“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS.? 6767, 7721 & 9496 DIEBOLD, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 22, 1976DECISIONBEFORE BARNAKO,Chairman; MORAN and CLEARY, Cmmissioners.BANAKO, Chairman:Theissue in this case is whether Respondent (Diebold) is required by 29 C.F.R.1910.212(a)(3)(ii)[1]to guard the point of operation of its press brakes and mechanical punch presses.[2] Judge Charles K. Chaplinheld that this standard was not applicable to Diebold?s machines and vacatedthe citations. We have reviewed the entire record. For the reasons whichfollow, we affirm his decision with respect to the punch presses but reverse asto the press brakes.The Press BrakesItis undisputed that the machines at issue were unguarded and were operated insuch a manner that employees were exposed to the point of operation hazard.Diebold argues, however, that Complainant?s standards should not be interpretedto require that they be guarded. It claims that ? 1910.212 is not applicable tothese machines because of the applicability of a more specific standard at 29C.F.R. 1910.217.Thisargument is the same that was made and rejected in Irvington Moore, Divisionof U.S. Natural Resources, Inc., 16 OSAHRC 608, BNA 3 O.S.H.C. 1018, CCHE.S.H.G. para. 19,523 (1975); pet. for review filed, No. 75?2159 (9th Cir., May27, 1975). We held in that case that, since press brakes are specificallyexcluded from regulation under ? 1910.217[3], then pursuant to ?1910.5(c)(2),[4]the standard at ? 1910.212(a)(3)(ii) was applicable.Dieboldasks us to reconsider our holding in Irvington Moore. It argues that thehistory and sources of the relevant standards show an intent not to requirepoint of operation guarding of press brakes. Diebold points out that the sourceof ? 1910.217 was an American National Standard, ANSI B11.1?1971, ?SafetyStandards for Construction, Care and Use of Mechanical Power Presses.? Itclaims that ANSI excluded press brakes from this standard because, when it was promulgatedin 1971, point of operation guarding of press brakes was not feasible. Insupport of this argument, Diebold points to the fact that ANSI subsequently, in1973, promulgated a specific standard regulating press brakes, which includesrequirements for point of operation guarding.[5]Ifit proves anything, the subsequent promulgation by ANSI of a specific pressbrake standard shows that it did not intend the 1971 power press standard toapply to press brakes. This is consistent with our holding in IrvingtonMoore. Furthermore, the fact that the subsequent press brake standardcontains provisions for guarding the point of operation is indicative of ANSI?sintention that press brakes should in fact be guarded.[6] We are therefore notpersuaded that Irvington Moore should be overruled.??????????? Diebold also claims thatinterpreting ? 1910.212(a)(3)(ii) to require immediate point of operationguarding of press brakes leads to an illogical result, in that other types ofmechanical power presses did not have to be guarded at the point of operationuntil August 31, 1974,[7] This anomaly, however,results from the different sources of the two standards. Complainant wasdirected to promulgate existing national consensus standards and establishedFederal standards as occupational safety and health standards under the Act.[8] The ANSI standard whichwas the source of ? 1910.217 was a national consensus standard, and granted athree year grace period for compliance with certain of its requirements. Thesource of ? 1910.212, however, was an established Federal standard,[9] which contained no similargrace period. Thus, any inconsistency in the standards as currently publishedis due to Complainant?s mandate to promulgate different source standards and todo so without making substantive changes. What Diebold requests of us is thatwe add a grace period to the 212 standard. The request is not for aninterpretation; rather the request is that we change the standard itself. Theauthority to modify standards lies with the Secretary, and Diebold?s request ismisdirected. 29 U.S.C. 655(b).Dieboldalso claims that, if interpreted to require point of operation guarding ofpress brakes, ? 1910.212(a)(3)(ii) is void for having been invalidlypromulgated.[10]It is argued that the source of this standard did not require such guarding,and that to now construe the standard to require it amounts to an impermissiblesubstantive change from the source standard. Diebold points out that the sourcestandard, 41 C.F.R. 50?204.5, listed a number of organizations which publishedspecific standards, and provided that point of operation guarding should be inaccordance with such standards. The only listed organization with a standardgoverning press brakes or power presses when ? 