“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2004 COLLATOR CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 25, 1976?DECISIONBEFORE BARNAKO,Chairman; MORAN and CLEARY, Commissioners.BARNAKO,Chairman:Thiscase presents the question of whether Commission Judge Henry C. Winters erredin ruling that: (1) both a citation and penalty were properly before theCommission for disposition when the notice of contest was limited to thepenalty; and (2) the Secretary failed to establish that Respondent?s pressbrakes needed additional point of operation guarding. For the reasons statedherein, we affirm the Judge?s decision.??????????? Following an inspection of itsworkplace, Respondent was issued a citation on December 12, 1972 and AmendedNotification of Proposed Penalty on January 2, 1973, for numerous non-seriousviolations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 etseq., hereinafter, ?the Act?). On January 4, 1973, Respondent filed a notice ofcontest pro se which stated:In accordancewith the procedures in the Federal Register, Part II, Volume 36, #105, datedMay 29, 1971, Occupational Safety and Health Standards, we hereby contest thenotice of proposed penalties.\u00a0Thereafter,the Secretary filed his complaint in which he alleged that Respondent?s noticeof contest was ?limited to the citation items involving only those violations chargedin paragraph IV above.?[1]Respondent?s answer generally denied the violations alleged in the complaintand asserted an affirmative defense as to subparts (1) and (4) of item number 7of the citation which alleged a violation of 29 C.F.R. 1910.212(a)(1)[2]for failure to guard two types of press brakes.Atthe opening of the hearing, counsel for the Secretary moved for judgment on thepleadings on the basis, inter alia, that Respondent?s notice of contest waslimited to the penalties. Respondent replied that by its notice of contest, itintended to contest the merits of the citation, but went on to state that itwas only ?seriously? contesting sub-items 1 and 4 of item 7 of the citation(failure to guard press brakes). Judge Winters denied the Secretary?s motion,ruling that the citation and penalties were in issue.Inhis decision, the Judge stated his reasons for finding that both the citationand penalties were before the Commission. He found, however, that Respondentwas only contesting the failure to guard the press brakes.InFlorida East Coast Properties, Inc., 6 OSAHRC 404 (1974), BNA 1 OSHC1532, CCH Employ. S. & H. Guide para. 17,272 (1974), the Commission ruledthat where a timely notice of contest is limited by its words to the penalties,the citation becomes a final order of the Commission under Section 10(a) of theAct. In this case there can be no doubt that Respondent?s notice of contest waslimited to the penalties. However, it is equally clear from Respondent?s answerthat it wished to contest the citation as well as the penalty for the failureto guard the press brakes.[3]We recently held in Turnbull Millwork Company, OSHRC Docket No. 7413(December 15, 1975), that we would permit amendment of notices of contest whichby their words are limited solely to the penalty to include a contest of thecitation, if a respondent?s subsequent pleadings indicate that it was hisintent to also contest the citation when he filed his notice of contest.Accordingly, we find in the instant case that the merits of sub-items 1 and 4of item 7 of the citation are properly before the Commission.Therelevant portions of the citation alleged that Respondent had failed to guardthe points of operation of a ?Cyril Bath?[4]press brake and three ?Star-Di-Arco? press brakes. Judge Winters vacated thisallegation on the basis that 29 C.F.R. 1910.212 does not apply to press brakesand even if it did, the Secretary failed to establish that the press brakes, asthey were set up and used at the time of the inspection, presented a hazard toRespondent?s employees. With regard to Judge Winter?s finding that 1910.212does not require point of operation guarding, we note that we ruled to thecontrary in a decision issued subsequent to Judge Winter?s decision here. IrvingtonMoore, Division of U. S. Natural Resources, Inc., 16 OSAHRC 608, BNA 3 OSHC1018, CCH. S. & H. Guide para. 19,523 (April, 1975); pet. for reviewfiled, No. 75?2159 (9th Cir., May 27, 1975). However, we do agree withJudge Winters? alternative finding that Respondent?s press brakes, as they wereused here, presented no hazard to Respondent?s employees.Inthis regard, the record establishes that when the presses are set up foroperation, they are adjusted so that the space between the female and male diesis only large enough to allow the stock to be inserted; that is \u215b? to1\/32? inch. In order to remove the formed metal, it is necessary to separatethe dies by ??. The record also establishes that Respondent?s press brakes arealways set-up with the power off and the treadle, which activates the machine,removed. In view of the foregoing, we find the Secretary has failed toestablish that Respondent?s press brakes present a hazard to its employees.Inasmuch as 29 C.F.R. 1910.212(a)(1) only requires guarding of hazards, we willaffirm the Judge?s vacation of sub-items 1 and 4 of item number 7 of thecitation.Accordingly,the Judge?s disposition is affirmed. It is so ORDERED.