLE COMPANY, ROUTE 3 BOX 161, IDAHO FALLS, IDAHO 83401

January 30, 1973

Occupational Safety and Health Review Commission, 1825 K Street NW, Washington, D.C., 20006

Dear Gentlemen:

In the matter now pending before your commission [*8] of the Secretary of Labor vs. the Garland Call Pole Company, it is my contention that in determining the amount of the proposed penalties for serious violations no. 1 and 2, that proper consideration was not given to the size of the business, the gravity of the violations, the good faith of the respondent, and the history of previous violations as set forth in the Act.

It is also my contention that contrary to non-serious violation no. 5, the machine operator located in the peeler shack was adequately protected from flying bark and debris.

Respectfully,

Bill K. Shurtleff, President

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n1 The Respondent's letters of January 8 and 30, 1973 are inserted in this decision to clarify the issue involving the failure of the Respondent to state in the letter of contest, dated January 8, 1973, that the two serious violations were being contested.

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It is clear from the unambiguous language of the letter of contest and the letter of January 30, 1973, that it was the Respondent's expressed intention to only contest the penalties [*9] proposed for the alleged serious violations and not the alleged serious violations.

At the time Mr. Shurtleff submitted the letter of contest, dated January 8, 1973, and his letter in response to the Complaint, dated January 30, 1973, the Respondent was not represented by an attorney in this proceeding.

The Amended Answer to the Complaint was filed on March 19, 1973 by John D. Hansen, the Attorney who had been subsequently retained to represent the Respondent in this proceeding. In the Amended Answer the Respondent asserts his intent to contest the two serious violations in addition to the proposed penalties therefor. The Amended Answer also asserts the Respondent's intent to contest the 6 items alleging non-serious violations and the proposed penalties therefor.

It was resolved at the Hearing that it was the Respondent's intent to put in issue by the Amended Answer the serious violations alleged in Citations 1 and 2 as well as the proposed penalties of $500 for each of these alleged serious violations. The Respondent also confirmed his intent to contest the violation and proposed penalty involving only Item 5 of the 6 Items of alleged non-serious violations.

This [*10] intent of the Respondent as to the matters which he desired to contest is affirmed in the motion made at the hearing by Attorney Hansen to amend the Notice of Contest and the related pleadings.

This motion was denied by this Judge, but, as will be discussed later, this ruling is now considered to have been made in error. Accordingly, the Notice of Contest and related pleadings will be amended for the purpose of adding to the issues, to be determined in this proceeding, the serious violations alleged in Citations 1 and 2.

The serious violation as alleged in Citation Number 1 of 2 is as follows:

Citation Number -- 1 of 2; Date Issued -- December 18, 1972;

EMPLOYER -- Garland Call Pole Company, Street Leslie Ave., Rt. 3, Box 161,

ADDRESS

City -- Idaho Falls -- State -- Idaho -- Zip -- 83401

An inspection of a workplace under your ownership, operation, or control located at Leslie Ave., Rt. 3, Box 161, Idaho Falls, Idaho 83401 and described as follows Pole yard & Debarking operation has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard [*11] or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR Part 1910 1910.265(c)(22)

November 6, 1972 The following pieces of equipment are not guarded in accordance with the requirements of 1910.219. The Morbark DeBarker is not fitted with guards on approximately 5 chain and sprocket drives; also, approximately 4 V-belt and pulley drives and one horizontal shaft drive. -- Jan. 26, 1973

The standard which is alleged to have been violated in Citation for serious violation Number 1 of 2 provides as follows:

29 CFR 1910.265(c)(22)

1910.265 Sawmills.

(c) Building facilities, and isolated equipment --

(22) Mechanical power-transmission apparatus. The construction, operation, and maintenance of all mechanical power-transmission apparatus shall be in accordance with the requirements of 1910.219.

For 1910.219 see Appendix, Pages I to V.

The serious violation as alleged in Citation Number 2 of 2 is as follows:

Citation Number -- 2 of 2; Date Issued -- December 18, 1972;

EMPLOYER -- Garland Call Pole Company, Street -- Leslie Ave., Rt. 3, Box 161,

ADDRESS

City -- Idaho Falls -- State -- Idaho [*12] -- Zip -- 83401

An inspection of a workplace under your ownership, operation, or control located at Leslie Ave., Rt. 3, Box 161 Idaho Falls, Idaho 83401 and described as follows Pole yard & Debarking operation has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 US.C. 651, in the following respects:

Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR Part 1910 1910.106(e)(6)(i)

November 6, 1972 -- In the tool shed the following sources of ignition were found. (1) Storage of approximately 25 gallons of open containers of motor oil adjacent to oxygen & acetylene cylinders connected to cutting and welding hoses. (2) Storage of approximately 2 gallons of gasoline in a non-safety can adjacent to oxygen & acetylene cylinders and the above mentioned oil. (3) Are welding and oxygen & acetylene cutting is performed within 4 ft. of the above named combustible materials. -- Immediately upon receipt of citation

The standard which is alleged to have been violated in Citation for serious violation Number [*13] 2 of 2 provides as follows:

29 CFR 1910.106(e)(6)(i)

1910.106 Flammable and combustible liquids.

(e) Industrial plants --

(6) Sources of ignition -- (i) General. Adequate precautions shall be taken to prevent the ignition of flammable vapors. Sources of ignition include but are not limited to open flames; lightning; smoking; cutting and welding; hot surfaces; frictional heat; static, electrical, and mechanical sparks; spontaneous ignition, including heat-producing chemical reactions; and radiant heat.

Item 5 of the Citation for non-serious violations Number 1 is as follows:

Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

5 -- 29 CFR Part 1910 1910.265(d)(4)(iv) -- November 6, 1972 Peeler shack operator house; the operator is not protected from flying bark and debris. -- Five Days

The standard which is alleged to have been violated in the Citation for non-serious violations Number 1, Item 5, provides as follows:

29 CFR 1910.265(d)(4)(iv)

1910.265 Sawmills.

(d) Log handling, sorting, and storage --

(4) Mechanical barkers --

(iv) Enclosing hydraulic [*14] barkers. Hydraulic barkers shall be enclosed with strong baffles at the inlet and outlet. The operator shall be protected by adequate safety glass or equivalent.

The Respondent's employees are not represented by a Union or other representative and no employee or person representing an employee sought to participate in the hearing.

DISCUSSION

The First, Second and Third Defenses of the Amended Answer are concerned with issues resolved in this decision and do not require additional specific dispositions.

The Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Defenses of the Amended Answer assert, in substance, constitutional issues. As an Administrative Law Judge of the Occupational Safety and Health Review Commission, I am without authority to pass on the constitutionality of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ). n2 Since the Act and related enforcement procedures provided therein must be presumed by this Judge to comply with all applicable constitutional requirements, no ruling will be made in this decision on the constitutional issues raised by the Respondent.