1910.212 was promulgated in 1971was ANSI which, as noted above, had in effect the standard which became ?1910.217. Since the ANSI standard did not require point of operation guardingof press brakes, Diebold concludes that 41 C.F.R. 50?204.5 also did not.??????????? Diebold overlooks that 41 C.F.R.50?204.5, in addition to requiring guarding in accordance with the standards ofthe listed organizations, provided that ?(o)ther types of machines for whichthere are no specific standards, and the operation exposes an employee toinjury, shall be guarded.? Thus, the source of ? 1910.212(a)(3)(ii) requiredpoint of operation guarding of all machines for which there was exposure toinjury, regardless of whether the listed organizations had specific applicablestandards. Contrary to Diebold?s reasoning, 41. C.F.R. 50?204.5 did requireguarding of press brakes, and interpreting ? 1910.212(a)(3)(ii) to impose asimilar requirement does not constitute a substantive change from the sourcestandard.Dieboldnext argues that ? 1910.212(a)(3)(ii) is impermissibly vague in that it failsto state with particularity how guarding of press brakes is to be accomplished.We find no merit in this contention. Section 1910.212(a)(3)(ii) is a?performance? standard, that is, it states the result required (protectionagainst the point of operation hazard), rather than specifying that aparticular type of guard must be used. Performance standards are generally tobe preferred over those which contain specific requirements, as they give employerslatitude in selecting a means of compliance which is best suited to theiroperation. Complainant?s standards have broad application to a variety ofindustries and situations. They must permit a certain degree of flexibility inorder to avoid requiring some workplaces to comply with inappropriaterequirements.[11]Dieboldalso contends that compliance is impossible because certain commonly usedguarding devices are not suited to its operations. This claim has been made ina number of cases. Garrison & Associates, 17 OSAHRC 188, BNA 3 O.S.H.C.1110, CCH E.S.H.G. para. 19,550 (1975); Sheet Metal Specialty Co., 17 OSAHRC212, BNA 3 O.S.H.C. 1104, CCH E.S.H.G. para. 19,546 (1975); Central Steel &Tank Co., OSHRC Docket No. 2346 (Rev. Com?n., Nov. 25, 1975). It is argued thata press brake used in a job shop must have the ability to perform a variety ofoperations, and that the standard guarding devices interfere with this abilityto an unacceptable degree.??????????? Because the point of operation ofany machine must be sufficiently accessible to permit insertion of the materialbeing processed, for some types of machines and some operations it will not bepossible to utilize a guarding device ?so designed and constructed as toprevent the operator from having any part of his body in the danger zone duringthe operating cycle ?as required by ? 1910.212(a)(3)(ii). In some casesinvolving press brakes, we have stated that compliance can be achieved by meanssuch as hand tools and work rests which keep the hands of employees at a safedistance from the point of operation. Garrison & Associates, supra; SheetMetal Specialty Co., supra.??????????? To the extent that these decisionswere predicated on the inability to the employers to use guarding devices, theyare not inconsistent with 29 C.F.R. ? 1910.212(a)(3)(iii), which provides thathand tools may only supplement, and not substitute for, the guarding devicesrequired by ? 1910.212(a)(3)(ii). Indeed, Complainant has recognized that, inthe case of press brakes, guarding devices cannot always be used. He hastherefore, since this case was tried and argued, adopted the policy that theinability of an employer to use a guarding device on a press brake shall beconsidered a de minimis violation if hand tools or other means are used to maintaina safe distance between the operator?s hands and the point of operation.[12] This enforcement policyis for all practical purposes consistent with our decisions.[13]Inthis case, however, Diebold has not shown that the use of all types of guardingdevices is impossible. For example there was evidence that a device employing aharness connected to the operator?s arms, and adjusted so as to prevent hishands from entering the point of operation, had been successfully employedelsewhere.