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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2003 Decided March 19, 2004
No. 02-1307
S.A. STORER AND SONS CO.,
PETITIONER
v.
SECRETARY OF LABOR,
RESPONDENT
On Petition for Review of an Order of the
Occupational Safety and Health Review Commission
Roger L. Sabo argued the cause for the petitioner.
John Shortall, Attorney, United States Department of La-
bor, argued the cause for the respondent. Joseph M. Wood-
ward, Associate Solicitor, and Ann S. Rosenthal, Counsel,
United States Department of Labor were on brief. Charles
F. James, Attorney, United States Department of Labor,
entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: HENDERSON, TATEL and ROBERTS, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: S.A. Storer
and Sons Co. (Storer) petitions for review of the citation it
received from the Occupational Safety and Health Adminis-
tration (OSHA), alleging that it had violated the Occupational
Safety and Health Act of 1970 (OSH Act or Act)1 by failing to
protect its employees from two fall hazards as they per-
formed masonry work. Storer contested the citation, which
required the Secretary of the United States Department of
Labor (Secretary), from whom OSHA receives its rulemaking
and enforcement authority, to prove the violation at a hearing
before an Administrative Law Judge (ALJ) of the Occupa-
tional Safety and Health Review Commission (Commission).2
The citation was affirmed by the ALJ and ultimately by the
Commission, which denied review of the ALJ’s decision.
Storer claims the Secretary erroneously interpreted the appli-
cable OSHA regulations. We agree in part; accordingly, we
vacate the Commission’s order and remand to that body for
further proceedings consistent with this opinion.
I.
The OSH Act is ‘‘designed ‘to assure so far as possible TTT
safe and healthful working conditions’ for ‘every working man
and woman in the Nation,’ ’’3 and generally obligates an
employer to furnish a workplace ‘‘free from recognized haz-
ards that are TTT likely to cause death or serious physical
harm.’’ 29 U.S.C. § 654(a)(1). In furtherance of the Act’s
overriding objective, the Secretary is authorized to promul-
gate and enforce workplace safety regulations, see id.
§§ 655(b), 658–59, 666, which authority she has largely dele-
1 29 U.S.C. §§ 651 et seq.
2 Am. Wrecking Corp. v. Sec’y of Labor, 351 F.3d 1254, 1261 (D.C.
Cir. 2003).
3Martin v. Occupational Safety & Health Review Comm’n, 499
U.S. 144, 147 (1991) (quoting 29 U.S.C. § 651(b)); see also Am.
Wrecking Corp., 351 F.3d at 1260.
3
gated to OSHA. A.J. McNulty & Co. v. Sec’y of Labor, 283
F.3d 328, 330 (D.C. Cir. 2002) (citing 65 Fed. Reg. 50,017
(2000)); see also Am. Wrecking Corp. v. Sec’y of Labor, 351
F.3d 1254, 1260 (D.C. Cir. 2003). OSHA compliance officers
inspect workplaces regularly and, if warranted, issue citations
for violations of OSHA’s regulations. A.J. McNulty & Co.,
283 F.3d at 330.
At issue are OSHA’s regulations designed to provide fall
protection for construction workers, see 29 C.F.R.
§§ 1926.451, 1926.501; specifically, the protective measures
required when an employee performs ‘‘overhand bricklaying’’4
while on a scaffold. Id. § 1926.451(g)(1)(vi). Paragraph
(g)(1) of section 1926.451 provides that ‘‘[e]ach employee on a
scaffold more than 10 feet (3.1 m) above a lower level shall be
protected from falling to that lower level.’’ Id.
§ 1926.451(g)(1). Section 1926.451(g)(1)(vi) requires that an
employee doing overhand bricklaying ‘‘from a supported scaf-
fold shall be protected from falling from all open sides and
ends of the scaffold (except at the side next to the wall being
laid) by the use of a personal fall arrest system or guardrail
system.’’ Id. § 1926.451(g)(1)(vi). The meaning of the excep-
tion is the central issue in this case, as becomes clearer below.
