UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60673
TRINITY MARINE NASHVILLE, INC.,
Petitioner,
VERSUS
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; ELAINE CHAO,
SECRETARY OF LABOR, US DEPARTMENT OF LABOR,
Respondents.
Petition for Review of Final Order of the Occupational Safety and
Health Review Commission
December 5, 2001
Before REAVLEY, HIGGINBOTHAM and PARKER, Circuit Judges
ROBERT M. PARKER, Circuit Judge:
Petitioner Trinity Marine Nashville, Inc., (“Trinity”) seeks
relief from the final order of an Occupational Safety and Health
Review Commission (“OSHRC”) panel upholding certain safety
violation citations against the company issued in 1997 by
inspectors of the Occupational Safety and Health Administration
(“OSHA”). These citations were based on the interpretation of the
1
Secretary of Labor (“Secretary”) of various articles of the
Occupational Safety and Health Act (“OSH Act”). We hereby REVERSE
the OSHRC final order and VACATE the citations.
I. BACKGROUND AND PROCEDURAL STATUS.
Trinity owns and operates a shipyard in Ashland City,
Tennessee, engaged in the construction of river barges which are
approximately 50 feet wide and 200 feet long. Several barges are
usually under construction at any time throughout the shipyard
facility. Because of the number of large barges and the size of
the shipyard, construction requires the extensive use of long
electrical power cables1 to run drop lights, welding machines,
grinders, fans and other equipment. One type of cable is the
familiar extension cord carrying 120-volt electricity. Over time,
the insulated extension cords are likely to become worn or frayed.
When such wearing on a cord exceeds superficial nicks and
scratches, but the cord is still salvageable, Trinity typically has
restored the cord to useful service by splicing or by wrapping the
excessively frayed length with insulated tape covered by friction
tape. Trinity, and the shipbuilding industry in general, has
followed this procedure for decades.2
1
Trinity characterizes the requirement as being for literally
miles of different types of electrical cords and cables. The
Secretary does not dispute this characterization.
2
“Industry practice has always been that a properly repaired
cable may be returned to use because after it is repaired it is no
longer worn or frayed.” See Petition for Review of Final Order of
the OSHRC, at 4. Also, “OSHA’s position [regarding repair of worn
2
To facilitate the movement of tools and personnel, the
shipyard uses portable electrical plug-in boxes. Between 50 and 60
plug-in boxes are moved to various locations as needed. These
boxes are framed of wood and contain several wired electrical
receptacles providing power to longer extension cords, cables and
tools. In 1989, an OSHA compliance inspector cited Trinity’s3 use
of these plug-in boxes because they were not waterproof. OSHA
withdrew the citations, however, upon a showing by Trinity that
metal-cased plug-in boxes were more hazardous in the shipyard
environment and that there was no safer product than the wood-
framed plug-in boxes.
On July 23, 1997, a Trinity employee was electrocuted and
killed after plugging a drop light into a plug-in box which had
been miswired. One result of this event was an immediate
investigation and inspection of the shipyard by OSHA inspectors.
At the conclusion of the inspection, OSHA issued two citations to
Trinity, each encompassing multiple items or discrepancies.
Certain of the items were withdrawn by the Secretary and the
remaining citations were tried before an Administrative Law Judge
or frayed cables] is contrary to . . . 30+ years of industry
practice . . . .” See Amicus Curiae Brief of Shipbuilders Council
of America, at 1.
3
The 1989 citation was to Trinity’s predecessor, Nashville
Bridge. Trinity’s Personnel Manager, Jim Smitson, was employed in
that capacity by Nashville Bridge also and provided testimony
regarding the imposition of the citation and the company’s
understanding of the impact of its withdrawal.
3
(“ALJ”), who affirmed them. Trinity appealed to the OSHRC, which
affirmed the findings of the ALJ.
Trinity has appealed the determination of the OSHRC to this
court. Specifically, there are two issues. First, whether an OSHA
regulation prohibiting the use of “worn or frayed” extension cords
of the type cited denies the continued use of cords repaired in the
manner described, with insulation tape and friction tape. Second,
whether Trinity was entitled to notice that OSHA had determined
that the wood-framed plug-in boxes were unsafe or otherwise
unsuitable, after having withdrawn the same citation in 1989,
before being cited in this instance.