[14]Diebold?s safety director thought that such a device would be unsuitablebecause it would require constant adjustment for the various operationsperformed by the press brakes. He was concerned that the use of an improperlyadjusted harness could create in the operator a false sense of security, andlead to an accident. It was suggested, however, that the harness could beadjusted so that, at its maximum length, the operator would be able to get asclose to the point of operation as would ever be necessary, but still not be ableto reach into the point of operation. An automatic retractor could then be usedto give the operator sufficient freedom to accomplish all other operations.Diebold offered no convincing reason why such a system could not be used.Additionally, Diebold had never attempted to install and use any type ofphysical restraint. Thus, on this record, we cannot say that Diebold has shownthat the use of restraining harnesses is impossible.[15] At best, the recordindicates that compliance may be difficult and interfere somewhat withproduction. Even if this is true, however, compliance with the standard isstill required. Sheet Metal Specialty Co., supra.Weturn now to the assessment of appropriate penalties. Complainant proposedpenalties totaling $190 for the press brake violations. Having considered thegravity of the violations, together with Diebold?s size, good faith, and priorhistory, we conclude that the proposed penalties are appropriate.ThePunch PressesTherecord establishes that some of Diebold?s punch presses, i.e. mechanical powerpresses, were not guarded at the point of operation. Diebold again argues,however, that these machines are governed by ? 1910.217 rather than ? 1910.212.Section 1910.217 provides that presses installed prior to August 31, 1971 neednot its requirements pertaining to construction until August 31, 1974.[16] We have held that pointof operation guarding is one of the requirements that machines installed beforeAugust 31, 1971 need not meet until August 31, 1974. Stevens Equipment Co., 2OSAHRC 1501, BNA 1 O.S.H.C. 1227, CCH E.S.H.G. para. 15,691 (1973).?Complainant doesnot dispute this interpretation of ? 1910.217, but argues that the samereasoning by which we concluded that ? 1910.212 applies to press brakes shouldbe employed to find it applicable to those punch presses installed prior toAugust 31, 1971, for which ? 1910.217 does not require immediate guarding ofthe point of operation. We do not agree. Section 1910.217 does not apply topress brakes because they are excluded from its requirements. The opposite istrue of punch presses. The terms of ? 1910.217 specifically apply to them, andin fact do require that they be guarded at the point of operation. That therequirement for compliance is delayed does not render the standardinapplicable. It is itself a part of the standard, reflecting the judgment ofits drafters that it would be unreasonable to require machines already inexistence to comply immediately with a complex set of detailed requirementspertaining to the construction of the machines. Reading the standard inconjunction with Stevens Equipment, supra, we conclude that the point ofoperation of Diebold?s mechanical punch presses need not have been guardeduntil August 31, 1974. It would be manifestly unfair to hold that point ofoperation guarding is required by another standard when ? 1910.217 specificallygrants a grace period for coming into compliance.CommissionerCleary dissents from this disposition. He would overrule Stevens Equipment forthe reasons stated in his separate opinion in Trojan Steel Co., 3 BNAOSHC 1384, CCH 1974?75 OSHD para. 19,839 (No. 2885, July 18, 1975). See alsoQueen City Sheet Metal & Roofing, Inc., 3 BNA OSHC 1696, CCH 1975?76OSHD para. 20,130 (No. 4322, November 6, 1975) (dissenting opinion). He wouldamend the pleadings to conform to the evidence under Fed. R. Civ. P. 15(b) and,with regard to the punch presses, he would find a failure to comply with ?1910.217.Accordingly,in Docket No. 6767, item 1 is vacated, and item 8 is affirmed. In Docket No.7721, item 7 is affirmed. In Docket No. 9496, item 7 is affirmed. Penaltiestotaling $190 are assessed. It is so ORDERED.?FOR THECOMMISSION:?William S.McLaughlinExecutiveSecretaryDate: JAN 22, 1976?MORAN, Commissioner,Concurring in Part, Dissenting in Part:Itis my opinion that Judge Chaplin?s decision in this case should be affirmed inall respects. Consequently I assent to the foregoing opinion insofar as itaffirms the Judge?s dismissal of the citation alleging failure to guard punchpresses and dissent from the ruling overturning the Judge?s dismissal of thecitations for alleged failure to guard press brakes.Inmy view Judge Chaplin was correct in concluding that the press brakes werecontrolled by section 1910.217. In Secretary v. Irvington Moore, Division ofU. S. Natural Resources, Inc., 16 OSAHRC 608 (1975), and Secretary v.Gem Top Manufacturing, Inc., 16 OSAHRC 591 (1975), I set forth reasons why29 C.F.R. ? 