YORBA LINDA ELECTRIC, INC.  

OSHRC Docket No. 207

Occupational Safety and Health Review Commission

March 19, 1974

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: A decision of Review Commission Judge James A. Cronin, Jr., dated April 28, 1972, is before this Commission for review pursuant to section 12(j) 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).

Having examined the record in its entirety, the Commission finds no prejudicial error therein.   Accordingly, the Judge's decision is hereby affirmed in all respects.  

CONCURBY: VAN NAMEE

CONCUR:

  VAN NAMEE, COMMISSIONER, concurring: Judge Cronin's disposition of this case was predicated on alternative grounds.   He concluded that the cited standard, 29 C.F.R. 1518.400(c)(1) (subsequently redesignated as 29 C.F.R. 1926.400(c)(1)), was inapplicable to the facts.   In the alternative, he concluded that even if the standard applied Complainant failed to prove a violation.   I would find the standard applicable and therefore do not affirm that portion of his decision.   I concur in affirmance of his disposition for the reason that Complainant failed to carry his burden of proof.

Briefly the facts are as follows.   The Mobil Oil Corporation [*2]   operates an oil field at Santa Fe Springs, California.   In the furtherance of that business Mobil receives electrical power over distribution lines owned by the Southern California Edison Company.   Southern's lines are energized at 12,000 volts, and they terminate   at Mobil's substation. The voltage is there reduced to 2,300 volts. The power is then routed to other step-down transformers and the voltage is further reduced to 480 volts (3 phase alternating current).

Mobil engaged Respondent for the purpose of extending a portion of the 480 volt system to a storage tank and pump facility.   Among other things, Respondent had to install power poles and string electrical conductors. The poles were furnished by Mobil.   One pole was located adjacent to a storage tank, and three conductors were deadended at insulative spools located on top of the pole. The conductors were insulated, but the insulation was stripped back 8 to 12 inches on the ends for connection purposes.

On November 2, 1971, Respondent's employee Randolph climbed the pole to install service lines.   To that end he affixed a wooden service block to the pole about five feet beneath its top. He also strung service [*3]   lines through a conduit, but he did not connect them to the deadended conductors on top of the pole. The service lines were not energized. Two other employees located on the ground at about a distance of 50 feet from the pole heard Randolph groan, looked up, and saw him hanging limp on the pole. Randolph had been observed wearing new leather gloves when he ascended the pole. The gloves were rated to provide protection against voltages up to 600 volts. They were found on the ground at the base of the pole after Randolph's body was removed.

On these facts Complainant cited Respondent for an alleged serious violation of 29 C.F.R. 1926.400(c)(1).   Respondent argues that the standard does not apply because it was constructing a power distribution line and such work is exempted from the provisions of Subpark K of Part 1926 according to the terms of 29 C.F.R. 1926.400(b).   The regulation provides as follows:

  These regulations apply only to electrical installations used on the jobsite, both temporary and permanent.   For power distribution and transmission lines, see Subpart V of this part.

The terms "distribution and transmission lines" are technical terms when they are   [*4]   used to describe the transmission and distribution of electrical power.   Transmission lines are "wholesale" lines since they are used to transfer power at high voltages in bulk and they are not employed to apportion power among customers. n1 Distribution lines serve the latter function and have been characterized as "retail" lines. n2 According to their technical meaning the terms apply to those that are engaged in the business of selling electrical power to consumers.   I would therefore, exclude power company transmission and distribution lines from the provisions of Subpart K.   On the record before us Mobil is a consumer of electricity and has its own electrical installation. The installation is used to apportion power among Mobil facilities for its exclusive use on its jobsite.   I would conclude that the installation is a permanent jobsite electrical installation and within the purview of Subpart K.   Accordingly, 29 C.F.R. 1926.400(c)(1) applies to this Respondent.

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n1 See United States v. Aluminum Company of America, 377 U.S. 271, 274n2 (1964); Hughes v. Duluth-Superior Transit Company, 247 Minn. 534, 78 N.W.2d 54, 56 (1950).

n2 Ibid.

