United States of America OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1120 20th Street, N.W., Ninth Floor Washington, DC 20036-3457 SECRETARY OF LABOR, Complainant, OSHRC Docket No. 08-0866 v. SOUTHERN PAN SERVICES CO., Respondent. BRIEFING NOTICE The issues that follow have been identified by the Review Commission as of particular interest on review. 1. With respect to Citation 2, Item 1, did the judge err in finding that the requirements concerning the placement of construction loads on a concrete structure under 29 C.F.R. § 1926.701(a) do not apply to Southern Pan Services Co. (“Southern Pan”)? See Concrete and Masonry Construction Safety Standards, 53 Fed. Reg. 22,612 (June 16, 1988). If so, did the Secretary establish that Southern Pan violated the cited standard? If the Secretary established the violation, did she also establish that the violation was willful? 2. With respect to Citation 2, Item 2, did the judge err in affirming a violation for Southern Pan’s failure to have revised plans available at the jobsite under 29 C.F.R. § 1926.703(a)(2)? In addressing this issue, the parties are asked to specifically discuss whether an employer has an obligation to create such plans. If the judge properly affirmed the violation, did the Secretary establish that the violation was willful? 3. The parties are also asked to address whether the material redacted from Dr. Mohammad Ayub’s May 2008 report, conclusion paragraphs 3 and 8 on pages 17 and 18, is relevant to determining whether Southern Pan violated 29 C.F.R. §§ 1926.701(a) or 1926.703(a)(2). See, e.g., Access Equip. Sys. Inc., 18 BNA OSHC 1718, 1720-22 & n.8 (No. 95-1449, 1999) (noting that citation for alleged failure to determine platform load limit not dependent upon fact that platform failed). If relevant, did the judge err in withholding this information based on the deliberative process privilege? The parties are advised that when the merits or characterization of an item are before the Commission for review, the appropriateness of the penalty is also subject to review. Accordingly, the parties may address the amount of the penalty if they so choose. All briefs are to be filed in accordance with Commission Rule 93. The first brief is to be filed within 40 days of this notice. A party who does not intend to file a brief must notify the Commission in writing setting forth the reason therefore within the applicable time for filing briefs, and shall serve a copy on all other parties. The time for filing briefs (or similar notices of intent) of opposing parties shall commence on the date of service. BY DIRECTION OF THE COMMISSION Dated: May 5, 2010 /s/ Ray H. Darling, Jr. Executive Secretary