1910.217 rather than ? 1910.212 applies to press brakes. Therespondent asks this Commission to overrule its decisions in those cases. Itshould do so for the reasons I expressed therein. Thehistorical sequence and sources of the relevant standards at issue herein showan intent not to require point of operation guarding of the respondent?s pressbrakes. ANSI B11.1?1971, ?Safety Standards for Construction, Care and Use ofMechanical Power Presses? was the source of ? 1910.217. The ANSI CommitteeExempted press brakes from the guarding requirements of this standard.Subsequently, ANSI B11.3?1973 was adopted for press brakes but did not requirecompliance by former installations for three years from the date of itsapproval because of the ?impossibility of updating equipment immediately.?[17]Themajority is inconsistent in relying on one hand on the subsequent 1973 ANSIpress brake standard as being indicative of ANSI?s intent to guard press brakesand, on the other hand, rejecting the respondent?s arguments that thesubsequent standard permitted a three-year delay before requiring compliancetherewith. Furthermore, their reliance on ANSI?s intent is misplaced. Section1910.217 was promulgated under 29 U.S.C. ? 655(a) which gave the Secretary ofLabor authority to adopt any national consensus standard as a occupationalsafety and health standard for a period of two years from the effective date ofthe Act without public scrutiny and without observing the procedural safeguardsafforded by the Administrative Procedure Act, 5 U.S.C. ? 553. However, Congresslimited that authority by precisely defining a ?national consensus standard? in29 U.S.C. ? 652(9) as:?. . . anyoccupational safety and health standard or modification thereof which (1), hasbeen adopted and promulgated by a nationally recognized standards-producingorganization . . .? (Emphasis added.)Congresssaid nothing about intentions to adopt or promulgate standards in thefuture?and rightfully so.Itis not the function of the Secretary of Labor or this Commission topsychoanalyze standards-producing organizations and translate suchpsychoanalysis into enforceable standards. We do not deal in the business ofconvenient interpretation, but rather in the reality of existing statutory andregulatory language.Inestablishing a violation of 29 C.F.R. ? 1910.212(a)(3)(ii), the majority setsforth a belabored discourse on machine guarding techniques which hardlyqualifies as instructive. In essence, they first disallow the proper standardfor improper reasons and then apply an incorrect standard from which theypioneer safety measures the respondent had rejected because of the nature ofits work. Naturally enough the majority, by its uncanny familiarity withrespondent?s unique job peculiarities, places itself in the position offormulating guarding policy despite evidence that such guarding wasunreasonable. They point out that prior cases hold that compliance may beachieved by the use of ?hand tools? and ?work rests.? Nonetheless, in rejectingan employer?s affirmative defense in the recent case of Secretary v. AkronBrick and Block Co., OSAHRC Docket No. 4859, January 14, 1976, Messrs. Barnakoand Cleary state that a safety switch and hook are merely tools and not methodsof machine guarding. Apparently, their holding on the acceptability of tools asan alternate means of guarding is to be applied so as to always be helpful tothe Secretary of Labor?s case.Therespondent?s operation involves a great variation of sizes and shapes of metalsformed by its press brakes. There is no convincing evidence on the record toindicate that press brake guarding for a variegated setup such as respondent?swas feasible so as to permit continuation of production. Review CommissionJudge Brenton stated, in Secretary v. Garrison and Associates, 17 OSAHRC 188,197 (1975), that:?[N]o manufacturer of press brakes, noemployer or operator thereof has to date designed and constructed a guardingdevice reasonable and appropriate for point of operation on press brakes usedin custom fabrication, nor has any safety expert in this field come forwardwith such a guarding device.??Ifind no evidence in this record which alters the validity of that finding.Thelead opinion seems to conclude that section 1910.212(a)(3)(ii) is entitled tosacrosanct treatment because it is a ?performance? standard.? In other words,no matter what the standard says do, the employer must do it or show that itcannot be done. This runs afoul of the well-reasoned decision of the UnitedStates Court of Appeals for the First Circuit in Cape and Vineyard Divisionof the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148(1st Cir. 1975). In considering a similarly vague standard in that decision,the Circuit Court held that the standard was enforceable only where the allegedviolative conduct is ?unacceptable in light of the common understanding andexperience of those working in the [respondent?s] industry.? Since this has notbeen established in the instant case, the citations should be vacated.