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATE: FEB 25, 1976?CLEARY,Commissioner, CONCURRING:Becausethe Commission?s precedent cited by Chairman Barnako requires that we reach themerits of this case,[5]I concur because my colleague?s factual findings are supported by thepreponderant evidence. My colleague, Commissioner Moran, states that he wouldconsider the validity of a standard a question of subject matter jurisdiction.Our precedents do not accord with his individual view. Acme Metal, Inc., supra,and cases cited therein. As to the nature of subject matter jurisdiction, andwhether it is affected by the merits, see generally, West Coast ExplorationCo. v. McKay, 213 F.2d 582, 591?592 (D.C. Cir.) (collecting authorities),cert. denied, 347 U.S. 989 (1954); 21 C.J.S. Courts ?? 23, 35(b) and (c), and37?49.[6]Finally, the matter is obviously not one for sua sponte consideration anddisposition.?MORAN,Commissioner, Concurring in Part, Dissenting in Part:Iconcur in the affirmation of the decision below vacating subitems 1 and 4 ofitem 7. I find, however, that Judge Winters properly concluded that 29 C.F.R. ?1910.217(a)(5), rather than 29 C.F.R. ? 1910.212(a)(1), applies to pressbrakes. I have previously discussed this matter at some length in my dissentingopinions in Secretary v. Irvington Moore, Division of U.S. NaturalResources, Inc., 16 OSAHRC 608, 612 (1975), and Secretary v. Gem-Top Mfg.,Inc., 16 OSAHRC 591 (1975). Since Judge Winters? decision is affirmed herewith,I attach its full text hereto as Appendix A.Irespectfully dissent, however, from the Commission?s implied affirmation of thedecision below concerning items 5, 6 and 9. The standards for which respondentwas cited therein were promulgated outside of the authority conferred on theSecretary of Labor by Congress. When this occurs, a question of subject matterjurisdiction arises because the regulations are null and void. See UtahPower & Light Company v. United States, 243 U.S. 389, 410?411 (1917). Aquestion of subject matter jurisdiction may be raised at any time before orafter a matter has been adjudicated. Secretary v. Stevens Equipment Co.,2 OSAHRC 1501, 1506 (1973). I therefore believe that those three items shouldnot be affirmed.Items5 and 6 alleged that respondent failed to comply with the fire extinguisherstandards codified at 29 C.F.R. ? 1910.157(a)(3)[7]and ? 1910.157(c)(5)(i).[8]These standards were promulgated by the Secretary of Labor pursuant to 29U.S.C. ? 655(a)[9] which authorized him topromulgate as standards under this Act any national consensus standard,?. . . unless .. . [it] would not result in improved safety or health for . . . employees.?Thus,Congress mandated that a standard promulgated under ? 655(a) must be directedat ?safety or health? of employees in order for it to be a proper standardunder this Act.Sections1910.157(a)(3) and (c)(5)(i) are concerned with fire extinguishers. Todetermine the reason for such regulations requires an analysis of the generalsection of which they are a part: 29 C.F.R. ? 1910.157. Contained therein arenumerous examples that indicate that the purpose thereof is to protectproperty.Section157(c)(1)(i) states ?[t]he number of fire extinguishers needed to protect aproperty . . .;? ? 157(c)(1)(ii) states that ?[f]ire extinguishers shall beprovided for the protection of . . . the building structure . . .;? ?157(c)(1)(iii) states ?[r]equired building protection shall be provided by fireextinguishers . . .;? ? 157(c)(1)(v) states ?[e]xtinguishers provided forbuilding protection . . .;? ? 157(c)(1)(vi) states ?[c]ombustible buildings . .. shall have a . . . fire extinguisher . . . for building protection . . ..?Eventhough the two standards in issue here do not include similar words, it isquite evident from the foregoing that all of ? 1910.157 is, at least in part,aimed at the protection of property. This intent clearly permeates the entiresection of 1910.157, thereby rendering the property protection purposeinseverable from the purpose of employee protection. The Occupational Safetyand Health Act, however, does not grant the Secretary of Labor authority topromulgate property protection regulations. Section 655(a) directs thatregulations protect employees.Whena regulation applies at least in part to a nonpermissible objective, and thatpart is not severable from any possible purpose that could fall within thestatutory mandate, the entire standard must be struck down. See Fowler v. Gage,301 F.2d 775, 778 (10th Cir. 1962). That is the case here.Thus,29 C.F.R. ?? 