“Docket No. 82-0668 SECRETARY OF LABOR, Complainant, v. DANIEL CONSTRUCTION COMPANY, Respondent.OSHRC Docket No. 82-0668\u00a0DECISION Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C.?\u00a0 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions. See section 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 the Occupational Safety andHealth Administration was precluded from exercising Jurisdiction over the employer becausethe Mine Safety and Health Administration had exercised statutory authority over the citedworking conditions.[[1]]We affirm the judge’s decision for the reasons setforth by him and adopt his opinion as our own.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARY DATED: March 24, 1986SECRETARY 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 ORDERSCHWARTZ, Judge:This is a proceeding brought before the Occupational Safety and Health ReviewCommission (\”The Commission\”) pursuant to Section 10 of the Occupational Safetyand Health Act of 1970, 29 U.S.C. $651 et seq. (\”the OSH Act\”). Respondentcontests an alleged serious violation of Section 5(a)(1) of the Act. Following the filingof a complaint and answer, Daniel filed a notion to dismiss for lack of jurisdiction. Thebasis of this notion is that Section 4(b)(1) of the OSH Act preempted OSHA’s jurisdictionover the Respondent. Oral argument was held on November 3, 1982, in Dallas, Texas.Statutory BackgroundThe OSH Act gave the Secretary of Labor authority over all working conditionsof employees engaged in business affecting commerce except those conditions with respectto which other federal agencies exercise statutory authority to prescribe or enforceregulations affecting occupational safety or health. To be exempt an employer must becovered by another federal act, the policy or purpose of which must be to assure safe andhealthful working conditions for employees. In addition the other federal agency must haveactually exercised its authority to prescribe or enforce occupational safety and healthstandards. Dillingham Tug & Barge Corporation, 10 BNA OSHC 1859, 1982 CCH OSHD ?26,166 (Docket No. 77-4143, July 29, 1982). If both elements are satisfied, the 4(b)(1)exemption is satisfied and OSHA is precluded from exercising jurisdiction over theworksite.The Federal Mine Safety and Health Act of 1977, 30U.S.C. ? 801 et. seq. (Mine Act) created the Mine Safety and Health Administration(MSHA). The policy and purpose of the Mine Act is to assure safe and healthful workingconditions for employees. The coverage of the Mine Act includes \”each operator of amine,\” 30 U.S.C. ? 803. It also defines \”operator\” to include independentcontractors performing construction at a mine, 30 U.S.C. ?802(d).\u00a0 There is also noquestion MSHA has exercised its authority to prescribe occupational safety and healthstandards for sand, gravel, and crushed stone operations (30 CFR Part 56). These standardsapply to the working conditions of independent contractors performing construction on thesurface of mines.The issue in this case arises because of the passageof the temporary emergency appropriations bill for fiscal year 1982, signed by PresidentReagan on December 15, 1981, Pub. L. No. 97-0092. It contained the following limitation onMSHA\”s authorization to expend funds.Sec. 132. Notwithstanding any other provision of law,none of the funds appropriated for the Department of Labor, Mine Safety and HealthAdministration shall be obligated or expanded to prescribe, issue, administer or enforceany standard, rule, regulation or order under the Federal Mine Safety and Health Act of1977 with respect to any independent construction contractor who is engaged by an operatorfor the construction, repair or alteration of structures, facilities, utilities or privateways or roads located on (or appurtenant to) the surface areas of any coal or other nine.and whose employees work in. a specifically demarcated area, separate from actual miningor extraction activities: Provided, that no funds shall be obligated or expended toprescribe, issue, administer or enforce any standard, rule, regulation or order under theFederal Mine Safety and Health Act of 1977 on any State or political subdivision thereof.This limitation was continued in March 1982. PublicLaw No. 97-0161, enacted on March 31, 1982 extended the limitation on expenditure of fundsto September 30, 1982. On July 18, 1982, however, President Reagan signed an urgentsupplemental appropriations bill which deleted the restriction.Therefore. subsequent to July 18, 1982, MSHA couldagain expend funds for enforcement of its regulations in the above circumstances.