“\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 1134 \u00a0 IDAHO TRAVERTINE CORPORATION, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 September 30, 1975DECISIONBefore BARNAKO, Chairman; MORAN and CLEARY,Commissioners.BY THE COMMISSION:The January 25, 1974, decision ofAdministrative Law Judge Henry C. Winters is before the full Commission forreview pursuant to section 12(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ? 651 et seq. [hereinafter cited as ?the Act?]. Judge Wintersvacated a citation for serious violation and a citation alleging 12 non-seriousviolations along with proposed penalties of $1,290 on the narrow ground that,pursuant to section 4(b)(1) of the Act,*the Secretary of Labor failed to sustain a burden of showing the lack ofjurisdiction of another federal agency after respondent raised thejurisdictional issue; i.e., the jurisdiction of the Department of the Interiorunder the Federal Metal and Nonmetallic Mine Safety Act (30 U.S.C. ? 721 etseq.).In his petition for discretionary reviewthe Secretary excepted to the Judge?s finding. The Secretary asserts thatsection 4(b)(1) of the Act is exemptory, and therefore the burden of proof ofany exemption is upon respondent. The case is before us on separate orders forreview of the Judge?s decisions that were issued by Commissioner Cleary andformer Commissioner Van Namee. Commissioner Cleary granted the Secretary?saforementioned petition Former Commissioner Van Namee?s order concerned thesame subject matter. Both parties have briefed the section 4(b)(1) issue beforeus.Respondent quarries Travertine stone atfour sites in Idaho. Following quarrying, the stone is trucked 40 to 80 milesto respondent?s stone-processing plant at Idaho Falls, Idaho. The marble slabsarrive at the plant weighing about 14 or 15 tons. The slabs are approximately seven-feetlong, four-feet wide, and four-feet high. They are roughly cut and unfinishedbecause there are no cutting or crushing facilities at the quarries. At theprocessing plant the slabs are cut on a gang-saw into pieces of varyingthickness. They are then cut either to a specific size or shipped as cut by thegang-saw. The more finely-cut blocks are cut to architectural specifications,and either honed, polished, or left in a sawed condition. The stone is used forbuilding exteriors, interior wall facings and fireplaces.After the Judge?s decision had beendirected for review before the full Commission, the Mining Enforcement andSafety Administration of the Department of the Interior (MESA) and theAssistant Secretary for Occupational Safety and Health of the Department ofLabor entered into a ?Memorandum of Understanding? to clarify the applicationof the two statutes involved dealing with employee safety and health.The Memorandum of Understanding waspublished on July 26, 1974, in 39 F.R. 27382. In the Memorandum, MESAinterprets its authority under section 2(b) of the Metal Act, and defines?milling? as follows:Milling is the art of treating the crudecrust of the earth to produce therefrom the primary consumer derivatives. Theessential operation in all such processes is separation of one or more valuabledesired constituents of the crude from the undesired contaminants with which itis associated.?This definition is followed bydescriptions of processes which MESA would regulate. It includes:Sawing and Cutting StoneSawing and cutting stone is the process ofreducing quarried stone to smaller sizes priorto removal from the quarry, at the quarry site, and before the stone ispolished, engraved, or otherwise finished to its final form (emphasis added).\u00a0The Memorandum also states that, with regard to customstone finishing, OSHA authority ?[c]ommences at the point when milling, asdefined, is completed, and the stone is polished, engraved, or otherwiseprocessed to obtain a finished product.?The Federal Register Act (44 U.S.C. ? 1501et seq.) provides that ?[t]he contents of the Federal Register shall be judiciallynoticed . . .? 44 U.S.C. ? 1507 (emphasis added). Rule 210(f) of the FederalRules of Evidence codifies the usual view that judicial notice may be taken atany stage of a proceeding. See Advisory Committee?s Note to Fed. R. Evid.201(f). See also Attorney General?s Manual on the APA (1947), p. 80. Wetherefore shall take official notice of the Memorandum of Understanding.