“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15242 SEATTLE CRESCENT CONTAINER SERVICE, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 24, 1979DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.CLEARY, Chairman:??????????? Respondent,Seattle Crescent container Service, was cited for violating the Act[1] by failing to comply withthe standard at 29 C.F.R. ? 1918.32(b) (the standard). A $500 penalty wasproposed by the Secretary of Labor. The citation and penalty were contested andthe dispute between respondent and the Secretary was heard by AdministrativeLaw Judge Garl Watkins. Judge Watkins vacated the citation on the ground thatthe standard does not apply to the type of work performed by respondent?semployees. The Secretary took exception to the judge?s decision and I grantedthe petition for review pursuant to the authority conferred by section 12(j) ofthe Act, 29 U.S.C. ? 661(i). We reverse the judge and affirm the citation.??????????? Thestandard with which respondent allegedly failed to comply provides that,[w]hen an edge of a hatch section or ofstowed cargo more than 8 feet high is so exposed that it presents a danger ofan employee falling, the edge shall be guarded by a safety net of adequatestrength to prevent injury to a falling employee, or by other means providingequal protection under the existing circumstances.???????????? Atthe time of the inspection, two of respondent?s employees were standing on topof a stack of three 8-foot high cargo containers while securing them in placeon the deck of a ship. The containers were resting on a three foot combing. Theemployees were working near the edges of the containers and were, therefore,exposed to a 27 foot fall hazard. While respondent provided its employees withsafety belts and lanyards, they were not used. Respondent?s foreman was awareof this.[2] It is undisputed thatbelts could have been tied to the ?D? rings welded to the tops of thecontainers and that use of the belts would have provided protection equal tothat which nets could provide No other form of fall protection was provided. Weconclude from these facts that respondent did not comply with the terms of thestandard.??????????? Thejudge held the standard inapplicable because, since its promulgation in 1960,it had not been applied to work performed on deck.[3] Respondent supports thisrationale and offers two additional grounds to support the judge?s decision.Respondent claims that the containers on top of which the employees worked wereneither cargo nor stowed, as those terms are used in the standard.??????????? Allof these rationales rest on inter-related evidence and, therefore, stand orfall together. The standard has never been applied to work performed on thedeck of a ship.[4]While less than five percent of the cargo handled in American ports in 1960 wasshipped in containers, the volume of containerized cargo has increased steadilyand significantly since then, especially in west coast and Hawaiian ports.Respondent?s expert witness, Gromachey, testified that the standard was draftedin accordance with the maritime industry?s usage of the terms stow and cargo.Gromachey stated that in the industry ?to stow? means to arrange goods andcargo compactly below deck and tween decks,[5] and ?cargo? includes onlygoods and merchandise transported for a tariff or charge.[6] A tariff was assessed forthe contents of the containers, but not for the containers themselves.Respondent relies on the distinction Gromachey made between cargo andcontainers in which cargo is shipped to support the argument that the standardapplies to work performed atop the former but not the latter.??????????? TheSecretary?s expert (Jones) testified that the terms stow and cargo are usedbroadly in the maritime industry to include, respectively, storage on the deckof a ship and containers.[7]??????????? Finally,respondent and the judge interpreted three exhibits, entered into the record byrespondent, in a manner that supports the judge?s conclusion that the standardis inapplicable in this case. The first is a special directive issued toenforcement officials by the national office of the Occupational Safety andHealth Administration on August 20, 1971, shortly before the maritime standardsbecame effective under the Act. It is read by respondent and the judge torequire that enforcement of the maritime standards continue under the Act as ithad when the standards were enforced under the Longshoremen?s Act. The secondand third exhibits, which are documents issued by the Maritime Safety Servicesdivision of the Department of Labor, describe accidents and their causes, andstate that no regulations are applicable to prevent the accidents. Respondentand the judge appear to understand the hazards so described to be falls ofdistances up to 27 feet, as in this case.??????????? Thisevidence does not support the judge?s conclusion that the Secretary hasinterpreted the standard to be inapplicable to work performed on deck. Therelevant sections of the first exhibit mentioned in the preceding paragraph arequoted below[8]with underscoring on that portion that the judge apparently failed to considerin his opinion. It is clear that the last sentence of the quotation directsenforcing officials to conduct inspections according to the previouslyestablished schedule of priorities; it does not address the question of thescope of the maritime standards as the judge and respondent believe.??????????? Similarly,the second and third documents do not address the same concern as the standard.The purpose of the standard is to protect employees against injuries as aresult of falls. The focus of the documents is the cause of the accident describedin each document. The causes of the accident are identified in the firstdocument as the failure to provide slack in the line and the winchdriver?sunfamiliarity with the winch controls. The causes of the accident described inthe second document are stated at the signalman?s taking an unsafe position inthe way of the load. Both documents state that no regulations are applicable.We interpret this to mean that there are no regulations designed to eliminatethe causes of the described accidents. The recommendations included in eachdocument, i.e., provide slack in the fall, label winch controls, and do notstand in the way of a moving load, are directed at that goal. Even if theCommission were to accept the analysis presented in the documents, a matter ofno concern here, the documents clearly are immaterial to the issue of the scopeof the standard?s application.??????????? Thehistory of the Secretary?s enforcement of the standard does not support thejudge?s conclusion. There has been no expressed administrative determination ofthe applicability of the standard upon which we can rely. Cf. Baltimore& Ohio R.R. Co. v. Jackson, 353 U.S. 325, 330?331 (1959) (InterstateCommerce Commission?s 60 year failure to require maintenance-of-way vehicles touse power brakes required on all motor track cars held not to be administrativeinterpretation worthy of deference by the Court). Unlike affirmativedecision-making, in the absence of an express statement by the enforcementauthority, there is no assurance that inaction is the result of reasonedconsideration of a problem. For example, because of the relatively slightvolume of containerized cargo in 1960, practically all of which happened to bestowed below deck and tween decks, it is impossible to determine whether the Secretaryintended either to restrict application of the standard to work performed belowdeck and tween decks or, more generally, to protect employees against injuriesresulting from working on top of cargo regardless of its location on boardship. The Secretary?s silence since 1960 is equally ambiguous. Strongerevidence is needed before we can interpret a standard restrictively to thedetriment of employee safety.??????????? OnAugust 17, 1977, respondent moved the Commission to permit supplementation ofthe record by inclusion of two documents alleged to be letters from Departmentof Labor officials describing the Secretary?s history of enforcing thestandard. The Commission denied the motion as to the first (1971) letter.Official action was not taken with respect to the second (1977) letter becausethe Commission members were unable to agree on a disposition.[9] The motion as to the firstletter has not been renewed and, therefore, is not before us. Respondent hasrenewed its motion as to the second letter, however,??????????? Theletter respondent moves the Commission to enter into evidence allegedly waswritten by Edward March, a Department of Labor official experienced inenforcing the standard at issue here. March asserts in the letter that theSecretary promulgated the standard with the intent to apply it exclusively tocargo stowed in a hold or at the edge of a partially opened hatch or block.Respondent bases its motion on the claim that the letter is relevant evidencethat was unavailable at the time of the hearing. This claim technically may beaccurate, but it is seriously misleading. The letter was not written untilafter the judge?s decision had been directed for review by the Commission, butany relevant information March possessed was readily available to respondentprior to the hearing.??????????? Aspart of discovery, respondent moved for permission to serve interrogatories onMarch and three other Labor Department employees. The proposed interrogatoriesincluded questions about the Secretary?s interpretation and application of thestandard under the Longshoremen?s Act and the Occupational Safety and HealthAct. The judge granted the motion over the Secretary?s strong objection, butpermitted the Secretary one week to raise objections to the wording of theinterrogatories. Respondent submitted the interrogatories to the Secretary?scounsel for comment under the judge?s order. The Secretary did not object toany of the wording. Thus, respondent had access to the information in the Marchletter from March himself prior to the hearing.??????????? Asevidenced by the argument over the motion to serve interrogatories, respondentwas fully aware of the possible evidentiary value of the answers that theinterrogatories might elicit. However, Respondent did not pursue discovery byseeking responses to the interrogatories from any of the Labor Departmentemployees. Apparently as an alternative to serving the interrogatories,respondent moved to have a subpoena served on Gromachey, one of the employeesfor whom the interrogatories were intended. (The motion was granted and, asindicated above, Gromachey testified in respondent?s behalf). Whetherrespondent?s failure to conduct discovery further is attributable to a lack ofdue diligence, cf. In re Westec Corporation, 434 F.2d 195, 204 (5th Cir.1970), or a decision that Gromachey?s testimony would be sufficient,respondent?s motion is, at the very least, an attempt to remedy a questionabletrial tactic.??????????? Inview of these circumstances, the necessity of bringing an end to litigationoutweighs any countervailing interests of respondent and accordingly we denyrespondents? motion. Congress intended expeditious adjudication of casesarising under the Act to protect employees against hazardous workingconditions. Atlas Roofing Company, Inc. v. OSHRC, 430 U.S. 442, 461(1977). An employer who contests a citation is not obligated to abate acondition alleged in a citation to be hazardous until a final order of theCommission is issued. Section 10(b) of the Act. If the March letter wereadmitted into evidence now, it would be necessary to afford the Secretary anopportunity for rebuttal. Compare Ralpho v. Bell, 569 F.2d 607, 628(D.C. Cir. 1977) with Doe v. Hampton, 566 F.2d 265, 277?278 (D.C. Cir.1977) and Chrysler Corporation v. Federal Trade Commission, 561 F.2d 357(D.C. Cir. 1977). Issuance of a final order would be delayed substantiallybecause of the need to remand the case. Admittedly a gap always will existbetween the time a record is closed and the time a final order is issued if,after the judge issues a proposed decision, the agency considers exceptions tothe judge?s decision. But the process would be impeded unduly if an agency wereto open a record after a case has left the trial judge whenever relevantevidence has been discovered. See Interstate Commerce Commission v. JerseyCity, 322 U.S. 503, 514 (1944). Opening the record in this case is notjustified on the grounds advanced by respondent.??????????? Respondent?sreference to the asserted technical meaning of the terms stow and cargo ismisplaced. We cannot credit Gromachey?s testimony that the Secretary intendedto use the terms in the same manner as the maritime industry. There is noevidence that Gromachey was involved in drafting the standard or in the policydiscussions that preceded or followed the drafting. We have no reason toattribute to him any knowledge of the Secretary?s intent. Moreover, theevidence indicates that the maritime industry has not settled upon precisetechnical definitions of the terms. As noted above, the two equally qualifiedexpert witnesses divided on the industry?s usage of the terms cargo and stow.Even the dictionary relied upon by Gromachey includes three definitions of theverb ?to stow?, one of which is ?to put anything away for sea.? This definitionis consistent with the long-standing maritime practice of transporting largemachinery and volatile material on the deck of a ship. Criteria other thanmaritime industry usage must, therefore, be used to interpret the standard.??????????? Guidanceis provided by the remedial purpose of the standard. See Brennan v. OSHRCand Gerosa, Inc., 491 F.2d 1340 (2d Cir. 1974). As noted above, the purposeof