  [*5]  

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In pertinent part, the last noted standard provides as follows:

No employer shall permit an employee to work in such proximity to any part of an electrical power circuit that he may contact the same in the course of his work unless the employee is protected against electrical shock by de-energizing the circuit and grounding it or by guarding it by effective insulation or other means.

On the facts, Respondent's employee was working in   such proximity to the deadended conductors that he could make contact with them. n3 On the other hand, the evidence also shows that the employee had been provided with and had been wearing gloves rated so as to provide protection against the voltage that could have been encountered on the pole. The record is silent on the question of whether he was wearing the gloves at the time of his death. n4 We only know that they were found at the base of the pole after the body was removed.   This is insufficient to show by inference that the gloves were not worn during the performance of the employee's work; they could just as well have been removed after death.   Accordingly,   [*6]   the record does not establish a violation; the proofs do not proponderate in favor of a finding that Respondent failed to protect its employee from electrical shock.   On this basis I would affirm the Judge's disposition.

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n3 The record does not establish actual or arcing contact nor is the cause of death established.   For all we know the employee may have died from natural causes.   Had electricity been shown to be the cause of death it would have been probative of the fact that the employee had not been guarded from electrical shock.

n4 Had he been wearing gloves at that time then the evidence favoring compliance would have been conclusive because the employee would have been protected from electrical shock as required by 29 C.F.R. 1926.400(c)(1).   In this regard compare 29 C.F.R. 1926.950(c)(1)(i).

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DISSENTBY: CLEARY

DISSENT:

  CLEARY, COMMISSIONER, dissenting: I do not agree with the result reached by my colleagues that approves the disposition of the case by the Administrative Law Judge.   I would reverse the Judge, and affirm [*7]   the Secretary's citation for serious violation, as amended by the complaint.

I agree with Commissioner Van Namee that the   cited standard, 29 CFR 1518.400(c)(1), n5 was applicable to respondent's operations for the reasons that he has assigned.   But, I would further find that the respondent violated the standard.

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n5 Redesignated as 29 CFR 1926.400(c)(1).

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The complainant alleged that respondent violated the standard by permitting employees to work in such proximity to an electric power circuit that they might contact the same, without taking action to protect the employees against electric shock by deenergizing the circuit and grounding it or by guarding it by effective insulation or "other means."

The decedent employee was wearing protective gloves when he climbed the pole. The gloves were rated to protect the wearer from 600 volts of electricity. After the decedent's fall, the gloves were found at the base of the pole. The concurring opinion concludes from this that the evidence is insufficient to show [*8]   that the gloves were not worn during the performance of the decedent employee's work, because the gloves could have been removed after death.   My colleague implicitly regards the wearing of insulated gloves as being "other means" of protecting employees from electric shock within the meaning of the standard, that are equivalent to the specifically listed means consisting of deenergizing the circuit, grounding, or guarding by effective insulation. The ejusdem generis rule suggests that personal protective equipment, such as insulated gloves, would not be among the means contemplated by the standard.   Rather, some type of impersonal protection seems contemplated.   If no other means were actually available by which this could have been accomplished, one of the express measures in the standard should have been taken.   Indeed, deenergizing on private work of this type seems not only desirable but practical.

This is not to say that insulating gloves, or sleeves with gloves would not otherwise be required in dealing   with the electrical hazard involved.   The broad requirements of section 1926.28(a) would require the use of such personal equipment.

My colleague invites comparison [*9]   to section 1926.590(c)(1)(i), one of the subsequently issued standards applicable to work on power transmission and distribution lines.   The cited standard applicable to work on power transmission and distribution lines.   The cited standard considers the use of gloves or, gloves with sleeves, as insulation of the employee from the energized part.   The cited standard is clearly different from the standard in issue here, and is not a reliable guide for its interpretation because its use represents an indulgence in post hoc reasoning as far as the older standard is concerned.

[The Judge's decision referred to herein follows]

CRONIN, JUDGE OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. (hereinafter called the Act) to review a citation and proposed assessment of a penalty thereon issued by the Secretary of Labor (hereinafter called the Secretary) against the Respondent, Yorba Linda Electric, Inc.