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS.? 6767, 7721 & 9496 DIEBOLD, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 16, 1975Decisionand Order?APPEARANCES:Benjamin Thomas Chinni, Esq. for theComplainant andHulse Hays, Jr., Esq. and Roger A. Weber,Esq. for the Respondent\u00a0Charles K. Chaplin, Judge\u00a0Thisis a proceeding pursuant to section 10 of the Occupational Safety and HealthAct of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as the Act),wherein respondent contested a citation issued January 30, 1974, by thecomplainant in docket number 6767 involving respondent?s plant at Hamilton,Ohio, under authority of section 9(a) of the Act. Respondent contested itemsnumber 1 and 8 which were set forth in the citation as follows: Item No. Standard Violated Description of Alleged Violation 1 1910.212(a)(3)(ii) June 7, 1974, July 19, 1974 Failure to guard the point of operation of machines whose operation exposes an employee to injury. The guard shall conform with appropriate standards, or be constructed so as to prevent the operator from having any part of his body in the danger zone during operating cycle. e. g. Point of operation guards lacking on presses #1459, 442, 860, 482, and 7?1814, and 483. e.g. Point of operation guard lacking on press #481. \u00a0 8 1910.212(a)(1) July 30, 1974 Failure to provide machine guarding to protect the operator and other employees in the area from hazards such as those created by point of operation, ingoing nip points, rotating parts, and flying chips and sparks. e.g. Point of operation guarding lacking on D file inner body roll former, 14 stage roll former, cardboard shear #370 and 3\/4 plate shear #976.[18] e.g. Point of operation guarding lacking for press brakes #1523, 940, 485, 1155, 1682, 1156, 1179, 1135, 1653, 1692, 381, 1693, 1645, 1718, and 1641. \u00a0 \u00a0Penaltiesof $60 for item number 1 and $30 for item number 8 were proposed.Theapplicable standards provide:? 1910.212 General requirements for allmachines.??(a) Machine guarding?(1) Types ofguarding. One or more methods of machine guarding shall be provided to protectthe operator and other employees in the machine area from hazards such as thosecreated by point of operation, ingoing nip points, rotating parts, flying chipsand sparks. Examples of guarding methods are?barrier guards, two-hand trippingdevices, electronic safety devices, etc.\u00a0?(3) Point of operation guarding. (i)Point of operation is the area on a machine where work is actually performedupon the material being processed.\u00a0?(ii) The point of operation of machineswhose operation exposes an employee to injury, shall be guarded. The guardingdevice shall be in conformity with any appropriate standards therefor, or, inthe absence of applicable specific standards, shall be so designed andconstructed as to prevent the operator from having any part of his body in thedanger zone during the operating cycle.?\u00a0OnMarch 28, 1974, respondent was cited, following an inspection of its Malvern,Ohio, plant, docket number 7721, and a notice of contest was filed with respectto item number 7 of the citation which was as follows: Item No. Standard Violated Date by Which Item Must Be Corrected Description of Alleged Violation 7 29 CFR Section 1910.212(a)(3)(ii) June 24, 1974 \u00a0 Failure to guard the point of operation of machines whose operation exposes an employee to injury. The guard shall conform with appropriate standards or be constructed so as to prevent the operator from having any part of his body in the danger zone during the operating cycle: (a) 7501 Verson press. (b) 7502, Verson press. (c) Nygrew-Dahly shear. (d) ?? press.