the standard is to reduce the incidence and extent of injury caused byaccidental falls. Nothing in the record indicates that employees who fall 27feet onto the deck of a ship are less likely to be injured, or will be injuredless seriously, than employees who fall 27 feet below deck. Respondent admitsthat its employees could have been protected during the inspection simply bysecuring safety belts to rings on top of the containers. In short, there is nopractical difference, at least for safety purposes, between working on top ofcargo which is on deck and cargo below deck. Thus, we conclude that storage ondeck is included in the term stow as it is used in the standard.??????????? Forthe same reason, we conclude that cargo containers fall within the category of?cargo? for the purposes of the standard. Employees working on top ofcontainers face the same hazards as employees working on top of similarly sizedcargo. Both expert witnesses testified that respondent?s employees were exposedto a fall hazard. The manufacturer (or owner) of the containers stowed byrespondent recognized the possibility of falls and fashioned the containerswith ?D? rings to facilitate the use of safety belts. The emergence ofcontainerized cargo has caused major adjustments in cargo transportation andlongshoring operations. Technological advances in the handling of cargo,however, clearly have not altered the hazards attendant to falls in excess ofeight feet. It would be a distinction without a difference if the standard wereheld to prohibit unprotected employees from working on top of a stack of beercases[10] eight feet high and topermit the same unprotected employees to work on top of an eight foot containerfilled with cases of beer. For the purposes of the standard, a container ismerely an extension of the cargo within. We do not believe any employerreasonably attentive to the purpose of the standard will be misled by ourinterpretation of the term cargo.[11]??????????? Bypermitting its employees to be exposed to falls in excess of 27 feet,respondent is in serious violation of the Act. The compliance officer and bothexpert witnesses testified that a fall could have caused serious bodily injury.Moreover, respondent has exhibited a less than earnest concern for the safetyof employees by permitting them to work as they did without fall protection.Under these circumstances, we assess a penalty of $500.??????????? Accordingly,the judge?s decision and order are vacated, respondent is held to have violatedsection 5(a)(2) of the Act by failing to comply with the standard at 29 C.F.R.?\u00a01918.32(b), and a penalty of $500 is assessed for the violation.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: OCT 24, 1979\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15242 SEATTLE CRESCENT CONTAINER SERVICE, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 May 16, 1977?DECISIONAppearances:Ernest Scott, Jr., Seattle, Washington forComplainant\u00a0Robert E. Babcock, Portland, Oregon forRespondent\u00a0GARL WATKINS, JUDGE:??????????? Inthis enforcement action under the Occupational Safety and Health Act of 1970,29 U.S.C. 651 et seq., the only question for decision is whether on September17, 1975 Respondent, a stevedoring company, was in violation of a longshoringsafety regulation aboard the S\/S HAWAIIAN which it was loading at Pier 18 inSeattle, Washington for a voyage to Hawaii.??????????? Thestandard is 29 CFR 1918.32 entitled ?Stowed Cargo and Temporary LandingPlatforms?. Subsection (b) is involved in this case. The secretary contends thatthe violation was in Respondent?s failure to have a net to protect two men whowere working atop three cargo containers above deck, or ?. . . other meansproviding equal protection . . .?. The men were putting devices on the topcorners of the containers to secure them in place for the voyage. Each of thecontainers was eight feet high and the base was on a combing three feet abovethe deck. Thus, the men were 27 feet above the deck of the ship. No safety nethad been placed to prevent their fall to the deck.??????????? Norwere the men using ?. . . other means providing equal protection under existingcircumstances.? The evidence is undisputed that although not required by thestandard under which it is charged to do so, Respondent provided safety beltsand lanyards, and Matson, owner of the containers, welded ?D? rings on the topof each container to attach the lanyards. These lifelines and safety belts werenormally used on top of the containers, and were immediately available, butwere not being used.??????????? TheCompliance officer testified:?Q. Following, I believe, the September 26inspection?29th inspection, a follow-up inspection?excuse me, or during thatinspection, you took some additional photographs which have been previouslymarked C?4, -5, and -6??A. During the 29th inspection.?q. Is that right??A. That?s correct.?q. Showing the lanyards, safety harness,D-ring??A. Correct.?q. Do you have any reason to believe thatthose lanyards weren?t available on the 17th??A. I have reason to know that they wereavailable.? (TR?176?A)??As an additional protection a speciallyprepared paint had been applied frequently to all container tops, giving them a?sandpaper? or non-skid surface.???????????? Respondent?sprinciple contention is that for more than fifteen years the Secretary of Laborhas continuously administered and enforced this safety standard and has neverbefore attempted to apply it to a situation arising on deck.??????????? Beforethe advent of OSHA the regulation was adopted under the Longshoremen?s and HarborWorkers? Compensation Act, 33 U.S.C.A. 901 et seq., first as 29 CFR 9.32(b) andthen 29 CFR 1504.32(b). During all the years the interpretation of theSecretary of Labor has consistently been that this standard did not apply abovedeck. Thus, the Secretary by his enforcement actions has adopted anadministrative interpretative rule that the standard under which Respondent iscited contemplates?. . . ?Container? means a reuseable orbetween decks operations. In interim amendments before the advent of OSHA therewere some changes in the language, but none pertinent to this decision.???????????? Respondent?ssecond contention is that aside from the construction placed on ?stowed cargo?by the Secretary of Labor in the Longshoring standard; the container was notcargo because it belonged to Matson, was on its ship, was not being transportedfor a tariff, and was there primarily for the purpose of itself transportingcargo. It meets the definition of ?Container? rather than that of ?Cargo?.?. . . ?Container? means a reusable cargocontainer of rigid construction and rectangular configuration, intended tocontain one or more articles of cargo or bulk commodities for shipment aboard avessel and capable of utilization for this purpose by one or more other modesof transport without immediate reloading . . .? 