II. Standard of Review.
We are bound by the OSHRC’s findings on questions of fact and
reasonable inferences drawn from them if they are supported by
substantial evidence on the record considered as a whole even if
this court could justifiably reach a different result de novo. See
H. B. Zachry Co. v. OSHRC, 638 F.2d 812, 815 (5th Cir. Unit A Mar.
1981); 29 U.S.C. § 660(a). The OSHRC’s legal conclusions are
reviewed as to whether they are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” See
Corbesco, Inc. v. Dole, 926 F.2d 422, 425 (5th Cir. 1991); 5 U.S.C.
§ 706(2)(A).
We review the Secretary’s interpretation of an OSHA regulation
“to assure that it is consistent with the regulatory language and
4
is otherwise reasonable.” See Martin v. OSHRC, 499 U.S. 144, 156
(1991)(emphasis in original).
III. Analysis.
A. Worn or Frayed Cord.
The regulation governing the use of cords or cables for
portable electric tools cited against Trinity by the OSHA
compliance inspector applies vertically to the ship repair,
shipbuilding and shipbreaking industry. See 29 C.F.R. § 1915.132.
It specifies that “[w]orn or frayed electric cables shall not be
used.” Id. § 1915.132(d).
The Secretary has interpreted this statement to mean that a
power cord which is worn or frayed, beyond “superficial” nicks and
impressions, may not be used under any circumstances, even if
repaired with insulating tape such that the cord is returned to its
original insulation value. The only way to preserve a worn or
frayed cable for further service, in the Secretary’s
interpretation, is to cut out the damaged portion of the cable and
attach a new plug or connector to its end. The result would be,
for instance, a formerly 100-foot long cable with a frayed spot in
the middle being turned into two nearly 50-foot long cables with
new plug connectors attached to their ends. The Secretary has not
formally expressed this interpretation.
On the other hand, Trinity’s decades-long practice had been to
repair such worn or frayed cords with insulating and friction tape.
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It was this practice which was cited by OSHA during the 1997
investigation and inspection. Trinity alleges that the practice is
a standard within the industry and that OSHA compliance inspectors
have never cited the practice during any prior inspection.
Further, Trinity challenges the interpretation as unreasonable and
in conflict with regulations generally permitting repair of other
types of electric power cables.
For example, regulations generally governing electrical
safety-related work practices regarding the use of equipment
require that:
If there is a defect or evidence of damage that might
expose an employee to injury, the defective or damaged
item shall be removed from service, and no employee may
use it until repairs and tests necessary to render the
equipment safe have been made.
See 29 C.F.R. § 1910.334(a)(2)(ii). Therefore, the regulation at
least contemplates allowing repairs to be made to electrical
equipment after a defect has been identified, rendering the
equipment safe to use. The regulations also permit splicing and
repairing:
Flexible cords shall be used only in continuous lengths
without splice or tap. Hard service flexible cords No.
12 or larger may be repaired if spliced so that the
splice retains the insulation, outer sheath properties,
and usage characteristics of the cord being spliced.
See 29 C.F.R. § 1910.305(g)(2)(ii). The types of worn and frayed
electrical cable at issue in the instant case are not necessarily
“hard service flexible cords No. 12 or larger.” The controversy,
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however, is not over splicing those cables. The controversy is
over whether Trinity may return a worn or frayed electrical cable
to service by repairing the frayed area with insulation tape such
that it retains its insulation characteristics. The regulation
just quoted is in accord with such an interest.
The parties agree that each of the regulations just quoted
apply horizontally to all workplaces while § 1915.132 applies
vertically, only to shipyards. There is also no disagreement that
a vertical regulation within an industry supercedes a general,
horizontal regulation. Regardless, where the vertical regulation
does not address material in the horizontal regulatory scheme, the
latter applies.
Even within the vertical shipyard regulations, certain repairs
may be made to electrical cables. Arc welding cables may be
spliced and/or taped when their outer insulation has been damaged.