1910.157(a)(3) and (c)(5)(i) were promulgated ultra vires of thelimitations set forth by Congress. When this occurs, the standards are void.See Utah Power & Light Company v. United States, supra; Federal MaritimeCommission v. Anglo-Canadian Shipping Company, Ltd., 335 F.2d 255, 258 (9thCir. 1964).Thesetwo standards do not meet the statutory criteria for occupational safety andhealth standards under this Act and therefore no violation can be predicatedthereon. That part of the citation should therefore be vacated.Item9 alleges a violation of 29 C.F.R. ? 1910.213(h)(1), pertaining to woodworkingmachinery, which was also promulgated by the Secretary of Labor under theauthority of 29 U.S.C. ? 655(a). This standard, however, was improperlypromulgated because it did not contain certain limitations specified in aheadnote of the standard from which it was derived, American National StandardsInstitute (ANSI) standard 01.1?1954 (R 1961).AsI expressed in my dissenting opinion in Secretary v. Noblecraft Industries,Inc., OSAHRC Docket No. 3367, November 21, 1975, this modification of the ANSIstandard was ultra vires of the Secretary?s authority under ? 655(a). Thestandard is therefore null and void, and no violation of 29 U.S.C. ? 654(a)(2)can be predicated thereon.Accordingly,this part of the citation should also be vacated.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2004 COLLATOR CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 ?April 11, 1974\u00a0DECISIONAND ORDERAppearances:??????????? JaneAnn McKenzie, Esq. for Complainant??????????? FredN. Hoover, Esq. for Respondent\u00a0Henry C. Winters, Judge\u00a0STATEMENTOF THE CASE??????????? This is an action brought by theSecretary of Labor under Section 10 of the Occupational Safety and Health Actof 1070 (29 U.S.C. 651 et seq.) to affirm a citation, issued December 12, 1972,alleging non-serious violations of the Act, and to affirm proposed civilpenalties totaling $330.00.??????????? The citation was issued by theSecretary?s area director as a result of an inspection made by a complianceofficer on October 27, 1972 of a plant in Seattle, Washington where Respondentwas and is engaged in the manufacture of collating machines.? Citation Number 1, issued December 12, 1972,alleges the following violations:\u00a0 Item No. Standard or Regulation allegedly violated Description of alleged violation Date on which alleged violation must be corrected \u00a0 1 29 CFR 1904.2(a) Failure to maintain a log of occupational injuries and illnesses on Form OSHA No. 100 Immediately upon receipt of this citation. 2 29 CFR 1910.23(c)(1) Failure to guard the openside of a loft, above the center bay machine shop in the ?R&D? area area, with a standard guardrail and toeboard or the equivalent. \u00a0 January 2, 1973 3 29 CFR 1910.37(q)(1) Failure to mark the access to exits with readily visible signs at the following locations:? 1) access doorways on the east side of the basement leading to the approach to exit above. 2)? Access doorways to exits on the east and west sides of the tool room on the third floor. \u00a0 January 2, 1973 4 29 CFR 1910.37(k)(2) Means of egress on the east side of the ?R&D? area, blocked in a manner that prevents immediate use in case of fire or other emergency. \u00a0 Immediately upon receipt of this citation. 5 29 CFR 1910.157(a)(3) Failure to conspicuously indicate the location and intended use of portable fire extinguishers at the following locations: 1) Location not indicated for a soda acid extinguisher located in the basement. 2) Location and intended usage of not indicated or extinguishers located in the 2nd floor wood shop. \u00a0 January 2, 1973 6 29 CFR 1910.157(c)(5)(1) Failure to locate a portable fire extinguisher with class-c ratings where energized electrical equipment (metal cutting saws) are in use in the basement. \u00a0 December 15, 1972 7 29 CFR 1910.212(a)(1) Failure to provide for one or more methods of adequate machine guarding to protect the operator and other employees in the machine area from hazards created by the point of operation, at the following machines: 1) the ?Cyril Bath? press brake, model 100-6, serial #6711 (Ex Boeing) located on the west side of the ?R&D? area. 2) the ?Cincinnati shear, serial #12600,Oct 27, 1972 located in the ?R&D? area, and having a barrier guard placed a height of approximately 1? above the cutting table that allows space to insert fingers. 3) ?Lodge and Shipley? shear located in the metal fabrication area of the third floor.? The barrier guard in place on the machine is worn in the center to the extent that hands may be slipped under the guard. 4) Three ?Star-Di Arco? press brakes located in the metal fabrication area of the third floor are without point of operation guards. \u00a0 January 2, 1973 8 29 CFR 1910.213(g)(1) ?Walker-Turner? swing cut-off saw in saw shop located in the basement area has the lower half of 12? diameter saw blade unguarded. \u00a0 January 2, 1973 9 29 CFR 1910.213(h)(1) 1) ?DeWalt? cross cut radial saw located in the wood shop on the 2nd floor has an unguarded lower half of the 18? diameter saw blade. 