[1]Applying the Memorandum to the presentrecord, we reverse the Judge?s decision because under its terms MESA wouldexercise no authority to prescribe or enforce safety or health standards at thestone-processing plan. It is now well settled that any lack of OSHA applicationunder section 4(b)(1) of the Occupational Safety and Health Act is anaffirmative defense. See, for example, BettendorfTerminal Inc., No. 837 (May 10, 1974); CrescentWharf & Warehouse Co., No. 1672 (February 21, 1975); Southern Pacific Transport Co., No. 1348(November 15, 1974). On the record as it now stands respondent has not provedan affirmative defense.Because of the Judge?s disposition, nofindings of fact were made on the merits of the citations, and a remand forthat purpose shall be ordered. But regarding the section 4(b)(1) issues, theparties did not try the case on the principles noted here. Respondent, as wellas the Secretary, may well have presented its proof differently if theMemorandum of Understanding anteceded the hearing.Accordingly, we order the AdministrativeLaw Judge to afford the parties the opportunity to submit upon request any additionalevidence and accompanying argument on the section 4(b)(1) issue. No additionalevidence shall be taken on the merits of the citations, unless the Judge findsthat substantial justice so requires. Further argument on the merits shall befreely allowed.The Judge?s decision is reversed, and thecase is remanded for further proceedings not inconsistent with this opinion.So ORDERED.FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: SEP 30, 1975?MORAN, Commissioner, Dissenting:The issue before this tribunal is a simpleone:[2] Did complainant carry itsburden of proof? Judge Winters correctly answered this in the negative when hestated:?. . . where, as here, the Respondent hasin good faith raised the jurisdictional issue and has shown by competentevidence that another particular federal agency has officially asserted whatappears to be conflicting jurisdiction, the Secretary has the burden ofaffirmatively showing the lack of jurisdiction in such other agency. If inorder to make such an affirmative showing, it is necessary to introduceevidence, the Secretary has the burden of going forward with the evidence.??What the Commission has done in this caseis to use a document published in 1974 to overturn a decision issued in 1972.It seems to me that each case should be judged by the law that exists when thecharge is initiated. But even assuming that the ban on ex post facto laws didnot prohibit the basic unfairness of this action by the two members who make upthe majority in this case, the fact remains that there has been a failure ofproof on behalf of the complainant.In clear and unambiguous language, 29U.S.C. ? 653(b)(1) provides that the Secretary of Labor has no authority underthe Occupational Safety and Health Act if any other Federal agency exercisesstatutory authority to regulate in the field of occupational safety or health.When such authority is absent, there is a lack of jurisdiction. This isconsistent with prior Commission decisions which have referred to section653(b)(1) questions as jurisdictional issues. Secretary v. California Stevedore & Ballast Co., 8 OSAHRC 811(1974); Secretary v. Sigman Meat Company,8 OSAHRC 216 (1974); Secretary v.Phoenix, Inc., 1 OSAHRC 355 (1972).When jurisdiction is challenged by a partylitigant,[3] the ultimate burden ofproving jurisdiction rests upon the one who asserts it rather than the one whochallenges it. See, e.g., Thomson v.Gaskill, 315 U.S. 442 (1942); McNuttv. General Motors Acceptance Corporation, 298 U.S. 178 (1936); McNutt v. McHenry Chevrolet Co., Inc.,298 U.S. 190 (1936); Gibbs v. Buck,307 U.S. 66 (1939); Nelson v. Keefer,451 F.2d 289, 296 (3rd Cir. 1971); Arnoldv. Troccoli, 344 F.2d 842, 845 (2d Cir. 1965). That rule is fully inconsonance with the language contained in section 653(b)(1) which gives primacyto existing laws in providing that the Act does not apply where ?other Federalagencies. . . exercise statutory authority to prescribe or enforce standards orregulations affecting occupational safety or health.? The expansive wording ofthat section clearly indicates that Congress intended no contraction of thecoverage of existing laws.[4] If the other Federalagency exercises authority to ?prescribe or enforce,? Congress said, then thisAct does not apply. The prescribing or enforcing authority is for either?standards or regulations? which may be ?affecting? job ?safety or health.?The courts have traditionally givenpreferred treatment to jurisdictional matters. Indeed, it is the duty of acourt independently to examine the jurisdictional underpinnings of an action,regardless of whether a subject matter jurisdictional question is formallyraised by the parties. This is especially true whenever it appears from thepleadings that jurisdiction may be lacking. Clarkv. Paul Gray, Inc., 306 U.S. 583, 588 (1939); Givens v. W. T. Grant Company, 457 F.2d 612 (2d Cir. 1972); Nieves v. Stamford Hospital, 345 F.Supp. 1014 1016 (D.C. Conn. 1972).Here, the respondent raised the issue oflack of jurisdiction on the ground that jurisdiction rests with another Federalagency under 29 U.S.C. ? 