See 29 C.F.R. § 1915.56(b); Secretary’s Post-Argument Memorandum,
at 2. In the case of a welding cable which “becomes worn to the
extent of exposing bare conductors, the portion thus exposed shall
be protected by means of rubber and friction tapes or other
equivalent insulation.” See 29 C.F.R. § 1915.56(b)(4). The
Secretary, however, argues that this standard is inappropriate when
considering worn or frayed electric extension cables because such
cables carry 120 or 240 volts of electricity. The arc welding
circuits are limited to 80 to 100 volts and typically operate at
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voltages not higher than 46 volts. Because “[t]he lower the
voltage, the lower the risk of electrocution or serious injury,”
see Secretary’s Post-Argument Memorandum at 4, the Secretary
asserts that the regulation permitting repair of the lower-voltage
welding cable is reasonable even while her interpretation of §
1915.132(d) prohibits similar repair of electrical extension cords.
This argument does not take into account the effect of the
amperage or flow of current in the respective circuits. The amount
of heat generated by an arc welder depends upon the amperage of the
current flowing through it. See Harnischfeger Corp. v. Miller
Elec. Mfg. Co., 173 F. Supp. 45, 47 (E.D. Wis. 1959). The current
generating such heat is sufficient to melt metal pieces to join
them. Id. The amperage controlling that amount of current can be
regulated over a range of values in an arc welder to meet the
requirement of the welding job while maintaining a constant
voltage. Id. Arc welders approved for use in shipyards are rated
to use from 100 to 600 amps of current in accordance with
Requirements for Electric Arc-Welding Apparatus, NEMA EW-1-1962,
part 2, page 2. See Secretary’s Post-Argument Memorandum at 3.
Thus, the power out in an arc welding circuit is a function of
controlling amperage, or current flow, with a constant voltage
which is maintained relatively low in relation to ordinary working
electrical lines.
However, even a low amperage can allow an electric arc
8
sufficient to burn or start a fire. See Howard v. Sears, Roebuck
& Co., 437 F. Supp. 883, 894 (S.D. Miss. 1977)(15-amp fuse on
household current permitted a 1500-watt electric arc causing a fire
to flash). Electric line overload will also cause a fire. See
Johnson v. Knight, 459 F. Supp. 962, 965-66 (N.D. Miss. 1978)(three
chandeliers each drawing 960 watts of power for 2880 watts total on
120-volt household power drew 24-amp current, overloading wire only
rated for 20 amps and caused fire).
Using the same formula, a welding line carrying 46 volts and
600 amps of current will produce 27,600 watts of power. The
Secretary’s argument would advise the court that this is safer than
an ordinary electrical extension cord so as to allow the repair of
the former and not of the latter when worn or frayed. Considering
that a human can be burned or electrocuted by the lower wattage
produced in household electrical circuits at low amperage, see
Johnson, supra, the Secretary’s argument is unreasonable.
The Secretary also argues that OSHA takes cost as well as
degree of risk into account in drafting safety standards. See
National Grain & Feed Ass’n v. OSHA, 903 F.2d 308, 311 (5th Cir.
1990)(safety benefits of OSHA standard must be reasonably related
to its costs). Therefore, the Secretary cites the cost of
replacing welding cables, which are much thicker because they carry
a much higher current and thus are more expensive than extension
cords, in conjunction with the “lower risk of injury from welding
9
cables,” as a reasonable justification for allowing their repair.
The Secretary’s cost-risk analysis does not compare the actual
volume of welding cables used in the Trinity shipyard, nor any
other shipyard, to the total number of electrical cables used and
their related costs. Admittedly, there are “miles” of electrical
cables in use at Trinity. Without reviewing the actual cost
involved in removing a worn or frayed extension cord from service,
or the cost of cutting out portions of such cords to attach a new
plug connector and thereby shortening the useable cable, the
Secretary’s cost-risk analysis has little meaning in this context
and is unreasonable.
