WESTBURNE DRILLING, INC. �

OSHRC Docket No. 15631

Occupational Safety and Health Review Commission

May 10, 1977

� [*1] �

Before: BARNAKO, Chairman; and CLEARY, Commissioner. �

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Assoc. Reg. Sol., USDOL

Donald R. Winship, for the employer

OPINION:

DECISION

BY THE COMMISSION: This case is before the Commission pursuant to a sua sponte order for review. � Only items 1, 2, and 8 of a nonserious citation were in issue before the Judge, who vacated items 1 and 2, affirmed item 8 as a de minimis violation, and assessed no penalty.

In its review brief, respondent contends that vacation of all of the aforementioned items is warranted for several different reasons. � Complainant has not taken exception to the Judge's decision.

When a violation is classified as de minimis, there is no penalty assessment nor any requirement to abate the alleged violative condition. � National Rolling Mills Co., 76 OSAHRC 121/D7, 4 BNA OSHC 1719, CCH OSHD para. 21, 114 (No. 7987, 1976). � Furthermore, de minimis violations cannot be used in future proceedings as evidence of a history of previous violations, which is one of the criteria specified in 29 U.S.C. � � 661(i) for consideration in assessing an appropriate penalty.

Since Complainant does not take issue with the [*2] � Judge's disposition and respondent is not specifically prejudiced thereby, the Commission declines to pass upon, modify, or change the Judge's decision. � See Weyerhaeuser Co., 5 BNA OSHC    , CCH OSHD para.     (No. 11869, 1977); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, CCH OSHD para. 20,508 (No. 3336, 1976). � See also Keystone Roofing Co. v. OSAHRC, 539 F.2d 960, 964 (3d Cir. 1976).

Accordingly, the Judge's decision is affirmed. �