Storer is a masonry contractor operating in Ohio and
Michigan. It has been doing business for over 40 years and
currently has approximately 80 to 90 employees on its payroll.
In May 2001 Storer was hired by Bostleman Corporation (the
general contractor) to perform the masonry work for the
construction of a Farmer Jack’s grocery store, located at the
corner of Cherry and Bancroft Streets in Toledo, Ohio. Four
masons and three mason tenders carried out the work, which
4 ‘‘Overhand bricklaying’’ is ‘‘the process of laying bricks and
masonry units such that the surface of the wall to be jointed is on
the opposite side of the wall from the mason, requiring the mason to
lean over the wall to complete the work. It includes mason tending
[assisting the bricklayers by, inter alia, maintaining supplies of
bricks and mortar] and electrical installation incorporated into the
brick wall during the overhand bricklaying process.’’ Id.
§ 1926.450(b).
4
involved erecting the building’s load-bearing, concrete-block
walls and ultimately putting a brick veneer on the building.5
When completed, the building measured 191 feet wide and
291 feet long and its walls were comprised of approximately
32,000 concrete blocks.
While Farmer Jack’s was under construction, two OSHA
compliance officers, Todd Jensen and Walter Visage, paid an
unannounced visit to the site. On June 14, 2001 Jensen and
Visage drove past the Farmer Jack’s site—and observed what
they thought were potential fall hazards—while returning to
their office from an inspection at another location. Their
observations prompted them to investigate further; accord-
ingly, they parked their car on a side street at a distance of
50 yards from the site and used a handheld video recorder to
document what they saw.
They observed at least five Storer employees on a scaffold
laying the concrete blocks of the building’s south-facing wall.
The employees were not tied off, that is, they were not using
a personal fall arrest system,6 and the scaffold lacked guard-
rails. The scaffold, which was located at the top of a mezza-
nine level approximately 14 feet above ground and which was
inside the building’s footprint,7 consisted of two ‘‘frames’’
(each approximately six feet tall). The employees stood on
the bottom frame while they worked, which put them approxi-
mately six feet above the mezzanine level. The placement of
the scaffold required the masons to lay the concrete blocks by
the ‘‘overhand bricklaying’’ method.8 That is, after setting
5 The OSHA violations at issue here arose in connection with the
laying of concrete blocks to erect the building’s exterior walls.
6 A ‘‘personal fall arrest system’’ is ‘‘used to arrest an employee’s
fall’’ and ‘‘consists of an anchorage, connectors, a body belt or body
harness and may include a lanyard, deceleration device, lifeline, or
combination of these.’’ 29 C.F.R. § 1926.450(b).
7 Nearby power lines prevented the scaffold from being placed
outside the building.
8 OSHA’s regulations define ‘‘overhand bricklaying’’ as the ‘‘pro-
cess of laying bricks and masonry units.’’ 29 C.F.R. § 1926.450(b).
5
each concrete block in mortar, the masons had to lean over
the wall in order to strike the joints (i.e., work the mortar
into the interstices between the blocks using a concave tool)
on the wall’s face because the scaffold faced the inside of the
wall under construction.
From their vantage point, Jensen and Visage identified two
potential fall hazards that the employees working on the
scaffold were exposed to. The first was a window opening in
the wall under construction. They recorded Storer’s employ-
ees laying concrete blocks near the window opening; the
video shows one employee standing in front of the opening
and another walking by it. The second hazard was the
‘‘materials staging area’’—i.e., the area used to store both the
concrete blocks to be installed and a large vat of mortar—
located on the scaffold at the western end of the wall and
running perpendicular to it. One employee stood at the edge
of the scaffold next to the mortar vat while another lifted
concrete blocks onto the staging area from below. Both
locations—the window opening and the materials staging
area—were unguarded, that is, there was no fall protection.