Finally, the Secretary’s interpretation of § 1915.132(d) must
be consistent with its regulatory language. In this case, the
Secretary interprets the phrase, “[w]orn or frayed electric cables
shall not be used” to mean that such cables cannot be repaired so
as to keep them intact. The language does not, however,
specifically impart that meaning. The Secretary admits that OSHA
has cited violations of § 1915.132(d) on 76 occasions in the 30
years prior to this appeal, none of which occurred at the Trinity
facility. None of those earlier citations are in the record to
show whether they addressed the type of repairs under review here.
As the Secretary points out, an agency interpretation must be
expressed in a formal, authoritative manner. Paralyzed Veterans of
America v. D.C. Arena L.P., 117 F.3d 579, 587 (D.C. Cir. 1997).
10
There, petitioners were not entitled to rely on a position taken in
a speech by a mid-level agency official in the face of a formal
technical assistance manual which had been previously published.
As that court stated, if the supplement had not been issued
beforehand, the comments in the speech might have taken on added
significance. Id. Here, there was no formal general announcement
made of the Secretary’s interpretation of § 1915.132(d) before the
citation to Trinity was issued. The first time such an
interpretation was formally made was in an OSHA Standards
Interpretation and Compliance Letter dated January 16, 1998, which
addressed a similar regulation, but not specifically the shipyard
regulation in controversy here. When viewed in connection with §
1915.56(b)(4), and without other formal guidance, the reasonable
shipyard employer could well understand the Secretary interpreted
§ 1915.132(d) as a consistent part of the same overall regulatory
scheme.
On the bases that the Secretary’s interpretation of 29 C.F.R.
§ 1915.132(d) in terms of safety and cost is unreasonable and that
it is inconsistent with the overall, formally published regulatory
scheme, this citation is vacated.
B. Wood-framed Plug-in Boxes.
OSHA cited Trinity for its use of wood-framed electrical plug-
in boxes in the shipyard on the basis that they are not waterproof:
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Enclosures for damp or wet locations. (1)
Cabinets, cutout boxes, fittings, boxes, and
panelboard enclosures in damp or wet locations
shall be installed so as to prevent moisture
or water from entering and accumulating within
the enclosures. In wet locations the
enclosures shall be weatherproof. (2)
Switches, circuit breakers, and switchboards
installed in wet locations shall be enclosed
in weatherproof enclosures.
See 29 C.F.R. § 1910.305(e).
In a 1989 inspection, OSHA cited Nashville Bridge’s use of the
same wood-framed plug-in boxes for reasons similar to those herein.
During a subsequent, informal conference, OSHA withdrew the
citation. Trinity acquired Nashville Bridge in 1995. Personnel
Director Jim Smitson was present during the 1989 OSHA inspection
and testified that it was his, and Trinity’s, understanding that
the wood-framed boxes were satisfactory for use in the shipyard.
OSHA never cited the use of the boxes during any other compliance
inspection undertaken after 1989. The Secretary now contends that
the boxes are unsafe in accordance with § 1910.305(e) and that
OSHA’s withdrawal of its 1989 citation did not impute a seal of
approval because OSHA did not specifically tell Trinity that the
boxes were fit for use.
A common requirement for the promulgation of interpretations
and decrees by an administrative agency is that of notice to the
regulated parties. See Satellite Broadcasting Co., Inc. v. FCC,
824 F.2d 1, 4 (D.C. Cir. 1987)(if an agency “wishes to use [an]
interpretation to cut off a party’s right, it must give full notice
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of its interpretation”).
The Secretary is entitled to use the citation process to
provide the initial publication of a previously unannounced
interpretation of an OSH regulation in accordance with the
requirements of 29 U.S.C. § 658(a). See Martin, 499 U.S. at 157
(when embodied in a citation, the Secretary’s interpretation
assumes a form expressly provided for by Congress). However, the
Secretary’s “decision to use a citation as the initial means for
announcing a particular interpretation may bear on the adequacy of
notice to regulated parties, the quality of the Secretary’s
elaboration of pertinent policy considerations and on other factors
relevant to the reasonableness of the Secretary’s exercise of
delegated lawmaking powers.” Id. at 158 (citations omitted). When
reviewing such actions, a court may examine prior interpretations,
even those which were published by less formal means, to determine
whether the Secretary has consistently applied the interpretation
embodied in the citation, as a factor bearing on the reasonableness
of the Secretary’s position. Id. at 157.