2) The ?DeWalt? cross cut radial saw, used for metal cutting in the basement saw shop is without a guard on the lower half of cutting blade. \u00a0 January 2, 1973 10 29 CFR 1910.213(h)(4) The cutting head of the cross cut radial saws does not return to its original starting position when released by the operator, on the following two saws: 1) ?DeWalt? cross cut radial used for metal cutting and located in the saw shop of the basement. 2) ?DeWalt? cross cut radial, with 18? diameter head, located in the wood shop on the second floor. \u00a0 December 15, 1972 11 29 CFR 1910.213(i)(1) Failure to guard the 12? portion of the blade between the sliding guide and the upper-saw-wheel guard on the ?Walker-Turner? band saw in the machine shop of the ?R&D? area. \u00a0 December 15, 1972 12 29 CFR 1910.219(d)(1) Failure to guard exposed pulleys, less than seven feet off the floor or adjacent work surfaces, at the following locations: 1) Exposed pulleys (approximately 41\/2?high) on the ?Ingersoll-Rand? compressor in the basement compressor room. 2) Exposed pulleys (4?high) on the ?Brown and Sharpe, Turner Uni-Drive? automatic screw machine in the tooling room of the third floor. 3) Exposed pulley (approximately 51\/2? high) on Hollidie punch press #3 located in the third floor metal fabrication shop. 4) Exposed pulley (approximately 4? high) on the Allis Chalmers air compressor located in the third floor machine shop. January 2,1973 13 29 CFR 1910.219(f)(1) Failure to guard exposed revolving gears on the grit barrel tumbler located in the welding shop area of the third floor. \u00a0 January 2, 1973 14 29 CFR 1910.242(b) Failure to limit static pressure of compressed air hoses less than 30 PSI at the: 1) Etching tank area. 2) Second floor wood shop. \u00a0 Immediately upon receipt of this citation. 15 29 CFR 1910.252 (a)(2)(iv)(c) Oxygen and acetylene, compressors gas bottles were stored adjacent without a noncombustible barrier at least 5? high or a minimum distance of 20? located in the welding shop of the third floor. \u00a0 Immediately upon receipt of this citation. 16 29 CFR 1910.309(a) Electrical disconnect switches at the following six locations not legibly identified as required in article 110-22 of the NEC-1971: 1) light switch box located in the center of the south bay of the third floor. 2) Two light switch boxes located adjacent to the ?Cincinnati? shear in the ?R&D? area. 3) Switch box for ?Cincinnati? shear in ?R&D? area. 4) Light switch box on north wall of south bay on 4th floor. 5) Power switch box (240 v.a.c., 100 amp) on each wall of 4th floor machine assembly area. 6) Power switch box (240 v.a.c., ?200 amp) on east end of bin assembly area of 4th floor. \u00a0 January 2, 1973 \u00a0??????????? ByAmended Notification of Proposed Penalty, issued January 2, 1973, the Secretaryproposed the following penalties: Item No. Proposed Penalty 1a 0 2 0 3 0 4 0 5 0 6 30.00 7 65.00 8 35.00 9 65.00 10 30.00 11 30.00 12 45.00 13 30.00 14 0 15 0 16 0 Total for All Alleged Violations $330.00 \u00a0??????????? Respondent?s notice of contestconsists of a letter, dated January 4, 1973, from Respondent?s president to theSecretary?s area director.? The letterreads as follows:In accordance with the procedures inthe Federal Register, Part II Volume 36, #105, dated May 29, 1071, OccupationalSafety and Health Standards, we hereby contest the notice of proposedpenalties.\u00a0??????????? Inthe Complaint, filed January 12, 1973, the Secretary seeks to have affirmedcertain violations, charged in paragraph IV of the Complaint, namely, thoseviolations described in Item Numbers 6, 7, 8, 9, 10, 11, 12 and 13 of CitationNumber 1, and the penalties proposed therefor.?The Complaint alleges in part (paragraph X) as follows:?The notice ofcontest by its terms is limited to the citation items involving only thoseviolations charged in paragraph IV above.?Jurisdiction over such limited contest has thereby been conferred uponthe Commission pursuant to Section 10(c) of the Act?\u00a0??????????? In its answer, filed February 6,1973, the Respondent denies the allegations of paragraph IV of the Complaintand particularly with respect to subparts (1) and (4) of Item Number 7, allegesthat the Department of Labor has failed to promulgate standards pertaining topoint of operation guarding of press brakes.??????????? Hearing was held at Seattle,Washington before this Judge on April 10 and 11, 1973.??????????? At the opening of the hearing, counselfor the Secretary made the following oral motion (TR3):At this time theSecretary would move for a judgement on the pleadings in the Secretary?s favorbased on the fact that there is no genuine issue of material factors resulted [10]by this Commission. ?Respondent?s Noticeof Contest limited its contest to the Notice of Proposed Penalties.? This Commission was therefore givenjurisdiction over the reasonableness of those proposed penalties.? The Secretary filed a complaint alleging thatthe proposed penalties were