“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 3460\t\t\t\t\t\t\t\t\t\tDIAMOND INTERNATIONAL CORP.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\tBEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\tBARNAKO, Chairman:\t\t\t\t\t\t\t\t\t\tA February 18, 1975 decision of Review Commission Judge Jerry W. Mitchell is before\t\t\t\t\t\t\t\t\t\tthis Commission for review pursuant to 29 U.S.C. 661(i). Judge Mitchell would affirm a citation\t\t\t\t\t\t\t\t\t\tfor nonserious violations of 1910.265(c)(22) and 1910.265(c)(5). He would also find a serious\t\t\t\t\t\t\t\t\t\tviolation of 1910.213(c)(1) and (h)(1) and assess a total penalty of $280.\t\t\t\t\t\t\t\t\t\tCommissioner Moran directed review. He requested submissions on the following:\t\t\t\t\t\t\t\t\t\t(1) Was there sufficient evidence to justify the Judge\u2019s decision that the Act was violated\t\t\t\t\t\t\t\t\t\tas alleged?\t\t\t\t\t\t\t\t\t\t(2) Was the citation issued in accordance with the requirements of 29 U.S.C. \u00a7 658(a)?\t\t\t\t\t\t\t\t\t\t(3) Do the regulations published at 29 C.F.R. \u00a7\u00a7 1910.213(c)(1), 1910.213(h)(1),\t\t\t\t\t\t\t\t\t\t1910.265(c)(5)(ii) and 1910.265(c)(2) satisfy\t\t\t\t\t\t\t\t\t\t(a) the applicable statutory and constitutional tests for valid regulations under the\t\t\t\t\t\t\t\t\t\tAct, and\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(b) the requirements of 29 U.S.C. 655(a)?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWe have reviewed the record, and we affirm. With respect to issue number I we conclude\t\t\t\t\t\t\t\t\t\tthat the Judge\u2019s findings are supported by the preponderant evidence. The Judge weighed\t\t\t\t\t\t\t\t\t\tconflicting evidence and found that Respondent\u2019s employees including clean up personnel,\t\t\t\t\t\t\t\t\t\tmaintenance men, and saw operators were exposed to various violative conditions. We normally\t\t\t\t\t\t\t\t\t\twill not reweigh the evidence nor will we disturb the Judge\u2019s credibility determinations.\t\t\t\t\t\t\t\t\t\tNortheast Stevedoring Co., Inc., 13 OSAHRC 105, BNA 2 OSHC 1332, CCH OSHD para.\t\t\t\t\t\t\t\t\t\t19,275 (1974); Okland Construction Co., Docket 3395, BNA 3 OSHC 2023, CCH OSHD para.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t20,441 (February 20, 1976;. Respondent relies on the Commission\u2019s decision in Grayson\t\t\t\t\t\t\t\t\t\tLumber Co., Inc., 3 OSAHRC 541, BNA 1 OSHC 1234, CCH OSHD para. 16,171 (1973) for the\t\t\t\t\t\t\t\t\t\tproposition that a violation does not exist when only maintenance and clean up personnel are\t\t\t\t\t\t\t\t\t\texposed to hazards. Respondent\u2019s reliance is misplaced. Grayson referred only to maintenance\t\t\t\t\t\t\t\t\t\temployees. Moreover, it is distinguishable as to such employees on its facts. In that case\t\t\t\t\t\t\t\t\t\tabatement would have prevented maintenance work; that is not this case.\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tIssues 2 and 3 were before the Judge and he has properly disposed of them. His decision\t\t\t\t\t\t\t\t\t\taccurately anticipated Commission decisions upholding the validity of the standards at issue.\t\t\t\t\t\t\t\t\t\tNoblecraft Industries, Inc., Docket No. 3367, BNA 3 OSHC 1727, CCH OSHD para. 20, 168\t\t\t\t\t\t\t\t\t\t(1975); William W. Turnbull, d\/b\/a Turnbull Millwork Co., Docket No. 7413, BNA 3 OSHC\t\t\t\t\t\t\t\t\t\t1781, CCH OSHD para. 20, 221 (1975).\t\t\t\t\t\t\t\t\t\tAccordingly, the Judge\u2019s decision is affirmed. So ORDERED.\t\t\t\t\t\t\t\t\t\tBY THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWILLIAM S. McLAUGHLIN\t\t\t\t\t\t\t\t\t\tEXECUTIVE SECRETARY\t\t\t\t\t\t\t\t\t\tDATE: Oct. 26, 1976\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tOn review, Respondent argues for the first time that the citation was not issued with reasonable\t\t\t\t\t\t\t\t\t\tpromptness. Even assuming that the issue is timely raised (and normally we would preclude this\t\t\t\t\t\t\t\t\t\tdefense for being untimely raised), Respondent does not argue prejudice nor unconscionable\t\t\t\t\t\t\t\t\t\tdelay. We reject the argument.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tMORAN, Commissioner, Dissenting:\t\t\t\t\t\t\t\t\t\tThe foregoing opinion gives rather short shrift to several very compelling reasons why\t\t\t\t\t\t\t\t\t\tthe disposition ordered herein is erroneous.\t\t\t\t\t\t\t\t\t\tSerious citation no. 1 alleges nine separate instances of non-compliance with 29 C.F.R. \u00a7\t\t\t\t\t\t\t\t\t\t1910.265(c)(22), which requires that \u2018construction, operation, and maintenance of mechanical\t\t\t\t\t\t\t\t\t\tpower-transmission apparatus shall be in accordance with the requirements of \u00a7 1910.219.\u2019\t\t\t\t\t\t\t\t\t\tNeither the citation nor the complaint set forth any specific provision of section 1910.219 which\t\t\t\t\t\t\t\t\t\twas supposedly violated. It has previously been held that complainant\u2019s failure to do so\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tcontravenes the particularity requirement of 29 U.S.C. \u00a7 658(a) and renders the citation invalid.\t\t\t\t\t\t\t\t\t\tSecretary v. Mine Timber, Inc., 3 OSAHRC 701 (1973); Secretary v. Kellogg Transfer, Inc., 3\t\t\t\t\t\t\t\t\t\tOSAHRC 676 (1973).\t\t\t\t\t\t\t\t\t\tThe aforementioned standards were discussed in the Mine Timber case as follows:\t\t\t\t\t\t\t\t\t\t\u2018As stated, each citation alleges failure to comply with 29 C.F.R. 1910.265(c)(22)\t\t\t\t\t\t\t\t\t\tand 1910.219. In so doing the citations are insufficient and defective because they\t\t\t\t\t\t\t\t\t\tdo not contain a reference to the particular regulation alleged to have been\t\t\t\t\t\t\t\t\t\tviolated. Section 265(c)(22) is not a substantive regulation; it is merely a\t\t\t\t\t\t\t\t\t\tconnecting link provision making applicable to sawmills the whole body of\t\t\t\t\t\t\t\t\t\tregulations contained in section 219. On the other hand, section 219 comprises\t\t\t\t\t\t\t\t\t\tmore than a hundred paragraphs and over four pages in the Federal Register\t\t\t\t\t\t\t\t\t\tsetting forth detailed regulations governing the design, construction, location,\t\t\t\t\t\t\t\t\t\toperation and guarding of numerous types and kinds of power transmission\t\t\t\t\t\t\t\t\t\tapparatus.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018The omission from the citation of any reference to the particular regulation\t\t\t\t\t\t\t\t\t\talleged to have been violated renders it insufficient and invalid.\u2019 3 OSAHRC 702.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThat sound precedent requires vacation of serious citation no. 1. The majority\u2019s\t\t\t\t\t\t\t\t\t\tperfunctory rejection of that precedent is erroneous. Brennan v. Gilles & Cotting, Inc., 504 F.2d\t\t\t\t\t\t\t\t\t\t1244, 1264\u20131265 (4th Cir. 1974). When the Commission changes an interpretation of the Act \u2018. .\t\t\t\t\t\t\t\t\t\t. such change must be clearly stated and accompanied by a statement of the reasoning behind the\t\t\t\t\t\t\t\t\t\tchange.\u2019 Dunlop v. Rockwell International, \u2014\u2014F.2d\u2014\u2014 (6th Cir., No. 75\u20131672, decided\t\t\t\t\t\t\t\t\t\tAugust 26, 1976).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tThat section provides that \u2018[e]ach citation . . . shall describe with particularity the nature of the\t\t\t\t\t\t\t\t\t\tviolation, including a reference to the . . . regulation . . . alleged to have been violated.\u2019\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tAnother reason which justifies vacation of serious citation no. 1 is the total absence of\t\t\t\t\t\t\t\t\t\tproof of actual employee exposure to the hazardous conditions alleged in the citation. Actual\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\texposure, not \u2018a very remote possibility\u2019 of injury as found by the Judge is the proper test to be\t\t\t\t\t\t\t\t\t\temployed when assessing employer liability. See Secretary v. Gilles & Cotting, Inc., OSAHRC\t\t\t\t\t\t\t\t\t\tDocket No. 504, February 20, 1976 (dissenting opinion).\t\t\t\t\t\t\t\t\t\tSerious citation no. 2 alleges noncompliance with the saw guarding requirements of 29\t\t\t\t\t\t\t\t\t\tC.F.R. \u00a7\u00a7 1910.213(c)(1) and (h)(1). Respondent has raised, as one of its affirmative defenses,\t\t\t\t\t\t\t\t\t\tthe improper promulgation of the standards codified at \u00a7 1910.213. The majority\u2019s rejection of\t\t\t\t\t\t\t\t\t\tthis argument is erroneous for reasons expressed in the dissenting opinion in Secretary v.\t\t\t\t\t\t\t\t\t\tNoblecaft Industries, Inc., OSAHRC Docket No. 3367, November 21, 1975. That opinion points\t\t\t\t\t\t\t\t\t\tout that the Secretary of Labor\u2019s promulgation of section 1910.213 was ultra vires of his\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tstatutory authority and that the standards therein are therefore unenforceable. 4 Accordingly, I\t\t\t\t\t\t\t\t\t\twould vacate this citation.\t\t\t\t\t\t\t\t\t\tFinally, I also disagree with my colleagues\u2019 statements in footnote 1 of the lead opinion\t\t\t\t\t\t\t\t\t\tregarding the issue of whether the citation was issued with reasonable promptness. As I have\t\t\t\t\t\t\t\t\t\tpreviously stated, the statutory requirement in 29 U.S.C. \u00a7 658(a) for the issuance of citations\t\t\t\t\t\t\t\t\t\twithin 72 hours after detection of a violation by a Labor Department inspector is not contingent\t\t\t\t\t\t\t\t\t\tupon a showing of prejudice or unconscionable delay or on the issue being timely raised by\t\t\t\t\t\t\t\t\t\trespondent. It is a positive duty placed on the Secretary of Labor, and in the absence of\t\t\t\t\t\t\t\t\t\texceptional circumstances, a citation not so issued is void. Secretary v. Jack Conie & Sons\t\t\t\t\t\t\t\t\t\tCorporation, OSAHRC Docket No. 6794, June 25, 1976; Secretary v. Concrete Construction\t\t\t\t\t\t\t\t\t\tCorporation, OSAHRC Docket No. 2490, April 8, 1976 (dissenting opinion). Since the delay is\t\t\t\t\t\t\t\t\t\tissuing the citations in this case was more than seven times longer than Congress directed and\t\t\t\t\t\t\t\t\t\tthe complainant failed to establish that the delay was caused by exceptional circumstances,\t\t\t\t\t\t\t\t\t\tvacation of the citations is necessary.