\u00a0 However, the issue in this case is not moot. Rather, it must be decided whetherOSHA had jurisdiction to inspect and investigate Respondent’s workplace on April 26 and27, 1982, and issue the subject citation on May 21, 1982, to Daniel. Stated another way.did MSHA retain its statutory authority of enforcement powers and continue to exercise itover Daniel’s worksite on April 26 and 27, 1982. If not, the citation was appropriatelyissued by OSHA and the motion must be denied (Complainant’s brief pp. 2-4, 7; Respondent’sbrief pp. 2-5).FactsThe parties have stipulated to the pertinent facts. Daniel ConstructionCompany was erecting a secondary crusher building on the surface area of a mine owned byUnited States Gypsum Company in New Braunfels, Texas. The New Braunfels Quarry and Plantwas a mine within the meaning and definition of Section 3(h) of the Mine Act and had beenassigned Identification number 41-00078 by MSHA. While engaged in surface constructionactivities at the New Braunfels Quarry and Plant, Daniel was an operator within themeaning and definition of Section 3(d) of the Mine Act.MSHA had promulgated occupational safety and healthstandards applicable to the working conditions at the New Braunfels Quarry and Plant.These regulations entitled \”Health and Safety Standards – Sand, Gravel and CrushedStone Operations\” are published at 30 CFR Part 56. This proceeding involves acitation issued to Daniel alleging a Section 5(a)(1) violation of the Act. The citationalleges the violation occurred on April 26, 1982, while Daniel was constructing asecondary crusher building at the nine (T. 5-6; Respondent’s brief pp. 5-6; Complainant’sbrief pp. 4- 6).The questions to be decided are two-fold. First,whether MSHA retained statutory authority to regulate occupational safety and health ofemployees engaged in surface construction at an operating nine during April 1982. If so,did MSHA continue to exercise its authority to regulate the occupational safety and healthof these employees during April 1982. Both parties have submitted well written andpersuasive briefs. The submissions have been extremely helpful and I have and will utilizethem in resolving the issues set forth above.OpinionRetention of Statutory AuthorityBoth parties agree that Congress can suspend or repeal prior acts and it canaccomplish its purpose by an amendment to an appropriations bill. United States v.Dickerson, 310 U.S. 554, 555 (1940). However the Supreme Court has repeatedly emphasizedthe \”cardinal rule . . . that repeals 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 to repeal, the onlypermissible justification for a repeal by implication is when the earlier and laterstatutes are irreconcilable.The Court in TVA v. Hill, supra, 437 U.S. at 190-191explained the rationale for this policy:The doctrine disfavoring repeals by implication’applies with full vigor when . . . the subsequent legislation is an appropriationsmeasure.’ Committee for Nuclear Responsibility v. Seaborg, 149 US App DC 380, 382, 463F.2d 783, 785 (1971) (emphasis added); Environmental Defense Fund v. Froehlke, 473 F.2d346, 355 (CAB 1972). This is perhaps an understatement since it would be more accurate tosay that the policy applies with even greater force when the claimed repeal rests solelyon an Appropriations Act. We recognize that both substantive enactments and appropriationsmeasures are ‘Acts of Congress,’ but the latter have the limited and specific purpose ofproviding funds for authorized programs. When voting on appropriations measures,legislators are entitled to operate under the assumption that the funds will be devoted topurposes which are lawful and not for any purpose forbidden. Without such an assurance,every appropriations measure would be pregnant with prospects of altering substantivelegislation, repealing by implication any prior statute which night prohibit theexpenditure. Not only would this lead to the absurd result of requiring Members to reviewexhaustively the background of every authorization before voting on an appropriation, butit would flout the very rules the Congress carefully adopted to avoid this need. HouseRule XXI(2), for instance, specifically provides:’No appropriation shall be reported in any general appropriation bill, or be in order asan amendment thereto, for any expenditure not previously authorized by law, unless incontinuation of appropriations for such public works as are already in progress. Nor shallany provision in any such bill or amendment thereto changing existing law be in order.'(Emphasis added.)Complainant does not dispute this issue. It concedesat page 8 of its brief that the appropriations restriction in the instant case did notrepeal the provisions of the Mine Act relevant to Daniel. I agree and conclude that thetemporary emergency appropriations bills did not repeal or suspend the Mine Act. There wasno amendment by implication. Consequently MSHA retained statutory authority to prescribeor enforce standards affecting occupational safety and health at Daniel’s worksite inApril 1982.Exercise of AuthorityThe fundamental issue in this case concerns whether MSHA exercised its authority overRespondent’s worksite in April 1982. Stated another way the question is whether a denialof enforcement funds to a federal agency (MSHA) given statutory authority