653(b)(1). This made it mandatory for the complainantto prove a lack of jurisdiction in the other agency. The complainant has hadits day in court and failed to do so as it did not establish that therespondent?s plant was not ?milling? operation over which the Department of theInterior prescribed or enforced safety regulations.[5] Reliance at this late dateon an ex post facto memorandum to reopen this case is clearly wrong and unjust.With this decision the Commission issaying, in effect, that the Secretary of Labor failed to prove his case at the1972 trial so we will give him a second chance now?and he can use matters whichoccurred in 1974 to help him do so. I don?t perceive this as equal justiceunder law and I cannot subscribe to any such practice.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 1134 \u00a0 IDAHO TRAVERTINE CORPORATION, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 FINAL ORDER DATE: February 25, 1974DECISION AND ORDER?APPEARANCES:\u00a0MALCOLM R. TRIFON, Esq. for the Complainant\u00a0G. RICH ANDRUS, Esq. for the Respondent\u00a0Henry C. Winters, Judge?STATEMENT OF THE CASEThis is an action brought by the Secretaryof Labor under Section 10 of the Occupational Safety and Health Act of 1970 (29U.S.C. 651 et seq) to affirm two citations issued June 16, 1972, one alleging aserious violation and the other alleging 12 non-serious violations, and toaffirm proposed civil penalties totaling $1,290.00.The citations were issued by the Secretary?s areadirector as a result of an inspection made by a compliance officer on May 23,1972 of a plant operated by Idaho Travertine Corporation, Respondent, at IdahoFalls, Idaho where raw travertine stone from quarries in the area is processedinto finished building stone.??????????? Citationfor Serious Violation Number 1 alleges the following violation: Standard or Regulation allegedly violated Date on which alleged violation must be corrected \u00a0 Description of alleged violation \u00a0 29 CFR 1910.213(h)(1) July 17, 1972 \u00a0 The radial saw in the rack area does not have a guard for the sides of the lower exposed portion of the saw blade. \u00a0 Citation Number 1 alleges the followingviolations:\u00a0 Standard or Regulation allegedly violated Date on which alleged violation must be corrected \u00a0 Description of alleged violation \u00a0 1 29 CFR 1910.95(b)(1) 6 months December 18, 1972 plan of action and reports to be submitted in accordance with cover letter. Failure to provide and implement a plan of administrative or engineering controls to reduce sound level for employees to permissible exposures as defined in Table G 16, under 1910.95, these employees being present in the following locations with the sound levels noted for each location: 1?Trim Saw Helper Area?92\/103dBA 2?Trim Saw Operator \u00a0 2 29 CFR 1910.95(a) July 6, 1972 \u00a0 The workman in the following locations are not protected against excessive noise levels 1?Trim Saw Helper Area \u00a0 3 29 CFR 1910.133(a)(1) 5 days \u00a0 The workmen do not use eye and face protection when breaking slab off of stone block. \u00a0 4 29 CFR 1910.169(b)(3)(iv) IMMEDIATELY \u00a0 The safety valve on the air receiver is not checked at regular intervals, to determine if it is in good operating condition. \u00a0 5 29 CFR 1910.242(b) July 17, 1972 \u00a0 Compressed air used for cleaning is between 85 and 90 p.s.i. without the use of reducing type nozzles. \u00a0 6 29 CFR 1910.37(q)(1) July 6, 1972 \u00a0 All personnel exits are not marked as such. \u00a0 7 29 CFR 1910.151(c) July 17, 1972 \u00a0 In the polishing area Hydrochloric acid is mixed and used there are no facilities for flushing of the eyes and body. \u00a0 8 29 CFR 1910.213(h)(4) July 17, 1972 \u00a0 The radial saw in the rack area does not return to the starting position when released by the operator. \u00a0 9 29 CFR 1910.252(a)(2)(ii)(b) 5 days \u00a0 Outside and behind the building is an unsecured fuel gas cylinder. \u00a0 10 29 CFR 1910.252(a)(2)(ii)(d) 5 days \u00a0 Outside and behind the building is a fuel gas cylinder, free standing and without a protective cap. \u00a0 11 29 CFR 1910.252(a)(2)(iv)(c) 5 days In the maintenance area of the plant a fuel gas cylinder and an oxygen cylinder are stored together. \u00a0 12 29 CFR 1910.219(b)(1) July 17, 1972 \u00a0 The fly-wheel to the gang saw is not completely guarded. \u00a0 13 29 CFR 1910.22(a)(1) June 30, 1972 \u00a0 Housekeeping in the following areas was very bad. ? 