The OSHA officials then decided to inspect the Farmer Jack’s
site; they spoke with members of both Bostleman and Storer
management as well as a consultant to Bostleman and they
measured the distance to the ground from the two open
areas. According to their measurements, the window open-
ing in the wall exposed the Storer employees to a fall of 19.5
feet and those employees in the materials staging area risked
a fall of 20 feet.
On August 1, 2001 OSHA cited Storer, alleging that Storer
had violated 29 C.F.R. § 1926.451(g)(1) by failing to provide
fall protection for its employees on the scaffold. The citation
proposed a $6,000.00 penalty for Storer’s ‘‘repeat’’9 violation.
The ALJ determined, not surprisingly, that concrete blocks are
masonry units. See Sec’y of Labor v. S.A. Storer & Sons Co., 19
O.S.H. Cas. (BNA) 2077, 2002 WL 31041865, at *3 (ALJ 2002).
9The citation was labeled ‘‘repeat’’ because Storer had been
previously cited for a ‘‘substantially similar’’ violation of 29 C.F.R.
§ 1926.451(g)(1). See S.A. Storer & Sons Co., 2002 WL 31041865,
6
Storer contested the citation, which triggered the hearing
before the ALJ. See 29 U.S.C. § 659(c).
On March 1, 2002 the ALJ held a one-day hearing in
Toledo, after which he affirmed the citation. See Sec’y of
Labor v. S.A. Storer & Sons Co., 19 O.S.H. Cas. (BNA) 2077,
2002 WL 31041865, at *1, *6–7 (ALJ 2002). Before the ALJ,
Storer contended that it was exempt from having to protect
its employees from the two fall hazards identified by Jensen
and Visage—the unguarded window opening and materials
staging area—because the employees were performing over-
hand bricklaying. Id. at *1. In his decision, the ALJ agreed
that Storer’s employees were performing overhand bricklay-
ing but concluded that the overhand bricklaying exception
offered Storer no defense because the employees were not
laying blocks at the window opening or in the materials
staging area.10 Id. at *3. Storer additionally maintained that
it had complied with the fall protection standard by establish-
ing a ‘‘controlled access zone’’ (CAZ) on the mezzanine level.
Id. at *4. The ALJ disagreed, explaining that, under the
governing regulations, ‘‘the use of a CAZ as an alternative
means of fall protection is not applicable in this case.’’11 Id.
at *5. The ALJ therefore affirmed the citation and assessed
a $3,500.00 penalty. Id. at *6–7.
Storer petitioned the Commission for discretionary review
of the ALJ’s decision, see 29 C.F.R. § 2200.91, but the
Commission declined and instead, on September 5, 2002,
adopted the ALJ’s decision. See 29 U.S.C. § 661(j). Storer’s
at *5–6. The earlier citation involved an unguarded scaffold located
more than ten feet above ground at another worksite in Toledo. Id.
at *6.
10 With respect to the materials staging area, the ALJ also
rejected Storer’s claim that the mortar vat and concrete blocks
served as adequate fall protection. Id. at *4. Storer has not
challenged that determination.
11The ALJ held that, under section 1926.451, an employer may
not use a CAZ to protect its employees performing overhand
bricklaying while on a scaffold. Id.; see discussion infra at II.B.
7
petition for review of the Commission’s order is now before us
pursuant to 29 U.S.C § 660(a).
II.
The resolution of this case is governed by the ordinary
standard of review of an administrative agency’s action with
one exception. See A.J. McNulty & Co., 283 F.3d at 331;
Montgomery KONE, Inc. v. Sec’y of Labor, 234 F.3d 720, 722
(D.C. Cir. 2000). We review the actions of two separate
entities charged with different regulatory functions under the
OSH Act: the Secretary promulgates and enforces regula-
tions while the Commission exercises the fact-finding and
adjudicatory authority. Montgomery KONE, Inc., 234 F.3d
at 722. We will not disturb the Commission’s factual findings
if they are ‘‘supported by substantial evidence on the record
considered as a whole,’’ 29 U.S.C. § 660(a); A.J. McNulty &
Co., 283 F.3d at 331; we also leave its legal conclusions intact
unless they are ‘‘arbitrary, capricious, TTT or otherwise not in
accordance with law.’’ 5 U.S.C. § 706(a)(2); A.J. McNulty &
Co., 283 F.3d at 331. An agency’s interpretation of its own
regulations is entitled to ‘‘substantial deference’’ and even
receives ‘‘ ‘controlling weight unless it is plainly erroneous or
inconsistent with the regulation.’ ’’12 Here, only the Secre-
tary’s interpretations receive this level of deference because
she alone ‘‘has authority to make enforcement decisions and
to render definitive interpretations of OSHA regulations.’’
