“SECRETARY OF LABOR,Complainant,v.DANIEL CONSTRUCTION COMPANY,Respondent.OSHRC Docket No. 82-0668 _DECISION _Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C.? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).By order dated February 18, 1983, Administrative Law Judge Stanley M.Schwartz vacated the citation in this case on the ground 04t theOccupational Safety and Health Administration was precluded fromexercising Jurisdiction over the employer because the Mine Safety andHealth Administration had exercised statutory authority over the citedworking conditions.[[1]]We affirm the judge’s decision for the reasons set forth by him andadopt his opinion as our own.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: March 24, 1986————————————————————————SECRETARY OF LABOR,Complainant,v.DANIEL CONSTRUCTION COMPANY,Respondent.OSHRC DOCKET NO. 82-0668Appearances:Robert A. Fitzo Esq.Dallas, TexasFor the Complainant.George A. Harper, Esq.Greenville, South CarolinaFor the Respondent._DECISION AND ORDER_SCHWARTZ, Judge:This is a proceeding brought before the Occupational Safety and HealthReview Commission (\”The Commission\”) pursuant to Section 10 of theOccupational Safety and Health Act of 1970, 29 U.S.C. $651 et seq. (\”theOSH Act\”). Respondent contests an alleged serious violation of Section5(a)(1) of the Act. Following the filing of a complaint and answer,Daniel filed a notion to dismiss for lack of jurisdiction. The basis ofthis notion is that Section 4(b)(1) of the OSH Act preempted OSHA’sjurisdiction over the Respondent. Oral argument was held on November 3,1982, in Dallas, Texas._Statutory Background_The OSH Act gave the Secretary of Labor authority over all workingconditions of employees engaged in business affecting commerce exceptthose conditions with respect to which other federal agencies exercisestatutory authority to prescribe or enforce regulations affectingoccupational safety or health. To be exempt an employer must be coveredby another federal act, the policy or purpose of which must be to assuresafe and healthful working conditions for employees. In addition theother federal agency must have actually exercised its authority toprescribe or enforce occupational safety and health standards.Dillingham Tug & Barge Corporation, 10 BNA OSHC 1859, 1982 CCH OSHD ?26,166 (Docket No. 77-4143, July 29, 1982). If both elements aresatisfied, the 4(b)(1) exemption is satisfied and OSHA is precluded fromexercising jurisdiction over the worksite.The Federal Mine Safety and Health Act of 1977, 30 U.S.C. ? 801 et. seq.(Mine Act) created the Mine Safety and Health Administration (MSHA). Thepolicy and purpose of the Mine Act is to assure safe and healthfulworking conditions for employees. The coverage of the Mine Act includes\”each operator of a mine,\” 30 U.S.C. ? 803. It also defines \”operator\”to include independent contractors performing construction at a mine, 30U.S.C. ?802(d). There is also no question MSHA has exercised itsauthority to prescribe occupational safety and health standards forsand, gravel, and crushed stone operations (30 CFR Part 56). Thesestandards apply to the working conditions of independent contractorsperforming construction on the surface of mines.The issue in this case arises because of the passage of the temporaryemergency appropriations bill for fiscal year 1982, signed by PresidentReagan on December 15, 1981, Pub. L. No. 97-0092. It contained thefollowing limitation on MSHA\”s authorization to expend funds.Sec. 132. Notwithstanding any other provision of law, none of the fundsappropriated for the Department of Labor, Mine Safety and HealthAdministration shall be obligated or expanded to prescribe, issue,administer or enforce any standard, rule, regulation or order under theFederal Mine Safety and Health Act of 1977 with respect to anyindependent construction contractor who is engaged by an operator forthe construction, repair or alteration of structures, facilities,utilities or private ways or roads located on (or appurtenant to) thesurface areas of any coal or other nine. and whose employees work in. aspecifically demarcated area, separate from actual mining or extractionactivities: Provided, that no funds shall be obligated or expended toprescribe, issue, administer or enforce any standard, rule, regulationor order under the Federal Mine Safety and Health Act of 1977 on anyState or political subdivision thereof.This limitation was continued in March 1982. Public Law No. 97-0161,enacted on March 31, 1982 extended the limitation on expenditure offunds to September 30, 1982. On July 18, 1982, however, President Reagansigned an urgent supplemental appropriations bill which deleted therestriction.Therefore. subsequent to July 18, 1982, MSHA could again expend fundsfor enforcement of its regulations in the above circumstances. However, the issue in this case is not moot. Rather, it must be decidedwhether OSHA had jurisdiction to inspect and investigate Respondent’sworkplace on April 26 and 27, 1982, and issue the subject citation onMay 21, 1982, to Daniel. Stated another way. did MSHA retain itsstatutory authority of enforcement powers and continue