computed in accordance with Section 17(j) of theOccupational Safety and Health Act.?Respondent?s answer admitted that the proposed penalties were reasonablein that Rule 33 of the Commission?s Rules of Procedure the Respondent did notdeny that the proposed penalties were reasonable.? Therefore, there are no general issues ofmaterial fact before this Commission. \u00a0??????????? In reply, the Respondent assertedthat in its letter of January 4, 1973 the Respondent intended not only tocontest the proposed penalties but each of the substantive violations allegedin the citation. Counsel for Respondent then stated (TR12 and 13):\u00a0Let the record showRespondent is not seriously contesting those items in citations dated December12, 1972 other than those items which are designated as Item No. 7, Sub (1) andSub (4) and referred to in the complaint as Paragraph 2 Sub (1) and Sub (4).? However, again for the record, and to protectthe Respondent, we continue to contest all other items and will presenttestimony to show that the remaining items of the citation have been correctedand\/or abated to the best knowledge and means of the Respondent in the absenceof any specific directions as to how abatement and\/or correction should beaccomplished.\u00a0Whereuponthis Judge ruled as follows:??????????? ?At this stage of the proceeding itis my interpretation from this letter that the Respondent intended to contestthe entire citation and the notification of proposed penalty, and I?m puttingthe Secretary on notice to proceed on that basis or argue with me on brief.\u00a0Briefsand proposed findings were submitted by the parties.\u00a0DISCUSSION??????????? The recent decision in Docket No.2354, Secretary v. Florida East Coast Properties, Inc., (decidedFebruary 4, 1974) would seem to require this Judge to reverse his ruling withrespect to what was at issue in this case.?This Judge, will, however, confirm this ruling for two reasons:(1) Therationale of the decision in Docket No. 1086, Secretary v. P.M.F., Inc.,which became the final order of this Commission on January 2, 1974 supports theruling and has not been specifically reversed or modified; and (2) a respondentshould have the opportunity up to the time of hearing to change the basis ofhis contest, if, indeed, he could be required to specify a basis for wanting ahearing. In the P.M.F. case, this Judge said (pages 6, 7, and 8):The Judge concludesfrom a reading of the Act, particularly section 10 thereof, that Congressintended that if an employer contests either the citation or the proposed assessmentof a penalty, the employer is entitled to a hearing at which, subject toreasonable rules of procedure, all matters are at issue, including the validityof the alleged violations, the reasonableness of the proposed abatement date,and the appropriateness of a penalty. Section 10(a) provides that an employerhas fifteen working days from the time he is notified of a proposed penalty tocontest the citation or proposed penalty; and that if the employer failsto notify the Secretary that he intends to contest the ?citation orproposed assessment of penalty? and no timely notice is filed by an employee orrepresentative of employees, ?the citation and assessment as proposedshall be deemed a final order of the Commission and not subject to review by anycourt or agency.? It is significant that this statute refers to the Citationand proposed assessment of penalty as ?a final order? and not as ?final orders.?Congress did not separate the finality of the citation from the finality of thepenalty assessment, as contended by the Secretary.?Section 10(c)provides that if an employer notifies the Secretary he intends to contest acitation or notification of proposed penalty, the Secretary shall advise theCommission and the Commission shall afford an opportunity for a hearing; andthat the Commission shall thereafter issue an order affirming, modifying orvacating the citation or proposed penalty, or ?directing other appropriaterelief.? The statute did not limit the issues of the hearing to the scope of thenotice of contest but rather puts the whole matter before this Commission witha broad power to direct other appropriate relief.?Under theSecretary?s interpretation of this statute, if an employer contests theproposed penalty but does not specifically state that he is contesting thecitation, and a hearing is held, the following rather strange consequence wouldresult:\u00a01) The Respondentwould be precluded from asserting that the reason he should not have a penaltyassessed against him is because he did not violate the Act; and?2) This Commission,although holding a hearing to consider the facts and circumstances surroundingan alleged violation, would be prevented by its own final order (an order whichit did not issue and over which it at no time had any control) from vacating ormodifying a citation which it considered to be erroneous. This Judge cannotbelieve Congress intended such consequences.?When one considersthat