A.J. McNulty & Co., 283 F.3d at 331 (citing Martin v.
Occupational Safety & Health Review Comm’n, 499 U.S. 144,
151–57 (1991)). The Commission ‘‘has no more authority to
depart from the Secretary’s interpretations of OSHA regula-
tions than do we,’’ S.G. Loewendick & Sons, Inc. v. Reich, 70
12 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)
(quoting Udall v. Tallman, 380 U.S. 1, 16–17 (1965)); see Martin v.
Occupational Safety & Health Review Comm’n, 499 U.S. 144, 150–
51 (1991) (‘‘court should give effect to agency’s interpretation TTT so
long as the interpretation ‘sensibly conforms to the purpose and
wording of the regulations’ ’’ (quoting N. Ind. Pub. Serv. Co. v.
Porter County Chapter of Izaak Walton League of Am., Inc., 423
U.S. 12, 15 (1975))).
8
F.3d 1291, 1294 (D.C. Cir. 1995), and its interpretation of the
OSHA regulations is treated like that of the ‘‘nonpolicymak-
ing’’ district court. Martin, 499 U.S. at 154; Molineaux v.
United States, 12 F.3d 264, 267 (D.C. Cir. 1994). Storer does
not contest the findings of fact;13 the interpretations at issue
were advanced by the Secretary before the Commission and
in her brief to us.14 See Secretary’s Post-hearing Brief at 6–
7; Respondent’s Br. at 14–18.
Keeping these principles in mind, we turn to Storer’s two
claims. Storer first alleges that the Commission’s affirmance
of the OSHA citation for violating the fall protection standard
at the window opening cannot stand because it erroneously
interprets the exception contained in section
1926.451(g)(1)(vi). Second, Storer challenges the Commis-
sion’s affirmance of the OSHA citation for the violation of the
fall protection standard at the materials staging area, assert-
ing that the Commission erroneously concluded that Storer
did not meet the fall protection requirement by establishing a
CAZ on the mezzanine level.
A.
The Commission agreed with the Secretary that Storer did
not fit section 1926.451(g)(1)(vi)’s exception from fall protec-
tion for overhand bricklayers working on a scaffold next to
the wall being built because its ‘‘employees were not engaged
in overhand laying of concrete blocks at the window opening.’’
S.A. Storer & Sons Co., 2002 WL 31041865, at *3. Storer
13 In its opening brief, Storer stated that ‘‘[t]he factual findings
are not in dispute.’’ Petitioner’s Br. at 15.
14 See Martin, 499 U.S. at 157 (‘‘Secretary’s interpretation of
OSH Act regulations in an administrative adjudication, however, is
agency action, not a post hoc rationalization of it’’ and ‘‘the Secre-
tary’s litigating position before the Commission is as much an
exercise of delegated lawmaking powers as is the Secretary’s pro-
mulgation of a workplace health and safety standard’’ (emphasis in
original)); S.G. Loewendick & Sons, Inc., 70 F.3d at 1298 (‘‘Secre-
tary certainly has the authority to offer definitive interpretations in
the context of litigation’’).
9
charges that, in so concluding, the Commission effectively
‘‘eliminate[d]’’ the exception. Petitioner’s Br. at 18–19. In
Storer’s view, the exception means just what it says: no fall
protection is required ‘‘at the side next to the wall being laid,’’
including at any opening in the wall. Id. The Secretary
views the matter differently.