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n2 Secretary of Labor v. American Smelting and Refining Company, OSHARC Docket No. 10 (August 17, 1973); Secretary of Labor v. Divesco Roofing & Insulation Co., Secretary of Labor v. Idaho Veneer Company,

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Respondent's Motion to amend the "Notice of Contest" and the related pleadings, which was denied at the hearing, is now granted pursuant to Rule 15 of the Federal Rules of Civil Procedure. Neither the Act nor the Commission's Rules of Procedure provide for the amendment of the Notice of Contest and accordingly, under Commission's Rule 2 n3 Federal Rule of Civil Procedure 15 (Amended and Supplemental Pleadings), is applicable.

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n3 29 CFR 2200.2 Scope of Rules; applicability of Federal Rules of Civil Procedure.

(a) These rules shall govern all proceedings before the Commission and its Judges.

(b) In the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Procedure.

[*16]

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In reversing his ruling made at the hearing, the Judge has considered the well argued and well briefed contentions of the Attorneys concerning the Motion to amend the Notice of Contest to include the serious violations. Consideration has also been given to the contention of the Complainant, which is now rejected although accepted at the hearing; namely that the Commission, under Section 10(a) of the Act, does not have jurisdiction for the purpose of making a determination concerning the two serious violations since only the proposed penalties for these violations had been contested within the statutory period of time.

The proposed penalties for the serious violations were contested within the period of time provided in Section 10(a) of the Act, and thereby the Commission acquired jurisdiction, not only over the issues involving the proposed penalties, but also over the issues involving the alleged serious violations for which the timely contested penalties had been proposed. n4

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n4 Secretary of Labor v. Crosby & Overton, Inc., Secretary of Labor v. Burik & Savko Lumber & Supply Company, Secretary of Labor v. Thorleif Larsen and Son, Inc., Secretary of Labor v. Midwest Die Casting Company, Docket No. 1623 (September 5, 1973).

[*17]

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Since the Respondent filed an Amended Answer for the purpose of placing in issue the serious violations, the Complainant was not prejudiced or taken by surprise at the hearing by this amendment of the Notice of Contest and related pleadings for the purpose of placing in issue the alleged serious violations of Citations 1 and 2.

About two weeks after the hearing, in a conference telephone call to the Attorneys for the Complainant and Respondent, the Judge inquired if either party would want to submit additional evidence in the event the ruling made by the Judge at the hearing on the amendment to the Notice of Contest should be reversed. Mr. Hansen and Mr. Kates agreed that they would await an opportunity to review the transcript of the hearing to determine whether it would be necessary to submit additional evidence regarding the alleged serious violations.

Mr. Kates, in a letter dated July 16, 1973, with a copy designated for Mr. Hansen, advised the Judge as follows:

I have spoken today with Mr. John Hansen, counsel for the respondent in the above reference proceeding, concerning the need to reopen [*18] the hearing or otherwise supplement the record as you mentioned in our earlier telephone conference.

Both Mr. Hansen and I believe that the record is complete and sufficient to permit you to rule on the merits of the serious violations in the event that you reverse the ruling made at the hearing. We both agree that there is no need to reopen the hearing or otherwise submit further evidence.

Accordingly, the ruling made by the Judge at the hearing is reversed, and determinations will be made in this decision concerning the two alleged serious violations, in addition to the matters specifically placed in issue by the Respondent's "Notice of Contest."

The serious violation alleged in Citation 1 charges the Respondent with failure to guard approximately 5 chain and sprocket drives and approximately 4 V-belt and pulley drives and one horizontal shaft drive, all on the Morbark debarker, in accordance with the requirements of 1910.219. (Emphasis supplied) The standard cited for this serious violation is 29 CFR Part 1910.265(c)(22) which requires mechanical power-transmission apparatus to be guarded in accordance with the requirements of 1910.219.

The Respondent's [*19] Attorney alleges in his brief (page 6) that neither the Citation nor the Complaint recite the precise regulations claimed to have been violated with sufficient clarity or specificity to state a claim subjecting the Respondent to the penalty provisions of Section 17(a) of the Act.

At the hearing Eldon Ryals, the OSHA Compliance Officer (hereinafter referred to as the Inspector), testified that he observed unguarded chain and sprocket drives, V-belt transmission drives, and an ankle high horizontal motor drive shaft on the Morbark debarker. While testifying at the hearing, he marked photographs of the Morbark debarker to indicate the locations of the alleged violations (Complainant's Exhibits C-1, C-2, C-3). The horizontal motor drive shaft does not appear in the photographs.

The Complainant's Attorney objected to the Judge's question to the Inspector as to what parts of 1910.219 were violated. This objection were based on a lack of Commission jurisdiction because the Respondent had not contested the serious violations and therefore the Commission could not raise on its own motion the question of whether or not a violation is charged with sufficient particularity. Mr. Kates [*20] subsequently withdrew his objection to the question. After the Inspector refreshed his recollection concerning 1910.219 during a brief recess, he testified as to certain parts of 1910.219 which he had considered as being applicable.

As to the hazards involved in this alleged serious violation, the Inspector testified that there is a very good probability that if a part of the body is caught in the nip points of the transmission drives, the part could be mangled, severed, or injured severely enough to require an amputation. He also stated the loose clothing could be caught in the nip points resulting in the person being pulled into the power-transmission equipment.

The Inspector's testimony and his markings on the photographs of the debarker (Exhibits C-1, C-2, C-3) at the hearing do not rectify the failure of the Citation to comply with Section 9(a) of the Act in charging the Respondent with the serious violation alleged in Citation 1.

Neither Mr. Shurtleff's conversations with the Inspector at the time of the inspection on November 6, 1972 concerning the guarding of the power-transmission parts of the debarker nor his testimony concerning the rumors he heard in [*21] 1972 and his subsequent efforts to obtain guards for the debarker waive the provisions of Section 9(a) of the Act in charging a Respondent with a violation of the Act.

The Citation does not identify the number of instances in which the Respondent failed to comply with the standard cited beyond giving an approximation.

The part of the standard ( 1910.219) referred to by reference in 29 CFR 1910.265(c)(22) consists of detailed specifications of the requirements of guarding, and consists of 4 pages of fine print and 2 tables of dimensions. The Citation does not identify the provisions of this part of the standard with which the Respondent was not in compliance at the time of the inspection.

It is concluded that Citation No. 1 of 2 for a serious violation does not comply with Section 9(a) of the Act which provides, in pertinent part, that each citation shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation or order alleged to have been violated. n5

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n5 Secretary of Labor v. Moser Lumber Company,

[*22]

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The serious violation alleged in Citation Number 2 concerns the storage in the tool shed of approximately 25 gallons of open containers of motor oil and approximately 2 gallons of gasoline in a non-safety can adjacent to oxygen and acetylene cylinders connected to cutting and welding hoses. The source of ignition is alleged to be the performance of welding and cutting with oxygen and acetylene within 4 feet of the oil and gasoline.