[19] \u00a0 Apenalty of $40 was proposed for this item.Docketnumber 6767 was set for trial July 26, 1974, and docket number 7721 was set forpre-trial the same date. On September 30, 1974, there was also assigned to theundersigned a case involving the same respondent and docketed as number 9496,which had been consolidated with the two earlier dockets on the representationof the parties that the factual information developed at the trial July 26,1974, is the same that would develop in the trial of docket number 9496, andfurther that the legal arguments were the same in all three cases.Withrespect to docket number 9496, on July 25, 1974, respondent?s plant as Wooster,Ohio, was cited and a notice of contest was filed respecting item number 7alleging a violation of the standard at 29 CFR 1910.212(a)(3)(ii) in that:?No point of operation guarding wasprovided on press break (sic) 7941, 7476, 8839, 1441, 1652 and 8838; Lodge andShipley shear in department 16, Niagara shear 7254 in department 27.??Apenalty of $120.00 was proposed for this item.Inits answer to the complaint respondent admitted that it regularly handledmaterials that moved in interstate commerce and it was engaged in a businessaffecting commerce within the meaning of section 3 of the Act. At thecommencement of the trial the parties stipulated that the inspection was doneat the plants, in conformity with normal OSHA procedures.TheEvidenceAtthe beginning of the trial the parties stipulated that the compliance officer,who was unavailable because of being hospitalized, would testify in docketnumbers 6767 and 7721 that the cited machines were unguarded at the point ofoperation, that the inspections were conducted and the proposed penaltiescomputed in accordance with Labor. Department instructions, and that the citedpunch presses in docket 6767 are mechanical power presses and the presses indocket number 7721 were installed prior to 1970.Atthis point complainant offered the testimony of Mr. Ronald J. McCann, theSecretary?s area director, as a safety expert in the area of machine guardingand press brakes. There was no objection, after voir dire, and Mr. McCann wasaccepted as an expert in the subject area. He described the nature of injuriesfrom punch presses and the methods of guarding, i.e., restraints, sensingdevices, two-hand controls, sweeping devices, barrier guards, gate guards andcombinations of these. He described the operation of a press brake and statedsimilar devices to those used on punch presses could be used. He stated he hadused guards and found that they worked. With regard to the Labor Departmentpolicy respecting standards applicable to punch presses, he understood that thestandard at 1910.217 covered them from August 31, 1974, but prior thereto theywould be covered by 1910.212 respecting point of operation guarding (Tr. 49).He indicated complainant?s exhibit C?1, OSHA Program Directive #100?7, confirmsthis as national policy. Further, that considering all types of devices, a reasonableabatement date would not exceed 6 months.Oncross-examination Mr. McCann conceded (Tr. 60) that the machines involved inthe Malvern and Hamilton plants came within a layman?s understanding of theterm press brake as defined in section 1910.211(d)(46).[20] He distinguished a pressand a press brake as a press being a machine designed to pierce and punchthings and to move rapidly back and forth with a relatively narrow bed, whereasa press brake involved a slow type of pressing with a long type bed primarilyto do forming (bending) operations and the brake was capable of finer work (Tr.73).Respondentcalled as it first witness its safety engineer from the Hamilton plant, Mr.Herbert Malicote. He testified he had worked in this plant for 32 years and wassupervisor of maintenance from 1960. The presses which were the subject of thecitation (docket 6767) had all been installed prior to 1970 and some of themdated to before 1936. Several years ago a program of guarding the dies used inthese presses was instituted, principally guards of the barrier type (Tr. 83).This was an ongoing program and he estimated that all presses would be guardedby August 1974. He described the Hamilton works as a job shop operation withwork varying in size from 4×6 inches to 3×4 feet (Tr. 85). For safety purposestongs had been provided for small work and foot pedal guarding of all pressbrakes had been provided (Tr. 86). Restraints had been considered as a devicebut rejected as unsatisfactory in a job shop operation where frequentadjustments would be required plus the generation of a false sense of securitythat an unreadjusted restraint on a new job might give. Other safety deviceshad been considered (barrier guards, light beams, etc.) and rejected because ofthe job shop peculiarities. Further, that a union-management safety committeehad been formed prior to 1950 and this committee met twice a month or on thecall of any member and that once a month all employees participated in a safetymeeting with their supervisors.Respondentalso presented its plant