In her brief, the Secretary supplies a more thoroughgoing
explication of the exception than the one she put forth before
the Commission. Respondent’s Br. at 14–18. The Secretary
now explains that the exception ‘‘reflects a practical accommo-
dation’’ and is thus ‘‘limited’’ to the situation in which ‘‘the
presence of a guardrail between the mason and the wall being
laid would interfere with or prevent the process of setting and
mortaring the masonry.’’ Id. at 14 (internal quotation omit-
ted). Accordingly, the Secretary tells us, ‘‘if there is an
opening TTT where wall is not being laid, then no deviation
from the mandate that each employee performing [overhand]
bricklaying shall be protected from falling is justified.’’ Id. at
15 (internal quotation omitted). The Secretary further as-
serts that Storer finds an ‘‘unlimited exemption’’ in a ‘‘mere
parenthetical,’’ which ‘‘swallow[s]’’ the general requirement
for fall protection and is ‘‘without practical or policy justifica-
tion, does not promote worker safety, and must be rejected.’’
Id. at 12, 17–18.
We believe the Secretary’s interpretation does not ‘‘ ‘sensi-
bly conform[ ] to the purpose and wording of the regula-
tion[ ].’ ’’ See Martin, 499 U.S. at 151 (quoting N. Ind. Pub.
Serv. Co., 423 U.S. at 15). Section 1926.451(g)(1)(vi) provides
that an employee performing overhand bricklaying from a
scaffold must be protected from falling—by way of a personal
fall arrest system or a guardrail—‘‘from all open sides and
ends of the scaffold TTT except at the side next to the wall
being laid.’’ 29 C.F.R. § 1926.451(g)(1)(vi) (emphasis added).
Under the plain language of the regulation, then, an employer
need not provide fall protection for an overhand bricklayer
‘‘at the side [of the scaffold] next to the wall being laid.’’ Id.
When OSHA promulgated the regulation in 1996, it explained
that ‘‘[p]aragraph (g)(1)(vi) of the final rule provides that fall
protection (i.e., a personal fall arrest system or guardrail) be
10
provided on all open sides and ends of scaffolds from which
employees are performing overhand bricklaying operations
and/or related work, except those sides and ends next to the
wall being laid.’’ Safety Standards for Scaffolds Used in the
Construction Industry, Final Rule, 61 Fed. Reg. 46,026,
46,066 (Aug. 30, 1996), available at 1996 WL 491490.
The Secretary, however, interprets the exception to mean
that fall protection is required ‘‘at the side next to the wall
being laid’’ except where it would interfere with or prevent
the performance of the masonry work.15 See Secretary’s
Post-hearing Brief at 6; Respondent’s Br. at 15. By reading
paragraph (g)(1)(vi) to require fall protection at the side next
to the wall being laid except where it would impede masonry
work being performed there, the Secretary inverts the plain
language of the exception, which unmistakably says that is
the one place that fall protection is not required. Because
the Secretary’s interpretation is incompatible with the excep-
tion’s plain language, we cannot accept it. See Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); S.G.
Loewendick & Sons, Inc., 70 F.3d at 1294–96.
The Secretary maintains that her interpretation is sup-
ported by the preamble to the regulation, which states in
part, ‘‘[t]he requirements for fall protection will apply at
openings such as TTT openings in the walls of the structure
surrounding the platform.’’ 61 Fed. Reg. at 46,066. Read in
its entirety, however, the preamble provides that ‘‘[p]ara-
graph (g)(1) does not apply where there are no ‘open sides or
ends’ on the scaffold,’’16 but ‘‘will apply at openings such as
hoistways, elevator shafts, stairwells, or similar openings in
15 The Secretary’s counsel confirmed this view at oral argument.
Recording of Oral Argument at 18:03 (‘‘[T]he fall protection is
required everywhere that actual overhand bricklaying is not being
conducted.’’).