Where a company has been informed by an OSHA inspector that
its procedures or processes are safe and satisfactory, the company
has a valid fair notice complaint if cited for the same procedures
in a later inspection. See Secretary of Labor v. Miami Industries,
Inc., 15 O.S.H. Cas. (BNA) 1258 (Rev. Comm’n 1991), aff’d in part,
983 F.2d 1067 (6th Cir. 1992)(where company had explicitly been
13
told by compliance inspector that its machine guarding installation
was satisfactory but was later cited for the same installation, the
citation was withdrawn on fair notice grounds). The Secretary
distinguishes the instant case, however, because Trinity was not
explicitly told that the wood-framed plug-in boxes were
satisfactory under § 1910.305(e). We hold that the circumstances
of this case are sufficient to show that Trinity had a fair
expectation that OHSA found the electrical boxes satisfactory for
use under § 1910.305(e) when OHSA withdrew its citation in 1989.
Section 1910.305 is a general regulation governing electrical
wiring methods, components and equipment for general use.
Subsection (e) specifically governs electrical enclosures for use
in damp or wet locations. A shipyard, such as Trinity, is
inherently a wet location. That condition may pertain because some
of the work is conducted outdoors or because the barges, still
under construction, may be placed in the water or floated.
Trinity’s predecessor, Nashville Bridges, was cited for the use of
the wood-framed boxes in that type of wet environment, specifically
because it was a wet environment. The citation was later
withdrawn. The Secretary argues that OSHA did not explicitly state
the boxes were satisfactory for continued use; there is, however,
no dispute that OSHA did not proclaim that the boxes were
unsatisfactory for continued use, either. When viewed in the “wet
environment” context of § 1910.305(e) and with Trinity’s status as
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a shipyard, OSHA’s failure to specifically warn Trinity that the
boxes did not conform to that section while withdrawing the
citation is implicit, if not explicit, approval. Trinity is
entitled to notice that OSHA considered the boxes unsafe in the wet
environment after such implicit approval.
The Secretary has the right to interpret § 1910.305(e) in the
manner briefed to this court. Further, OSHA has the right to cite
nonconforming business entities for safety related regulatory
violations. This court can imagine that a compliance inspector
could enter Trinity’s workplace, for example, and determine that
some number of the wood-framed plug-in boxes had deteriorated or
were broken open and therefore were not in proper operating
condition for the wet environment and justifiably cite the
transgression. From the photos in the record, some of the boxes
appeared to be in such a condition. That is not, however, what
OSHA did. Instead, it cited the boxes as being a per se violation
because unpainted wood is not waterproof. That may be a reasonable
interpretation of § 1910.305(e). Because OSHA at least implicitly
approved the use of the boxes in similar conditions, under which it
would reasonably expect a shipyard to continue operating, such an
interpretation now is not a consistent application of the
interpretation applied earlier. On that basis, the Secretary’s
position, now, that Trinity should be cited for using the boxes,
and the use of a punitive citation to initially publish such an
15
interpretation, is unreasonable. See Martin, 499 U.S. at 157.
The 1997 interpretation regarding wood-framed electric plug-in
boxes was initially published as a citation against Trinity after
Trinity’s prior use of those boxes was implicitly approved in 1989.
That interpretation is inconsistent and therefore unreasonable.
Trinity did not have fair notice of the differing interpretation.
This citation is vacated.
IV. Conclusion.
For the reasons stated herein, we hold that the Secretary’s
interpretation of 29 C.F.R. § 1915.132(d) was unreasonable as
applied to electric cable repairs and that Trinity did not have
fair notice that its use of wood-framed plug-in boxes violated 29
C.F.R. § 1910.305(e). The penalties assessed against Trinity on
those bases must be set aside. Therefore, the opinion of the
Occupational Safety and Health Review Commission is hereby REVERSED
and the citations issued against Trinity are hereby VACATED.
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