manager from its Malvern plant, Mr. Morton L.McKinney, who testified he had been employed by respondent over 26 years, atthe Malvern plant since January 1958. He described the two cited machines inissue as being electrically powered press brakes.IssuesDoesthe lack of guarding of respondent?s presses at its Malvern, Hamilton andWooster plants constitute a violation of section 5(a)(2) of the Act?Ispress brake guarding governed by the standard at 29 CFR 1910.212 or 1910.217?Isthe standard at 29 CFR 1910.212 vague?DiscussionTheidentical issue involved in these cases was before me in Sheet MetalSpecialty Company, OSAHRC Docket No. 5022, April 29, 1974, now on reviewbefore the Review Commission on several issues including whether press brakesare covered by 29 CFR 1910.212(a)(3)(ii). Since that decision, the same issuehas been decided in Western Steel Manufacturing Co., OSAHRC Docket No.3528, October 8, 1974, now on review, and Gate City Steel Corporation,OSAHRC Docket No. 8597, November 25, 1974. In each of these cases wasdetermined that press brakes were controlled by the regulation at 29 CFR1910.217. I remain convinced that the standard governing protection of pressbrakes is found at 29 CFR 1910.217. Since respondent was improperly cited, thecitation must be vacated. In reaching this decision I am not unmindful of theSecretary?s action November 25, 1974 (39 Federal Register No. 233, Tuesday,December 3, 1974) concerning standards respecting mechanical power presses.Findingof FactThemachines or tools involved in the contested citations applicable torespondent?s plants at Malvern, Hamilton and Wooster are press brakes.Conclusionsof Law1.The Occupational Safety and Health Review Commission has jurisdiction over theparties.2.The standard at 29 CFR 1910.212 is not applicable to press brakes.3.The Secretary has failed to prove noncompliance with any standard specificallyapplicable to press brakes.4.Respondent is not in violation of section 5(a)(2) of the Act.In view of theforegoing it is ORDERED that:itemnumbers 1 and 8, as amended, insofar as they pertain to press brakes, and theproposed penalties of $60 and $30 in OSAHRC docket number 6747;itemnumber 7, insofar as it pertains to press brakes, and the proposed penalty of$40 in OSAHRC docket number 7721, anditemnumber 7, insofar as it pertains to press brakes, and the proposed penalty of$120 in OSAHRC docket number 9496 are vacated.?CHARLES K. CHAPLINJudge, OSAHRCDated: January 16,1975Washington, D.C.[1] This standardstates:The point of operation of machines whoseoperation exposes an employee to injury, shall be guarded. The guarding deviceshall be in conformity with any appropriate standards therefor, or, in theabsence of applicable specific standards, shall be so designed and constructedas to prevent the operator from having any part of his body in the danger zoneduring the operating cycle.\u00a0[2] The citations inDocket Nos. 7721 and 9496 alleged that press brakes in Diebold?s plants inMalvern and Wooster, Ohio respectively were unguarded. In Docket No. 6767,Complainant alleges that both press brakes and punch presses at Diebold?sHamilton, Ohio plant were unguarded. Numerous other citation items for allthree plants were not contested.\u00a0InDocket No. 6767, the citation alleged that the press brakes violated 29 C.F.R.1910.212(a)(1), which states, in pertinent part:One or more methods of machine guardingshall be provided to the operator and other employees in the machine areas fromhazards such as those created by point of operation, ingoing nip points,rotating parts, flying chips and sparks . . ..\u00a0Dieboldclaims that there is inconsistency in its being cited under two differentstandards for the same activity. Both sections, however, mention point ofoperation guarding, and can be appropriately cited when a lack of point ofoperation guarding is alleged. See e.g. Paccar, Inc., 17 OSAHRC 595, BNA3 O.S.H.C. 1133, CCH E.S.H.G. para. 19,595 (1975) (Absence of point of operationguarding of press brake held to violate ? 1910.212(a)(1)).[3] Press brakes areexcluded by ? 1910.217(a)(5), which states:Press brakes, hydraulic and pneumaticpower presses, bulldozers, hot bending and hot metal presses, forging pressesand hammers, riveting machines and similar types of fastener applicators areexcluded from the requirements of this section.\u00a0[4] ? 1910.5(c)(2)states, in pertinent part:. . . any standard shall apply accordingto its terms to any employment and place of employment in any industry, eventhough particular standards are also prescribed for the industry . . . to theextent that none of such particular standards applies . . .