1?Outside and behind the building a large amount of debris was laying on the ground; such as, lumber with nails in it, wire, scrap iron, scrap rock, five gallon metal container, etc. ? 2?In the shop area of the plant material such as; electric cords, shovels, hoses, spare parts, etc., are laying on floor. ? 3?In the shop area of the plant material, such as; pipe, lumber, five gallon metal containers are laying on the floor in front of the rack area. \u00a0By Notification of Proposed Penalty,issued June 16, 1972, the Secretary proposed the following penalties:? SERIOUS VIOLATIONSCitation No. 1 $750.00OTHER VIOLATIONS Citation No. 1 \u00a0 Item No. \u00a0 \u00a0 1 \u00a0 1 \u00a0 00 \u00a0 \u00a0 2 \u00a0 35.00 \u00a0 \u00a0 3 \u00a0 00 \u00a0 \u00a0 4 \u00a0 00 \u00a0 \u00a0 5 \u00a0 00 \u00a0 \u00a0 6 \u00a0 00 \u00a0 \u00a0 7 \u00a0 75.00 \u00a0 \u00a0 8 \u00a0 00 \u00a0 \u00a0 9 \u00a0 55.00 \u00a0 \u00a0 10 \u00a0 55.00 \u00a0 \u00a0 11 \u00a0 00 \u00a0 \u00a0 12 \u00a0 00 \u00a0 \u00a0 13 \u00a0 375.00 \u00a0 By Notice of Contest, issued July 5, 1972,as amended July 20, 1972, the Respondent contests each alleged violation in thetwo citations and each proposed penalty.The Secretary in the Complaint filed July21, 1972, seeks to have each citation and each proposed penalty affirmed,except item No. 9 of Citation Number 1 and the proposed penalty of $55.00 foritem No. 9. The Respondent in its Answer filed August 9, 1972, denies that theviolations have occurred and that penalties should be imposed, challenges thejurisdiction of the Secretary to issue the citations, and moves that theComplaint be dismissed and no penalties be imposed.This case was heard by this Judge at IdahoFalls, Idaho on November 21, 1972. Proposed findings and briefs were submittedby the parties, the final briefs being filed January 11, 1973.The Respondent contends that the Secretaryof the Interior, rather than the Secretary of Labor, has jurisdiction toprescribe and enforce standards and regulations affecting the occupationalsafety and health of employees of its Idaho Falls plant. Section 4(b)(1) of theAct (29 U.S.C. 635(b)(1) provides that nothing in that Act shall apply toworking conditions of employees with respect to which other federal agenciesexercise statutory authority to prescribe or enforce standards or regulationsaffecting occupational safety and health. The Secretary of Interior isauthorized by the Mine Safety Act to prescribe and enforce such standards withrespect to mines.[6]The Secretary of the Interior has exercised such authority by the issuance ofstandards and regulations.[7] If, indeed, Respondent?sIdaho Falls plant is a mine within the meaning of the Mine Safety Act and ofstandards and regulations thereunder, then the Secretary of Labor did not havejurisdiction to issue the involved citations and the citations and proposedpenalties would have to be vacated.There is no dispute as to exactly whatactivity is engaged in by Respondent at its Idaho Falls plant. The followingpertinent testimony was elicited from Respondent?s president (TR 170?174):DIRECT EXAMINATION BY MR. TRIFON??.. ..Q And what business is Idaho Travertineengaged in??A It?s involved in the guarrying andfinishing of Travertine products.\u00a0Q At what location is the Travertine rockquarried?\u00a0A We have four guarries, one in the FallCreek area directly south of Irwin, Idaho, approximately forty miles from IdahoFalls, then three in the Medicine Lodge Creek area, approximately eighty milesnorthwest of Idaho Falls.\u00a0Q So the closest quarry is forty milesfrom Idaho Falls?\u00a0A Approximately, yes.\u00a0Q (By Mr. Trifon) And where does yourcompany finish the Travertine rock?A At 3935 North Yellowstone Highway, IdahoFalls.\u00a0Q And what processes go on in thefinishing plant, very briefly?A The blocks are hauled down on trucks,blocks generally averaging fifteen ton per block, rough cut, not otherwisefinished. They are then placed in the shop under the gang saw, previouslymentioned by Mr. Jackson, where they are cut in slabs of varying thicknesses.From that point they are generally cut to a specific size or shipped out aswhat we call raw slabs, just as they come out of the gang saw. Thoseoccasionally are shipped directly to the customer. I might mention also the rawblocks are shipped directly to a customer and never come to the plant at all,go from the quarry to the railhead and out. Then from that point some of themare cut to size for a specific job of architect specifications and are?thefinish can very. They can either remain in a straight sawn condition, can havea polish finish, a hone finish put upon them through mechanical means.?CROSS EXAMINATION BY MR. ANDRUSQ How are the blocks quarried?