29 CFR 1918.85(e).???????????? Respondentquotes Matsushita Electric Corporation of America versus the S.S. AegisSpirit, et al. D. C., W. D. Wash. Nos. 88?76C3 and 0741525, 1976, whereinUnited States District Judge William R. Beeks said:I would liken these containers todetachable stowage compartments of the ship. They simply serve to divide theship?s overall cargo stowage space into smaller, more serviceable loci.???????????? Respondent?sthird contention is that there is a total failure of proof of knowledge on thepart of the respondent that its employees who were furnished protectiveequipment with which to work were not using it on this one isolated occasionand therefore the requirements of 29 USC 666 (j) are not met.??????????? Sincewe hold for respondent on its first contention and vacate the citation andproposed penalty, it is unnecessary to reach the arguments in connection withthe second and third.??????????? Thelanguage of the citation, the complaint and the standard follow:CITATION NO. 2 (Serious)? Item No. Standard, regulation or section of the Act allegedly violated Description of alleged violation 1 29 CFR 1918.32(b) \u00a0 Two longshoremen were observed exposed to the danger of falling from the top of the third tier of deck stowed containers at hatch #13 aboard the S\/S Hawaiian. The longshoremen were observed by the edge placing a hoisting davit in the corner posts of the top tier of the 8 high containers. \u00a0 COMPLAINTIV??????????? On orabout September 17, 1975, at the worksite and place of business and employmentabove described in numbered paragraph III hereinabove, Respondent violated thelongshoring regulations, contrary to 29 CFR 1918.32(b), in that Respondentsuffered or permitted two employees, longshoremen to be exposed to the dangerof falling from the top of the third tier of deck stowed containers, each eightfeet high, at or about hatch #13 aboard the S\/S HAWAIIAN and the edge ofexposure was not guarded by a safety net of adequate strength to prevent injuryto a falling employee, or by other means providing equal protection under thecircumstances then existing.?STANDARD1918.32-STOWED CARGO AND TEMPORARY LANDINGPLATFORMS?. .. (b) When an edge of a hatch section or of stowed cargo more than 8 feet highis so exposed that it presents a danger of an employee falling, the edge shallbe guarded by a safety net of adequate strength to prevent injury to a fallingemployee, or by other means providing equal protection under the existingcircumstances.???????????? TheSecretary asks a finding of serious violation and proposes a penalty of $500.??????????? Beforereaching the main question in the case, disposition must be made of apreliminary matter. On September 1, 1976 counsel for Respondent addressed aletter to the trial judge and to the solicitor enclosing a copy of a letterdated August 25, 1971 from Thomas R. Miller, Acting Regional Administrator andstating it was discovered in his office after the hearing. (J?18) Counsel?sletter does not make clear his purpose in sending it; for example, whether heintended to apply to reopen the case for the purpose of offering the letter inevidence as an exhibit, or whether he was simply requesting that counselstipulate to its admission.??????????? Thetrial judge arranged a telephone conference to find out what was intended.(J?19) It appears that counsel for Respondent was simply requesting admissionof the letter on stipulation?that he was not applying to reopen the case. TheSolicitor declined to so stipulate. Consequently no action was taken regardingthe letter or its enclosure. By agreement of counsel the copy of the letter ofAugust 25, 1971, was marked as an exhibit of Respondent, and as rejected. Noconsideration is given to it in reaching the decision in this case.??????????? Wenow face the one important issue in the case. Did the Secretary?sadministrative and enforcement conduct for more than fifteen years create aninterpretative rule that ?stowed cargo? and as applicable thereto ?when an edge. . . of stowed cargo more than 8 feet high is so exposed that it presents adanger of an employee falling, . . .? did not apply to above deck operations oflongshore operations on the vessel. The second question?and necessary correlative?is whether the Respondent is entitled to rely on that interpretative rule. Ouranswer to both is in the affirmative.??????????? Weshould say in passing that the following questions are relevant to the case,and of interest; but are in no way controlling.??????????? 1.The conduct of the workmen in failing to use adequate safety equipment whichwas immediately available to them at the time of the Secretary?s inspection.??????????? 2.Except as they are given as well known maritime definitions, personaldefinitions by various persons, both expert and lay, of the words ?cargo? and?stowed?. Included is whether a cargo container which is part of the equipmentof a particular ship can under certain circumstances be classified as ?cargo?on that ship; or whether ?cargo? can be ?stowed? on the deck of the ship.??????????? 3. Weare not as much concerned with how the Secretary of Labor should have definedand construed the words of the standard; as how he did define and construe themin a completely uniform manner over many years in carrying out his regulatoryadministrative and enforcement duties over maritime safety.??????????? 4Since the decision in this case hinges on the consistent and unvaryinginterpretation by the Secretary of Labor over many years not to construe thewords ?stowed cargo? and the standard as applicable to longshoring operationsabove deck of a vessel; the evidence showing this fact warrants more detaileddiscussion than would be true in most cases. The Secretary denies the existenceof the policy of enforcement and administration and denies the existence of theadministrative interpretative rule thereby produced.??????????? Inaddition to that part of the compliance officer?s testimony which could beclassified as expert, each party produced one expert witness. Both arepresently employed by OSHA. Jack Jones, called by complainant, is in theregional office in Seattle. Lawrence E. Gromachey, appearing under subpoena forRespondent, is in the OSHA regional office in San Francisco. Both seem wellqualified as expert witnesses in the areas about which they testified.??????????? Afteran extensive background in safety work?principally maritime?Jones began hisemployment with the United States Department of Labor in June of 1971. For thepast three years he has been assistant regional administrator for training andeducation.??????????? Hewas graduated from the Golden State University with a bachelor?s degree inbusiness administration and industrial engineering and took an unspecifiedamount of graduate work at the University