the citation and notification of proposed penalty are not required to beissued simultaneously and it is only the notification of proposed penalty thatstarts the fifteen working day period within which a notice of contest must bemade, and when one considers that the abatement date is automatically postponedwhen a good faith notice of contest is made, the conclusion is even moreevident that a notice of contest does not have to mention specifically that thecitation is contested in order to put the validity of the citation as an issuebefore this Commission. This is not to say that a Respondent may not admit thevalidity of a citation either by making an explicit admission in a notice ofcontest, or by way of a pleading or in testimony, thereby eliminating thenecessity of proving the allegations of a citation?.\u00a0??????????? This Judge persists in his beliefthat his decision in the P.M.F. case is sound.??????????? In this Judge?s opinion, Congressintended that the notice of contest be the vehicle by which an employer wouldexercise the right conferred on him by the Administrative Procedure Act to havethe opportunity for a hearing; [11]and that Congress did not intend that the notice of contest be a responsivepleading in the sense that an employer must, within a period as short as 15days, decide precisely what his objections or his defense would be.? If it were the intent of Congress in Section10 of the Act that an employer by the particular language be used in a noticeof contest would thereby make an irrevocable decision limiting the issues ofthe proceeding and the jurisdictional power of this Commission, such provisionsof the Act would, in this Judge?s opinion, contravene the guarantee of theFifth Amendment of the U.S. Constitution that a person shall not be deprived ofproperty without due process of law.??????????? This Judge concludes in this case thatRespondent?s notice of contest was sufficient to challenge the validity of thecitation as well as the appropriateness of the proposed penalties; and that thejurisdiction of this Commission is not restricted by the language of the noticeof contest.? ??????????? The Respondent has, however, by itsanswer to the complaint and by statements of its counsel at the hearingnarrowed its concern to the validity of subparts (1) and (4) of Item No. 7, andthe reasonableness of proposed penalties.???????????? The standard alleged in Item No. 7as having been violated, provided as follows:1910.212 Generalrequirements for all machines (a) Machineguarding ? (1) Types of guarding. One or more methods of machineguarding shall be provided to protect the operator and other employees in themachine area from hazards such as those created by point of operation, ingoingnip points, rotating parts, flying chips and sparks.? Examples of guarding methods are ? barrierguards, two-hand tripping devices, electronic safety devices, etc.??????????? Since subpart (1) and(4) of Item No. 7 concern point of operation guarding, it is necessary toconsider, in addition to the provisions above-quoted, the provisions ofsubparagraph (3) of paragraph (a) of Section 1910.212, dealing specificallywith point of operation guarding.?Additionally, since the language of such subparagraph (3) differs ratherdrastically from the established federal standard which its the source, it isnecessary to compare this part of the standard with its source.??????????? By notification publishedin the Federal Register on May 29, 1971, the Secretary promulgated as standardsunder the Act certain established federal standards which were in effect onApril 28, 1971.[12]? One of such established federal standards wasthat in 41 CFR 50-204-5 which was originally promulgated under the Walsh-HealeyPublic Contracts Act, amended (41 U.S.C. 35) and which is the source of thestandard in Section 1910.212.[13]??????????? The standard in 41CFR50-204.5 in effect on April 28, 1971 contains verbatim the above provisions asquoted from Section 1910.212(a)(1) but when dealing specifically with point ofoperation guarding OSHA standard uses quite different language from that in theWalsh-Healey standard from which it was adopted.? There are set forth below the correspondingprovisions of both standards: Walsh-Healey standard[14] 5[0]-204.5 Machine guarding. *** OSHA standard 1910.212 General requirements for all machines. *** (c) Point of operation guarding *** (2) Where existing standards prepared by organizations listed in Section 50-204.2 provide for point of operation guarding such standards shall prevail.? Other types of machines for which there are no specific standards, and the operation exposes an employee to injury, the point of operation shall be guarded.? The guarding device shall be so designed and constructed so as to prevent the operator from having any part of his body in the danger zone during the operating cycle. (c) Point of operation guarding. *** (ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded.? The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any body part in the danger zone during the operating cycle. \u00a0 \u00a0??????????? It is apparent from reading theabove standards that in order to determine whether within the meaning ofSection 1910.212(c), there are any ?appropriate standards? governing point of operationguarding, one must take into consideration the provisions of 41 CFR 50-204.2 asthe existed on April 28, 1971.? On thatdate, the only organization listed in Section 50-204.2 which had standards ineffect pertaining to press brakes was American National Standards Institute(ANSI).