to regulateoccupational safety and 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 theinstant case. It argues that the appropriations restrictions rendered the Mine Actunenforceable by MSHA with respect to the Respondent. Therefore MSHA no longer exercisedits authority in April 1982. Its position emanates from Pennsuco 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’s worksite in April1982. It argues that MSHA had promulgated standards affecting occupational safety andhealth at the time of inspection. Respondent’s position is that once another agency haspromulgated regulations, the 4(b)(1) preemption applies. Any inquiry into theeffectiveness of the regulations or into the level of enforcement is precluded. Danielrelies on, among other cases, Pennsuco Cement and Aggregates,Inc., supra.There is no question that the exercise required byanother federal agency to trigger the 4(b)(1) exemption has been for that agency topromulgate rules and regulations addressing the working conditions. The first inquiry iswhether the other agency has promulgated standards affecting occupational safety andhealth. That test, as set forth in the stipulated facts. has been met in this case.Respondent has correctly captured the teachings ofPennsuco Cement, supra The Commission was dealing with an agency’s temporary cessation ofits Inspection activities at an employer’s worksite. It hold that \”any oversight ofthe adequacy of another agency’s enforcement activities is beyond the scope of permissibleinquiry under section 4(b)(1).\” The Commission found that section 4(b)(1) appliedbecause: (1) another agency possessed the statutory authority to regulate the safety andhealth of employees and (2) the agency had promulgated regulations applicable to theworking conditions. The exemption, as noted above, was applied even though at the time ofinspection the other agency was not enforcing its regulations.The Secretary relies on a portion of the Pennsucodecision which, in dictum, referred to an additional test concerning whether there was alikelihood the other agency would enforce its regulations. The Secretary points to thefollowing excerpt:Our conclusion that OSHA is preempted under thecircumstances of this case is consistent with the view expressed by Chairman Cleary inTexas Eastern Transmission Corp., supra. That opinion concerned a situation in which’another Federal agency adopts a regulation, but there is no likelihood that theregulation will be enforced.’ Here, however, MESA had actively enforced its regulationsapplicable to kilns prior to the accident. Even giving the Secretary the benefit of thedoubt, there was at most a temporary suspension of enforcement inspections, and thissuspension was not communicated to affected employers. Thus, unlike a situation where anemployer has reason to believe that another agency will not enforce its regulations,Pennsuco had every reason to believe that it continued to be subject to MESA regulations,and therefore to protect its employees as those regulations specified. An far as Pennsucowas concerned, it could be inspected by MESA at any time. Indeed, MESA did investigate theaccident that led to this case. Thus, it cannot be said that there was no likelihood MESAwould enforce its regulations under the facts of this case.This language was apparently inserted to distinguishCommissioner Cleary’s position in Pennsuco from a previous view he expressed In TexasEastern Transmission Corp. 75 OSAHRC 88\/D9, 3 BNA OSHC 1601, 1975-76 CCH OSHD ? 20,092(No. 4091, 1975). The quoted language accomplished its goal.\u00a0 I cannot read the citedexcerpt as establishing Commission agreement on a new \”likelihood ofenforcement\” test when read in context with the entire opinion. Rather, Pennsuco,applies the established test summarized above.Consequently the fact that MSHA was precluded fromDecember 15, 1981, until July 18, 1982, from enforcing the Mine Act at Daniel’s worksitein New Braunfels, Texas is not controlling. MSHA had retained statutory authority forenforcement and had promulgated regulations covering the situation. I am precluded frominquiring into the level of enforcement of these regulations by the clear language of thestatutes involved as well as the Commission’s interpretation of Section 4(b)(1) of theOSHA Act. Respondent’s notion to dismiss is granted. The Secretary’s citation andcomplaint are VACATED.ORDEROn the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDEREDthat:1. Serious citation number 1 and the proposed penalty of $490 are VACATED.STANLEY M. SCHWARTZAdministrative Law JudgeDated: February 18, 1983\u00a0\u00a0FOOTNOTES: [[1]] Section 4(b)(1) of the Occupational Safety and Health Act, 29 U.S.C. ? 653(b)(1),provides in pertinent part:Nothing in this Act shall apply to working conditions of employees with respect to whichother Federal agencies . . . exercise statutory authority to prescribe or enforcestandards or regulations affecting occupational safety and health.”