“SECRETARY OF LABOR,Complainant,v.VAC-AIR ALLOYS CORPORATION,Respondent.OSHRC DOCKET NOs. 84-0058 & 84-0155_ORDER_The Commission approves the settlement agreement and amends the citationto conform to the settlement agreement. The Commission also vacates thedirection for review. Since Respondent withdraws its notice of contestto the amended citation, that citation becomes a final order.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: APR 1 1985Secretary of Labor,Complainant,-against-Vac Air Alloys Corporation,Respondent.OSHRC Docket Nos. 84-0058 and 84-0155_Stipulation and Settlement Agreement_IThe parties have reached agreement on a full and complete settlement ofthe instant matter which is presently pending before the Commission.IIThe parties stipulate as follows:(a) The Occupational Safety and Health Review Commission (hereinafter\”the Commission\”) has jurisdiction of this matter pursuant to section10(c) of the Occupational Safety and Health Act of 1970 (85 Stat. 1590;29 U.S.C. 651 _et_ _seq_.) (hereinafter \”the Act\”).(b) Respondent, Vac Air Alloys Corporation, is a corporation with itsprincipal place of business located at Falconer-Frewsburg Road inFrewsburg, New York 14738. It is engaged in the business of metalprocessing and during the course of its business its employees performvarious tasks in the nature of metal processing and cutting. During thecourse of its business, respondent, at all times material to thismatter, used materials and equipment which is received from placeslocated outside the state of New York. Respondent, as a result of theaforesaid activities, is an employer engaged in a business affectingcommerce as defined by section 3(3) and 3(5) of the Act and hasemployees as defined by section 3(6) of the Act and is subject to therequirements of the Act.(c) As a result of an inspection conducted from December 5-9, 1983 atrespondent’s facility in Frewsburg, New York, a citation for one seriousviolation was issued to respondent on December 12, 1983, along with aproposed related penalty of $360. The citation alleged a violation ofthe standard of 29 CFR 1910.212(a)(3)(ii) in that the point of operationon six (6) hydraulic shears was not guarded to prevent employees fromhaving a part of their body in the danger zone during operating cycles.(d) Respondent elected to contest the citation and the Secretary filedhis complaint in February 29, 1984. On March 6, 1984, respondent filedits answer and on July 12, 1984, a hearing was held in New York Citybefore Administrative Law Judge Richard DeBennedetto.(e) On October 30, 1984, Judge DeBennedetto issued his Decision andOrder affirming the citation and assessing the recommended $360 penalty.(f) Respondent filed a timely petition for review and on December 27,1984, Commissioner Buckley ordered a review of the judge’s decision. OnJanuary 29, 1985, a notice was issued by the Commission requestingbriefs from the parties.NOW, in order to avoid further review and litigation, the parties agreeto the following:IRespondent hereby agrees to abate the cited conditions as follows:a) Respondent will designate and install an adjustable barrier-typeguard on one of the six cited shears. (Model: Constellation 1 1\/2 -18, or models similar thereto).b) The guard shall be placed just before the point of operation in sucha manner that the operator shall be prevented from having any part ofhis body enter the point of operation during the operating cycle.c) The vertical movement of this guard shall be adjustable in such amanner as to allow at all times a minimum clearance of one quarter (1\/4)inch between the anvil of the shear and the bottom of the guard.d) The guard shall simultaneously serve as a restraining device for thepieces to be cut and at no time during the operating cycle shall thedistance between the bottom of the guard and the top of the piece to becut exceed one quarter (1\/4) inch.e) The guard shall remain immovable at all time during the operating cycle.f) At all times during the operating cycle the operator’s hands muststay clear of the guard by a distance of more than one (1) inch.Whenever the distance between the operator’s hands and the guard is lessthan that distance, hand tools must be used.g) The guarded shear will be used for all operations involving cuttingstock of four inches or less.h) operations involving cutting of stock more than four inches in lengthshall be performed on the five remaining shears which may remain unguarded.i) A plaque, prominently displayed near the shears, shall indicate thatwhen a machine is unguarded it is to be used only for cutting stock morethan four inches in length.j) A similar plaque near the guarded shear shall instruct employees thatonly a guarded shear is to be used for cutting of stock four inches orless in length. The plaque will al so caution employees never to removethe barrier guard except for routine maintenance and repairs of theguard or shear, or unless specifically directed by supervisory personnelto remove the guard in order to permit the use of the machine in anyother manner consistent with this agreement.IIComplainant hereby agrees to reduce the penalty proposed for thecitation for serious violation from $360 to $150.IIIRespondent hereby agrees to withdraw its notice of contest to thecitation as well as its Petition for Discretionary Review and submitsthat the violation of the Act as set forth in the above-mentionedcitation will be immediately abated according to the terms of thisagreement within thirty days of the execution hereof and shall remainabated.IVRespondent agrees to pay the penalty of $150 within ten (10) days afterissuance of the Commission’s order approving this Stipulation andSettlement Agreement, by mailing a check to the complainant as full andcomplete payment of the penalty.VThe parties agree that this Stipulation and Settlement Agreement appliesonly to the instant cited conditions and in no way is to be consideredprecedential or binding in other situations involving similar conditionsor machinery of this or any other employer.VIThe parties agree to bear their own attorney’s fees, expenses and costsincurred as the result of the instant litigation.VIIRespondent agrees to post this Stipulation and Settlement Agreement inaccordance with Commission Rule 7.Wherefore, the parties request that this Stipulation and SettlementAgreement be approved by the Commission.For the ComplainantCounsel for the SecretaryFor the Respondent————————————————————————“