UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
TRINITY MARINE NASHVILLE, INC.,
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
SECRETARY OF LABOR, US DEPARTMENT OF LABOR,
Petition for Review of Final Order of
the Occupational Safety and Health Review Commission
December 5, 2001
Before REAVLEY, HIGGINBOTHAM and PARKER, Circuit
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 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 cables(1)
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)
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's(3) 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
("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 is otherwise reasonable." See Martin v. OSHRC,
499 U.S. 144, 156 (1991)(emphasis in original).
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. §
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. 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
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, 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 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 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
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
The Secretary also argues that OSHA takes
cost as well as degree of risk into account in drafting safety standards.
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 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). 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
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
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
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
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.
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 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 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
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 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
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.
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 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.