Complainant's Exhibit No. 4 is a photograph taken by the Inspector in the doorway of the tool shed. The Inspector testified that there were oxygen and acetylene in the green and yellow tubes up to the torch handle. He determined this by observing that the valves of the oxygen and acetylene tanks were turned on. The gasoline can (red) was covered while two cans had no covers.

The Inspector testified that Mr. Shurtleff was with him and they lifted a couple of cans and ascertained that there was oil in the cans. He said Mr. Shurtleff agreed that there was oil in the cans and gasoline in the red can. He also stated that Mr. Shurtleff agreed as to the presence [*23] of oxygen and acetylene in the cylinders.

When the Inspector was cross-examined, it developed that he could not remember if Mr. Shurtleff was with him when he inspected the tool shed. A Mr. Call was present in the hearing room, together with Mr. Shurtleff, and the Inspector said he could not say which of these two men was present when he inspected the storage area, but he was sure Mr. Shurtleff was present at the closing conference.

From the credible evidence it is clear that Mr. Ken Call, the yard foreman, was with the Inspector when he inspected the tool shed.

Since the Inspector met both Mr. Shurtleff and Mr. Ken Call at the time of the inspection on November 6, 1972, his confusion on cross-examination as to their identity is a source of puzzlement. This is particularly so when considered with reference to the Inspector's testimony that he did not observe welding or cutting being performed, although Mr. Shurtleff told him they had been welding in the doorway adjacent to the oil and acetylene tanks that morning.

The Inspector reiterated that he did not actually see the welding and that all he can state is what Mr. Shurtleff told him. He said that there was evidence [*24] of metal that had been cut very recently and welding on pieces of metal in the doorway.

There is no dispute with the Inspector's testimony as to the nature of the materials stored in the tool shed, but there is no evidence of the presence of flammable vapors. Only two cans, which possibly contained oil, are alleged to have been uncovered. There is no evidence of the presence of flammable vapors from these uncovered cans.

The important elements in the standard cited are the presence of flammable vapors and the presence of a source of ignition. The record is devoid of any evidence of the presence of flammable vapors.

One of the sources of ignition named in the standard is cutting and welding. If cutting and welding had occurred in the doorway of the tool shed it would be reasonable to conclude that this would be a source of ignition of flammable vapors were present. But the credible and substantial evidence does not support a finding that cutting and welding was performed in the doorway of the tool shed. The testimony of Mr. Shurtleff is to the effect that cutting and welding is done some 20 feet or so from the storage area.

To sustain the allegation of this serious violation [*25] the Complainant has the burden of proving, by substantial and credible evidence, the presence of flammable vapors and a source of ignition of the flammable vapors. This has not been done in either instance.

The violation alleged in Item 5 of Citation Number 1 for non-serious violation charges that the operator of the Morbark debarker is not protected from flying bark and debris when he is in the peeler shack operator house. The Morbark debarker is also called a peeler.

The standard that is cited as having been violated by the Respondent [29 CFR 1910.265(d)(4)(iv)] in (4)(i) applies to mechanical barkers and in (4)(iv) to enclosing hydraulic barkers. (Emphasis supplied) These two parts of the standard are as follows:

(4) Mechanical barkers -- (i) Rotary barkers. Rotary barking devices shall be so guarded as to protect employees from flying chips, bark, or other extraneous material.

(4) Mechanical barkers -- (iv) Enclosing hydraulic barkers. Hydraulic barkers shall be enclosed with strong baffles at the inlet and outlet. The operator shall be protected by adequate safety glass or equivalent.

Since the Respondent is charged in the Citation with [*26] a violation involving hydraulic barkers (4)(iv), it is necessary to determine if the Respondent's Morbark debarker is a hydraulic barker.

There is no evidence in the record that it is a hydraulic barker rather than a mechanical barker. Mr. Shurtleff testified that the peeler is like any electric motor, it can be shut off and put back in operation by punching a button. He stated it is all electrically powered.

Citation Number 1 for a serious violation charges that the Morbark debarker violates a standard [29 CFR 1910.265(c)(22)] concerned with mechanical power-transmission apparatus.

The photographs in evidence and the testimony of the Inspector support a conclusion that the Morbark debarker in this case is a mechanical barker rather than a hydraulic barker. n6

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n6 Webster's Third New International Dictionary (Unabridged) defines a barker as: "one that removes bark and dirt from logs and pulpwood by subjecting them to water pressure in a stream barker or to tumbling in a drum barker -- called also power barker."

Webster's Third New International Dictionary (Unabridged) defines hydraulic as: "hydraulic operated, moved, or effected by means of water; operated by the resistance offered or the pressure transmitted when a quantity of water, oil, or other liquid is forced through a comparatively small orifice or through a tube . . . . relating to a device operated in this way."

[*27]

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The testimony of the Inspector on cross-examination makes it clear that the Respondent's Morbark debarker did not remove the bark and dirt from the logs by water pressure. The Morbark debarker has a cutting head the removes the bark and debris from the logs.

It must be concluded from the available substantial evidence that the Morbark debarker is a mechanical barker. The Respondent is charged in Item 5 of Citation Number 1 with a non-serious violation for failing to comply with a standard that is concerned with a hydraulic barker. (Emphasis supplied) Accordingly, since the Respondent is charged in Item 5 of the Citation for non-serious violations Number 1 with a standard that is not applicable to the alleged violation, this Item of the Citation must be dismissed. n7

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n7 Secretary of Labor v. Moser Lumber Company,

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The evidence concerning this alleged violation involving [*28] the Morbark debarker and the Respondent's alleged failure to protect the operator from flying bark and debris has been carefully reviewed and it is concluded that the allegation is not supported by substantial evidence.

The Inspector's testimony that the glass in front of the operator did not afford adequate protection to the operator is based upon an open space in the glass approximately 8 X 8 inches and the possibility of flying bark and debris passing through this open space and hitting the operator. This assumption is not based on measurement of the angle of the relative position of the 8 X 8 inch open space in the glass shield in relation to the position where the operator sits behind the glass shield. The Inspector did not consider the operation of the cutter head in relation to the glass shield.

In his direct testimony, the Inspector stated the glass in the shield was extremely pitted and undoubtedly considered this as indicative of the force of the flying bark and debris. Mr. Kates did state that the Complainant was not alleging the violation on the basis of pitting in the glass. On cross-examination, the Inspector stated that the pitting of the glass was evidence of [*29] some debris having come in the direction of the operator.

Mr. Shurtleff testified that the glass was not pitted. The roughness on the glass was caused by pine gum flying off the poles and if the gum is scraped off the glass it is found that the glass is not pitted.