to exercise itover Daniel’s worksite on April 26 and 27, 1982. If not, the citationwas appropriately issued by OSHA and the motion must be denied(Complainant’s brief pp. 2-4, 7; Respondent’s brief pp. 2-5)._Facts_The parties have stipulated to the pertinent facts. Daniel ConstructionCompany was erecting a secondary crusher building on the surface area ofa mine owned by United States Gypsum Company in New Braunfels, Texas.The New Braunfels Quarry and Plant was a mine within the meaning anddefinition of Section 3(h) of the Mine Act and had been assignedIdentification number 41-00078 by MSHA. While engaged in surfaceconstruction activities at the New Braunfels Quarry and Plant, Danielwas an operator within the meaning and definition of Section 3(d) of theMine Act.MSHA had promulgated occupational safety and health standards applicableto the working conditions at the New Braunfels Quarry and Plant. Theseregulations entitled \”Health and Safety Standards – Sand, Gravel andCrushed Stone Operations\” are published at 30 CFR Part 56. Thisproceeding involves a citation issued to Daniel alleging a Section5(a)(1) violation of the Act. The citation alleges the violationoccurred on April 26, 1982, while Daniel was constructing a secondarycrusher building at the nine (T. 5-6; Respondent’s brief pp. 5-6;Complainant’s brief pp. 4- 6).The questions to be decided are two-fold. First, whether MSHA retainedstatutory authority to regulate occupational safety and health ofemployees engaged in surface construction at an operating nine duringApril 1982. If so, did MSHA continue to exercise its authority toregulate the occupational safety and health of these employees duringApril 1982. Both parties have submitted well written and persuasivebriefs. The submissions have been extremely helpful and I have and willutilize them in resolving the issues set forth above._Opinion__Retention of Statutory Authority_Both parties agree that Congress can suspend or repeal prior acts and itcan accomplish its purpose by an amendment to an appropriations bill.United States v. Dickerson, 310 U.S. 554, 555 (1940). However theSupreme Court has repeatedly emphasized the \”cardinal rule . . . thatrepeals by implication are not favored.\” Morton v. Mancari, 417 U.S.535, 549 (1974); Posadas v. National City Bank, 296 U.S. 497, 503(1936). In the absence of some affirmative showing of an intention torepeal, the only permissible justification for a repeal by implicationis when the earlier and later statutes are irreconcilable.The Court in TVA v. Hill, supra, 437 U.S. at 190-191 explained therationale for this policy:The doctrine disfavoring repeals by implication ‘applies with full vigorwhen . . . the subsequent legislation is an appropriations measure.’Committee for Nuclear Responsibility v. Seaborg, 149 US App DC 380, 382,463 F.2d 783, 785 (1971) (emphasis added); Environmental Defense Fund v.Froehlke, 473 F.2d 346, 355 (CAB 1972). This is perhaps anunderstatement since it would be more accurate to say that the policyapplies with even greater force when the claimed repeal rests solely onan Appropriations Act. We recognize that both substantive enactments andappropriations measures are ‘Acts of Congress,’ but the latter have thelimited and specific purpose of providing funds for authorized programs.When voting on appropriations measures, legislators are entitled tooperate under the assumption that the funds will be devoted to purposeswhich are lawful and not for any purpose forbidden. Without such anassurance, every appropriations measure would be pregnant with prospectsof altering substantive legislation, repealing by implication any priorstatute which night prohibit the expenditure. Not only would this leadto the absurd result of requiring Members to review exhaustively thebackground of every authorization before voting on an appropriation, butit would flout the very rules the Congress carefully adopted to avoidthis need. House Rule XXI(2), for instance, specifically provides:’No appropriation shall be reported in any general appropriation bill,or be in order as an amendment thereto, for any expenditure notpreviously authorized by law, unless in continuation of appropriationsfor such public works as are already in progress. Nor shall anyprovision in any such bill or amendment thereto changing existing law bein order.’ (Emphasis added.)Complainant does not dispute this issue. It concedes at page 8 of itsbrief that the appropriations restriction in the instant case did notrepeal the provisions of the Mine Act relevant to Daniel. I agree andconclude that the temporary emergency appropriations bills did notrepeal or suspend the Mine Act. There was no amendment by implication.Consequently MSHA retained statutory authority to prescribe or enforcestandards affecting occupational safety and health at Daniel’s worksitein April 1982._Exercise of Authority_The fundamental issue in this case concerns whether MSHA exercised itsauthority over Respondent’s worksite in April 1982. Stated another waythe question is whether a denial of enforcement funds to a federalagency (MSHA) given statutory authority to regulate occupational safetyand health results in that agency no longer exercising its authoritywithin the meaning of Section 4(b)(1) of the Act.The Secretary contends OSHA is not preempted In the instant case. Itargues that the appropriations restrictions rendered the Mine Actunenforceable by MSHA with respect to the Respondent. Therefore MSHA nolonger exercised its authority in April 1982. Its position emanates fromPennsuco Cement and Aggregates, Inc., 80 OSAHRC 47\/A2, 8 BNA OSHC 1378,1980 CCH OSHD ? 