United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20  Street, N.W., Ninth Floorth
Washington, DC 20036-3457


SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 16-1029

CALDWELL TANKS, INC.,
Respondent.

BRIEFING NOTICE
 The Commission requests the parties to address the following questions on review of the
administrative law judge’s decision:
1. Does the cited provision of the welding standard (29 C.F.R.
§ 1926.353(b)(1)) presume that a hazard exists “whenever welding, cutting,
or heating is performed in a confined space”?
In briefing this issue, the parties are asked to address the meaning of the
term “confined space” in the cited provision and whether the Secretary’s
interpretation  of  the  term  is  reasonable  and  entitled  to  deference.  The
parties  should  also  specifically  discuss  how  the  meaning  of  “confined
space,” as used in the cited provision, was affected, if at all, by OSHA’s
later  promulgation  and  revocation  of  29  C.F.R  § 1926.21(b)(6)(ii)  and
OSHA’s  promulgation  of  the  Confined  Spaces  in  Construction  standard
(Part 1926–Subpart AA). See 37 Fed. Reg. 3512, 3514 (February 17, 1972);
80 Fed. Reg. 25366, 25518-19 (May 4, 2015).
2. Did the Secretary provide sufficient notice of his interpretation of the cited
provision?
The parties are advised that when the merits or characterization of an item are before the
Commission on 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.

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 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 that does not intend to file a brief must notify the
Commission in writing setting forth the reason therefor 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 18, 2018 /s/
 John X. Cerveny
 Executive Secretary



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The  Commission  requests  that  all  briefs  include  an  alphabetical  table  of  authorities  with
references to the pages on which they are cited, and that an asterisk be placed in the left-hand
margin  of  the  table  to  indicate  those  authorities  on  which  the  brief  principally  relies.    The
Commission also requests that copies of cited authority, other than statutes, case law, law journal
articles and  legal  treatises,  be  provided  to  the Commission  and  to  the opposing  party.    Parties
should be cautioned that these materials will be considered only if appropriate.
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