Mr. Shurtleff also testified that to his knowledge nothing had ever passed through the 8 X 8 inch space in the glass. He stated that the main thrust of debris from the header is directly down and away from the glass shield. He also said that there is a large fan causing a suction which draws the debris down into a bin, and the material which the Inspector said was flying around comes from the bins where the smaller pieces of bark filter through cracks in the wood of the bin.

If the Respondent had been correctly charged in the Citation concerning this alleged violation, it would be necessary to make a findings that the charge had not been proven by substantial evidence.

After considering the entire record in this case, including the Brief, Proposed Findings of Fact, Proposed Conclusions of Law, Proposed Order and the Reply Brief filed by the Attorney for the Complainant, and the Brief filed by the Respondent, [*30] it is concluded that the following "Findings of Fact" and "Conclusions of Law" are supported by the credible and substantial evidence of record.

FINDINGS OF FACT

1. The Respondent, Garland Call Pole Company, maintained a place of employment under its ownership and control located on Leslie Avenue in Idaho Falls, Idaho.

2. At this workplace in Idaho Falls, Idaho, the Respondent is engaged in the storage and debarking of logs which are then classified and sold as utility poles. There were 3 persons in the employ of the Respondent at this workplace at the time of the inspection on November 6, 1972.

3. The Respondent is a corporation which ships and sells outside of the State of Idaho the utility poles which are manufactured at its workplace in Idaho Falls, Idaho.

4. The Garland Call Pole Company is a small Idaho corporation. There are three stockholders who are related by marriage. The profits of the Corporation before taxes were $13,000 in 1972, $22,000 in 1971 and $15,000 to $16,000 in 1970. The business has been in operation since 1946 and was incorporated in 1969.

5. The Respondent's workplace at Idaho Falls, Idaho was inspected on November 6, 1972 by an authorized [*31] compliance officer in the employ of the Occupational Safety and Health Administration, U.S. Department of Labor.

6. As a result of this inspection on November 6, 1972, there were issued to the Respondent a Citation Number 1 of 2 for a serious violation, A Citation Number 2 of 2 for a serious violation and a Citation Number 1 for non-serious violations (6 items), together with a "Notification of Proposed Penalty" of $500 for each of the serious violations alleged in Citation Number 1 of 2 and Citation Number 2 of 2, and a total of $75 for the non-serious violations alleged in Citation Number 1 (Item 1 -- $50; Item 2 -- $0; Item 3 -- $0; Item 4 -- $0; Item 5 -- $25 and Item 6 -- $0).

7. The Respondent, by a letter dated January 8, 1973, timely contested the proposed penalties of $500 for each of the alleged serious violations, and the alleged violation and proposed penalty of $25 for Item 5 of the 6 items of the alleged non-serious violations.

8. The Respondent, in his letter of January 8, 1973, did not state that the alleged serious violations were being contested.

9. In an Amended Answer filed on March 19, 1973, the Respondent sought to place in issue the violations [*32] as well as the proposed penalties for the serious violations.

10. A motion by the Respondent, at the hearing, to amend the "Notice of Contest" and related pleadings for the purpose of putting in issue the serious violations was denied. The ruling made on this motion, at the hearing, is reversed in this decision and the serious violations are considered as having been contested for the purpose of the determinations made in this decision.

11. The Complainant and the Respondent have agreed that the record made at the hearing is complete and sufficient, and there is no need to reopen the hearing or otherwise submit further evidence, if a determination is made in this decision concerning the alleged serious violations.

12. The Respondent does not contest Items 1, 2, 3, 4 and 6 of the Citation for non-serious violations and does not contest the proposed penalties (Item 1 -- $50; Item 2 -- $0; Item 3 -- $0; Item 4 -- $0 and Item 6 -- $0) for these Items.

13. The Respondent, in the amended answer, has raised constitutional issues concerning the Act and enforcement procedures related thereto.

14. Citation Number 1 of 2 for serious violation does not identify in the Citation [*33] the parts of standard 1910.219 alleged to have been violated.

15. Citation Number 2 of 2 for serious violation and the allegations contained therein are not supported by substantial credible evidence.

16. Item 5 of Citation Number 1 for non-serious violations charges the violation of a standard which is not applicable to the machine involved in the alleged violation. There is not substantial evidence in the record to support the alleged violation if the correct applicable standard had been charged in the Citation.

CONCLUSIONS OF LAW

1. The Respondent, Garland Call Pole Company, was, at all times material to this proceeding, an employer engaged in business affecting interstate commerce within the meaning of Section 3 of the Act.

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter of this proceeding in accordance with Section 10 of the Act.

3. On November 6, 1972, an inspection was made of the Respondent's workplace at Idaho Falls, Idaho by an authorized employee of the Secretary of Labor in accordance with the requirements of Section 8 of the Act.

4. An Administrative Law Judge of the Occupational Safety and [*34] Health Review Commission does not have the authority nor is it within his jurisdiction to pass on the constitutionality of the Occupational Safety and Health Act of 1970 in a proceeding under the Act.

5. Items 1, 2, 3, 4 and 6 of Citation Number 1 for non-serious violations and the proposed penalties for the alleged violations named in these Items (Item 1 -- $50; Item 2 -- $0; Item 3 -- $0; Item 4 -- $0 and Item 6 -- $0), not having been contested by the Respondent within the period of time provided for such contest by Section 10(a) of the Act, became a final order of the Occupational Safety and Health Review Commission, not subject to review by any court or agency as provided in Section 10(a) of the Act.

6. Under Section 10(a) of the Act, the Occupational Safety and Health Review Commission acquired jurisdiction over the serious violations alleged in Citation 1 of 2 and Citation 2 of 2 as a result of the timely contest by the Respondent of the proposed penalties for these alleged serious violations.

7. On the motion of the Respondent, made at the hearing, the Respondent's Notice of Contest and the related pleadings are amended pursuant to Rule 15 of the Federal Rules [*35] of Civil Procedure to include a contest of the serious violations alleged in Citation 1 of 2 and Citation 2 of 2.

8. The Respondent did not violate Section 5(a)(2) of the Act by being in violation, on November 6, 1972, of the following standards and regulations, promulgated by the Secretary of Labor, as alleged in:

Citation Number 1 of 2 for serious violation:

29 CFR 1910.265(c)(22) in which is incorporated by reference 1910.219.

Citation Number 2 of 2 for serious violation:

29 CFR 1910.106(e)(6)(i)

Item 5 of Citation Number 1 for non-serious violations:

29 CFR 1910.265(d)(4)(iv)

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

1. That the Citation Number 1 of 2 for serious violation and the Notification of Proposed Penalty of $500 for this alleged violation, which were issued to the Respondent on December 18, 1972, be vacated, and the same are hereby vacated.

2. That the Citation Number 2 of 2 for serious violation and the Notification of Proposed Penalty of $500 for this alleged violation, which were issued to the Respondent on December 18, 1972, be vacated, and the same are hereby vacated.