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tThe Judge\u2019s decision is incorporated herein by reference and attached hereto as Appendix A.\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tThe standards were promulgated under 29 U.S.C. \u00a7 655(a) which authorized the Secretary of\t\t\t\t\t\t\t\t\t\tLabor to adopt national consensus standards as occupational safety and health standards for a\t\t\t\t\t\t\t\t\t\tperiod of two years without following the procedural safeguards afforded by the Administrative\t\t\t\t\t\t\t\t\t\tProcedure Act, 5 U.S.C. \u00a7 553. However, the failure to adopt the limitation specified in the\t\t\t\t\t\t\t\t\t\theadnote to the source national consensus standard was a substantive change which could not be\t\t\t\t\t\t\t\t\t\tmade by the Secretary without following the rulemaking procedure provided in 29 U.S.C. \u00a7\t\t\t\t\t\t\t\t\t\t655(b).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 3460\t\t\t\t\t\t\t\t\t\tDIAMOND INTERNATIONAL CORP.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION AND ORDER\t\t\t\t\t\t\t\t\t\tAppearances:\t\t\t\t\t\t\t\t\t\tCharles G. Preston, Esquire, Seattle, Washington for Complainant.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tGeorge J. Tichy, Esquire, Spokane, Washington for Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThere was no appearance by or on behalf of Respondent\u2019s employees even though all\t\t\t\t\t\t\t\t\t\tnotices had been properly posted and the employees were represented by a Union.\\\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSTATEMENT OF THE CASE\t\t\t\t\t\t\t\t\t\tJerry W. Mitchell, Judge.\t\t\t\t\t\t\t\t\t\tThis is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of\t\t\t\t\t\t\t\t\t\t1970 (29 U.S.C. \u00a7 651 et seq.) contesting Citations issued by the Secretary of Labor\t\t\t\t\t\t\t\t\t\t(Complainant) against Diamond International Corporation (Respondent) under the authority\t\t\t\t\t\t\t\t\t\tvested in Complainant by Section 9(a) of the Act.\t\t\t\t\t\t\t\t\t\tA workplace described as \u2018sawmill, dry kilns, planers, and shipping of lumber products\u2019\t\t\t\t\t\t\t\t\t\tlocated 1\/2 mile south of Highway 2 at the Idaho-Washington border was inspected on May 14\t\t\t\t\t\t\t\t\t\tand 15, 1973 by a Compliance Safety and Health Officer (CSHO) on behalf of Complainant.\t\t\t\t\t\t\t\t\t\tDuring the inspection alleged violations of 20 specific safety standards were noted. As a result of\t\t\t\t\t\t\t\t\t\tthe inspection, Citation for Serious Violation Number One (9 Items), Citation for Serious\t\t\t\t\t\t\t\t\t\tViolation Number Two (2 Items), and Citation Number One (Non-Serious, 17 Items) were\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tissued to Respondent on June 8, 1973. The standards allegedly violated were promulgated by the\t\t\t\t\t\t\t\t\t\tSecretary of Labor pursuant to Section 6 of the Act and are now codified at Title 29, Code of\t\t\t\t\t\t\t\t\t\tFederal Regulations, Part 1910.\t\t\t\t\t\t\t\t\t\tRespondent has contested Citations for Serious Violation Numbers One and Two and\t\t\t\t\t\t\t\t\t\tItem 4 of Citation Number One (Non-Serious). These alleged violations are described in the\t\t\t\t\t\t\t\t\t\trespective Citations in the following language with the cited safety standard quoted immediately\t\t\t\t\t\t\t\t\t\tthereafter:\t\t\t\t\t\t\t\t\t\tCitation for Serious Violation Number One\u2014\t\t\t\t\t\t\t\t\t\t\u2018The following pieces of power transmission equipment are not guarded in\t\t\t\t\t\t\t\t\t\taccordance with the requirements of 1910.219:\t\t\t\t\t\t\t\t\t\t1) Bull gear 60\u2018 in diameter and 11\u2018 pinion gear of burner chain drive in\t\t\t\t\t\t\t\t\t\told sawmill are not guarded.\t\t\t\t\t\t\t\t\t\t2) Sprockets and chains of resaw feed roll drive in old sawmill, rotating at\t\t\t\t\t\t\t\t\t\tabout 80 rpm, are not guarded.\t\t\t\t\t\t\t\t\t\t3) Infeed drive idler sprocket of infeed to V.A.G. in old sawmill is not\t\t\t\t\t\t\t\t\t\tguarded.\t\t\t\t\t\t\t\t\t\t4) Sprocket at end of feed chain to small Stetson-Ross planer on side of\t\t\t\t\t\t\t\t\t\tchain opposite feeder is not guarded.\t\t\t\t\t\t\t\t\t\t5) Outer sprocket and chain of debarker log deck are not guarded and are\t\t\t\t\t\t\t\t\t\t70\u2018 above ground.\t\t\t\t\t\t\t\t\t\t6) Coupling between drive motor and W.B. hog about 12\u2018 in diameter is\t\t\t\t\t\t\t\t\t\tnot guarded.\t\t\t\t\t\t\t\t\t\t7) Sprockets on each side of transfer chain from headrig to guard are not\t\t\t\t\t\t\t\t\t\tguarded.\t\t\t\t\t\t\t\t\t\t8) Sprocket and chain drive of infeed rolls to quad on west side at floor\t\t\t\t\t\t\t\t\t\tlevel are not guarded.\t\t\t\t\t\t\t\t\t\t9) Sprockets and chain of new stacker hoist drive are not guarded.\t\t\t\t\t\t\t\t\t\tTHE ABOVE ALLEGED VIOLATIONS, ANY OF WHICH COULD ALONE\t\t\t\t\t\t\t\t\t\tBE CONSIDERED SERIOUS, HAVE BEEN GROUPED FOR CITATION AND\t\t\t\t\t\t\t\t\t\tPENALTY\t\t\t\t\t\tPURPOSES\t\t\t\t\t\tTO\t\t\t\t\t\tFORM\t\t\t\t\t\tTHIS\t\t\t\t\t\tONE\t\t\t\t\t\tALLEGED\t\t\t\t\t\tSERIOUS\t\t\t\t\t\t\t\t\t\tVIOLATION.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tABATE\u2014\u2018July 19, 1973\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tStandard\u201429 CFR\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018Subpart R\u2014Special Industries\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1910.265 Sawmills.\t\t\t\t\t\t\t\t\t\t(c) Building facilities, and isolated equipment\u2014\t\t\t\t\t\t\t\t\t\t(22)\t\t\t\t\t\tMechanical\t\t\t\t\t\tpower-transmission\t\t\t\t\t\tapparatus.\t\t\t\t\t\tThe\t\t\t\t\t\tconstruction,\t\t\t\t\t\t\t\t\t\toperation,\t\t\t\t\t\tand\t\t\t\t\t\tmaintenance\t\t\t\t\t\tof\t\t\t\t\t\tall\t\t\t\t\t\tmechanical\t\t\t\t\t\tpower-transmission\t\t\t\t\t\t\t\t\t\tapparatus shall be in accordance with the requirements of \u00a7 1910.219.\u2019\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tCitation for Serious Violation Number Two\u2014\t\t\t\t\t\t\t\t\t\t\u2018In old sawmill carpenter shop:\t\t\t\t\t\t\t\t\t\t1)\t\t\t\t\t\tDeWalt radial arm saw with 12\u2018 blade does not have a guard covering the\t\t\t\t\t\t\t\t\t\tsides of exposed lower half of the blade.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2) Table saw with 10\u2018 blade does ?? have a guard over top of saw blade.\t\t\t\t\t\t\t\t\t\tTHE ABOVE ALLEGED VIOLATIONS, EITHER OF WHICH COULD\t\t\t\t\t\t\t\t\t\tALONE BE CONSIDERED SERIOUS, HAVE BEEN GROUPED FOR\t\t\t\t\t\t\t\t\t\tCITATION AND PENALTY PURPOSES TO FORM THIS ONE ALLEGED\t\t\t\t\t\t\t\t\t\tVIOLATION.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tABATE\u2014\u2018July 19, 1973\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tStandard\u201429 CFR\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018Subpart O\u2014Machinery and Machine Guarding\t\t\t\t\t\t\t\t\t\t1910.213 Woodworking machinery requirements.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(c) Hand-fed ripsaws. (1) Each circular hand-fed ripsaw shall be guarded\t\t\t\t\t\t\t\t\t\tby a hood which shall completely enclose that portion of the saw above\t\t\t\t\t\t\t\t\t\tthe table and that portion of the saw above the material being cut. The\t\t\t\t\t\t\t\t\t\thood and mounting shall be arranged so that the hood will automatically\t\t\t\t\t\t\t\t\t\tadjust itself to the thickness of and remain in contact with the material\t\t\t\t\t\t\t\t\t\tbeing cut but it shall not offer any considerable resistance to insertion of\t\t\t\t\t\t\t\t\t\tmaterial to saw or to passage of the material being sawed. The hood shall\t\t\t\t\t\t\t\t\t\tbe made of adequate strength to resist blows and strains incidental to\t\t\t\t\t\t\t\t\t\treasonable operation, adjusting, and handling, and shall be so designed as\t\t\t\t\t\t\t\t\t\tto protect the operator from flying splinters and broken saw teeth. It shall\t\t\t\t\t\t\t\t\t\tbe made of material that is soft enough so that it will be unlikely to cause\t\t\t\t\t\t\t\t\t\ttooth breakage. The material should not shatter when broken, should be\t\t\t\t\t\t\t\t\t\tnonexplosive, and should be no more flammable than wood. The hood\t\t\t\t\t\t\t\t\t\tshall be so mounted as to insure that its operation will be positive, reliable,\t\t\t\t\t\t\t\t\t\tand in true alignment with the saw; and the mounting shall be adequate in\t\t\t\t\t\t\t\t\t\tstrength to resist any reasonable side thrust or other force tending to throw\t\t\t\t\t\t\t\t\t\tit out of line.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(h) Radial saws. (1) The upper hood shall completely enclose the upper\t\t\t\t\t\t\t\t\t\tportion of the blade down to a point that will include the end of the saw\t\t\t\t\t\t\t\t\t\tarbor. The upper hood shall be constructed in such a manner and of such\t\t\t\t\t\t\t\t\t\tmaterial that it will protect the operator from flying splinters, broken saw\t\t\t\t\t\t\t\t\t\tteeth, etc., and will deflect sawdust away from the operator. The sides of\t\t\t\t\t\t\t\t\t\tthe lower exposed portion of the blade shall be guarded to the full\t\t\t\t\t\t\t\t\t\tdiameter of the blade by a device that will automatically adjust itself to the\t\t\t\t\t\t\t\t\t\tthickness of the stock and remain in contact with stock being cut to give\t\t\t\t\t\t\t\t\t\tmaximum protection possible for the operation being performed.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tCitation Number One (Non-Serious) \u2014Item 4\u2014\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018(1) Stairway behind resaw in old mill has 5 risers and does not have a\t\t\t\t\t\t\t\t\t\thandrail.