\u00a0A They?re quarried by large equipment, theuse of compressors, drills, splitting equipment, some minor blasting, and largerock moving equipment such as D?9 Caterpillar tractor.\u00a0Q Are there any facilities for cutting orcrushing rock at the quarries?\u00a0A No.\u00a0Q They are just taken out of the mountain,loaded on the truck, and hauled to Idaho Falls?\u00a0A Right.? REDIRECT EXAMINATION BY MR. TRIFONQ Approximately what size is a rock at thequarry after it comes out of the quarry?\u00a0A Here again they vary. An average wouldprobably be fourteen, fifteen ton.JUDGE WINTERS: Could you give us thedimensions?\u00a0THE WITNESS: You mean physical dimensions.Oh, probably the average is seven foot long, four foot high, four foot wide.\u00a0JUDGE WINTERS: Generally speaking, what?sit used for?\u00a0THE WITNESS: Building exteriors andinterior wall decorative facings, fireplaces, this sort of thing.?The crucial question then is: Does theabove-described activity engaged in at the Idaho Falls plant constituteactivity of a ?mine? subject to the Mine Safety Act and standards andregulations thereunder?Section 2(b) of the Mine Safety Act, ashere pertinent, defines a ?mine? as:. . . (1) an areaof land from which minerals other than coal and lignite are extracted innonliquid form . . . (2) private ways and roads appurtenant to such area, and(3) land, excavations, underground passageways, and workings, structures, facilities, equipment, machines, tools or otherproperty . . ., on the surface or underground, used in the work ofextracting such materials . . . from their natural deposits, or used in the milling of such materials .. . (emphasis supplied)?Travertine stone is a nonliquid mineralother than coal or lignite. The Idaho Falls plant is not an area of land fromwhich such materials are extracted, nor is it a private way or road appurtenantto such an area of land, nor is it used in the work of extracting suchmaterials. Therefore, in order to come within the above definition the plant orits contents must have been used in the ?milling? of travertine stone.The term ?milling?, a transitive verb, isnot defined in the Mine Safety Act nor in the standards issued pursuantthereto.[8] The parties did not offerin evidence a definition of the word ?milling? as that term is used in the MineSafety Act. No expert witnesses were called nor did a representative of theSecretary of the Interior testify. The transitive verb, ?mill?, is defined inWebster?s Third New International Dictionary, Copyright 1971 by G. & C.Merriam Co. in the following language:mill \/?\/ vb-ED\/-ING\/-s vt 1: to subject tosome operation or process in a mill: shape or finish by means of a mill ormachine: as a: to full (cloth) in a fulling mill b: to grind into flour, meal,or powder c: to hull (seeds) by using a mill d: to shape or dress (as metal) bymeans of a rotary cutter: to make (as a key seat) with such a cutter e: tostamp (a coin) in a screw press f: to pass (soap chips) through a roller millin the manufacture of toilet soap or soap flakes >g: to mix and condition (as rubber) by passing between rotating rolls h: toroll (as steel) into bars i: to crush or grind (ore) in a mill.?The cutting of large blocks of stone intosmaller sizes as well as the subsequent honing and polishing could reasonablybe interpreted as shaping and finishing by means of a machine, so as toconstitute milling, as above defined. On the basis of the dictionarydefinition, one would conclude that the Idaho Falls plant is a mine as definedin Section 2(b) of the Mine Safety Act. There is no reason to conclude as faras the record in this case is concerned, that the Secretary of the Interior didnot intend, by the issuance of the standards and regulations in 30 CFR Parts55, 56 and 57, to exercise all of the authority conferred upon him by the MineSafety Act to issue such standards and regulations.On October 19, 1971 and again on December28, 1971 inspectors of the Bureau of Mines of the Department of the Interiorconducted inspections of Respondent?s Idaho Falls plant pursuant to Section 4of the Mine Safety Act. After each inspection a written report entitled ?Healthand Safety Inspection Report? was issued to Respondent by the Bureau of Mines(Respondent?s Exhibits Nos. 2 and 3). The report covering the inspection ofOctober 19, 1971 called