3. That Item 5 of Citation Number 1 [*36] for non-serious violations and the Notification of Proposed Penalty of $25 for this alleged violation, which were issued to the Respondent on December 18, 1972, be vacated, and the same are hereby vacated.

APPENDIX

1910.219 Mechanical power-transmission apparatus.

(a) General requirements. (1) This section covers all types and shapes of power-transmission belts, except the following when operating at two hundred and fifty (250) feet per minute or less: (i) Flat belts one (1) inch or less in width, (ii) flat belts two (2) inches or less in width which are free from metal lacings or fasteners, (iii) round belts one-half (1/2) inch or less in diameter; and (iv) single strand V-belts, the width of which is thirteen thirty-seconds (13/32) inch or less.

(2) Vertical and inclined belts (paragraphs (e)(3) and (4) of this section) if not more than two and one-half (2 1/2) inches wide and running at a speed of less than one thousand (1,000) feet per minute, and if free from metal lacings or fastenings may be guarded with a nip-point belt and pulley guard.

(3) For the Textile Industry, because of the presence of excessive deposits of lint, which constitute a serious fire [*37] hazard, the sides and face sections only of nip-point belt and pulley guards are required, provided the guard shall extend off-running sides of the belt and at least two (2) inches away from the rim and face of the pulley in all other directions.

(4) This section covers the principal features with which power transmission safeguards shall comply.

(b) Prime-mover guards -- (1) flywheels. Flywheels located so that any part is seven (7) feet or less above floor or platform shall be guarded in accordance with the requirements of this subparagraph:

(i) With an enclosure of sheet, perforated, or expanded metal, or woven wire;

(ii) With guard rails placed not less than fifteen (15) inches nor more than twenty (20) inches from rim. When flywheel extends into pit or is within 12 inches of floor, a standard toeboard shall also be provided;

(iii) When the upper rim of flywheel protrudes through a working floor, it shall be entirely enclosed or surrounded by a guardrail and toeboard.

(iv) For flywheels with smooth rims five (5) feet or less in diameter, where the preceding methods cannot be applied, the following may be used: A disk attached to the flywheel in such manner as to [*38] cover the spokes of the wheel on the exposed side and present a smooth surface and edge, at the same time providing means for periodic inspection. An open space, not exceeding four (4) inches in width, may be left between the outside edge of the disk and the rim of the wheel if desired to facilitate turning the wheel over. Where a disk is used, the keys or other dangerous projections not covered by disk shall be cut off or covered. This subdivision does not apply to flywheels with solid web centers.

(v) Adjustable guard to be used for starting engine or for running adjustment may be provided at the flywheel of gas or oil engines. A slot opening for jack bar will be permitted.

(vi) Wherever flywheels are above working areas, guards shall be installed having sufficient strength to hold the weight of the flywheel in the events of a shaft or wheel mounting failure.

(2) Cranks and connecting rods. Cranks and connecting rods, when exposed to contact shall be guarded in accordance with paragraphs (m) and (n) of this section, or by a guardrail as described in paragraph (0)(5) of this section.

(3) Tail rods or extension piston rods. Tail rods or extension piston rods [*39] shall be guarded in accordance with paragraphs (m) and (o) of this section, or by a guardrail on sides and end, with a clearance of not less than fifteen (15) nor more than twenty (20) inches when rod is fully extended.

(4) Governor balls. Governor balls six (6) feet or less from the floor or other working level, when exposed to contact, shall be provided with an enclosure extending to the top of the governor balls when at their highest position. The material used in the construction of this enclosure shall conform to paragraphs (m) and (o) of this section.

(c) Shafting -- (1) Installation. (i) Each continuous line of shafting shall be secured in position against excessive endwise movement.

(ii) Inclined and vertical shafts, particularly inclined idler shafts, shall be securely held in position against end-wise thrust.

(2) Guarding horizontal shafting. (i) All exposed parts of horizontal shafting seven (7) feet or less from floor or working platform, excepting runways used exclusively for oiling, or running adjustments, shall be protected by a stationary casing enclosing shafting completely or by a trough enclosing sides and top or sides and bottom of shafting [*40] as location requires.

(ii) Shafting under bench machines shall be enclosed by a stationary casing, or by a trough at sides and top or sides and bottom, as location requires. The sides of the trough shall come within at least six (6) inches of the underside of table, or if shafting is located near floor within six (6) inches of floor. In every case the sides of trough shall extend at least two (2) inches beyond the shafting or protuberance.

(3) Guarding vertical and inclined shafting. Vertical and inclined shafting seven (7) feet or less from floor or working platform, excepting maintenance runways, shall be enclosed with a stationary casing in accordance with requirements of paragraphs (m) and (o) of this section.

(4) Projecting shaft ends. (i) Projecting shaft ends shall present a smooth edge and end and shall not project more than one-half the diameter of the shaft unless guarded by nonrotating caps or safety sleeves.

(ii) Unused keyways shall be filled up or covered.

(5) Power-transmission apparatus located in basements. All mechanical power transmission apparatus located in basements, towers, and rooms used exclusively for power transmission equipment shall [*41] be guarded in accordance with this section, except that the requirements for safeguarding belts, pulleys, and shafting need not be complied with when the following requirements are met:

(i) The basement, tower, or room occupied by transmission equipment is locked against unauthorized entrance.

(ii) The vertical clearance in passageways between the floor and power transmission beams, ceiling, or any other objects, is not less than five feet six inches (5 ft. 6 in.).

(iii) The intensity of illumination conforms to the requirements of ANSI A11.1 -- 1965 (R-1970).

(iv) The footing is dry, firm, and level.

(v) The route followed by the oiler is protected in such manner as to prevent accident.

(d) Pulleys -- (1) Guarding. Pulleys, any parts of which are seven (7) feet or less from the floor or working platform, shall be guarded in accordance with the standard specified in paragraphs (m) and (o) of this section. Pulleys serving as balance wheels (e.g., punch presses) on which the point of contact between belt and pulley is more than six feet six inches (6 ft. 6 in.) from the floor or platform may be guarded with a disk covering the spokes.

(2) Location of pulleys. [*42] (i) Unless the distance to the nearest fixed pulley, clutch, or hanger exceeds the width of the belt used, a guide shall be provided to prevent the belt from leaving the pulley on the side where insufficient clearance exists.

(ii) Where there are overhanging pulleys on line, jack, or countershafts with no bearing between the pulley and the outer end of the shaft, a guide to prevent the belt from running off the pulley should be provided.

(3) Broken pulleys. Pulleys with cracks, or pieces broken out of rims, shall not be used.

(4) Pulley speeds. Pulleys intended to operate at rim speed in excess of manufacturers normal recommendations shall be specially designed and carefully balanced for the speed at which they are to operate.

(5) Composition and wood pulleys. Composition or laminated wood pulleys shall not be installed where they are subjected to influences detrimental to their structural composition.