16‘‘Open sides and ends’’ are generally those ‘‘edges of a platform
that are more than 14 inches (36 cm) away horizontally from a
sturdy, continuous, vertical surface (such as a building wall) or a
sturdy, continuous horizontal surface (such as a floor), or a point of
access.’’ 29 C.F.R. § 1926.450(b).
11
the scaffold platform, or openings in the walls of the structure
surrounding the platform.’’ Id. (emphasis added). Thus the
preamble refers to the fall protection requirement applicable
to openings in a scaffold that is otherwise ‘‘completely en-
closed,’’17 not to the fall protection required for overhand
bricklayers working at the side of a scaffold next to the wall
being laid. Id. Moreover, in contrast to that part of the
preamble applicable to a ‘‘completely enclosed’’ scaffold, the
portion of the preamble dealing specifically with paragraph
(g)(1)(vi) is unqualified: it provides simply that ‘‘fall protec-
tion TTT [must] be provided on all open sides and ends of
scaffolds TTT except those sides and ends next to the wall
being laid.’’ See id. (emphasis added).
The Secretary also contends that the ‘‘unlimited exemp-
tion’’ Storer advocates would ‘‘deny[ ] fall protection to all
masons working on scaffolds’’ and is ‘‘without practical or
policy justification.’’ Respondent’s Br. at 12, 18. Regarding
the Secretary’s first contention, not only does the Secretary
distort Storer’s position—it seeks to do only what the words
of the exception allow it to do, see 29 C.F.R.
§ 1926.451(g)(1)(vi)—but Storer can hardly be blamed if
OSHA’s wording falls wide of its mark. Diamond Roofing
Co. v. Occupational Safety & Health Review Comm’n, 528
F.2d 645, 649 (5th Cir. 1976) (‘‘If a violation of a regulation
subjects private parties to criminal or civil sanctions, a regu-
lation cannot be construed to mean what an agency intended
but did not adequately express.’’). The Secretary may be
dissatisfied with the regulation’s current formulation; if so,
OSHA can amend or eliminate it. But she cannot do so by
ascribing a meaning to words they simply do not have. As to
the Secretary’s second allegation, it is her own interpretation
that disregards the policy justifications supporting the excep-
tion. As the Secretary recognizes, see Respondent’s Br. at 15
n.8, two practical considerations undergird the exception from
the fall protection standard for overhand bricklayers working
17According to OSHA, a scaffold is ‘‘completely enclosed’’ if ‘‘no
perimeter face of the scaffold [is] more than 14 inches from a wall.’’
61 Fed. Reg. at 46,066.
12
at the side of the scaffold next to the wall being laid: first,
the use of a conventional fall protection system often is
infeasible; second, such a system may itself pose a fall
hazard. OSHA has explained that
[w]hile the use of guardrails, body belts, body harnesses,
and safety nets is allowed during overhand bricklaying,
the use of such systems often is not feasible. Guardrails
pose obvious interference problems and safety nets can-
not be attached to many load-bearing or other brick walls
as such walls are not capable of supporting the loads
imposed by a net system. Body belt/harness systems
often become entangled in close quarters and in those
cases where suitable anchorages can be found, lanyards
and lifelines pose serious tripping hazards to the mason
tenders who could themselves trip and go over the
edge.18
According to OSHA’s own observations, then, requiring fall
protection along the side of the scaffold next to the wall being
laid, except where the bricklayers are in fact working at any
moment (as the Secretary’s interpretation purports to re-
quire), raises a serious feasibility issue and may even increase
the fall hazard.19
18 Safety Standards for Fall Protection in the Construction In-
dustry, Notice of Proposed Rulemaking, 51 Fed. Reg. 42,718, 42,722
(Nov. 25, 1986), available at 1986 WL 116297; see also Safety
Standards for Fall Protection in the Construction Industry, Final
Rule, 59 Fed. Reg. 40,672, 40,688 (Aug. 9, 1994), available at 1994
WL 411799 (a conventional fall protection system ‘‘sometimes is not
feasible when overhand bricklaying and related operations are
taking place’’ because ‘‘guardrails may interfere with the perform-
ance of work; safety net systems often cannot be safely attached to
or supported by the structure; and personal fall arrest systems
often become tangled or pose serious trip and fall hazards’’).