24,478 (No. 15462, 1980).Respondent contends that OSHA did not have jurisdiction over Daniel’sworksite in April 1982. It argues that MSHA had promulgated standardsaffecting occupational safety and health at the time of inspection.Respondent’s position is that once another agency has promulgatedregulations, the 4(b)(1) preemption applies. Any inquiry into theeffectiveness of the regulations or into the level of enforcement isprecluded. Daniel relies on, among other cases, Pennsuco Cement andAggregates,Inc., supra.There is no question that the exercise required by another federalagency to trigger the 4(b)(1) exemption has been for that agency topromulgate rules and regulations addressing the working conditions. Thefirst inquiry is whether the other agency has promulgated standardsaffecting occupational safety and health. That test, as set forth in thestipulated facts. has been met in this case.Respondent has correctly captured the teachings of Pennsuco Cement,supra The Commission was dealing with an agency’s temporary cessation ofits Inspection activities at an employer’s worksite. It hold that \”anyoversight of the adequacy of another agency’s enforcement activities isbeyond the scope of permissible inquiry under section 4(b)(1).\” TheCommission found that section 4(b)(1) applied because: (1) anotheragency possessed the statutory authority to regulate the safety andhealth of employees and (2) the agency had promulgated regulationsapplicable to the working conditions. The exemption, as noted above, wasapplied even though at the time of inspection the other agency was notenforcing its regulations.The Secretary relies on a portion of the Pennsuco decision which, indictum, referred to an additional test concerning whether there was alikelihood the other agency would enforce its regulations. The Secretarypoints to the following excerpt:Our conclusion that OSHA is preempted under the circumstances of thiscase is consistent with the view expressed by Chairman Cleary in TexasEastern Transmission Corp., supra. That opinion concerned a situation inwhich ‘another Federal agency adopts a regulation, but there is nolikelihood that the regulation will be enforced.’ Here, however, MESAhad actively enforced its regulations applicable to kilns prior to theaccident. Even giving the Secretary the benefit of the doubt, there wasat most a temporary suspension of enforcement inspections, and thissuspension was not communicated to affected employers. Thus, unlike asituation where an employer has reason to believe that another agencywill not enforce its regulations, Pennsuco had every reason to believethat it continued to be subject to MESA regulations, and therefore toprotect its employees as those regulations specified. An far as Pennsucowas concerned, it could be inspected by MESA at any time. Indeed, MESAdid investigate the accident that led to this case. Thus, it cannot besaid that there was no likelihood MESA would enforce its regulationsunder the facts of this case.This language was apparently inserted to distinguish CommissionerCleary’s position in Pennsuco from a previous view he expressed In TexasEastern Transmission Corp. 75 OSAHRC 88\/D9, 3 BNA OSHC 1601, 1975-76 CCHOSHD ? 20,092 (No. 4091, 1975). The quoted language accomplished itsgoal. I cannot read the cited excerpt as establishing Commissionagreement on a new \”likelihood of enforcement\” test when read in contextwith the entire opinion. Rather, Pennsuco, applies the established testsummarized above.Consequently the fact that MSHA was precluded from December 15, 1981,until July 18, 1982, from enforcing the Mine Act at Daniel’s worksite inNew Braunfels, Texas is not controlling. MSHA had retained statutoryauthority for enforcement and had promulgated regulations covering thesituation. I am precluded from inquiring into the level of enforcementof these regulations by the clear language of the statutes involved aswell as the Commission’s interpretation of Section 4(b)(1) of the OSHAAct. Respondent’s notion to dismiss is granted. The Secretary’s citationand complaint are VACATED._ORDER_On the basis of the foregoing Findings of Fact and Conclusions of Law,it is ORDERED that:1. Serious citation number 1 and the proposed penalty of $490 are VACATED.STANLEY M. SCHWARTZAdministrative Law JudgeDated: February 18, 1983 FOOTNOTES:[[1]] Section 4(b)(1) of the Occupational Safety and Health Act, 29U.S.C. ? 653(b)(1), provides in pertinent part:Nothing in this Act shall apply to working conditions of employees withrespect to which other Federal agencies . . . exercise statutoryauthority to prescribe or enforce standards or regulations affectingoccupational safety and health.”