of California in industrial accidentprevention. Shortly thereafter he went to work for Pacific Maritime Associationwhere he remained for twelve years, starting as a safety inspector and endingas area supervisor for accident prevention in the State of Washington. After astint with Boeing Company?also in safety work?he started with the United StatesDepartment of Labor in 1971.??????????? Duringhis time with PMA he said he personally investigated ?a hundred? fatallongshore accidents, and was involved in training courses for longshoremen andother employees.??????????? Joneswas on a committee formed by the United States Department of Labor at the timesafety and health standards were first being promulgated under the Longshoreand Harbor Workers Act and worked as a representative of PMA in developing thestandards.?A. . . .? the particular Standard thatyou are referring to, which is now 1918.32(b), then it was 9.32(b), but it wasin April of 1960, that that was passed and I had worked as a member of thecommittee that helped???Q. (Interrupting) Which committee wasthis???A. This was the committee of employer,employees, working with the U. S. Department of Labor in setting the originalset of Standards . . .? (Tr 194)??Judge Watkins: Was this when the Standardwas first being formed??The Witness: Yes, sir. (TR 195)???????????? Jonesfurther testified at length regarding the meaning of the words ?stowed? and?cargo?. He agreed with other witnesses that cargo in normal definition means goodscarried for a tariff or a charge, but that the word is broad and can sometimesmean containers as such. He testified at length regarding the fact that ?cargo?can be on deck and at greater length about the hazards presented in thesituation found by the inspector and giving rise to this case.??????????? Hisevidence shows complete familiarity with section 32 of part 1926 and itsenforcement and of the fact that from the first adoption of the Standard it hadbeen administered and enforced by the Secretary of Labor. Among other things hesaid:?I have certainly become acquainted withcargo stowage and the terminology of the industry, based on that and a hazard,particularly, of the industry and having seen, and indeed, investigated I wouldsay at least a hundred fatal accidents in longshoring, many of which were theresult of falls, not always from deck loads or vans, people falling from theupper deck to the lower hold. I recognize the hazards of falls. I would saydefinitely someone working aboard a top container stowed three high, assumingthat the testimony is correct, that these were eight feet high containers, is adefinite hazard, if a person were to fall and it?s a probability that death orserious injury would result from that fall.? (TR 203)???????????? Theremarkable thing about Mr. Jones testimony is that it contains not one word tothe effect that at any time during the many years of its existence andenforcement and administration by the Secretary of Labor did the latter everenforce or attempt to enforce 29 CFR 1918.32(b) to longshoring operations abovedeck; nor did his testimony contain anything from which it could be inferredthat it was the policy of the Secretary to so enforce it. His testimony iscompletely silent on the crucial point of the case.??????????? Theexpert witness produced by respondent, Lawrence E. Gromachey, has equallyimpressive credentials. The chief difference between his background and that ofJones, the Secretary?s expert is that Gromachey?s experience has been inenforcement. Both men probably knew?but only Gromachey testified?that in allthe years the Secretary of Labor has never construed ?stowed cargo? under 29CFR 1918.32(b) as applying above deck.??????????? Gromacheystarted working in the Department of Labor in 1959 with the Bureau of LaborStandards, which then had the responsibility for the administration andenforcement of maritime safety programs. Until August of 1974 he continuouslyheld jobs carrying with them the responsibility of enforcing maritime safetystandards.??????????? Before1959 Gromachey had gone to sea, starting as a wiper in the engine room. He hadstudied three years of mechanical engineering at Oregon State College. When hewent to work for Labor in 1959 he was Acting Safety Director of the Pacificarea in San Francisco for the Military Sea Transportation Service. He was withthat organization a total of eight years and previously had been a marinetraining specialist and damage control instructor.??????????? Initiallywith the Bureau of Labor Standards he was a Maritime Safety Officer enforcingthen existing marine safety and health regulations in San Francisco. He wasthen promoted to district supervisor in Oakland and in 1961 became the districtsupervisor in Honolulu.??????????? Heheld this job ten years and on May 19, 1971, after the advent of theOccupational Safety and Health Act, he was transferred to Phoenix, Arizona withOSHA as senior compliance officer. After two or three months he was made areadirector for the Phoenix area. He was in this job until August of 1974 when hewas transferred to the regional office in San Francisco and to his present jobas special assistant to the regional director. In February of 1975 he wasdesignated as consultant for federal agency programs.??????????? Gromachey?sexperience included not only an initial schooling when he started as a maritimeinspector, but additional schools and periods of training, principally withinthe Labor Department.??????????? Gromachey?stestimony is extensive and it all points to the fact that at no previous timedid the Secretary of Labor ever treat ?stowed cargo? as anything above the deckof a vessel within the meaning of 29 CFR 1910.32; either when the standard wasso numbered or when it carried either of its two preceding C.F.R. numbers. Thiswas a standard to be enforced only below deck.??????????? It isimportant to consider that there is no conflict in the testimony of Jones andGromachey about the construction and interpretation uniformly enforced by him.It did not apply to cargo on deck.??????????? Gromacheydid not recall having seen a specific written memorandum orinterpretation?applicable only to this standard?distributed. He did testifywithout qualification that there were such interpretations issued, both in formfor general distribution and others applicable to specific cases.??????????? Withoutcontradiction, the witness? testimony showed that he was familiar withinterpretation of the complainant on this standard in Hawaii and all ports onthe Pacific coast and Alaska. Secretary?s brief implies that this limitedknowledge does not indicate a general interpretation of the standard by theSecretary. The Solicitor states, for example, that the fact Gromachey knew whatthe Secretary?s policy was in Hawaii, Los Angeles, San Francisco, Portland,Seattle, and Alaska, does not necessarily indicate that he knew what was happeningin New Orleans and New York.??????????? Ihave had occasion to encounter criticism of the Secretary of Labor on variouscounts, but never before have I heard a claim of there being such a totalbreakdown of communications within the Department of Labor that the districtmanager for enforcement of maritime standards in Hawaii would not know thepolicy of the Department of Labor with respect to those standards.??????????? Theevidence is therefore conclusive that from the time of the enactment of thefirst standard having to do with ?stowed cargo? under the Longshore and HarborWorkers Act the policy of the Secretary of Labor was to consider that standardapplicable only below the deck of ships. The enforcement officers practicesfollowed the policy. (There is one bit of testimony to the contrary from thecompliance officer in this case. It is too vague and indefinite to cast a doubton the conclusion just stated. It will, however be discussed.)