19The fall protection standard applicable to overhand bricklaying
performed from a scaffold and the standard applicable to the same
work but performed from other elevated surfaces found their way
into different subparts of OSHA’s regulations applicable to the
construction industry: the standard for overhand bricklaying from
a scaffold ended up in subpart L, see 29 C.F.R. § 1926.451(g)(1)(vi),
13
The Secretary’s interpretation of her regulations must ‘‘re-
flect clear, rational decisionmaking that gives regulated mem-
bers of the public adequate notice of their obligations.’’ S.G.
Loewendick & Sons, Inc., 70 F.3d at 1297. Neither the
Secretary’s nor the Commission’s interpretation of the excep-
tion contained in paragraph (g)(1)(vi) does so. Because the
Commission erroneously interpreted paragraph (g)(1)(vi), see
S.A. Storer & Sons Co., 2002 WL 31041865, at *3, we vacate
its order with respect to the window opening area of the wall
being laid. S.G. Loewendick & Sons, Inc., 70 F.3d at 1292,
1298.20 We now turn to Storer’s challenge regarding the
materials staging area of the scaffold.
while the standard for overhand bricklaying from other elevated
surfaces is included in subpart M, see 29 C.F.R. § 1926.501(b)(9).
The two-branched standards nevertheless grew from a common
policy stalk. In its proposed subpart L standards for scaffolds
(published in the Federal Register on the same day as its proposed
subpart M standards), OSHA explained that the ‘‘[r]equirements to
protect employees performing overhand bricklaying operations from
supported scaffolds are provided in § 1926.501 [in subpart M],’’
Safety Standards for Scaffolds Used in the Construction Industry,
Notice of Proposed Rulemaking, 51 Fed. Reg. at 42,680, 42,707
(Nov. 25, 1986), available at 1986 WL 116296, which suggests that
at one point the fall protection standards for overhand bricklay-
ing—whether performed from a scaffold or another elevated sur-
face—reflected common concerns. That the two standards continue
to reflect common concerns is plain from OSHA’s statement in the
preamble accompanying the subpart L regulations that ‘‘[p]ara-
graph (g)(1)(vi) of the final rule is consistent with § 1926.501(b)(9),
which addresses fall protection for employees performing overhand
bricklaying while on elevated surfaces other than scaffolds.’’ 61
Fed. Reg. at 46,066. Given this statement, plus the fact that OSHA
offered no other justification for excepting fall protection ‘‘at the
side next to the wall being laid,’’ 29 C.F.R. § 1926.451(g)(1)(vi), we
cannot but conclude that the exception reflects the same safety and
feasibility concerns that underlie the subpart M fall protection
standard for overhand bricklaying. To be clear, however, we do not
embrace any policy preference. The Secretary is free, so far as the
court is concerned, to advance one objective (safety) instead of
another (efficiency). The Secretary cannot do so, however, through
an interpretation that flouts the exception’s plain language.
20At oral argument, Storer asserted that its employees were
doing overhand bricklaying along the building’s western wall near
14
B.
Storer also maintains that it provided fall protection at the
materials staging area by establishing a CAZ on the mezza-
nine level. Petitioner’s Br. at 20. The gist of Storer’s
position appears to be that CAZs ‘‘are specifically permitted
when used to control access to areas where overhand brick-
laying and related work are taking placeTTTT The regula-
tions for [CAZs] do not make an exception for when overhand
bricklaying is performed from scaffolds. Nor could
[they]TTTT’’ Id. at 13–14; see also id. at 20. The Commis-
sion rejected this argument, S.A. Storer & Sons Co., 2002 WL
31041865, at *4, and so do we; it founders because it disre-
gards the plain language of the applicable regulations. See
29 C.F.R. §§ 1926.451(g)(1)(vi), 1926.500(a)(2)(i),
1926.501(b)(9) note.