\t\t\t\t\t\t\t\t\t\t(2) Stairway to walkway above separator in old mill does not have a\t\t\t\t\t\t\t\t\t\thandrail.\t\t\t\t\t\t\t\t\t\t(3) Stairway from center of old sawmill basement to saw floor does not\t\t\t\t\t\t\t\t\t\thave a handrail on the upper half of the stair which has 16 risers.\t\t\t\t\t\t\t\t\t\t(4) Stairs from infeed level of small S-R planer to planer platform has 4\t\t\t\t\t\t\t\t\t\trisers and does not have a handrail.\t\t\t\t\t\t\t\t\t\t(5) Stairway of Walkover at beaver infeed has 9 risers and does not have\t\t\t\t\t\t\t\t\t\ta handrail.\u2019\t\t\t\t\t\t\t\t\t\tABATE\u2014\u2018July 9, 1973\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tStandard\u201429 CFR\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018Subpart R\u2014Special Industries\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1910.265 Sawmills.\t\t\t\t\t\t\t\t\t\t(c) Building facilities, and isolated equipment\u2014\t\t\t\t\t\t\t\t\t\t(5) Stairways\u2014\t\t\t\t\t\t\t\t\t\t(ii) Handrails. Stairways shall be provided with a standard handrail on at\t\t\t\t\t\t\t\t\t\tleast one side or on any open side. Where stairs are more than four feet\t\t\t\t\t\t\t\t\t\twide there shall be a standard handrail at each side, and where more than\t\t\t\t\t\t\t\t\t\teight feet wide, a third standard handrail shall be erected in the center of\t\t\t\t\t\t\t\t\t\tthe stairway.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent\t\t\t\t\t\t\t\t\t\twas duly advised by a Notification of Proposed Penalty dated June 8th of the proposal to assess\t\t\t\t\t\t\t\t\t\tpenalties of $600 in connection with each of the two Citations for Serious Violation, $45 in\t\t\t\t\t\t\t\t\t\tconnection with Item 4 of Citation Number One (Non-Serious) and $0 in connection with all\t\t\t\t\t\t\t\t\t\tother Items of Citation Number One (Non-Serious). In a timely manner Respondent filed a letter\t\t\t\t\t\t\t\t\t\tdated June 21st contesting Citations for Serious Violation Numbers One and Two and Item 4 of\t\t\t\t\t\t\t\t\t\tCitation Number One (Non-Serious). This contest includes the proposed penalties and abatement\t\t\t\t\t\t\t\t\t\tperiods. A complaint was duly filed and was answered by Respondent. In addition to\t\t\t\t\t\t\t\t\t\tsubstantially denying the allegations of the complaint Respondent\u2019s answer raises six (6)\t\t\t\t\t\t\t\t\t\tseparately stated Affirmative Defenses based on constitutional grounds. The case was set for trial\t\t\t\t\t\t\t\t\t\tand tried at Spokane, Washington on October 16th and 17th.\t\t\t\t\t\t\t\t\t\tPROCEEDINGS AND EVIDENCE\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tWhen the trial convened each party was represented by competent legal counsel. There\t\t\t\t\t\t\t\t\t\twas no appearance by or on behalf of any of Respondent\u2019s employees even though all notices\t\t\t\t\t\t\t\t\t\thad been properly posted and the employees were represented by a Union. In preliminary\t\t\t\t\t\t\t\t\t\tdiscussions Complainant amended the Citation and complaint to show that the inspection of\t\t\t\t\t\t\t\t\t\tRespondent\u2019s facility occurred on May 14 and 15, 1973. At the same time, the issues were\t\t\t\t\t\t\t\t\t\tidentified as being Citation for Serious Violation Number One, Citation for Serious Violation\t\t\t\t\t\t\t\t\t\tNumber Two, and Item 4 of Citation Number One (Non-Serious). The issues involve the validity\t\t\t\t\t\t\t\t\t\tof the Citation, the abatement date, and the amount of the proposed penalty. Counsel for\t\t\t\t\t\t\t\t\t\tRespondent then moved to amend to show Respondent as Diamond International Corporation,\t\t\t\t\t\t\t\t\t\tAlbeni Falls Unit. On Complainant\u2019s opposition to the motion it was taken under advisement\t\t\t\t\t\t\t\t\t\twith the right reserved to Respondent to renew it in any post-trial brief filed.\t\t\t\t\t\t\t\t\t\tThe inspecting Compliance Safety and Health Officer (CSHO) (Hoop) was called as\t\t\t\t\t\t\t\t\t\tComplainant\u2019s only witness. He describes his inspection of Respondent\u2019s sawmill where he\t\t\t\t\t\t\t\t\t\tinspected the old portion on May 14, 1973 and the new portion on May 15th. Representatives of\t\t\t\t\t\t\t\t\t\tRespondent and Respondent\u2019s employees attended an opening conference, accompanied the\t\t\t\t\t\t\t\t\t\tCSHO on the walk-around inspection, and participated in a closing conference. On the days of\t\t\t\t\t\t\t\t\t\tthe inspection the CSHO carried a camera and took photographs from time to time. He\t\t\t\t\t\t\t\t\t\tmentioned the camera and its purpose to Respondent\u2019s representatives and requested that they\t\t\t\t\t\t\t\t\t\tadvise him of any portions of the mill which they did not wish photographed. No such portions\t\t\t\t\t\t\t\t\t\twere identified during the entire inspection.\t\t\t\t\t\t\t\t\t\tThe testimony of this witness identifies the various alleged violations observed and\t\t\t\t\t\t\t\t\t\tdescribes each of them, with some descriptions being in much greater detail than are others.\t\t\t\t\t\t\t\t\t\tPhotographs are identified and connected to specific Items listed in the Citations. He also\t\t\t\t\t\t\t\t\t\tdescribes which of Respondent\u2019s employees would be exposed to any given violation, stating\t\t\t\t\t\t\t\t\t\tthat Respondent\u2019s maintenance men are working at various places throughout the mill at all\t\t\t\t\t\t\t\t\t\ttimes and are called upon to enter many of the areas for maintenance and lubrication of the\t\t\t\t\t\t\t\t\t\tmachinery and for clean-up purposes.\t\t\t\t\t\t\t\t\t\tRespondent\u2019s Albeni Falls sawmill was one of a number of facilities on a list given to this\t\t\t\t\t\t\t\t\t\twitness by OSHA as the facilities to be inspected by him during the time that he was loaned to\t\t\t\t\t\t\t\t\t\tOSHA by the state of Idaho. The witness then inspected the various facilities on the list by\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tgeographic areas so as to minimize travel. The Albeni Falls unit was inspected during the second\t\t\t\t\t\t\t\t\t\tof two separate periods of service for OSHA.\t\t\t\t\t\t\t\t\t\tOn cross-examination the work history of this witness was developed to show that he was\t\t\t\t\t\t\t\t\t\temployed by Respondent in this particular sawmill for the 7 years immediately prior to 1955.\t\t\t\t\t\t\t\t\t\tFollowing that employment he became a paid union official and was so employed until 1969.\t\t\t\t\t\t\t\t\t\tThe union of which he was an official represented Respondent\u2019s employees at the Albeni Falls\t\t\t\t\t\t\t\t\t\tmill as well as at other of Respondent\u2019s facilities. In this union capacity he negotiated with\t\t\t\t\t\t\t\t\t\tRespondent on labor matters affecting the Albeni Falls mill and was serving in such a\t\t\t\t\t\t\t\t\t\tnegotiating capacity during at least one prolonged labor strike. He visited the mill on many\t\t\t\t\t\t\t\t\t\toccasions in connection with this employment by the union. In 1969 he became a safety\t\t\t\t\t\t\t\t\t\tinspector for the state of Idaho and was on loan to OSHA from the state under Section 7(c)(1) of\t\t\t\t\t\t\t\t\t\tthe Act at the time of the inspection on May 14th and 15th. He inspected Respondent\u2019s mill at\t\t\t\t\t\t\t\t\t\tAlbeni Falls on several occasions prior to May 14th while serving as a state safety inspector.\t\t\t\t\t\t\t\t\t\tSome of the violations cited during the instant inspection (old mill only) were observed and cited\t\t\t\t\t\t\t\t\t\twhile he was inspecting as a state inspector. When Citations were issued as the result of the state\t\t\t\t\t\t\t\t\t\tinspections, he cited the Federal safety standards involved in addition to the state standards. This\t\t\t\t\t\t\t\t\t\twas done as a courtesy to Respondent so as to advise Respondent of the applicable Federal\t\t\t\t\t\t\t\t\t\tstandards.\t\t\t\t\t\t\t\t\t\tComplainant rested presentation of its case following completion of the testimony of the\t\t\t\t\t\t\t\t\t\tCSHO. Counsel for Respondent promptly moved for dismissal of the entire case on the ground\t\t\t\t\t\t\t\t\t\tthat Complainant had failed to carry its burden of proof. Counsel for Respondent also argued that\t\t\t\t\t\t\t\t\t\tthe safety standards relied upon by Complainant had not been properly adopted and promulgated.\t\t\t\t\t\t\t\t\t\tFollowing a ruling that Complainant had offered sufficient evidence to require that Respondent\t\t\t\t\t\t\t\t\t\tgo forward with the case, the motion was taken under advisement in respect to the question of\t\t\t\t\t\t\t\t\t\tproper promulgation of the standards.\t\t\t\t\t\t\t\t\t\tThe Maintenance Supervisor of the Albeni Falls mill (Will) was called as a witness by\t\t\t\t\t\t\t\t\t\tRespondent. He testifies concerning the locations and measurements of the various violations.\t\t\t\t\t\t\t\t\t\tHe also indicates the location of many of the work stations which are nearest to the cited\t\t\t\t\t\t\t\t\t\tviolations. He describes the guards added to many of the cited machines following the\t\t\t\t\t\t\t\t\t\tinspection. It is his testimony that the maintenance men mostly do not work around the machines\t\t\t\t\t\t\t\t\t\twhile they are in operation. He states that they were having problems with the electronic control\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tsystem at the time of the inspection and that such problems are still continuing to a certain extent\t\t\t\t\t\t\t\t\t\tat the time of the trial.\t\t\t\t\t\t\t\t\t\tRespondent also called the Safety Supervisor (Shobe) for the Northwest Lumber Division\t\t\t\t\t\t\t\t\t\tof Diamond International Corporation. His supervision includes the Albeni Falls mill. He has\t\t\t\t\t\t\t\t\t\tchecked the records of Respondent for the past 10 years and found no record of injuries or\t\t\t\t\t\t\t\t\t\taccidents involving any of the cited machines.