??????????? TheSecretary points out that Gromachey?s direct involvement in making and insupervising longshoring and other maritime inspections ended when he became asenior compliance officer and then area director in Phoenix.??????????? It isimplied but neither stated nor proved that the policy of the Secretary of Labormay have changed when the standard became one of OSHA rather than of theLongshore and Harbor Workers Act.??????????? Again,and unless there was a complete breakdown of communications between the variousoffices of the Labor Department, Gromachey remained familiar (as he said hedid) with the Secretary?s interpretation of this standard as well as with manyothers.??????????? Thisconclusion is strengthened by language of Exhibit R1. It is a ? SPECIALDIRECTIVE? issued August 20, 1971 by the Assistant Secretary of Labor forOccupational Safety and Health. It is addressed to:Regional Administrators:?Area Directors:?Maritime District Supervisors:\u00a0Subject: ?Instructions for complianceactivity effective August 27, 1971.? It says:?1 Standards . . .a. Maritime Safety Standards. MaritimeSafety Standards continue in effect under OSHA. As of August 27, 1971 coverageis extended to on-shore activities.??In the maritime area, the program shouldcontinue in longshoring, shipyards, etc., as in the past?. (emphasis supplied)(P.1 and 3)???????????? The?one bit of testimony? noted on the previous page is from Strasheim, thecompliance officer, who testified with some equivocation that he had previouslyissued citations under 29 CFR 1918.32 for on deck activities. His testimonywith respect to such other citations is both inconclusive and incomplete. Tocomplete the recital of facts in this decision however, it would seem advisableto include all Strasheim?s testimony with respect to his other citations whichmay have been under section 1918.32, as well as his testimony regarding theadjoining section 1918.33 entitled ?Deck Loads?.?Q. How many times do you use thestandard, 1918.32(b)?A. I think I?ve used it, I don?t know,about seven or eight times.?Q. Under what circumstances??A. One of the circumstances was on acontainer operation in Anchorage where men were working on the open ends ofthese stacking frames. I?m reasonably certain I used that standard?I couldcheck that out?Q. Is that the one you were talking aboutwhere they were on a catwalk??A. Yes.?Q. You used 1918.32(b)??A. Yes?Q. Any other examples??A. Yes, I?ve had people working on tops ofdeck loads of cargo along the edge where we?ve had wooden cases stacked severaltiers high, deck loads of lumber?that was another case. Deck load of logs wasanother case where men were working close to the edge without protection; alsobelow decks, men working on top of tiers of cargo below decks, and also stacksof pipe-that?s particularly hazardous, although the hazard is the same.?Q. You used 1918.32(b) on deck loads oflogs??A. On lumber.?Q. Deck Loads of lumber??A. Lumber.?Q. What is a deck load??A. It?s a load placed on the deck.?Q. Where were these containers??A. On the deck.?Q. Are you familiar with 1918.33??A. I would have to refresh it.?Q. Entitled ?Deck loads?, are you familiarwith it??A. Reasonably, yes, if I could refresh mymemory by looking at it.?Q. You for the moment recall that 1918.33is specifically referable to deck loads??A. I believe that?s the heading, yes.?Q. And 1918.32, as a whole, refers in theheading to ?Stowed cargo and temporary landing platforms???A. That?s correct.?*8 Q. Do you check the headings indetermining whether to apply a standard to a given condition??A. Yes.?Q. What is a temporary landing platform??A. Well, it would be, as it implies, it?sa temporary landing platform. It can be made up of cargo; it can be made up ofdunnage. It?s a place where you would generally land cargo, on the square of ahatch or on deck.?Q. You call that a temporary landingplatform??A. Yes.?Q. With respect?do you know what a hatchsection is??A. A hatch section??Q. Yes.?A. Perhaps I don?t understand it in thesense that you?re speaking of.?Q. The regulation provides, ?When an edgeof a hatch section or of stowed cargo more than eight feet high is so exposedit presents danger of an employee falling.?A. Here again, if you?re asking myinterpretation??Q. (Interrupting) I?m asking if you knowwhat a hatch section is.?A. I know what I consider a hatch section.I don?t know if the review Commission interprets a hatch section to be the samething.?Q. What do you consider a hatch section??A. A hatch section would be a section ofthe covering for a ?tween decks? or weather deck.?(TR 168, 169, 170)???????????? Thisevidence fails to show anything but generalities about even one previous chargeof failing to comply with the standard because of ?stowed cargo? above deck. Itfalls far short of establishing any deviation by the Secretary from his longstanding interpretation of construing ?stowed cargo? under the standard toapply only to stevedoring operations below deck.??????????? Againthe important thing here is that for a period more than 15 years Secretary ofLabor in combining the two words ?stowed? and ?cargo? and applying them under29 CFR 1918.32(b)?and thus to longshoring and stevedoring operations while atthe same time giving interpretations for general as well as specificapplication; has thereby adopted an administrative interpretative rule thatabove deck operations were not contemplated by that safety standard. Allpersons affected by the rule?including respondent in this case?were entitled torely on it.??????????? Atthis point in the decision, it is certainly time to point out that in ouropinion the interpretation of the Secretary of Labor of the particular languageof 29 CFR 1918.32(b) was not only contemporaneous, continuing and unvarying,but it was practical?it makes sense in view of the language of the standard.??????????? Considerfor example the words ?temporary landing platforms? in the heading and?Temporary tables on which loads are to be landed? in subparagraph (a). Theevidence is clear that these tables and landing platforms are used below deckor between deck, and not on deck.??????????? Likewisein subparagraph (b) the ?. . . edge of a hatch section or of stowed cargo morethan eight feet high?, likewise applies to an operation below or between decks.??????????? As tosubparagraph (c) if ?. . . two gangs (are) working in the same hatch ondifferent levels . . .,? they are below the main deck. (underlining andparenthetical word supplied)??????????? Weare also mindful that the section following the standard we are consideringcovers ?Deck Loads.? 