OSHA’s fall protection regulations provide that an employ-
er may, in certain instances, see id. § 1926.501(b)(2)(i), (9)(i),
(12)-(13), safeguard its employees working in construction
areas by establishing a CAZ, an area where access is restrict-
ed and ‘‘certain work TTT may take place without the use of
guardrail systems, personal fall arrest systems, or safety net
systems.’’ Id. §§ 1926.500(b), 1926.502(g). Under subpart M
the materials staging area. But when pressed as to where in the
record there was support for the assertion, Storer’s counsel stated,
‘‘I don’t know that the record specifically states it.’’ Recording of
Oral Argument at 22:26. He referred the court to still images
taken from the OSHA video which were used as exhibits at the
hearing before the ALJ. Id. Not only do the images fail to show
that Storer employees were working on the wall near the materials
staging area but Storer employees’ testimony is to the contrary.
Joint Appendix 177, 221, 247. Moreover, Storer did not raise the
issue in either of its briefs, see Corson & Gruman Co. v. NLRB, 899
F.2d 47, 50 n.4 (D.C. Cir. 1990) (‘‘We require petitioners and
appellants to raise all of their arguments in the opening brief to
prevent ‘sandbagging’ of appellees and respondents and to provide
opposing counsel the chance to respond.’’)—indeed, its opening brief
tends to contradict the position Storer’s counsel took at oral argu-
ment. See Petitioner’s Br. at 9, 10, 13, 20.
15
of Part 1926, such a zone may be used to protect employees
‘‘performing overhand bricklaying and related work 6 feet (1.8
m) or more above lower levels.’’ Id. § 1926.501(b)(9)(i).
Storer’s position might have had some appeal if the quoted
provision were all that OSHA said about an employer’s
obligation to protect overhand bricklayers from falling. But
it is not.
Instead the regulations do precisely what Storer claims
they do not: they prevent an employer from using a CAZ to
protect employees from falling while they perform overhand
bricklaying from a scaffold. See id. §§ 1926.451(g)(1)(vi),
1926.500(a)(2)(i), 1926.501(b)(9) note; see also 61 Fed. Reg. at
46,066; Safety Standards for Fall Protection in the Construc-
tion Industry, Final Rule, 59 Fed. Reg. 40,672, 40,689 (Aug.
9, 1994), available at 1994 WL 411799. Subpart M makes
clear that its fall protection standard does not apply to
employees working while on a scaffold: ‘‘[r]equirements relat-
ed to fall protection for employees working on scaffolds are
provided in subpart L.’’ 29 C.F.R. § 1926.500(a)(2)(i). More-
over, the very regulation in subpart M which allows for the
use of a CAZ to protect overhand bricklayers includes the
following ‘‘Note,’’ ‘‘[b]ricklaying operations performed on scaf-
folds are regulated by subpart L—Scaffolds of this part.’’ Id.
§ 1926.501(b)(9); see also 59 Fed. Reg. at 40,689 (‘‘OSHA
agrees that it is appropriate for bricklaying performed from
scaffolds to be regulated under subpart L, Scaffolds, rather
than under subpart M and, accordingly, the Agency is adding
a note to subpart L which so indicates.’’). The pertinent
provision in subpart L, paragraph (g)(1)(vi), does not allow
the use of a CAZ to protect employees from falling; instead it
provides that ‘‘employees performing overhand bricklaying
operations from a supported scaffold shall be protected from
falling TTT by the use of a personal fall arrest system or
guardrail system.’’ 29 C.F.R. § 1926.451(g)(1)(vi). The Com-
mission thus properly rejected Storer’s claim that the CAZ on
the mezzanine level constituted sufficient fall protection for
its employees working at the materials staging area of the
scaffold. See id.
16
III.
For the foregoing reasons, we vacate the Commission’s
order and remand to that body for further proceedings
consistent with this opinion.
So ordered.