attention to alleged violations of 30 CFR 56.12?13,56.14?1 and 56.4?24 (Respondent?s Exhibit No. 2). The report covering theinspection of December 28, 1971 verified that the prior violations of mandatorystandards as noted in the prior inspection report had been abated (Respondent?sExhibit No. 3). The transmittal letters from the Seattle, Washington office ofthe Bureau of Mines accompanying each of such reports, referred to Respondent?sIdaho Falls plant as a mine.On September 21, 1972, Respondent?spresident received the following letter on the letterhead of the United StatesDepartment of the Interior, Bureau of Mines, 620 Central Avenue, Alameda,California 94501 (Respondent?s Exhibit No. 6):??September18, 1972? Theo R. Orchard, President? Idaho Travertine Corporation? 3935 North Yellowstone Highway? Idaho Falls, Idaho 83401?Dear Mr. Orchard:?In reference to your letter to Allen D.Look dated September 11, 1972, relative to inspection of your operations byCompliance Officers from the Occupational Safety and Health Administration(OSHA), our Washington, D. C. officials inform me that the officers were withintheir jurisdiction.?For your information, the Bureau of Minesand OSHA have jointly developed guidelines for use in determining areas ofjurisdiction under the Metal and Nonmetal Mine Safety Act and the OccupationalSafety and Health Act. The inspections that you speak of by the Bureau of Minesinspectors may have preceded development of these guidelines. Fieldrepresentatives of both agencies are now aware of their areas of jurisdiction.?The Bureau of Mines at this time inspectsoperations, such as yours, starting with removal of any overburden andsubsequent mining of the travertine rock in blocks. OSHA jurisdiction thencommences at your Idaho Falls plant where the rock is honed and polished to jobspecifications.?In summary, our health and safetyregulations apply to quarry integrated plants and milling operations but notsubsequent material processing phases, such as your Idaho Falls plant. Weanticipate that this will continue to be so.Sincerely yours,?s\/E. F. AllenE. F. AllenActing District Manager?The ?guidelines? referred to in the secondparagraph of the above letter have not been offered or received in evidence orotherwise called to the attention of this Judge. There is no way to verifywhether guidelines have in fact been adopted nor to determine whether, ifadopted, that they were done in such a way as to have the force and effect oflaw, binding upon Respondent and others similarly situated. The letter isunclear in several respects. It seems to imply that only honing and polishingare done at the Idaho Falls plant. It does not mention the major activity ofcutting the rough quarried blocks into smaller pieces. The letter gives noauthority for the conclusion that Bureau of Mines health and safety regulationsapply only to ?quarry integrated plants?, nor does it explain the basis forconcluding that the Idaho Falls plant is not a quarry integrated plant. Mostimportantly, the letter does not explain the implication that the activity ofthe Idaho Falls plant does not constitute milling operations.The inspections by Bureau of Minesofficials on October 19, 1971 and December 28, 1971 and the subsequent issuanceof inspection reports (Respondent?s Exhibits 2 and 3) constitute official actsof the Secretary of the Interior in enforcing occupational safety and healthstandards duly promulgated under the authority of the Mine Safety Act. Theseinspection reports have not been officially withdrawn or otherwise vacated. Thebasic laws conferring jurisdiction in such matters have not changed since the inspectionreports were issued.[9] The letter of September18, 1972, which was introduced in evidence as a late-filed exhibit at therequest of this Judge, constituting as it does hearsay evidence[10], can be accepted as thepersonal opinion of the writer but not as an expression of the officialposition of the Secretary of the Interior.The Secretary has the burden of provingevery essential element of an alleged violation, including that theRespondent?s operations are subject to the Act and to the particular standardsor regulations alleged to be violated, and that the Secretary has jurisdiction tomake the inspection and issue the citation. This does not mean that theSecretary has the burden of showing in each case that no other federal agencyhas conflicting jurisdiction. But where, as here, the Respondent has in goodfaith raised the jurisdictional issue and has shown by competent evidence thatanother particular federal agency has officially asserted what appears to beconflicting