The citation for serious violation issued on November 18, 1971, alleges that the Respondent on November 2 and 3, 1971 violated an Occupational Safety and Health standard of the Act, namely 29 CFR 1518.400(c)(1).   [*10]   Notification of Proposed Penalty was issued on November 19, 1971 proposing to assess a penalty of $500.00 for the said violation.   By Notice of Contest filed November 22, 1971 the Respondent contested the citation as issued.   The Secretary's complaint was filed with the Commission on December 2, 1971 and Respondent's answer on December 20, 1971.

Pursuant to due notice, this case was heard at Los Angeles, California on March 16 and 17, 1972.   Following the hearing proposed findings of fact, conclusions   Applicability.   These regulations apply only to electrical installations used on the jobsite, both temporary and permanent.   For power distribution and transmission lines, see subpart V of this part.

Section 1518.400(c)(1) provides:

(c) Protection of employees: (1) No employer shall permit an employee to work in such proximity to any part of an electric power circuit that he may contact the same in the course of his work unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding it by effective insulation or other means.   In work areas where the exact location of underground electric power lines is unknown, workmen [*11]   using jack-hammers, bars, or other hand tools which may contact a line shall be provided with insulated protective gloves.

The issues to be resolved and determined are:

1.   Whether any of the regulations under subpart K, 1518.400 et seq are applicable to the unsafe practice alleged in the citation?

2.   If the said regulations are applicable, does the record establish that Respondent violated the cited regulation?

3.   If the Respondent violated the cited regulation, is the proposed penalty assessment appropriate under the Act?

B.   EVIDENCE

The record evidence establishes that the Southern California Edison Company maintains two, overhead 12,000 volt circuit, power distribution lines parallel to Bloomfield Road in the City of Santa Fe Springs, California.   These distribution lines emanate from that company's Santa Fe Springs substation located on Bloomfield Road, south of Clark Avenue and service, among other customers, what is called by Edison the "general petroleum customer substation" on Bloomfield Road at the corner of Clark Avenue (Tr. 20-21, Respondent's Ex. 1).   of law and briefs were filed by the Secretary and Respondent.

Upon the entire record, I make the [*12]   following

FINDINGS AND CONCLUSIONS

I.   JURISDICTION

The Respondent did not deny the complaint's assertions that it is engaged in construction work as defined at 29 CFR 1910.12(b) and in a business affecting commerce within the meaning of section 3(5) of the Act.   Therefore, I find that Respondent is an employer within the meaning of section 3(5) of the Act and that assertion of jurisdiction by the Commission is warranted.

II.   THE ALLEGED VIOLATION

A.   ISSUES PRESENTED

The complaint alleges that the Respondent on November 2 and 3, 1971 violated 29 CFR 1518.400(c)(1) in that Respondent permitted employees to work in such proximity to an electric power circuit that they might contact the same, without taking action to protect the employees against electric shock by disengaging the circuit and grounding it or by guarding it by effective insulation or other means.   It is further alleged that the said violation was a "serious violation" within the meaning of section 17(k) of the Act.   Finally, the complaint prays affirmation of the citation and proposed penalty of $500.00.

Respondent contends that the facts as alleged aren't sufficient to constitute a cause of action and further [*13]   denies the Secretary's allegations of violation.

Section 1518.400(b) of Subpart K provides:

  After receiving the 12,000 volt distribution from Edison, the Mobil Oil Corporation's substation redistributes the electricity by means of circuit breakers to three different branch distribution systems servicing the oil field at Santa Fe Springs.   The primary distribution system carries 12,000 volts of electricity to Mobil's own 12,000 volt transformers which reduce the power for distribution to three 2300 volt transformers.   These transformers, in turn, reduce the power to 480 volt three phase electricity which is then distributed by poles and overhead lines to individual oil well pumps and facilities in the Mobil Oil field (Tr. 237-242).