[15]??????????? A press brake is a particular kindof mechanical power press.[16]? The ANSI standard, pertaining to mechanicalpower presses which was in effect on April 28, 1971, was promulgated under theact as a national consensus standard and codified as 29 CFR 1910.217.[17]? Section 1910.217 provides in part as follows:1910.217 Mechanicalpower presses.(a) Generalrequirements–***(5) Excludedmachines. Press brakes, hydraulic and pneumatic power presses,?.areexcluded from the requirements of this section.\u00a0??????????? Taking into consideration all of theabove provisions, this Judge concludes that there were no standards in effecton October 27, 1972 requiring point of operation guarding of press brakes.? The Walsh-Healey general standard providedthat the more specific ANSI standard shall prevail. The more specific ANSIstandard by excluding press brakes thereby determined in effect that thereshould be no point of operation guarding standards applicable to pressbrakes.? ANSI at the time it issued thestandards forming the source of Section 1910.217, had no general machineguarding standards.? So when the framersexcluded press brakes from the specific standards relating to power presses, itwas clearly the intent to exclude press brakes from coverage by any safetystandard. [18]? The more specific standard pertaining topower presses but excluding press brakes from coverage prevails over the broadstandard covering general requirements for all machines.??????????? Even it were here determined thatthe provisions of Section 1910.212 are applicable to the operation of pressbrakes, there is insufficient credible evidence in this proceeding upon whichto conclude that, as the press brakes in question were equipped and operated athe time of inspection, any employee was exposed to injury.? There is no showing that additional point ofoperation guarding was required by Section 1910.212.? The compliance officer, although taking the positionthat some kind of barrier guard was required, was unable to advise Respondent?sofficials of what kind of a guard could be used on such a machine nor what mustbe done to correct what he considered to be a violation.? ??????????? No conclusion adverse to Respondentcan be inferred because of the fact that subsequent to the inspection it hasfollowed a practice of requiring its employees to use work handling tongs inconnection with the operation of those press brakes remaining in service.? Such hand tools were not intended to be usedin lieu of other guarding.? There hasnever been an accident in Respondent?s plant involving press brakes.??????????? Subparts (1) and (4) of Item No. 7and any penalties proposed therefor should be vacated.? ??????????? All alleged violation, except thoseinvolving the press brakes, have been abated by the Respondent.? ??????????? As to such remaining violations,this Judge has imposed appropriate penalties giving due consideration to thefour criteria of Section 17(j) of the Act.??????????? In consideration of the entirerecord and of the briefs and proposed findings submitted by the parties, thisJudge makes and enters the following Findings of Fact and Conclusions of Law:FINDINGSOF FACT??????????? 1.?On October 27, 1972 at a worksite in Seattle, Washington, CollatorCorporation, a corporation, Respondent failed in the manner alleged in CitationNo. 1, issued December 12, 1972, to comply with standards promulgated by theSecretary except that the alleged violations set forth in subparts (1) and (4)of Item No. 7 of such citation do not constitute instances of noncompliance.??????????? 2.?The instances of noncompliance referred to in paragraph 1 above had adirect and immediate relationship to safety and health but were not alleged tobe of a serious nature and are, therefore, found not to be of a serious nature.??????????? 3.?At all times herein pertinent, the Respondent acted in good faith.??????????? 4.?Respondent has no history of past violations.??????????? 