(e) Belt, rope and chain drives -- (1) Horizontal belts and ropes. (i) Where both runs of horizontal belts are seven (7) feet or less from the floor level, the guard shall extend to at least fifteen (15) inches above the belt or to a standard height (see Table [*43] 0-12), except that where both runs of a horizontal belt are 42 inches or less from the floor, the belt shall be fully enclosed in accordance with paragraphs (m) and (o) of this section.

(ii) In powerplants or power-development rooms, a guardrail may be used in lieu of the guard required by subdivision (i) of this subparagraph.

(2) Overhead horizontal belts. (i) Overhead horizontal belts, with lower parts seven (7) feet or less from the floor or platform, shall be guarded on sides and bottom in accordance with paragraph (o)(3) of this section.

(ii) Horizontal overhead belts more than seven (7) feet above floor or platform shall be guarded for their entire length under the following conditions:

( a ) If located over passageways or work places and traveling 1,800 feet or more per minute.

( b ) If center to center distance between pulleys is ten (10) feet or more.

( c ) If belt is eight (8) inches or more in width.

(iii) Where the upper and lower runs of horizontal belts are so located that passage of persons between them would be possible, the passage shall be either:

( a ) Completely barred by a guardrail or other barrier in accordance with paragraphs (m) [*44] and (o) of this section; or

( b ) Where passage is regarded as necessary, there shall be a platform over the lower run guarded on either side by a railing completely filled in with wire mesh or other filler, or by a solid barrier. The upper run shall be so guarded as to prevent contact therewith either by the worker or by objects carried by him. In powerplants only the lower run of the belt need be guarded.

(iv) Overhead chain and link belt drives are governed by the same rules as overhead horizontal belts and shall be guarded in the same manner as belts.

(v) American or Continuous System rope drives so located that the condition of the rope (particularly the splice) cannot be constantly and conveniently observed, shall be equipped with a telltale device (preferably electric-bell type) that will give warning when rope beings to fray.

(3) Vertical and inclined belts. (i) Vertical and inclined belts shall be enclosed by a guard conforming to standard in paragraphs (m) and (o) of this section.

(ii) All guards for inclined belts shall be arranged in such a manner that a minimum clearance of seven (7) feet is maintained between belt and floor at any point outside of guard. [*45]

(4) Vertical belts. Vertical belts running over a lower pulley more than seven (7) feet above floor or platform shall be guarded at the bottom in the same manner as horizontal overhead belts, if conditions are as stated in subparagraphs (2)(ii) ( a ) and (c) of this paragraph.

(5) Cone -- pulley belts. (i) The cone belt and pulley shall be equipped with a belt shifter so constructed as to adequately guard the nip point of the blet and pulley. If the frame of the belt shifter does not adequately guard the nip point of the belt and pulley, the nip point shall be further protected by means of a vertical guard placed in front of the pulley and extending at least to the top of the largest step of the cone.

(ii) If the belt is of the endless type or laced with rawhide laces, and a belt shifter is not desired, the belt will be considered guarded if the nip point of the belt and pulley is protected by a nip point guard located in front of the cone extending at least to the top of the largest step of the cone, and formed to show the contour of the cone in order to give the nip point of the belt and pulley the maximum protection.

(iii) If the cone is located less than 3 feet [*46] from the floor or working platform, the cone pulley and belt shall be guarded to a height of 3 feet regardless of whether the belt is endless or laced with rawhide.

(6) Belt tighteners. (i) Suspended counterbalanced tighteners and all parts thereof shall be of substantial construction and securely fastened; the bearings shall be securely capped. Means must be provided to prevent tightener from falling, in case the belt breaks.

(ii) Where suspended counterweights are used and not guarded by location, they shall be so encased as to prevent accident.

(f) Gears, sprockets, and chains -- (1) Gears. Gears shall be guarded in accordance with one of the following methods:

(i) By a complete enclosure; or

(ii) By a standard guard as described in paragraph (o) of this section, at least seven (7) feet high extending six (6) inches above the mesh point of the gears; or

(iii) By a band guard covering the face of gear and having flanges extended inward beyond the root of the teeth on the exposed side or sides. Where any portion of the train of gears guarded by a band guard is less than six (6) feet from the floor a disk guard or a complete enclosure to the height of [*47] six (6) feet shall be required

(2) Hand-operated gears. Subparagraph (1) of this paragraph does not apply to hand-operated gears used only to adjust machine parts and which do not continue to move after hand power is removed. However, the guarding of these gears is highly recommended.

(3) Sprockets and chains. All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform. Where the drive extends over other machine or working areas, protection against falling shall be provided. This subparagraph does not apply to manually operated sprockets.

(4) Opening for oiling. When frequent oiling must be done, openings with hinged or sliding self-closing covers shall be provided. All points not readily accessible shall have oil feed tubes if lubricant is to be added while machinery is in motion.

(g) Guarding friction drives. The driving point of all friction drives when exposed to contact shall be guarded, all arm or spoke friction drives and all web friction drives with holes in the web shall be entirely enclosed, and all projecting belts on friction drives where exposed to contact shall be guarded.

(h) Keys, setscrews, [*48] and other projections. (1) All projecting keys, setscrews, and other projections in revolving parts shall be removed or made flush or guarded by metal cover. This subparagraph does not apply to keys or setscrews within gear or sprocket casings or other enclosures, nor to keys, setscrews, or oilcups in hubs of pulleys less than twenty (20) inches in diameter where they are within the plane of the rim of the pulley.

(2) It is recommended, however, that no projecting setscrews or oilcups be used in any revolving pulley or part of machinery.

(i) Collars and couplings -- (1) Collars. All revolving collars, including split collars shall be cylindrical, and screws or bolts used in collars shall not project beyond the largest periphery of the collar.

(2) Couplings. Shaft couplings shall be so constructed as to present no hazard from bolts, nuts, setscrews, or revolving surfaces. Bolts, nuts, and setscrews will, however, be permitted where they are covered with safety sleeves or where they are used parallel with the shafting and are countersunk or else do not extend beyond the flange of the coupling.

(j) Bearings and facilities for oiling. Self lubricating [*49] bearings are recommended and all drip cups and pans shall be securely fastened.

(k) Guarding of clutches, cutoff couplings, and clutch pulleys -- (1) Guards. Clutches, cutoff couplings, or clutch pulleys having projecting parts, where such clutches are located seven (7) feet or less above the floor or working platform, shall be enclosed by a stationary guard constructed in accordance with this section. A "U" type guard is permissible.

(2) Engine rooms. In engine rooms a guardrail, preferably with toeboard, may be used instead of the guard required by subparagraph (1) of this paragraph, provided such a room is occupied only by engine room attendants.

(3) Bearings. A bearing support immediately adjacent to a friction clutch or cutoff coupling shall have self-lubricating bearings requiring attention at infrequent intervals.