The Mobil Oil Corporation contracted with the Respondent corporation, an electrical contractor, to extend one of Mobil's 480 volt three phase distribution lines to the four storage oil tank and pump facility located 75 feet from both Telegraph and Bloomfield Roads (Secretary's Exhibit 1).   Under the same contract the Respondent also was to install and connect up an electrical service line from this 480 volt distribution line to a motor pump   [*14]   control panel and a 25 horse power oil well pump motor, all as depicted in Secretary's Exhibits 1 and 2.

On November 1, 1971, three employees of the Respondent installed two poles, one adjacent to the four storage tanks and another, a span pole 200 ft. south of the first pole. These poles which were furnished by the Mobil Oil Corporation were strung with three wires capable of conducting 480 volt three phase electricity and connected to a third, wire carrying pole, located just off Bloomfield Road.

The next day, November 2, 1971, an employee of Respondent, Ben Randolph, on the pole adjacent to the four storage tanks, installed the service conduit and wood service block as pictured on Secretary's Exhibit 2.   In climbing the pole, he was observed wearing new   horsehide gloves rated to protect their wearer from up to 600 volts of electricity. During the time he was working on the pole, the overhead 400-volt wires terminated or were "deadended" at the three insulated spools at the top of the pole and each of the three wire "tails" attached to the spools were "bare," stripped of their insulation approximately 8 to 10 inches.

That same day, November 2, 1971, while in the process [*15]   of making a "tap" or splicing connection between the wires emanating from the service conduit and the then energized 480-volt three phase electrical lines, Mr. Randolph groaned, became limp and hung from his safety belt until removed from the pole. n1

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n1 Respondent's brief, page 1, acknowledges that its employee was in the process of making a "tap" but the hearing record does not establish the cause of this incident.

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The following day, November 3, 1971, Jose Martinez, Respondent's foreman, completed the connection of the three overhead energized bare tails with the service wires emanating from the service conduit by folding back each of the three "tails," then connecting the top, middle and bottom wires in that order.   He wore high voltage rubber gloves, also covered with leather gloves, rated to protect their wearer from up to 10,000 volts of electricity. Testimony introduced at the hearing established that Respondent has a policy of instructing its employees to wear insulating gloves whenever working "hot" or energized [*16]   lines.

Both the Secretary and the Respondent introduced expert testimony at the hearing.   According to the Secretary's witness, Daniel Gee, an electrical engineer employed by the U.S. Army Corps of Engineers, the National Electric Code does not give any instructions on the procedure of how to connect up an installation as depicted in Secretary's Exhibit 2.   However, in his opinion the accepted or approved procedure in the   electrical industry for the installation in question would be to strip one tail at a time, make the complete connection, and then tape.   This same procedure should be followed with the second and third wires. If all three tails were "bare," for whatever reason, Mr. Gee testified that after covering with insulation the two wires not being worked upon, you should connect one wire at a time, beginning with the top wire. He further testified that if a person held one of the bare tails in his hand, it would burn, and if he came in contact with two bare wires "I assume he would get killed," (Tr. 124, 121).

On cross-examination, Mr. Gee defined a power distribution line as "furnished power to a panel or to a unit" (Tr. 142).

The Respondent's expert witness [*17]   was Phillip Rundell, Service Operations Engineer (Electrical) with the Mobil Oil Corporation's Santa Fe Springs oil field.   According to Mr. Rundell's testimony, the methods utilized by Jose Martinez in making the electrical connection on November 3, 1971, are considered safe and accepted procedure by the electrical industry.   He stated that baring three tails at one time is not a hazardous condition and is the common accepted custom in the electrical trade.   He contended that holding one bare tail would not cause a burn.   Further, he testified that it is common industry procedure to work on energized lines of 480-volt capacity (Tr. 286).   On cross-examination, Mr. Rundell indicated that if an employee's bare flesh were to come in contact simultaneously with two of energized wires shown on Secretary's Exhibit 2, death could result (Tr. 294).

He testified that the three phase 480-volt lines ending at the top of the pole shown on Secretary's Exhibit 1 and 2, are power distribution lines, part of a power distribution system owned by Mobil Oil Corporation   and therefore, in his opinion, not covered by Regulation 1518.400 et seq. (Tr. 243-247).