29 CFR 1918.33??????????? Ofsingular importance to the decision in this case is the fact that the Secretaryhas sole control of the evidence about whether anyone was ever charged withviolating the standard in handling cargo above deck. Any such evidence could beeasily produced. If respondent?s contentions are not correct, such evidence isreadily available to the Secretary, and to the Secretary only. Contrariwise anattempt by respondent to get further evidence?by discovery or otherwise?mightpresent formidable obstacles.??????????? Anadministrative interpretative rule?as opposed to a legislative rule?need not bein strict compliance with elaborate statutory procedures for adopting it. Itcan be adopted with much less formality than a legislative rule.??????????? Theinterpretative rule, which then becomes binding on all parties, may be adoptedin many informal ways, and according to Professor Davis may cover a widevariety of subjects.?Interpretativerules may interpret,?(1) a statute?(2) a legislativerule?(3) anotherinterpretative rule?(4) judicialdecisions?(5) administrativedecisions?(6) administrativerulings?(7) any other lawor interpretation?(8) anycombination of items on this list, or?(9) nothing.??1Davis-Administrative Law Treatise ? 5.03 P.304???????????? Thevariety of ways of adoption an interpretative rule are as diverse as the subjectof interpretation.?An agency may announce policies inconnection with deciding cases, or informally through press releases or reportsor speeches, or formally through regulations.???Something that either is akin to rulemaking or is rule making takes place when particular courses of official actionare repeatedly followed. More than a century ago the Supreme Court observedthat ?usages have been established in every department of the government, whichhave become a kind of common law, and regulate the rights and duties of thosewho act within their respective limits.???therefore an ?administrative practice orenforcement policy,? even when unannounced or wholly negative, may sometimeshave about the same effect as a formal rule.??1 Davis Id. ? 5.01 P.289??In some circumstances even a speech of acommissioner may have about the same effect as formal rules, especially if thespeech authoritatively states enforcement or adjudication policy. If by anyinformal method, including a press release, a prosecuting agency makes knownwhat it will not prosecute, the result may be closely akin to a rule.??1 Davis Id. ? 5.01 P.290??????????? Theauthorities seem clear that contemporaneous interpretation, followed bycontinuous adherence to that interpretation by an administering or enforcingofficial, strengthens the force and effect of the interpretative rule. C. Sands(author of the Fourth Edition of Sutherland on Statutes and StatutoryConstruction) makes it even more clear than Professor Davis that the same rulesapply to administrative regulations or rules and the interpretation of theirwords, as apply to statutes.?Contemporaneous and practicalinterpretation is influential in the construction not only of statutes but also. . . regulations of administrative agencies . . .??2A Sutherland Statutes and StatutoryConstruction (4th Ed. C. Sands 1973) ? 49.03 P.233.\u00a0??????????? Bothauthors place strong emphasis on the importance not only of the administeringand enforcing official?s interpretation contemporaneous with his adoption ofthe rule, but also on his continuing to follow this interpretation.?Courts give extra authoritative weight tointerpretative ?rules? and practices which embody interpretations madecontemporaneously with the enactment of the statute, or which have beenconsistenly followed over a long period.??1 Davis Id. ? 5.06 P.324??Like all precedents, wherecontemporaneous and practical interpretation has stood unchallenged for aconsiderable length of time, it will be regarded as of great importance inarriving at the proper construction . . .??2A Sutherland, Id. ? 49.07?P.251?2?Sutherland goes into greater detail andthe reasons for the rule we hold decisive of this case.?One of the soundest reasons sustainingcontemporaneous interpretations of long standing is the fact that reliance hasbeen placed thereon by the public and those having an interest in theinterpretation of the law.??2A Sutherland, Id. ? 49.07?P.252??The greatest weight attaches to anadministrative interpretation in favor of parties who have reasonably relied onit.??2A Sutherland Id. ? 49.05?(Supplement)???????????? Thedecision in this case is based upon an Interpretative Rule made by theSecretary in his consistent, unvarying and long standing interpretation of thewords ?stoward cargo? in 29 CFR 1918.32(b) and its predecessor Code of FederalRegulations section numbers. The Rule is this safety standard does not applyabove deck. All persons subject to citation under the standard are bound by theRule; so is the Secretary.??????????? Thecitation and proposed penalty will be vacated and the complaint dismissed.??????????? Basedupon the entire record in this case the undersigned now makes the following.FINDINGS OF FACT??????????? 1.The respondent is in the stevedoring business in Seattle, Washington and on September17, 1975, was engaged loading the S\/S Hawaiian, a vessel owned by MatsonNavigation Company, at Pier 18, Port of Seattle, Washington for a voyage toHawaii.??????????? 2. Onthat date, respondent?s operation was inspected by a representative of theSecretary of Labor, resulting in the issuance of citation No. 2 for seriousviolation of 29 USC 654(a)(2) for failure to comply with 29 CFR 1918.32(b)because ?. . . two longshoremen were observed exposed to the danger of fallingfrom the top of the 3rd tier of deck stowed containers at hatch #13 aboard theS\/S Hawaiian. The longshoremen were observed by the edge placing a hoistingdavit in the corner posts of the top tier of eight feet high containers.???????????? Atthe time of the inspection there were three steel cargo containers each eightfeet high stacked one atop the other on the main deck of the S\/S Hawaiian. Theyhad been placed there by respondents crew in loading the ship. They were on topa ?coming? approximately three feet high so that the top of the uppermost wasapproximately twenty seven feet above the main deck of the vessel. The cargocontainers were owned by Matson Navigation Company and were intended to becarried on deck the vessel on its voyage to Hawaii.??????????? 