jurisdiction, the Secretary has the burden of affirmatively showingthe lack of jurisdiction in such other agency. If in order to make such anaffirmative showing, it is necessary to introduce evidence, the Secretary hasthe burden of going forward with the evidence.Giving consideration to all of the mattersdiscussed above, to all of the pleadings and evidence, and to the briefs of theparties, the Judge finds that the Secretary has failed to prove[11] that working conditionsof employees at Respondent?s plant at Idaho Falls, Idaho are subject to theOccupational Safety and Health Act of 1970. Therefore, the citations andnotification of proposed penalties issued June 16, 1972, must be vacated.ORDERIn view of the findings made herein,IT IS ORDERED:1. Citation Number 1, Citation for SeriousViolation Number 1, and Notification of Proposed Penalty, all issued June 16,1972, be, and they are hereby, vacated.?Dated at Seattle, Washington this ___ day of January,1974.?HENRY C. WINTERSJudgeJanuary 25, 1974*Section4(b)(1) states in relevant part:Nothingin this Act shall apply to working conditions of employees with respect towhich other Federal agencies . . . exercise statutory authority to prescribe orenforce standards or regulations affecting occupational safety or health.[1]Under section7(d) of the APA, codified at 5 U.S.C. section 556(e), the respondent mayrequest an opportunity to show facts contrary to those officially noticed inthis decision. This may be done upon the remand of this case.[2]This casewas directed for review by granting a petition filed by the Secretary of Laborin which the sole issue raised was the Judge?s ruling that the Secretary hasthe burden of proving that no other Federal agency has conflicting jurisdictionwhen such an assertion is made by respondent.[3]Respondent?sjurisdictional challenge in this case was based on genuine practicalities aswell as the law. Only 5 months prior to the inspection which initiated thiscase this self-same facility was given a job safety inspection byrepresentatives of the Secretary of Interior who left no doubt that respondentwas subject to the jurisdiction of the Interior Department. The Secretary ofthe Interior is authorized under the Federal Metal and Nonmetallic Mine SafetyAct, 80 Stat. 772, 30 U.S.C. ? 721 et seq., to prescribe or enforce standardsor regulations affecting occupational safety or health. Furthermore, he hasexercised that authority. See, e.g., 30 C.F.R. ?? 55?57.[4]The MineSafety Act was enacted prior to enactment of the Occupational Safety and HealthAct of 1970.[5]? See 30 U.S.C. ? 721(b).[6]See theFederal Metal and Nonmetallic Mine Safety Act (30 U.S.C. 721 et seq) commonlycalled the Mine Safety Act, particularly Sections 3(a) and 6(a), thereof.[7]30 CFR Part55, applicable to open pit mines; 30 CFR Part 56, applicable to sand, gravel,and crushed stone operations; and 30 CFR Part 57, applicable to undergroundmines.[8]Thestandards promulgated by the Secretary of the Interior (30 CFR 55.2, 56.2 and57.2) defines the noun ?mill? as follows:?Mill?includes any ore mill, sampling works, concentrator, and any crushing, grindingor screening plant used at and in connection with an excavation or mine.This language, especially in theabsence of expert testimony, is not helpful here in resolving the issue ofwhether Respondent?s Idaho Falls plant is a mine. It is not clear whether theword ?includes? means ?includes only the following? or whether it means?includes but is not limited to the following.? The fact that in defining otherterms in 29 CFR 55.2, 56.2 and 57.2 the verb ?means? is used but in thisinstance the predicate verb ?includes? is used, the fact that the term ?oremill? is used after the verb ?includes?, leads this Judge to conclude that acomprehensive or all-inclusive definition of the word ?mill? was not intended.[9]Thereorganization in the Department of the Interior delegating certain activitiesof the Bureau of Mines to the newly-created Mining Enforcement and SafetyAdministration did not reduce the scope of authority exercised by the Secretaryof the Interior under the Mine Safety Act.[10]Neither thewriter of the letter, ?E. F. Allen?, nor any of the ?Washington, D.C.officials? referred to in paragraph one of the letter, were available for cross-examinationat the hearing.[11]This decisionis based upon failure of proof, not upon lack of jurisdiction of the Secretaryof Labor. This decision does not diminish whatever existing obligation isimposed upon the Respondent by law, including the Occupational Safety andHealth Act of 1970 and standards and regulations promulgated thereunder.”