[5] ANSI B11.3?1973, ?SafetyRequirements for the Construction, Care and Use of Press Brakes.? This standardwas introduced into evidence by Diebold.\u00a0[6] Diebold claimsthat the ANSI press brake standard allows a period of three years forcompliance with its point of operation guarding requirements.? Even if this is true the argum3ent ismisplaced.? Diebold was not cited for aviolation of the ANSI press brake standard, and is not before us.? Our function is to determine whetherviolations of the Secretary?s rather than a private organization have occurred.\u00a0[7] See thediscussion under ?The Punch Presses?, infra.\u00a0[8]TheOccupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.). Section6(a) of the Act provides, in part: ?. . . the Secretary shall . . . by rulepromulgate as an occupational safety or health standard any national consensusstandard, and any established Federal standard, unless he determines that thepromulgation of such a standard would not result in improved safety or healthfor designated employees.?\u00a0[9] The source ofSec. 1910.212 was 41 C.F.R. 50-204.5. a standard promulgated under theWalsh-Healey Act (41 U.S.C. 35 et. seq.).[10] Commissioner Cleary adds that, inhis view, no provision of the Act has empowered the Commission to declare anyrules (standards) invalidly adopted or unenforceably vague. See UnitedStates Steel Corp., 2 BNA OSHC 1343, CCH 1974?75 OSHD para. 19,047 (No.2975 & 4349, November 14, 1974) (concurring opinion); Santa Fe TrailTransport Co., 1 BNA OSHC 1457, CCH 1973?74 OSHD para. 17,029 (No. 331,December 18, 1973) (dissenting opinion), rev?d 505 F.2d 869 (10th Cir.,1974). In the absence of dispositive judicial guidance on the matter, however,he fully joins in this discussion upholding the standard.[11] The Commissionhas consistently rejected contentions that the provisions of 29 C.F.R. ?1910.212 are unenforceably vague. Irvington-Moore, supra; Paccar,Inc., 17 OSAHRC 595, BNA 3 O.S.H.C. 1133, CCH E.S.H.G. para. 19,595 (1975);Boise Cascade Corp., OSHRC Docket No. 2049, BNA 3 O.S.H.C. 1671, CCH E.S.H.G.para. 20,112 (1975); Buckeye Industries, Inc., OSHRC Docket No. 8454(Dec. 22, 1975).[12] OSHA Field Information Memorandum#75?46, CCH E.S.H.G. para. 9915 (July 17, 1975).\u00a0[13] A de minimis violation bears nodirect or immediate relationship to safety or health. 29 U.S.C. 658(a). Itcarries no penalty and need not be abated. See Lee Way Motor Freight, Inc.,7 OSAHRC 1128, BNA 1 O.S.H.C. 1689, CCH E.S.H.G. para. 17,693 (1974), aff?d,511 F.2d 864 (10th Cir. 1975).\u00a0[14] There is alsosome evidence of record indicating that an electric eye system might beeffective if it was designed to detect and compensate for brake wear, or if thebraking system was adequately maintained. Diebold claims that its investigationshowed that the use of such a system is not currently feasible. Because of ourdisposition, we need not resolve this point.\u00a0[15] Commissioner Cleary agrees withthis disposition. He notes that, at most, a claim of impossibility is anaffirmative defense. Brennan v. O.S.H.R.C. and Underhill Construction Corp.,513 F.2d 1032, 1035 (2d Cir. 1975). He does not in an event consider thedefense to be available as a matter of law until there is an exhaustion of theAct?s variance procedure. Deemer Steel Casting Co., 2 BNA OSHC 1577, CCH1974?75 OSHD para. 19,221 (No. 2792, January 23, 1975). Cf. G. A. Hormel &Co., 2 BNA OSHC 1190, CCH 1974?75 OSHD para. 18,685 (No. 1410, September 20,1974), pet. for reconsideration denied, 2 BNA OSHC 1282, CCH 1974?75OSHD para. 18,881 (October 21, 1974).[16] The machines here at issue wereinstalled prior to August 31, 1971, and the inspections leading to thesecitations occurred prior to August 31, 1974. The record shows that Diebold hada program to guard the point of operation of all its punch presses by August31, 1974.[17] See forward to ANSI B11.3?1973.[18] In the contest indocket number 6767 respondent did not contest that portion of the citation itemnumber 8 pertaining to the inner body former, stage roll former, cardboardshear and plate shear.[19] In docket number7721 respondent?s contest did not involve that portion of item number 7involving the shear or flexowriter press.[20] ?Press? means a mechanicallypowered machine that shears, punches, forms or assembles metal or othermaterial by means of cutting, shaping, or combination dies attached to slides.A press consists of a stationary bed or anvil, and a slide (or slides) having acontrolled reciprocating motion toward and away from the bed surface, the slidebeing guided in a definite path by the frame of the press.?”