(1) Bell shifters, clutches, shippers, poles, perches, and fasteners -- (1) Belt shifters. (i) Tight and loose pulleys on all new installations made on or after August 31, 1971, shall be equipped with a permanent belt shifter provided with mechanical means to prevent belt from creeping from loose to tight pulley. It is recommended that [*50] old installations be changed to conform to this rule.

(ii) Belt shifter and clutch handles shall be rounded and be located as far as possible from danger of accidental contact, but within easy reach of the operator. Where belt shifters are not directly located over a machine or bench, the handles shall be cut off six feet sic inches (6 ft. 6 in.) above floor level.

(iii) All belt and clutch shifters of the same type in each shop should move in the same direction to stop machines, i.e., either all right or all left. This does not apply to friction clutch on countershaft carrying two clutch pulleys with open and crossed belts, respectively. In this case the shifter handle has three positions and the machine is at a standstill when clutch handle is in the neutral or center position.

(2) Belt shippers and shipper poles. The use of belt poles as substitutes for mechanical shifters is not recommended. Where necessity compels their use, they shall be of sufficient size to enable workmen to grasp them securely. (A two-inch (2 in.) diameter of 1 1/2 by 2 inches cross-section is suggested.) Poles shall be smooth and preferably of straight grain hardwood, such as ash or hickory. [*51] The edges of rectangular poles should be rounded. Poles should extend from the top of the pulley to within about forty (40) inches of floor or working platform.

(3) Belt perches. Where loose pulleys or idlers are not practicable, belt perches in form of brackets, rollers, etc., shall be used to keep idle belts away from the shafts. Perches should be substantial and designed for the safe shifting of belts.

(4) Belt fasteners. Belts which of necessity must be shifted by hand and belts within seven (7) feet of the floor or working platform which are not guarded in accordance with this section shall not be fastened with metal in any case, nor with any other fastening which by construction or wear will constitute an accident hazard.

(m) Standard guards -- general requirements -- (1) Materials. (i) Standard conditions shall be secured by the use of the following materials. Expanded metal, perforated or solid sheet metal, wire mesh on a frame or angle iron, or iron pipe securely fastened to floor or to frame of machine.

(ii) All metal should be free from burrs and sharp edges.

(iii) Wire mesh should be of the type in which the wires are securely fastened [*52] at every cross point either by welding, soldering, or galvanizing, except in case of diamond or square wire mesh made of No. 14 gage wire, 3/4-inch mesh or heavier.

(2) Methods of manufacture. (i) Expanded metal, sheet or perforated metal, and wire mesh shall be securely fastened to frame by one of the following methods:

( a ) With rivets or bolts spaced not more than five (5) inches center to center. In case of expanded metal or wire mesh, metal strips or clips shall be used to form a washer for rivets or bolts.

( b ) by welding to frame every four (4) inches.

( c ) Be weaving through channel or angle frame, or if No. 14 gage 3/4-inch mesh or heavier is used by bending entirely around rod frames.

( d ) Where openings in pipe railing are to be filled in with expanded metal, wire mesh or sheet metal, the filler material shall be made into panels with rolled edges or bound with "V" or "U" edging of No. 24 gage or heavier sheet metal fastened to the panels with bolts or rivets spaced not more than five (5) inches center to center. The bound panels shall be fastened to the railing by sheet-metal clips spaced not more than five (5) inches center to center.

( e ) Diamond [*53] or square mesh made of crimped wire fastened into channels, angle or round-iron frames, may also be used as a filler in guards. Size of mesh shall correspond to Table 0-12.

(ii) Where the design of guards requires filler material of greater area than 12 square feet, additional frame members shall be provided to maintain panel area within this limit.

(iii) All joints of framework shall be made equivalent in strength to the material of the frame.

(n) Disk, shield, and "U" guards -- (1) Disk guards. A disk guard shall consist of a sheet-metal disk not less than No. 22 gage fastened by "U" bolts or rivets to spokes of pulleys, flywheels, or gears. Where possiblity of contact with sharp edges of the disk exists, the edge shall be rolled or wired. In all cases the nuts shall be provided with locknuts which shall be placed on the unexposed side of the wheel.

(2) Shield guards. (i) A shield guard shall consist of a frame filled in with wire mesh, expanded, perforated, or solid sheet metal.

(ii) If area of shield does not exceed six (6) square feet the wire mesh or expanded metal may be fastened in a framework of 3/8-inch solid rod, 3/4-inch by 3/4-inch by 1/8-inch angle [*54] iron or metal construction of equivalent strength. Metal shields may have edges entirely rolled around a 3/8-inch solid iron rod.

(3) "U" guards. A "U" guard consisting of a flat surface with edge members shall be designed to cover the under surface and lower edge of a belt, multiple chain, or rope drive. It shall be constructed of materials specified in table 0-12, and shall conform to the requirements of paragraphs (0)(3) and (4) of this section. Edgers shall be smooth and, if size of guard requires, these edges shall be reinforced by rolling, wiring, or by binding with angle or flat iron.

(o) Approved materials -- (1) Minimum requirements. The materials and dimensions specified in this paragraph shall apply to all guards, except horizontal overhead belts, rope, cable, or chain guards more than seven (7) feet above floor, or platform. (For the latter, see Table 0-13.)

(i) Minimum dimensions of materials for the framework of all guards, except as noted in subdivision (i)(c) shall be angle iron 1 inch by 1 inch by 1/8 inch, metal pipe of 3/4-inch inside diameter or metal construction of equivalent strength.

( a ) All guards shall be rigidly braced every [*55] three (3) feet or fractional part of their height to some fixed part of machinery or building structure. Where guard is exposed to contact with moving equipment additional strength may be necessary.

( b ) The framework for all guards fastened to floor or working platform and without other support or bracing shall consist of 1 1/2-inch by 1 1/2-inch by 1/8-inch angle iron, metal pipe of 1 1/2-inch inside diameter, or metal construction of equivalent strength. All rectangular guards shall have at least four upright frame members each of which shall be carried to the floor and be securely fastened thereto. Cylindrical guards shall have at least three supporting members carried to floor.

( c ) Guards thirty (30) inches or less in height and with a total surface area not in excess of ten (10) square feet may have a framework of 3/8-inch solid rod, 3/4-inch by 3/4-inch by 1/8-inch angle, or metal construction of equivalent strength. The filling material shall correspond to the requirements of Table 0-12. (See 3. FR 23731 -- Ed. )

(ii) The specifications given in Table 0-12 and subdivision (i) of this subparagraph are minimum requirements; where guards are exposed to unusual [*56] wear, deterioration or impact, heavier material and construction should be used to protect amply against the specific hazards involved.

(2) Wood guards. (i) Wood guards may be used in the woodworking and chemical industries, in industries where the presence of fumes or where manufacturing conditions would cause the rapid deterioration of metal guards; also in construction work and in locations outdoors where extreme cold or extreme heat make metal guards and railings undesirable. In all other industries, wood guards shall not be used.