III.   DISCUSSION

A.   AS TO [*18]   APPLICABILITY

The Respondent, at the hearing and in its brief, stresses that the Secretary's regulations appearing under subpart K, section 1518.400 et seq. (now redesignated subpart K, section 1926.400 et seq. ) are not applicable to the installation or electrical work done on power distribution and transmission lines because that subject has been expressly reserved for subpart V of Part 1518 (now redesignated subpart V of Part 1926), not yet promulgated by the Secretary of Labor.   Therefore, according to Respondent's argument, the factual situation as reflected in this record cannot support a citation alleging violation of regulation 1518.400(c)(1)(now 1926.400(c)(1)).

In her brief, while recognizing that Part 1518 does not define power distribution or transmission lines, the Secretary's counsel argues that the only power distribution lines reserved for subpart V are those under the exclusive control of electric utilities and used to distribute power from a utility substation to a customer. In so concluding, counsel first adopts the definition of transmission line appearing in a document not an exhibit of record, namely the Linemen's and Cablemen's Handbook by Kurtz,   [*19]   Edwin B., (Fourth Edition, McGraw-Hill Publishing Company).   A transmission line is there described, according to counsel, as "the set of conductors over which the electrical energy is transmitted from a generating station to a substation." The Secretary then reasons, on the basis of this definition, that a distribution line would be that line which transmits   electrical energy "from the substation to the customer" (thereby excluding all distribution lines transmitting electricity from an industrial substation).

In adopting this narrow definition of distribution line, the Secretary's counsel leaves unanswered the question why such a distinction should be drawn.   For example, is there any valid reason for having one set of construction safety regulations covering the installation and electrical work done on or near energized power distribution lines of 12,000, or lower, voltage, owned by the Edison Company and another for distribution lines of 12,000, or lower, voltage, owned by the Mobil Oil Corporation?

In support of the Secretary's argument that the coverage exclusion of distribution lines in subpart K has no application to the factual situation in this case, it is contended [*20]   that one must look to subpart S of 29 CFR 1910, entitled "Electrical," particularly 29 CFR 1910.308(b), entitled, "Coverage of Subpart" and article 90-2 of the National Electric Code in order to determine the meaning of the terms power distribution and transmission lines.

Section 1910.308(b), however, does not define these terms, although by express language it does specifically exclude installations for the purpose of the transmission and distribution of electric energy under the sole control of electric utilities.   The import of the Secretary's contention in this regard appears to be that because only utility controlled distribution lines are specifically excluded under 1910.308, only utility controlled distribution lines are excluded under subpart K, 1518.400 et seq. Counsel's argument, while inventive, is not persuasive.   No rule of construction or logic has been cited, or found, that permits the "applicability" or "coverage" section of one set of safety regulations, adopted pursuant to another act, to govern and control,   without specific reference, the coverage section of an earlier adopted set of regulations.

It is implicit from the language of 1518.400(b) that [*21]   power distribution and transmission lines are not covered by regulation 1518.400 et seq. Unfortunately, no definition of these terms appear anywhere in the safety and health standards issued under section 6(a) of the Act.

The only evidence in the record bearing on the issue of whether the 480-volt three phase electrical lines are power distribution lines was elicited from the two electrical experts, Mr. Rundell and Mr. Gee. Both are of the opinion that the 480-volt lines constitute power distribution lines.   This Judge agrees and rejects the narrow and unsupported definition proposed by Secretary's counsel.

Perhaps the Secretary intended for the regulations under Part 1518 to cover power distribution systems like the one operated by Mobil Oil Corporation but if so, this intent was not clearly conveyed by the language of 1518.400(b).

It also might be argued that while the installation and electrical work on the 480-volt line may not be covered by 1518.400 et seq., the installation and connection of the service line to the 480-volt distribution line comes within the purview of and is covered by those regulations. The history of subpart K, however, tends to support a contrary [*22]   conclusion.