\t\t\t\t\t\t\t\t\t\tSubsequent to receipt of the transcript the time in which to file briefs was extended twice, once\t\t\t\t\t\t\t\t\t\ton the request of each party. Each party submitted extensive initial and reply briefs.\t\t\t\t\t\t\t\t\t\tDISCUSSION\t\t\t\t\t\t\t\t\t\tFacts sustaining jurisdiction are alleged in the complaint and admitted in Respondent\u2019s\t\t\t\t\t\t\t\t\t\tanswer. Jurisdiction is thus conceded.\t\t\t\t\t\t\t\t\t\tConstitutionality of the Act\t\t\t\t\t\t\t\t\t\tCounsel for Respondent contends in six (6) separately stated affirmative defenses that the\t\t\t\t\t\t\t\t\t\tAct and the enforcement procedures provided for therein are unconstitutional. It is apparent that\t\t\t\t\t\t\t\t\t\tthese constitutionality issues are raised at this stage of these proceedings so as to preserve\t\t\t\t\t\t\t\t\t\tRespondent\u2019s right to pursue them at some future appropriate time\u2014perhaps in the Federal court\t\t\t\t\t\t\t\t\t\tof appeals.\t\t\t\t\t\t\t\t\t\tThe Occupational Safety and Health Review Commission does not have authority to rule\t\t\t\t\t\t\t\t\t\ton the constitutionality of the Act. Secretary v. American Smelting and Refining Company,\t\t\t\t\t\t\t\t\t\tOSAHRC Docket No. 10 (August 17, 1973). An administrative agency does not have the power\t\t\t\t\t\t\t\t\t\tto determine the constitutionality of the statute it administers. Public Utilities Commission v.\t\t\t\t\t\t\t\t\t\tUnited States, 355 U.S. 534, 539 (1958); Engineer Public Service Company v. SEC, 138 F2d\t\t\t\t\t\t\t\t\t\t936, 951\u2013953 (D.C. Cir. 1943) cert. denied 332 U.S. 788. In view of this well recognized\t\t\t\t\t\t\t\t\t\tprinciple, I am constrained to hold that resolution of the constitutionality issues are beyond the\t\t\t\t\t\t\t\t\t\tauthority of this Judge. Respondent\u2019s brief indicates full recognition of this principle.\t\t\t\t\t\t\t\t\t\tThe Second and Third Affirmative Defenses also contend that the standards involved\t\t\t\t\t\t\t\t\t\there are not uniformly applied and enforced in substantially equivalent situations. It is alleged\t\t\t\t\t\t\t\t\t\tthat this deprives the employer of the constitutional rights of due process and equal protection\t\t\t\t\t\t\t\t\t\tand application of the laws. There is no evidence of record, persuasive or otherwise, that the\t\t\t\t\t\t\t\t\t\tenforcement procedures followed by the Secretary of Labor in this case were contrary to the\t\t\t\t\t\t\t\t\t\tprovisions of the Act. This is particularly true with respect to Sections 8, 9, and 10 of the Act.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tWhen the procedures provided by Section 10 of the Act have been completed in this case,\t\t\t\t\t\t\t\t\t\tRespondent will have full opportunity for recourse to judicial review under Section 11 of the\t\t\t\t\t\t\t\t\t\tAct. It is important to realize in connection with these contentions that the Review Commission\t\t\t\t\t\t\t\t\t\tis given authority under the Act to assess all civil penalties indicated by the facts extant, if the\t\t\t\t\t\t\t\t\t\tCommission should determine that there has been a violation of Section 5 of the Act. [See\t\t\t\t\t\t\t\t\t\tSection 17(j).]\t\t\t\t\t\t\t\t\t\tParticular note should be made at this time that there is no showing in this record that the\t\t\t\t\t\t\t\t\t\tCompliance Safety and Health Officer was in any way unfair or acted in a manner prejudicial to\t\t\t\t\t\t\t\t\t\tRespondent, either in the method in which the Albeni Falls mill was selected for inspection or in\t\t\t\t\t\t\t\t\t\tthe inspection procedures followed. The cross-examination conducted by counsel for Respondent\t\t\t\t\t\t\t\t\t\timplied that there was something wrong, or at least prejudicial to Respondent, in assigning this\t\t\t\t\t\t\t\t\t\tparticular CSHO to conduct the inspection of Respondent\u2019s mill at Albeni Falls. The implication\t\t\t\t\t\t\t\t\t\tis that the CSHO was somehow contaminated and his testimonial veracity impaired by reason of\t\t\t\t\t\t\t\t\t\this prior employment at this mill and by reason of his prior service as a paid official of the union\t\t\t\t\t\t\t\t\t\trepresenting Respondent\u2019s employees at this particular mill. Counsel for Respondent would not\t\t\t\t\t\t\t\t\t\tdirectly voice this charge, nor would he deny that such was the purpose of his questioning. The\t\t\t\t\t\t\t\t\t\tattack on the witnesses\u2019 credibility was by indirection, innuendo and implication. The record\t\t\t\t\t\t\t\t\t\tdoes not sustain such an implication nor does it give the slightest indication that there is even a\t\t\t\t\t\t\t\t\t\tsmall possibility of prejudice. The mill was one of a list of approximately 20 facilities which the\t\t\t\t\t\t\t\t\t\tCSHO was assigned to inspect. He did not participate in selecting the facilities identified on the\t\t\t\t\t\t\t\t\t\tlist. He inspected the facilities on the list by areas of location with the Albeni Falls mill\t\t\t\t\t\t\t\t\t\thappening to be one of the last ones inspected. Likewise, the description of the inspection does\t\t\t\t\t\t\t\t\t\tnot reveal any instance or circumstance which would indicate prejudice to Respondent by reason\t\t\t\t\t\t\t\t\t\tof the manner in which the inspection was performed\u2014at least no more prejudice than would\t\t\t\t\t\t\t\t\t\tresult from any inspection of Respondent\u2019s facilities under the Act.\t\t\t\t\t\t\t\t\t\tIt should be noted here that, contrary to the implication of counsel for Respondent, there\t\t\t\t\t\t\t\t\t\tis no indication that the CSHO delayed his inspection of the Albeni Falls mill until the old\t\t\t\t\t\t\t\t\t\tportion was close to being taken out of operation. He does indicate that he anticipated that the\t\t\t\t\t\t\t\t\t\told mill would be shut down, but that this did not influence his choice of the date for the\t\t\t\t\t\t\t\t\t\tinspection. This anticipation came from the reading of articles in the local newspapers. The fact\t\t\t\t\t\t\t\t\t\tremains that the old mill was in operation on the day of the inspection and for two or three weeks\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tthereafter. Respondent\u2019s employees were thus exposed to the existing hazards and were subject\t\t\t\t\t\t\t\t\t\tto being injured thereby.\t\t\t\t\t\t\t\t\t\tIn Respondent\u2019s Fourth Affirmative Defense, in addition to the constitutional issues\t\t\t\t\t\t\t\t\t\traised, it is specifically alleged that the standards cited [29 CFR 1910.213(c)(1) and (h)(1) and\t\t\t\t\t\t\t\t\t\t1910.265(c)(5)(ii) and (c)(22)] are \u2018vague, arbitrary, unreasonable or capricious or incapable of\t\t\t\t\t\t\t\t\t\tcompliance in a reasonable manner.\u2019 There is no evidence in this record, substantial or\t\t\t\t\t\t\t\t\t\totherwise, which would sustain this contention. The cited standards describe how and under\t\t\t\t\t\t\t\t\t\twhat circumstances the various pieces of equipment cited shall be guarded as well as the manner\t\t\t\t\t\t\t\t\t\tin which handrails shall be placed on stairs. The instances wherein each of these saws, pieces of\t\t\t\t\t\t\t\t\t\tpower-transmission apparatus (gears, sprockets, chains and couplings), and conditions (handrails\t\t\t\t\t\t\t\t\t\ton stairs) located at Respondent\u2019s worksite were not in compliance with the cited standards on\t\t\t\t\t\t\t\t\t\tMay 14 and 15, 1973 are clearly identified in the Citations. The location of each violation and\t\t\t\t\t\t\t\t\t\tthe way in which the standard is allegedly violated can be determined by reading the Citation.\t\t\t\t\t\t\t\t\t\tThere is no indication on this record that Respondent did not understand from the Citation as to\t\t\t\t\t\t\t\t\t\twhat the alleged violations were and where they were located in the mill. Testimony has been\t\t\t\t\t\t\t\t\t\toffered by Respondent in connection with each of the contested violations and photographs of\t\t\t\t\t\t\t\t\t\tseveral of the alleged violations were offered in evidence by Respondent. It was apparent at the\t\t\t\t\t\t\t\t\t\ttrial that Respondent was very much specifically aware of what had been charged and was able\t\t\t\t\t\t\t\t\t\tto fully present his defense. Respondent\u2019s argument is rejected. It is concluded that the Citation\t\t\t\t\t\t\t\t\t\tadequately advised Respondent of the violations and their locations.\t\t\t\t\t\t\t\t\t\tRespondent also contends that the citation of 29 CFR 1910.265(c)(22) in connection with\t\t\t\t\t\t\t\t\t\tthe power-transmission violations fails to apprise the employer as to what guarding is deemed\t\t\t\t\t\t\t\t\t\tnecessary and thus does not give adequate notice to Respondent. This allegation is based on the\t\t\t\t\t\t\t\t\t\treference in this standard to 1910.219 in general rather than to the specific sub-section of\t\t\t\t\t\t\t\t\t\t1910.219 allegedly violated. Respondent makes far more of this alleged problem than is\t\t\t\t\t\t\t\t\t\tindicated or necessary and specifically alleges a lack of ability of find the standard. The Citation\t\t\t\t\t\t\t\t\t\tspecifies that the violations involve gears and sprockets, chains, and a coupling. The required\t\t\t\t\t\t\t\t\t\tguarding for each of these items of equipment is covered in a paragraph sub-heading of 1910.219\t\t\t\t\t\t\t\t\t\tappearing in italics and is therefore easily located in that section by scanning down the columns\t\t\t\t\t\t\t\t\t\tof the Federal Register under the heading of the section until the particular piece of equipment is\t\t\t\t\t\t\t\t\t\tlisted. The applicable standard is thus almost as easily located as it would be if the letter\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tidentification of the sub-paragraph was given. With either key, letter identification or machine\t\t\t\t\t\t\t\t\t\tdescription, it is necessary to scan down the columns of the Federal Register to find the\t\t\t\t\t\t\t\t\t\tapplicable standard. A person of ordinary intelligence should have no difficulty in locating the\t\t\t\t\t\t\t\t\t\tcited standard. Citing by the letter identification would possibly have expedited Respondent\u2019s\t\t\t\t\t\t\t\t\t\tfinding of the standard to a minor degree but such a minimal benefit to Respondent is not of\t\t\t\t\t\t\t\t\t\tsufficient import or prejudice to Respondent to require dismissal of this action as is advocated by\t\t\t\t\t\t\t\t\t\tRespondent. The Act only requires that Respondent be given a reference to the standards\t\t\t\t\t\t\t\t\t\tallegedly violated. This record clearly indicates that Respondent did receive adequate notice\t\t\t\t\t\t\t\t\t\tthrough the reference given. It does not contain any indication of confusion on Respondent\u2019s part\t\t\t\t\t\t\t\t\t\twith regard to the equipment involved and the guards required. The only indication of, or claim\t\t\t\t\t\t\t\t\t\tto, such confusion is contained in the comments of Respondent\u2019s counsel. It is concluded from\t\t\t\t\t\t\t\t\t\tthe convincing evidence of record that the wording of the Citation in connection with the power-\t\t\t\t\t\t\t\t\t\ttransmission apparatus is sufficiently specific to satisfy the particularity requirements of Section\t\t\t\t\t\t\t\t\t\t9(a) of the Act.