5.?All instances of noncompliance referred to in paragraph 1 above havebeen corrected.CONCLUSIONSOF LAW??????????? 1.?At all times herein pertinent, the Respondent was and is engaged in abusiness affecting commerce and subject to the provisions of the Act.??????????? 2.?This Commission has jurisdiction of the parties and of the subjectmatter of this case.??????????? 3.?The instances of noncompliance referred to in paragraph 1 of Findings of[Fa]ct constitute non-serious violations of standards promulgated pursuant toSection 6 of the Act and subject the Respondent to assessment of civilpenalties as provided in Section 17(c) of the Act.??????????? 4.?Due consideration having been given to the appropriateness of thepenalties with respect to the size of the business of the Respondent, thegravity of each violation, the good faith of the Respondent and the history ofprevious violations, the penalties proposed by the Secretary should be imposed,except that the penalty with respect to Item No. 7 should be $30.00 instead ofthe $65.00 as proposed.??????????? 5.?With respect to the violations alleged in subparts (1) and (4) of ItemNo. 7 dealing with guarding of press brakes, the Secretary has failed to provea violation and such alleged violations and any penalties proposed therefor,should be vacated.ORDER??????????? In view of the foregoing Findings of[Fa]ct and Conclusions of Law, it is ORDERED:??????????? 1.?Subparts (1) and (4) of Item No. 7 of Citation No. 1, issued December12, 1972 and any penalties proposed therefor, be, and they hereby are, vacated;??????????? 2.?In all other respects Citation No. 1 be, and it hereby is affirmed;??????????? 3.?The Respondent be, and it hereby is, assessed civil penalties totaling$295.00 and apportioned for each item number of Citation No. 1 as follows: Item No. Proposed Penalty 1 0 2 0 3 0 4 0 5 0 6 30.00 7 30.00 8 35.00 9 65.00 10 30.00 11 30.00 12 45.00 13 30.00 14 0 15 0 16 0 \u00a0Dated atSeattle, Washington this March 13 1974 day of March 1974.Henry C.Winters, Judge.[1] Paragraph IV of the complaint alleged violations ofthose items of the citation for which penalties were proposed[2]? 1910.212(a)(1): One or more methods of machine guarding shall be provided toprotect the operator and other employees in the machine area from hazards suchas those created by point of operation, ingoing nip points, rotating parts,flying chips and sparks. Examples of guarding methods are?barrier guards,two-hand tripping devices, electronic safety devices, etc.\u00a0[3]While the answer might be read as contesting the merits of more than the pressbrake allegations, we view Respondent?s statements at the hearing, like JudgeWinters, as indicating an intent to limit its contest to the press brakeallegations.\u00a0[4]Subsequent to the issuance of the citation, Respondent sold its Cyril Bathpress brake.[5] The divided Commission decision in TurnbullMillwork Company, supra, has been favorably cited but distinguished in Juhr& Sons, No. 2314 (January 13, 1976) and Acme Metal, Inc., Nos.1811 & 1931 (January 29, 1976), and has been followed by a majority of theCommissioners in the instant case. I continue to adhere to the views Iexpressed in my dissent in Turnbull, but until such time as a majority of theCommission elects to return to the salutary rule of Florida East CoastProperties, Inc., supra, Turnbull is the controlling precedent. Out of aprudent respect for the Commission?s policy of adherence to precedent, Iaccordingly join with Chairman Barnako?s disposition of the notice of contestissue.\u00a0[6]My colleague in dissent implicitly recognizes that Utah Power & LightCompany v. United States, 243 U.S. 389, 410?411 (1917), does not speakdirectly to the question of the subject matter jurisdiction. Rather, theopinion of the Court addresses the merits of a well-pleaded claim that aregulation was invalid, and treats the matter as going to the merits of thecase. Under these circumstances, the conclusion that the validity of a standardaffects the subject matter jurisdiction of either the federal courts or thisCommission is not suggested by a liberal reading of the Courts? opinion.[7]This standard provides:?Extinguishers shallnot be obstructed or obscured from view. In large rooms, and in certainlocations where visual obstruction cannot be completely avoided, means shall beprovided to indicate the location [thereof] . . ..?\u00a0[8]This standard provides:?Extinguishers withClass C ratings shall be required where . .. electrical equipment may beencountered. . . .?\u00a0[9] See 29 C.F.R. ? 1910.1.[10] There is obviously an error in the transcript. Thewords ?factors resulted? should be stricken, and the words ?facts to beresolved? substituted in lieu thereof.[11] See 5 U.S.C. 554, 556, and 557.? The fact that a hearing is required does notimply that oral testimony is necessary with respect to uncontrovertedfactual matters.[12] See preamble to Part 1910 in 36 Federal Register10466 (May 29, 1971).\u00a0[13] See 29 CFR 1910.221.\u00a0[14] 34 Federal Register 7948 (May 29, 1969).[15] ANSI was referred to in Section 50-204.2 as ?UnitedStates of America Standards Institute?. \u00a0[16] Both ?mechanical press brake? and ?hydraulic pressbrake? qualify as ?mechanical power presses?.\u00a0[17] See 29 CFR 1910.221.\u00a0[18] At the time of the hearing ANSI was in the process ofdeveloping specific standards applicable to press brakes.? See Respondent?s Exhibit No. 2.”