On February 2, 1971, the Secretary of Labor, pursuant to his proposed rule making authority, published in the Federal Register at 36 F.R. 1802, a proposed amendment of 29 CFR, Chapter XIII by adding thereto a new Part 1518.   This draft amendment contains sections 1518.950 and 951 under subpart V covering "Power Distribution Lines" and "Power Transmission Lines," which detail such subjects as required protective   equipment to be used and guidance for work performed "on or near" energized lines.   This draft amendment also contained a subpart K, with regulations 1518.400 et seq., almost identical to those appearing in the finally adopted Part 1518 except, in the draft amendment, present sections 1518.400(a) and (b) did not appear.

Proposed subpart V and sections 1518.950 and 951, of course, were not adopted or promulgated on April 17, 1971 although 37 F.R. 734, indicates that a proposed draft covering power distribution and transmission lines was being studied for adoption by the Secretary of Labor as recently as January 20, 1972.

Certainly, with this history, an employer engaged in an electrical construction business would be warranted in concluding that   [*23]   initially the Secretary of Labor intended to cover all electrical work performed on or near energized power distribution by regulations promulgated under subpart V of Part 1518 (now Part 1926).   Then, when proposed Part V was not adopted but "reserved," with reference of this fact made in subpart K, said employer also could reasonably conclude that work on power distribution lines is not covered by any of the regulations of Part 1518.

For an employer to be held liable for a violation of any safety or health regulation under the Act, the cited regulation's provisions should clearly put that employer on notice of his obligation to comply.   This has not been done here.

For the foregoing reasons, I find that section 1518.400(c)(1) is not applicable to the factual situation reflected by this record and accordingly, the citation and proposed penalty must be vacated.

B.   AS TO VIOLATION

Even assuming arguendo that regulations 1518.400   et seq. were applicable to the electrical work being performed by Respondent's employees on November 2, and 3, 1971, the citation cannot be affirmed on the basis of this record.   The evidence does establish that Respondent permitted two of   [*24]   its employees to work on an energized electric power circuit capable of producing electric shock. However, it also establishes that both employees had available insulated gloves capable of protecting them from electric shock while working on the 480-volt energized system shown in Secretary's Exhibit 2 and that Respondent's policy is to instruct all its employees to wear insulated protective gloves in such a situation.   Under these circumstances, the allegation that Respondent "permitted" his employees to be exposed to an electric power circuit without effective protection cannot be sustained.

The Secretary's expert testified that the exposure of three "bare tails" at one time and the procedure used in connecting them up are considered unsafe practices in the electrical industry.   However, more persuasive and convincing testimony by two experienced electrical power linemen was elicted, rebutting these opinions.   Accordingly, in my judgment, the Secretary has failed to sustain his burden of proving by a preponderance of the evidence that Respondent violated Section 1518.400(c)(1) on November 2, and 3, 1971.

CONCLUSIONS OF LAW

1.   Jurisdiction of this proceeding is conferred on the [*25]   Commission by Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ).

2.   Respondent is an "employer" and engaged in a business affecting commerce who has employees, within the meaning of Section 3(5) of the Act.

3.   The Secretary of Labor, pursuant to the authority   vested in him by Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327) duly issued and promulgated on April 17, 1971 Safety and Health Regulations for Construction, at 29 CFR 1518.

4.   The Secretary of Labor pursuant to the authority vested in him by section 6(a) of the Occupational Safety and Health Act of 1970 adopted the standards prescribed by 29 CFR 1518 at 29 CFR 1910.12.

5.   Respondent is engaged in "construction work" within the meaning of 29 CFR 1910.12.

6.   The regulations appearing under subpart K, 1518.400 et seq. were not applicable to the electrical construction work performed by the Respondent's employees on or near energized power distribution lines on November 2, and 3, 1971.

7.   Respondent did not violate on November 2, and 3, 1971, the safety regulation for construction at 29 CFR 1518.400(c)(1).

ORDER

Based on the foregoing [*26]   findings, conclusions of law and the entire record, it is ORDERED that the citation issued herein on November 18, 1971 and the proposed penalty assessed thereon be, and the same are, VACATED.