\t\t\t\t\t\t\t\t\t\tA major argument raised by Respondent involves the alleged illegality of the standards\t\t\t\t\t\t\t\t\t\trelied upon in this instance. Respondent contends in Article IV of the answer, as well as in the\t\t\t\t\t\t\t\t\t\tFourth Affirmative Defense, that the Secretary of Labor has illegally adopted these standards.\t\t\t\t\t\t\t\t\t\tThis same argument is also made in Respondent\u2019s brief (pages 6 to 16) where Respondent asserts\t\t\t\t\t\t\t\t\t\tthat these safety standards were not adopted in accordance with the provisions of Section 6(a) of\t\t\t\t\t\t\t\t\t\tthe Act and are therefore totally invalid. Respondent argues that in adopting the ANSI (American\t\t\t\t\t\t\t\t\t\tNational Standards Institute) national consensus standards the Secretary of Labor \u2018has omitted\t\t\t\t\t\t\t\t\t\ttotal sections, reworded and rearranged the content of certain provisions, omitted key provisions\t\t\t\t\t\t\t\t\t\tessential to the true impact of the provision, and so on.\u2019 Respondent would require the Secretary\t\t\t\t\t\t\t\t\t\tto literally adopt the ANSI standards in their \u2018precise\u2019 terms without rearrangement or any\t\t\t\t\t\t\t\t\t\talteration of format. Respondent also argues that the change in arrangement involved here is\t\t\t\t\t\t\t\t\t\tsubstantial and material.\t\t\t\t\t\t\t\t\t\tSection 6(a) of the Act provides:\t\t\t\t\t\t\t\t\t\t\u2018. . . the Secretary shall, as soon as practicable during the period beginning with\t\t\t\t\t\t\t\t\t\tthe effective date of this Act and ending two years after such date, by rule\t\t\t\t\t\t\t\t\t\tpromulgate as an occupational safety or health standard any national consensus\t\t\t\t\t\t\t\t\t\tstandard, and any established Federal standard, unless he determines that the\t\t\t\t\t\t\t\t\t\tpromulgation of such a standard would not result in improved safety or health for\t\t\t\t\t\t\t\t\t\tspecifically designated employees. In the event of conflict among any such\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tstandards, the Secretary shall promulgate the standard which assures the greatest\t\t\t\t\t\t\t\t\t\tprotection of the safety or health of the affected employees.\u2019 (Emphasis added.)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThere is nothing in the wording of this section that would require the Secretary to literally\t\t\t\t\t\t\t\t\t\treproduce all of the wording of an ANSI national consensus standard in promulgating such a\t\t\t\t\t\t\t\t\t\tstandard as a safety standard under this Act. In fact, a close reading of this section indicates to\t\t\t\t\t\t\t\t\t\tthe contrary. In choosing between a national consensus standard and an established Federal\t\t\t\t\t\t\t\t\t\tstandard the Secretary is required to promulgate the standard which assures the greatest\t\t\t\t\t\t\t\t\t\tprotection for the affected employees. The Secretary is thus charged with the responsibility of\t\t\t\t\t\t\t\t\t\tdetermining which standard is most effective and must promulgate that standard. Congress\t\t\t\t\t\t\t\t\t\tobviously intended that the Secretary should make specific choices. Under these circumstances\t\t\t\t\t\t\t\t\t\tthere is a clear presumption that the Secretary will exercise his wisdom and expertise so as to\t\t\t\t\t\t\t\t\t\tcarry out the mandate of Congress. The record in this instance is devoid of anything that would\t\t\t\t\t\t\t\t\t\tindicate a failure on the part of the Secretary to follow the provisions of the Act.\t\t\t\t\t\t\t\t\t\tA thorough perusal of the legislative history of the Act does not sustain any conclusion\t\t\t\t\t\t\t\t\t\tdifferent from that discussed above. There is no indication that Congress intended to restrict or\t\t\t\t\t\t\t\t\t\tlimit the Secretary in exercising his wisdom and expertise in selecting which of the published\t\t\t\t\t\t\t\t\t\tANSI national consensus Federal standards should be adopted for promulgation.\t\t\t\t\t\t\t\t\t\tThe thrust of Respondent\u2019s argument is that the Secretary has omitted portions of the\t\t\t\t\t\t\t\t\t\tbasic ANSI source document in some instances and has rearranged the paragraphs in others.\t\t\t\t\t\t\t\t\t\tRespondent urges that because of these variations from the basic ANSI document the standards\t\t\t\t\t\t\t\t\t\trelied on here are invalid and, therefore, cannot be enforced. As will be seen in the following\t\t\t\t\t\t\t\t\t\tdiscussion, this argument is also fatally defective:\t\t\t\t\t\t\t\t\t\t1910.265(c)(22)\t\t\t\t\t\t\t\t\t\tThe safety standard in this sub-paragraph was cited in connection with the mechanical\t\t\t\t\t\t\t\t\t\tpower-transmission apparatus covered by Citation for Serious Violation Number One. The\t\t\t\t\t\t\t\t\t\twording of this sub-paragraph, as well as the actual wording of the Citation, refers to 1910.219.\t\t\t\t\t\t\t\t\t\tThe source of 1910.265(c)(22) is paragraph 3.27 of an ANSI national consensus standard entitled\t\t\t\t\t\t\t\t\t\t\u2018Safety Requirements for Sawmills\u2019 (ANSI 02.1\u20131969, Exhibit A in evidence and Exhibit A to\t\t\t\t\t\t\t\t\t\tRespondent\u2019s brief.) Paragraph 3.27 of the ANSI standard refers to another ANSI document\t\t\t\t\t\t\t\t\t\tentitled \u2018Safety Code for Mechanical Power-Transmission Apparatus\u2019 (ANSI B15.1\u20131953,\t\t\t\t\t\t\t\t\t\tExhibit C to Respondent\u2019s brief). In using the ANSI national consensus standards it is necessary\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tto go to Rules 230, 231 and 261 of ANSI B15.1\u20131953 in order to find a statement of the safety\t\t\t\t\t\t\t\t\t\trequirements. These Rules are the specific sources of 1910.219(f)(1), 1910.219(f)(3), and\t\t\t\t\t\t\t\t\t\t1910.219(i)(2), respectively. The applicable promulgated standards found in 1910.219 and relied\t\t\t\t\t\t\t\t\t\ton by Complainant in this instance are the same as the respective Rules from which they\t\t\t\t\t\t\t\t\t\toriginated. Thus the Secretary has indeed complied with the requirements of Section 6(a) of the\t\t\t\t\t\t\t\t\t\tAct. Elimination of extraneous material such as paragraph (b) of Rule 261 does not invalidate the\t\t\t\t\t\t\t\t\t\tstandard. Its deletion has not altered the meaning nor intent of the safety standard dealing with\t\t\t\t\t\t\t\t\t\tcouplings cited and relied on here. Respondent has not been prejudiced nor misled in this\t\t\t\t\t\t\t\t\t\tinstance.\t\t\t\t\t\t\t\t\t\t1910.213(c)(1) and (h)(1)\t\t\t\t\t\t\t\t\t\tThe safety standards in these two sub-paragraphs were cited in connection with the two\t\t\t\t\t\t\t\t\t\tsaw violations covered by Citation for Serious Violation Number Two. The source of these\t\t\t\t\t\t\t\t\t\tstandards is paragraphs 4.1.2(a) and 4.1.9(a), respectively, of the ANSI national consensus\t\t\t\t\t\t\t\t\t\tstandard entitled, \u2018Safety Code for Woodworking Machinery\u2019 (ANSI 01.1\u20131954 (R\u20131971),\t\t\t\t\t\t\t\t\t\tExhibit B in evidence and Exhibit B to Respondent\u2019s brief). Again, the sub-paragraphs relied\t\t\t\t\t\t\t\t\t\tupon are identical with the corresponding source paragraphs. The Secretary has only changed the\t\t\t\t\t\t\t\t\t\tidentifying numbering systems. Respondent has not been prejudiced nor misled thereby.\t\t\t\t\t\t\t\t\t\tRespondent attacks the Secretary\u2019s elimination of the \u2018Note\u2019 preceding the actual text of\t\t\t\t\t\t\t\t\t\tthe standards in Section 4 of ANSI 01.1\u20131954 (R\u20131971) and argues that the Secretary violates\t\t\t\t\t\t\t\t\t\tSection 6(a) of the Act by such elimination. Section 6(a) provides for prompt promulgation of\t\t\t\t\t\t\t\t\t\tnational consensus standards by the Secretary. It does not require promulgation of material not a\t\t\t\t\t\t\t\t\t\tpart of the standards. The \u2018Note\u2019 involved here is nothing more than an explanatory note. It does\t\t\t\t\t\t\t\t\t\tnot contain anything that even remotely resembles a safety standard. It tells the users of the\t\t\t\t\t\t\t\t\t\tdocument that the \u2018standards given are those which woodworkers have agreed are most generally\t\t\t\t\t\t\t\t\t\tuseful.\u2019 The \u2018Note\u2019 then goes on to indicate a recognition that there may be situations where the\t\t\t\t\t\t\t\t\t\tstandards are not satisfactory and suggests that the enforcing authority should exercise wide\t\t\t\t\t\t\t\t\t\tlatitude in allowing the use of other devices which give promise of affording adequate\t\t\t\t\t\t\t\t\t\tprotection. The Secretary has exercised this latitude in selecting the specific basic safety\t\t\t\t\t\t\t\t\t\tstandards suggested by the ANSI national consensus group and promulgating them as safety\t\t\t\t\t\t\t\t\t\tstandards under the authority of Section 6(a) of the Act. The Secretary has thus followed the\t\t\t\t\t\t\t\t\t\texact mandate of Congress. Respondent\u2019s argument is in error.