3.Two employees of respondent were on top the topmost container near its edge inthe process of securing the containers in place. Respondent had erected no netto protect them from falling. They were not wearing their life belts withlanyards or lines attached nor were they using other means providing equalprotection under existing circumstances.??????????? 4.Life belts, lanyards, rings welded to the tops of the topmost container andother equipment were immediately available to the men to prevent them fromfalling, but were not being used. It is undisputed that the use of the lifebelts and lanyards provided ?equal protection under existing circumstancesunder 29 CFR 1918.32(b)??????????? 5. 29CFR 1918.32 was adopted by the Secretary under the provisions of 29 USC 655 asan established Federal standard. It had been in effect under the Longshore andHarbor Workers Act since 1960 under an amendment to the Longshore and HarborWorkers Act in 1958 authorizing the Secretary to adopt Safety standards forlongshoring.??????????? 6.From the time the standard first became effective under the Longshore andHarbor Workers Act until the time this case arose, it was the consistent andunvarying, as well as announced policy of the Secretary of Labor to enforce itsprovisions only to activities below and between decks of ships. It was notenforced, nor was it the policy of the Secretary to enforce it, to any cargo,person or thing above deck. There is no creditable evidence in the record tothe contrary.CONCLUSIONS OF LAW??????????? 1. OnSeptember 17, 1975, respondent was engaged in a business affecting commerce asthat term is defined in the Act. The Review Commission has jurisdiction of theparties and the subject matter of this action.??????????? 2.From the time of its first adoption under the Longshore and Harbor Workers Act(33 USC 941), what is now 29 CFR 1918.32(b) was the subject by the Secretary ofLabor of a uniform contemporaneous interpretation and a continuing unvaryingadherence to this interpretation; that this safety standard did not apply abovedeck on ships; rather it applied only below deck and ?tween? decks. TheSecretary?s enforcement officers were consistently instructed to so enforce it.The Secretary and his agents disseminated information of this interpretation inwritten form, both of a general nature and in specific cases, that the standarddid not apply above deck. Such interpretation and enforcement, coupled withdissemination of information about it, had the effect of the Secretary adoptingan interpretive rule that the standard did not apply above deck.??????????? 3.Irrespective of the Secretary?s interpretative rule, a fair and correctinterpretation of 29 CFR 1918.32(b) is that it does not apply to longshoringoperations above deck.??????????? 4.Respondent, as well as the entire Longshoring and Stevedoring industry, reliedon the interpretative rule, and had a right to rely on it.??????????? 5.The Secretary has taken no steps to change, amend, modify or repeal the rule.??????????? 6.Respondent is entitled to an order vacating the proposed citation and proposedpenalty in the amount of $500.00ORDER??????????? IT ISHEREBY ORDERED:??????????? 1.That Citation No. 2 for Serious Violation issued to respondent September 23,1975 and relating to the S\/S Hawaiian at Pier 18, Port of Seattle, Seattle,Washington, and the resulting proposed penalty in the amount of $500.00 forsuch violation, be and the same hereby are vacated.??????????? 2.That the complaint of the Secretary is dismissed with prejudice.?DATE: May 16, 1977GARL WATKINSJudge[1] The OccupationalSafety and Health Act of 1970 U.S.C. ? 651 et seq.[2] Respondent claimsthat the employees? failure to use the safety belts was unpreventable employeemisconduct. Respondent?s foreman saw and could have prevented the conduct. Inthe absence of evidence that the foreman?s failure to act was in violation of aneffectively enforced work rule, that failure is imputed to respondent. LarkanSteel Erectors, 77 OSAHRC 167\/B12, 5 BNA OSHC 1783, 1977?78 CCH OSHD ?22,100(No. 15016, 1977).[3] The standard waspromulgated originally under The Longshoremen?s and Harbor Workers?Compensation Act, 33 U.S.C. ? 901 et seq. It was subsequently promulgated underthe Occupational Safety and Health Act as an established federal standardpursuant to 29 U.S.C. ?\u00a0655(a).[4] The Secretaryasserts that the judge improperly failed to credit the compliance officer?stestimony that he had applied the standard to work on deck. The judge rejectedthe testimony because he found it inconclusive and incomplete. We agree withthe judge. The compliance officer could not recall the pertinent circumstancesor dates of any prior applications of the standard.[5] A tween deck is adeck that does not run the full length of a ship.[6] Gromachey basedthis testimony on his long experience in dealing with the maritime industryand, more heavily, on the definitions appearing in The International MaritimeDictionary (2d ed. 1961). Gromachey paraphrased the dictionary.[7] The judge properlyfound that Jones was as well qualified as Gromachey to testify on the industryusage of the terms stow and cargo.[8] Subject: Instructionsfor Compliance Activity Effective August 27, 1971a.Maritime Safety Standards. Maritime safety standards continue in effect underOSHA. As of August 27, 1971, coverage is extended to on-shore activities.2.Compliance Inspections. The compliance provisions of the Act, the ComplianceManual and subsequent directives are fully effective as of August 27.Priorities for compliance inspection activity and the utilization of complianceofficer time have been established. These priorities are:a.Catastrophe\/Fatality investigations.b.Response to valid complaints.c.Target industry inspections.d.General industry inspections on a inspection on a random basis.Inthe Maritime area, the program should continue in longshoring, shipyards, etc.,as in the past.[9] The Commission wascomposed of only two members between April 1977 and May 1978.[10] Cases of beer werecontained in some of the containers handled by respondent?s employees.[11] Respondent movesthat it be awarded attorney?s fees because of alleged improper conduct by the Secretaryin prosecuting this case. Even if we were persuaded by the allegation andrespondent were victorious before us, we could not grant the motion. TheCommission does not possess the authority to award such costs. John W. McGowan,77 OSAHRC 189\/E10, 5 BNA OSHC 2028, 1978 CCH OSHD ?22,268 (No. 76?1308 , 1977),appeal docketed, No. 77?3495 (5th Cir., December 27, 1977).”