(ii) ( a ) Wood shall be sound, tough, and free from any loose knots.

( b ) Guards shall be made of planed lumber not less than one (1) inch rough board measure, and edges and corners rounded off.

( c ) Wood guards shall be securely fastened together with wood screws, hardwood dowel pins, bolts, or rivets.

( d ) While no definite dimensions are given under this heading for framework or filler materials, wood guards shall be equal in strength and rigidity to metal guards specified in subparagraphs (1)(i) and (ii) of this paragraph and Table 0-12.

( e ) For construction of standard wood railing, see subparagraph (5) of this [*57] paragraph.

(3) Guards for horizontal overhead belts. (i) Guards for horizontal overhead belts shall run the entire length of the belt and follow the line of the pulley to the ceiling or be carried to the nearest wall, thus enclosing the belt effectively. Where belts are so located as to make it impracticable to carry the guard to wall or ceiling, construction of guard shall be such as to enclose completely the top and bottom runs of belt and the face of pulleys.

(ii) The guard and all its supporting members shall be securely fastened to wall or ceiling by gimlet-point lag screws or through bolts. In case of masonry construction, expansion bolts shall be used. The use of bolts placed horizontally through floor beams or ceiling rafters is recommended.

(iii) Suitable reinforcement shall be provided for the ceiling rafters or overhead floor beams, where such is necessary, to sustain safely the weight and stress likely to be imposed by the guard. The interior surface of all guards, by which is meant the surface of the guard with which a belt will come in contact, shall be smooth and free from all projections of any character, except where construction demands it; protruding [*58] shallow roundhead rivets may be used. Overhead belt guards shall be at least one-quarter wider than belt which they protect, except that this clearance need not in any case exceed six (6) inches on each side. Overhead rope drive and block and roller-chain-drive guards shall be not less than six (6) inches wider than the drive on each side. In overhead silent chain-drive guards where the chain is held from lateral displacement on the sprockets, the side clearances required on drives of twenty (20) inch centers or under shall be not less than one-fourth inch from the nearest moving chain part, and on drives of over twenty (20) inch centers a minimum of one-half inch from the nearest moving chain part.

(iv) Table 0-13 gives the sizes of materials to be used and the general construction specifications of guards for belts ten (10) inches or more in width. No material for overhead belt guards should be smaller than that specified in Table 0-13 for belts ten (10) to fourteen (14) inches wide, even if the overhead belt is less than ten (10) inches in width. However, No. 20 gage sheet metal may be used as a filler on guards for belts less than ten (10) inches wide. Expanded metal, because [*59] of the sharp edges, should not be used as a filler in horizontal belt guards.

(v) For clearance between guards and belts, ropes or chains of various center to center limensions between the shafts, see bottom of Table 0-13. (See 39 FR 23732 -- Ed. )

(4) Guards for horizontal overhead rope and chain drives. Overhead-rope and chain-drive guard construction shall conform to the rules for overhead-belt guard construction of similar width, except that the filler material shall be of the solid type as shown in Table 0-13, unless the fire hazard demands the use of open conconstruction. A side guard member of the same solid filling material should be carried up in a vertical position two (2) inches above the level of the lower run of the rope of chain drive and two (2) inches within the periphery of the pulleys which the guard encloses thus forming a trough. These side filler members should be reinforced on the edges with 1 1/2-inch by 1/4-inch flat steel, riveted to the filling material at not greater than eight (8) inch centers; the reinforcing strip should be fastened or bolted to all guard supporting members with at least one 3/8-inch rivet or bolt at each intersection, [*60] and the ends should be secured to the ceiling with lag screws or bolts. The filling material shall be fastened to the framework of the guard and the filler supports by 3/16-inch rivets spaced on 4-inch centers. The width of the multiple drive shall be determined by measuring the distance from the outside of the first to the outside of the last rope or chain in the group accommodated by the pulley.

(5) Guardrails and toeboards. (i) Guardrail shall be forty-two (42) inches in height, with midrail between top rail and floor.

(ii) Posts shall be not more than eight (8) feet apart; they are to be permanent and substantial, smooth, and free from protruding nails, bolts, and splinters. If made of pipe, the post shall be one and one-fourth (1 1/4) inches inside diameter, or larger. If made of metal shapes or bars, their section shall be equal in strength to that of one and one-half (1 1/2) by one and one-half (1 1/2) by three-sixteenths (3/16) inch angle iron. If made of wood, the posts shall be two by four (2 X 4) inches or larger. The upper rail shall be two by four (2 X 4) inches, or two one by four (1 X 4) strips, one at the top and one at the side of posts. The midrail may [*61] be one by four (1 X 4) inches or more. The rails (metal shapes, metal bars, or wood), should be one that side of the posts which gives the best protection and support. Where panels are fitted with expanded metal or wire mesh as noted in Table 0-12 the middle rails may be omitted. Where guard is exposed to contact with moving equipment, additional strength may be necessary.

(iii) Toeboards shall be four (4) inches or more in height, of wood, metal, or of metal grill not exceeding one (1) inch mesh. Toeboards at flywheel pits should preferably be placed as close to edge of the pit as possible.

(p) Care of equipment -- (1) General. All power-transmission equipment shall be inspected at intervals not exceeding 60 days and be kept in good working condition at all times.

(2) Shafting. (i) Shafting shall be kept in alignment, free from rust and excess oil or grease.

(ii) Where explosives, explosive dusts, flammable vapors or flammable liquids exist, the hazard of static sparks from shafting shall be carefully considered.

(3) Bearnings. Bearings shall be kept in alignment and properly adjusted.

(4) Hangers. Hangers shall be inspected to make certain that all [*62] supporting bolts and screws are tight and that supports of hanger boxes are adjusted properly.

(5) Pulleys. (i) Pulleys shall be kept in proper alignment to prevent belts from running off.

(ii) One or both pulleys carrying a nonshifting belt should have crowned faces.

(iii) Cast-iron pulleys should be tested frequently with a hammer to disclose cracks in rim or spokes. It should be borne in mind that the sound is usually the pulley.

(iv) Split pulleys should be inspected to ascertain if all bolts holding together the sections of the pulley are tight.

(6) Care of belt. (i) Quarter-twist belts when installed without an idler can be used on drives running in one direction only. They will run off a pulley when direction of motion is reversed.

(ii) Inspection shall be made of belts, lacings, and fasteners and such equipment kept in good repair.

(iii) Where possible, dressing should not be applied when belt or rope is in motion; but, if this is necessary, it should be applied where belts or rope leave pulley, not where they approach. The same precautions apply to lubricating chains. In the case of V-belts, belt dressing is neither necessary nor advisable.

(7) [*63] Lubrication. The regular oilers shall wear tight-fitting clothing and should use cans with long spouts to keep their hands out of danger. Machinery shall be oiled when not in motion, wherever possible.