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t1910.265(c)(5)(ii)\t\t\t\t\t\t\t\t\t\tThe safety standard in this sub-paragraph was cited in connection with the stairway\t\t\t\t\t\t\t\t\t\thandrail violations covered by Item 4 of Citation One (Non-Serious). The source of this standard\t\t\t\t\t\t\t\t\t\tis paragraph 3.5.3 of the ANSI national consensus standard entitled, \u2018Safety Requirements for\t\t\t\t\t\t\t\t\t\tSawmills\u2019, (ANSI 02.1\u20131969). Again, the cited safety standard is identical with the source\t\t\t\t\t\t\t\t\t\tparagraph except for the identifying number system.\t\t\t\t\t\t\t\t\t\tAnother point raised by Respondent in support of its illegality of promulgation argument\t\t\t\t\t\t\t\t\t\t(brief pgs 8\u201310) is that there is no showing that the ANSI source documents are national\t\t\t\t\t\t\t\t\t\tconsensus standards or that they meet the requirements set forth in the Act for such standards.\t\t\t\t\t\t\t\t\t\tThis argument is also in error. The legislative history of the Act clearly is to the contrary. It\t\t\t\t\t\t\t\t\t\tshows that Congress not only considered that the safety standards produced by ANSI were\t\t\t\t\t\t\t\t\t\t\u2018national consensus standards\u2019 but that ANSI was the greatest source of such standards. (See\t\t\t\t\t\t\t\t\t\t\u2018Legislative History of the Occupational Safety and Health Act of 1970 (S.2193, P.L. 91\u2013596) at\t\t\t\t\t\t\t\t\t\tpages 146, 504, 511, 847, 996, and 1036). In addition, the Forward contained in each of the\t\t\t\t\t\t\t\t\t\tANSI source documents referred to indicates that the standards contained in them were\t\t\t\t\t\t\t\t\t\tdeveloped in a manner involving discussion and consultation by groups representing large\t\t\t\t\t\t\t\t\t\tsegment of the industries involved. It is interesting to note that counsel for Respondent was a\t\t\t\t\t\t\t\t\t\tmember of the standards committee which developed, processed and approved the \u2018Safety\t\t\t\t\t\t\t\t\t\tRequirements for Sawmills\u2019 standard.\t\t\t\t\t\t\t\t\t\tGiving due consideration to all of the foregoing discussion as supported by the record\t\t\t\t\t\t\t\t\t\therein, it is concluded that Respondent\u2019s attack on the legality of the Secretary\u2019s promulgation of\t\t\t\t\t\t\t\t\t\tthe particular standards relied on must fail. There is nothing of import in this record which\t\t\t\t\t\t\t\t\t\tsupports Respondent\u2019s argument. The motion to dismiss based on this contention is denied.\t\t\t\t\t\t\t\t\t\tCitation for Serious Violation Number One 1910.265(c)(22)\t\t\t\t\t\t\t\t\t\tThis Citation alleges that Respondent failed to guard power-transmission equipment at 9\t\t\t\t\t\t\t\t\t\tseparate and distinct locations at its sawmill in violation of the requirements of 1910.219. The\t\t\t\t\t\t\t\t\t\tevidence offered by Complainant (testimony of the CSHO and photographs) clearly establishes\t\t\t\t\t\t\t\t\t\tthat there were no appropriate guards at any of the 9 specific locations. Respondent offers the\t\t\t\t\t\t\t\t\t\ttestimony of 2 witnesses together with a number of photographs taken after the inspection but\t\t\t\t\t\t\t\t\t\tdoes not offer any evidence indicating the presence of the required guards on the dates of\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tinspection. Respondent only argues that such guards were unneeded. The absence of the guards\t\t\t\t\t\t\t\t\t\tis thus conceded.\t\t\t\t\t\t\t\t\t\tComplainant has combined the 9 separate violations into a single citation and classified it\t\t\t\t\t\t\t\t\t\tas a Citation for Serious Violation, seeking a penalty of $600 in connection therewith. The\t\t\t\t\t\t\t\t\t\tevidence does not justify classification of any one of these 9 instances, nor of all of them\t\t\t\t\t\t\t\t\t\ttogether, as a serious violation. It may be true that a person could possibly be injured if he had\t\t\t\t\t\t\t\t\t\tthe misfortune of becoming entangled at one of the unguarded points but such an occurrence is\t\t\t\t\t\t\t\t\t\tonly a very remote possibility. The evidence does not locate any work station in close proximity\t\t\t\t\t\t\t\t\t\tto the cited points. In fact, in several instances the work stations are far removed from the danger\t\t\t\t\t\t\t\t\t\tpoint and in some instances are located on the opposite side of the machine from the location of\t\t\t\t\t\t\t\t\t\tthe violation. The men most likely to be exposed to the existing danger are the maintenance and\t\t\t\t\t\t\t\t\t\tclean-up men. These men are usually not exposed to the unguarded locations while the\t\t\t\t\t\t\t\t\t\tmachinery is in operation. The maintenance men may, and on occasion must, inspect the\t\t\t\t\t\t\t\t\t\tmachinery while it is in operation but they ordinarily only work on it when it is shut down. As a\t\t\t\t\t\t\t\t\t\trule the cleaning men do their work when the machinery is not running. Under these\t\t\t\t\t\t\t\t\t\tcircumstances it is concluded that although each of these violations existed they are each non-\t\t\t\t\t\t\t\t\t\tserious.\t\t\t\t\t\t\t\t\t\tIn order to arrive at an appropriate penalty, due consideration must be given to the criteria\t\t\t\t\t\t\t\t\t\tset forth in Section 17(j) of the Act. There is no history of any previous violations at this\t\t\t\t\t\t\t\t\t\tworkplace nor of any injuries on the cited machines\u2014at least in the last 10 years. Respondent\u2019s\t\t\t\t\t\t\t\t\t\tbusiness is a rather large one overall with several large sawmills and plants. There were 144\t\t\t\t\t\t\t\t\t\temployees working in 2 shifts at this particular facility. Respondent has demonstrated good faith\t\t\t\t\t\t\t\t\t\tin that there was full cooperation with the CSHO and prompt installation of several of the\t\t\t\t\t\t\t\t\t\tmissing guards. The CSHO observed many guards already in place in the more dangerous areas.\t\t\t\t\t\t\t\t\t\tThe gravity of each of these violations is considered to be very low since there is only a\t\t\t\t\t\t\t\t\t\tnegligible amount of exposure. Accordingly it is considered that an aggregate penalty of $135 is\t\t\t\t\t\t\t\t\t\tappropriate in connection with these 9 non-serious violations and will assist in achieving the\t\t\t\t\t\t\t\t\t\tpurposes of the Act.\t\t\t\t\t\t\t\t\t\tCitation for Serious Violation Number Two 1910.213(h)(1) and (c)(1)\t\t\t\t\t\t\t\t\t\tThis Citation alleges Respondent\u2019s failure to guard the lower portion of the blade of a\t\t\t\t\t\t\t\t\t\tradial arm saw in violation of the safety standard found at 1910.213(h)(1) and failure to have a\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tguard over the top of the blade of a table saw in violation of 1910.213(c)(1). These two\t\t\t\t\t\t\t\t\t\tviolations were combined into a single Citation for Serious Violation and a penalty of $600\t\t\t\t\t\t\t\t\t\tsought therefor.\t\t\t\t\t\t\t\t\t\tThe evidence clearly establishes the absence of each of the required guards. Respondent\t\t\t\t\t\t\t\t\t\tconcedes that there was no lower guard but argues that the upper guard on the radial saw could\t\t\t\t\t\t\t\t\t\tbe (and usually was) adjusted low enough toward the front to guard the leading edge of the\t\t\t\t\t\t\t\t\t\tblade. This does not meet the requirements of the standard which requires that the sides of the\t\t\t\t\t\t\t\t\t\tlower exposed portion of the blade be guarded. Such an adjustment exposes the upper trailing\t\t\t\t\t\t\t\t\t\tedge of the saw in violation of another portion of the standard which specifically requires an\t\t\t\t\t\t\t\t\t\tupper hood covering down to the arbor end. A lower blade guard is also specifically required.\t\t\t\t\t\t\t\t\t\tThe lower blade was not properly guarded.\t\t\t\t\t\t\t\t\t\tRespondent concedes that there was no guard on the table saw but argues that one is\t\t\t\t\t\t\t\t\t\tunnecessary. The basis of this argument is that the blade height is always adjusted so that it only\t\t\t\t\t\t\t\t\t\tcuts to the thickness of the material being cut and thus does not protrude above. According to\t\t\t\t\t\t\t\t\t\tRespondent the material acts as a guard and eliminates the danger. Such an argument is\t\t\t\t\t\t\t\t\t\tfallacious. The unguarded blade must protrude at least a small distance above the material while\t\t\t\t\t\t\t\t\t\tcutting and is completely and dangerously exposed after the material has passed through the saw.\t\t\t\t\t\t\t\t\t\tThe absence of the guard is a violation.\t\t\t\t\t\t\t\t\t\tA violation is serious under Section 17(k) of the Act if there is a substantial probability\t\t\t\t\t\t\t\t\t\tthat death or serious physical harm could result from the violative condition. Here it is obvious\t\t\t\t\t\t\t\t\t\tthat if the saws will cut lumber they will surely amputate fingers, hands, and arms or at least\t\t\t\t\t\t\t\t\t\tseverely mutilate any such extremities coming in contact with the unguarded blades. Each\t\t\t\t\t\t\t\t\t\tviolation is serious. Respondent knew of the violation through state citations resulting from prior\t\t\t\t\t\t\t\t\t\tinspections of the CSHO while he was serving as a state safety inspector.\t\t\t\t\t\t\t\t\t\tAgain it is necessary to give due consideration to the Section 17(j) criteria in order to\t\t\t\t\t\t\t\t\t\tarrive at an appropriate penalty for these two combined serious violations. The evidence\t\t\t\t\t\t\t\t\t\tconcerning size, good faith, and previous history is the same as that discussed above. In\t\t\t\t\t\t\t\t\t\tconnection with the gravity of the violations it is noted that the two unguarded saws are located\t\t\t\t\t\t\t\t\t\tin a locked room accessible to two men only. Each of these men is trained and experienced in the\t\t\t\t\t\t\t\t\t\tuse of the saws. Neither man has suffered any injury on them. Under these circumstances the\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tgravity is considered to be somewhat less than moderate. Accordingly an aggregate penalty of\t\t\t\t\t\t\t\t\t\t$100 is deemed appropriate.\t\t\t\t\t\t\t\t\t\tCitation One (Non-Serious)\u2014Item 4 1910.265(c)(5)(ii)\t\t\t\t\t\t\t\t\t\tThe Item alleges that Respondent failed to have handrails on 5 separate stairways in\t\t\t\t\t\t\t\t\t\tviolation of the cited standard and seeks a penalty of $45 in connection therewith.\t\t\t\t\t\t\t\t\t\tThe evidence offered by Complainant clearly establishes the absence of the required handrails in\t\t\t\t\t\t\t\t\t\teach instance. Respondent does not contend that the handrails were in place\u2014only that the stairs\t\t\t\t\t\t\t\t\t\tin the old sawmill (the first 3 sub-items) did not pose any threat to the safety of the employees\t\t\t\t\t\t\t\t\t\tbecause they were taken out of use about 17 days after the inspection. Respondent also urges that\t\t\t\t\t\t\t\t\t\tthe stairway at the beaver in the new mill (sub-item 5) had not been completed and is thus\t\t\t\t\t\t\t\t\t\tapparently excused from compliance. These arguments are not convincing.\t\t\t\t\t\t\t\t\t\tThe indications from the evidence are that the stairways were in regular use prior to and\t\t\t\t\t\t\t\t\t\tat the time of the inspection. This is particularly true of the stairway at the beaver which, by the\t\t\t\t\t\t\t\t\t\ttestimony of Respondent\u2019s own witness, was in actual use during the inspection. The fact that\t\t\t\t\t\t\t\t\t\tsome of the stairs were taken out of use and removed some 17 days after the inspection does not\t\t\t\t\t\t\t\t\t\tremove the fact of their use without handrails prior to and during the inspection. Accordingly, it\t\t\t\t\t\t\t\t\t\tis obvious that the use of the various stairs without handrails was a violation of the cited standard\t\t\t\t\t\t\t\t\t\tin each instance.\t\t\t\t\t\t\t\t\t\tGiving due consideration to the Section 17(j) criteria discussed above it is deemed\t\t\t\t\t\t\t\t\t\tappropriate to assess an aggregate penalty of $45 in connection with these 5 separate instances of\t\t\t\t\t\t\t\t\t\tviolation. The gravity is considered to be very low and Respondent\u2019s good faith to be exemplary\t\t\t\t\t\t\t\t\t\there because of the prompt installation of some of the missing handrails and the removal of the\t\t\t\t\t\t\t\t\t\tstairs in the old sawmill when it was shut down.\t\t\t\t\t\t\t\t\t\tConsequently, based upon the evidence adduced and after full consideration of all\t\t\t\t\t\t\t\t\t\tsubmissions, briefs, arguments and motions, we make the following:\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\t1. On May 14 and 15, 1973 and at all times material hereto, Respondent Diamond\t\t\t\t\t\t\t\t\t\tInternational Corporation, Albeni Falls Unit, was a corporation maintaining a sawmill worksite\t\t\t\t\t\t\t\t\t\tand place of business and employment at Albeni Falls, Idaho. The worksite consisted of an old\t\t\t\t\t\t\t\t\t\tportion and an entirely new portion. All operations ceased in the old portion on June 2, 1973 and\t\t\t\t\t\t\t\t\t\tit was dismantled by September 20, 1973. The new portion of the mill commenced partial\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\toperation on February 20, 1973 and was continuing under partial operation in an effort to\t\t\t\t\t\t\t\t\t\teliminate automation problems at the time of the trial. Respondent employed approximately 144\t\t\t\t\t\t\t\t\t\temployees at the worksite at the time of the inspection on May 14th and 15th. Respondent\t\t\t\t\t\t\t\t\t\tproduces wood products at the worksite and ships most of such products to points outside of the\t\t\t\t\t\t\t\t\t\tstate of Idaho. Respondent\u2019s business thus affects commerce within the meaning of Section 3 of\t\t\t\t\t\t\t\t\t\tthe Act (29 U.S.C. \u00a7 652). File-Complaint, Articles I and II, Answer, Articles II and III;\t\t\t\t\t\t\t\t\t\tTranscript pgs 11\u201312, 21, 89, 340\u2013341 and 429\u2013431 and Exhibit 11.)\t\t\t\t\t\t\t\t\t\t2. On May 14 and 15, 1973 a Compliance Safety and Health Officer (CSHO) inspected\t\t\t\t\t\t\t\t\t\tRespondent\u2019s worksite at Albeni Falls, Idaho on behalf of the Secretary of Labor. The old\t\t\t\t\t\t\t\t\t\tportion of the plant was inspected on May 14 and the new portion on May 15th. The CSHO\t\t\t\t\t\t\t\t\t\tconducted opening and closing conferences with Respondent\u2019s representatives and was\t\t\t\t\t\t\t\t\t\taccompanied by representatives of Respondent and of Respondent\u2019s employees throughout the\t\t\t\t\t\t\t\t\t\twalk-around inspection. The CSHO advised Respondent\u2019s representatives that he had a camera\t\t\t\t\t\t\t\t\t\tand\t\t\t\t\t\twould\t\t\t\t\t\ttake\t\t\t\t\t\tphotographs\t\t\t\t\t\tduring\t\t\t\t\t\tthe\t\t\t\t\t\tinspection.\t\t\t\t\t\tHe\t\t\t\t\t\trequested\t\t\t\t\t\tthat\t\t\t\t\t\tRespondent\u2019s\t\t\t\t\t\t\t\t\t\trepresentatives indicate any portions of the plant which he should not photograph. No portions\t\t\t\t\t\t\t\t\t\twere so indicated. (Transcript pgs 18, 24, 28\u201330, 90, 106\u2013107, 184, 239, 288\u2013290, 319\u2013320,\t\t\t\t\t\t\t\t\t\t339, 346 and 362.)\t\t\t\t\t\t\t\t\t\t3. At the time of the May 14th and 15th inspection the CSHO was a safety inspector for\t\t\t\t\t\t\t\t\t\tthe state of Idaho on loan to the Occupational Safety and Health Administration (OSHA) under\t\t\t\t\t\t\t\t\t\tSection 7(c)(1) of the Act. When the CSHO reported for federal inspection assignment he was\t\t\t\t\t\t\t\t\t\tgiven a list of facilities to inspect. Some of these were inspected during his first assignment to\t\t\t\t\t\t\t\t\t\tOSHA in 1972. He is uncertain as to whether Respondent\u2019s name was on the first list.\t\t\t\t\t\t\t\t\t\tRespondent\u2019s name was on the second list received on the occasion of his second assignment to\t\t\t\t\t\t\t\t\t\tOSHA in 1973 and was inspected during that tour. The CSHO did not participate in any way in\t\t\t\t\t\t\t\t\t\tthe selection of the facilities listed for inspection on either the first or second list. (Transcript pgs\t\t\t\t\t\t\t\t\t\t18\u201319, 135, 145\u2013154, 294\u2013295, 306\u2013307, 331 and 344\u2013346.)\t\t\t\t\t\t\t\t\t\t4. On May 14 and 15, 1973 the following pieces of powertransmission equipment at\t\t\t\t\t\t\t\t\t\tRespondent\u2019s Albeni Falls plant were not fitted with the guards required by the indicated safety\t\t\t\t\t\t\t\t\t\tstandards:\t\t\t\t\t\t\t\t\t\t1) Bull gear 60\u2018 in diameter and 11\u2018 pinion gear of burner chain drive in old saw\t\t\t\t\t\t\t\t\t\tmill operating at 18 rpms [29 CFR 1910.219(f)(1)] (Transcript pgs 31\u201333, 50\u201353,\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t88\u201389, 116\u2013117, 171\u2013180, 210\u2013211, 302\u2013303, 308, 333, 347, 363\u2013365, 406, and\t\t\t\t\t\t\t\t\t\tExhibits 1 and 11.);\t\t\t\t\t\t\t\t\t\t2) Sprockets and chains of resaw feedroll drive in old sawmill, rotating at about\t\t\t\t\t\t\t\t\t\t80 rpms [1910.219(f)(3)] (Transcript pgs 33\u201334, 53\u201359, 88\u201389, 180\u2013185, 210\u2013\t\t\t\t\t\t\t\t\t\t211, 308, 365\u2013368, 407\u2013408, 420, 428, and Exhibits 2 and 11.);\t\t\t\t\t\t\t\t\t\t3) Infeed drive idler sprocket of infeed to V.A.G. in old sawmill [1910.219(f)(3)]\t\t\t\t\t\t\t\t\t\t(Transcript pgs 34\u201335, 60\u201367, 88\u201389, 165\u2013169, 186\u2013192, 210\u2013211, 368\u2013369, and\t\t\t\t\t\t\t\t\t\tExhibits 3 and 11.);\t\t\t\t\t\t\t\t\t\t4) Sprocket at end of feed chain to small Stetson-Ross planer on side of chain\t\t\t\t\t\t\t\t\t\topposite feeder [1910.219(f)(3)] (Transcript pgs 35\u201336, 63\u201367, 88\u201389, 193\u2013199,\t\t\t\t\t\t\t\t\t\t310, 333\u2013335, 341\u2013343, 370\u2013373, 410\u2013413, 431\u2013432, and Exhibits 4 and 11.);\t\t\t\t\t\t\t\t\t\t5) Outer sprocket and chain of debarker log deck 70\u2018 above ground\t\t\t\t\t\t\t\t\t\t[1910.219(f)(3)] (Transcript pgs 36\u201337, 67\u201372, 88\u201389, 203\u2013206, 373\u2013375, 379\u2013\t\t\t\t\t\t\t\t\t\t380, 413\u2013417, 431, and Exhibits 5, 11 and E.);\t\t\t\t\t\t\t\t\t\t6) Coupling between drive motor and W.B. Hog about 12\u2018 in diameter\t\t\t\t\t\t\t\t\t\t[1910.219(i)(2)] (Transcript pgs 37\u201339, 72\u201377, 88\u201389, 214\u2013222, 339\u2013340, 375\u2013\t\t\t\t\t\t\t\t\t\t379, 403, 417\u2013420, 428, and Exhibits 6, 11 & D.);\t\t\t\t\t\t\t\t\t\t7) Sprockets on each side of transfer chain from headrig to quad [1910.219(f)(3)]\t\t\t\t\t\t\t\t\t\t(Transcript pgs 39\u201340, 77\u201380, 88\u201389, 222\u2013230, 310, 333, 337\u2013339, 342\u2013343,\t\t\t\t\t\t\t\t\t\t381\u2013383, 403, 420\u2013423, 427, and Exhibits 7 and 11.);\t\t\t\t\t\t\t\t\t\t8) Sprocket and chain drive of infeed rolls to quad on west side at floor level\t\t\t\t\t\t\t\t\t\t[1910.219(f)(3)] (Transcript pgs 40\u201341, 80\u201383, 88\u201389, 231\u2013233, 319\u2013320, 383\u2013\t\t\t\t\t\t\t\t\t\t386A, and Exhibits 11 and F.); and\t\t\t\t\t\t\t\t\t\t9) Sprockets and chain of new stacker hoist drive [1910.219(f)(3)] (Transcript pgs\t\t\t\t\t\t\t\t\t\t41\u201342, 83\u201389, 234\u2013241, 311\u2013312, 386A\u2013388, and Exhibits 8 and 11.).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tEach of the foregoing pieces of power-transmission equipment was easily accessible to, and\t\t\t\t\t\t\t\t\t\tclosely approached by various of Respondent\u2019s employees from time to time while the\t\t\t\t\t\t\t\t\t\tmachinery was in operation. Such close approach exposed the employees to some danger to a\t\t\t\t\t\t\t\t\t\tminor degree. Respondent\u2019s employees so exposed include its maintenance personnel (sawyers,\t\t\t\t\t\t\t\t\t\tmechanics, oilers, clean-up men, etc.) and also the operators from nearby workstations. (See\t\t\t\t\t\t\t\t\t\tTranscript citations listed under each of the foregoing Items.)\t\t\t\t\t\t\t\t\t\t5. On May 14 and 15, 1973 the sides of the lower exposed portion of the blade of the\t\t\t\t\t\t\t\t\t\tDeWalt radial arm saw at Respondent\u2019s workplace were not guarded as required by the safety\t\t\t\t\t\t\t\t\t\tstandard set forth at 29 CFR 1910.213(h)(1). This saw was located in the carpenter shop which\t\t\t\t\t\t\t\t\t\twas locked at all times except when in use. This saw was only used by 2 of Respondent\u2019s\t\t\t\t\t\t\t\t\t\temployees, each of whom was trained and experienced in its use. There had been no injuries\t\t\t\t\t\t\t\t\t\tresulting from its use, at least in the last 10 years preceding. There was fresh sawdust around this\t\t\t\t\t\t\t\t\t\tsaw establishing its current use. (Transcript pgs 42\u201343, 90\u201394, 102, 246\u2013266, 312\u2013314, 321\u2013\t\t\t\t\t\t\t\t\t\t322, 327\u2013329, 389\u2013395, 403\u2013404, 424\u2013427, 434\u2013436, and Exhibits 9, 11, G. H. I and J.)\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t6. On May 14 and 15, 1973 the table saw at Respondent\u2019s workplace was not equipped\t\t\t\t\t\t\t\t\t\twith a guard over the top of the saw blade as required by the safety standard set forth at 29 CFR\t\t\t\t\t\t\t\t\t\t1910.213(c)(1). This saw was also located in the carpenter shop which was locked at all times\t\t\t\t\t\t\t\t\t\texcept when in use and was used by the same 2 employees who used the radial saw. They were\t\t\t\t\t\t\t\t\t\ttrained and experienced in use of the table saw. There had been no injuries resulting from its use,\t\t\t\t\t\t\t\t\t\tat least in the last 10 years. This saw was observed in actual use during the inspection.\t\t\t\t\t\t\t\t\t\t(Transcript pgs 43\u201344, 94\u201395, 102, 266\u2013271, 313\u2013314, 321\u2013322, 389\u2013403, 425\u2013427, 432\u2013433,\t\t\t\t\t\t\t\t\t\tand Exhibits 10, 11, K and L.)\t\t\t\t\t\t\t\t\t\t7. On May 14 and 15, 1973 the following stairways at Respondent\u2019s Albeni Falls mill did\t\t\t\t\t\t\t\t\t\tnot have handrails as required by the safety standard set forth at 29 CFR 1910.265(c)(5)(ii):\t\t\t\t\t\t\t\t\t\t1) Stairway with 5 risers behind resaw in old mill. (Transcript pgs 95\u201396, 105,\t\t\t\t\t\t\t\t\t\t274\u2013283, 301\u2013302, 314\u2013316, 343, 346 and 405.);\t\t\t\t\t\t\t\t\t\t2) Stairway to walkway above separator in old mill. (Transcript pgs 97, 105, 274\u2013\t\t\t\t\t\t\t\t\t\t278, 301\u2013302, 316\u2013317, 323\u2013327, 343, 346 and 405.);\t\t\t\t\t\t\t\t\t\t3) Stairway with 16 risers from center of old sawmill basement to saw floor did\t\t\t\t\t\t\t\t\t\tnot have a handrail on the upper half. (Transcript pgs 98, 105, 274\u2013278, 284\u2013287,\t\t\t\t\t\t\t\t\t\t301\u2013302, 317\u2013318, 343, 346, 405, 425, 432 and Exhibit C.);\t\t\t\t\t\t\t\t\t\t4) Stairs with 4 risers from infeed level of small Stetson-Ross planer to planer\t\t\t\t\t\t\t\t\t\tplatform. (Transcript pgs 99, 105, 274\u2013278, 301\u2013302, 318\u2013319, 343, 346 and\t\t\t\t\t\t\t\t\t\t405.); and\t\t\t\t\t\t\t\t\t\t5) Stairway of walkover with 4 risers at beaver infeed. (Transcript pgs 100, 105,\t\t\t\t\t\t\t\t\t\t274\u2013278, 301\u2013302, 343, 346 and 405\u2013406.)\t\t\t\t\t\t\t\t\t\tEach of the foregoing stairs were used at various times by Respondent\u2019s\t\t\t\t\t\t\t\t\t\temployees. (See the citations under each Item.) None of the cited stairs were\t\t\t\t\t\t\t\t\t\tblocked at the top or bottom to prevent access. (Transcript pg 346.)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t8. In addition to the violations described in Findings 4, 5, 6 and 7 the CSHO observed\t\t\t\t\t\t\t\t\t\tviolations of 16 other safety and health standards which were not contested. (File\u2014Citation and\t\t\t\t\t\t\t\t\t\tletter of contest and Transcript pgs 10\u201315.)\t\t\t\t\t\t\t\t\t\t9. As a result of the May 14 and 15, 1973 inspection of Respondent\u2019s workplace 2\t\t\t\t\t\t\t\t\t\tCitations for Serious Violation and a Citation (Non-Serious) were issued to Respondent on June\t\t\t\t\t\t\t\t\t\t8, 1973. At the same time a Notification of Proposed Penalties was also issued to Respondent\t\t\t\t\t\t\t\t\t\t(File.)\t\t\t\t\t\t\t\t\t\t10. On June 21, 1973 Respondent timely contested the 2 Citations for Serious Violation\t\t\t\t\t\t\t\t\t\tand Item 4 of the Citation (Non-Serious) and the accompanying proposed penalties and\t\t\t\t\t\t\t\t\t\tabatement times. (File and Transcript pgs 10\u201315.)\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t11. The wording of the Citations contested are sufficiently descriptive of the manner in\t\t\t\t\t\t\t\t\t\twhich each cited standard is allegedly violated to give Respondent notice of, and full opportunity\t\t\t\t\t\t\t\t\t\tto defend against, the allegations. There is no showing of prejudice to Respondent in preparing\t\t\t\t\t\t\t\t\t\tits defense. It appears from the record that Respondent presented a full defense.\t\t\t\t\t\t\t\t\t\tFrom the foregoing Findings of Fact we now make and enter the following:\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t1. At all times material hereto, Respondent Diamond International Corporation, Albeni\t\t\t\t\t\t\t\t\t\tFalls Unit, was an employer engaged in a business affecting commerce within the meaning of\t\t\t\t\t\t\t\t\t\tSection 3 of the Occupational Safety and Health Act of 1970. On June 21, 1973 Respondent filed\t\t\t\t\t\t\t\t\t\ta letter contesting certain of the Citations and accompanying proposed penalties issued to\t\t\t\t\t\t\t\t\t\tRespondent on June 8, 1973. Respondent thereby brought itself and the subject matter of the\t\t\t\t\t\t\t\t\t\tproceeding within the Jurisdiction of the Occupational Safety and Health Review Commission\t\t\t\t\t\t\t\t\t\tpursuant to Section 10 of the Act (29 U.S.C. \u00a7 659.)\t\t\t\t\t\t\t\t\t\t2. The safety standards cited in the Citations and complaint and relied on here [29 CFR\t\t\t\t\t\t\t\t\t\t1910.213(c) and (h); 29 CFR 1910.219(f)(1), (f)(3) and (i)(2); 29 CFR 1910.265(c)(5) and\t\t\t\t\t\t\t\t\t\t(c)(22)] are, on the basis of the record in this proceeding, in full accord with the definition of a\t\t\t\t\t\t\t\t\t\t\u2018national consensus standard\u2019 set forth in Section 3 (9) of the Act and have been adopted and\t\t\t\t\t\t\t\t\t\tpromulgated by the Secretary of Labor in accord with Section 6 of the Act.\t\t\t\t\t\t\t\t\t\t3. The May 14 and 15, 1973 inspection of Respondent\u2019s workplace at Albeni Falls, Idaho\t\t\t\t\t\t\t\t\t\twas conducted by a duly authorized representative of the Secretary of Labor in full accord with\t\t\t\t\t\t\t\t\t\tthe provisions of Section 8 of the Act.\t\t\t\t\t\t\t\t\t\t4. The enforcement procedures followed by the Secretary of Labor in this proceeding are\t\t\t\t\t\t\t\t\t\tin full accord with the provisions of Sections 8, 9, 10 and 17 of the Act.\t\t\t\t\t\t\t\t\t\t5. The Occupational Safety and Health Review Commission does not have the authority\t\t\t\t\t\t\t\t\t\tto rule on the constitutionality of the Occupational Safety and Health Act of 1970.\t\t\t\t\t\t\t\t\t\t6. The absence of guards from the 9 pieces of power transmission equipment, as found in\t\t\t\t\t\t\t\t\t\tFinding 4, was in violation of the standards cited in connection with each of the 9 Items. The\t\t\t\t\t\t\t\t\t\tviolations were other than serious (Non-Serious) in nature.\t\t\t\t\t\t\t\t\t\t7. The absence of a guard on the lower exposed portion of the blade on the radial arm\t\t\t\t\t\t\t\t\t\tsaw, as found in Finding 5, is a serious violation of 29 CFR 1910.213(c)(1).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t8. The absence of a guard over the top of the saw blade of the table saw, as found in\t\t\t\t\t\t\t\t\t\tFinding 6, is a serious violation of 29 CFR 1910.213(h)(1).\t\t\t\t\t\t\t\t\t\t9. The absence of handrails from the 5 stairways, as found in Finding 7 was in violation\t\t\t\t\t\t\t\t\t\tof 29 CFR 1910.265(c)(5)(ii).\t\t\t\t\t\t\t\t\t\t10. The abatement dates proposed by Complainant were reasonable under all the\t\t\t\t\t\t\t\t\t\tcircumstances involved here and had, for the most part, been complied with by the time of the\t\t\t\t\t\t\t\t\t\ttrial herein.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tBased upon the foregoing Findings of Fact and Conclusions of Law and for good cause shown, it\t\t\t\t\t\t\t\t\t\tis hereby ORDERED that:\t\t\t\t\t\t\t\t\t\t1. Respondent\u2019s motion to dismiss based on Complainant\u2019s alleged failure to carry its\t\t\t\t\t\t\t\t\t\tburden of proof and because of the alleged failure of the Secretary of Labor to duly and\t\t\t\t\t\t\t\t\t\tproperly promulgate the standards relied on here be, and the same hereby is, DENIED;\t\t\t\t\t\t\t\t\t\t2. Citation for Serious Violation Number One is hereby reduced to the classification of a\t\t\t\t\t\t\t\t\t\tCitation (Non-Serious) and as so reduced be, and the same hereby is, AFFIRMED;\t\t\t\t\t\t\t\t\t\t3. The penalty of $600 proposed in connection with Citation for Serious Violation\t\t\t\t\t\t\t\t\t\tNumber One (reduced herein to a Non-Serious Violation) be modified to $135 and as so\t\t\t\t\t\t\t\t\t\tmodified be, and the same hereby is, ASSESSED;\t\t\t\t\t\t\t\t\t\t4. Citation for Serious Violation Number Two be, and the same hereby is, AFFIRMED;\t\t\t\t\t\t\t\t\t\t5. The penalty of $600 proposed in connection with Citation for Serious Violation\t\t\t\t\t\t\t\t\t\tNumber Two be modified to $100 and as so modified be, and the same hereby is,\t\t\t\t\t\t\t\t\t\tASSESSED;\t\t\t\t\t\t\t\t\t\t6. Citation Number One (Non-Serious) be, and the same hereby is, AFFIRMED; and that\t\t\t\t\t\t\t\t\t\t7. The penalty of $45 proposed in connection with Citation Number One (Non-Serious)\t\t\t\t\t\t\t\t\t\tbe, and the same hereby is, AFFIRMED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDated this 18th day of February 1975.\t\t\t\t\t\t\t\t\t\tJERRY W. MITCHELL\t\t\t\t\t\t\t\t\t\tJudge, OSAHRC\t\t\t”