<DOC>
[DOCID: f:wst200044.wais]

 
ALAN LEE GOOD, GOOD CONSTRUCTION
September 25, 2001
WEST 2000-44-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                       September 25, 2001

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :
                                  :
          v.                      : Docket Nos. WEST 2000-44-M
                                  :             WEST 2000-149-M
ALAN LEE GOOD,                    :
  an individual doing business as :
  GOOD CONSTRUCTION               :

BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty,
        Commissioners

                             DECISION

BY THE COMMISSION:

     In this civil penalty proceeding arising under the Federal
Mine Safety and Health Act, 30 U.S.C.  801 et seq. ("Mine Act"),
Administrative Law Judge Gary Melick affirmed eight citations and
vacated two citations issued by the Department of Labor's Mine
Safety and Health Administration ("MSHA") to Alan Lee Good, an
individual doing business as Good Construction ("Good").  22
FMSHRC 1081, 1082-89 (Sept. 2000) (ALJ).  Good filed a petition
for discretionary review ("PDR"), requesting that the Commission
vacate the judge's finding of the eight violations.  PDR at 2-5.
The Commission subsequently granted Good's petition.  For the
reasons set forth below, the judge's decision is affirmed in part
and reversed in part.

                               I.

                Factual and Procedural Background

     Good owns and operates the Brown Road Quarry, a sand and
gravel operation located in Lewis County, Washington.  Tr. 8,
131.  On June 29 and 30, 1999, MSHA Inspector Terry Miller
performed a regular inspection of the Brown Road Quarry,
accompanied by Good's supervisor Kenneth Gates and Jason Good, an
independent contractor in charge of drilling and blasting at the
site.  22 FMSHRC at 1082; Tr. 10, 12, 53-54, 88.  During the
inspection, Inspector Miller observed numerous conditions which
he believed violated several of MSHA's safety standards and
issued 10 citations.  Those at issue in this appeal are Citation
No. 7974336 for inoperative parking brakes on the shop truck in
violation of 30 C.F.R  56.14101(a)(3); Citation Nos. 7974338 and
7974339 for lack of handrails on the elevated platforms in
violation of 30 C.F.R  56.11002; and Citation Nos. 7974337,
7974340, 7974341, 7974342, and 7974343 for unguarded moving
machine parts in violation of 30 C.F.R  56.14107(a). 22 FMSHRC
at 1081-88.  Subsequently, the Secretary proposed a $200 penalty
for Citation No. 7974343, which she alleged was "significant and
substantial,"[1] and $55 penalties each for the remaining
citations.  Good contested the citations, and a hearing was held
in Chechalis, Washington on April 27, 2000.

                               II.

                           Disposition

     The eight citations on review concern three different safety
regulations found in 30 C.F.R. Part 56.  At issue is whether the
judge erred when he found that Good violated section
56.14101(a)(3) for an inoperative parking brake on the front end
loader; section 56.11002 for failure to provide handrails on
elevated platforms; and section 56.14107(a) for inadequate guards
on moving machine parts.

     A.   Parking Brake Violation

     Inspector Miller issued Citation No. 7974336 for an
inoperative parking brake on the shop truck in violation of
section 56.14101(a)(3).[2]  22 FMSHRC at 1086.  At the time the
citation was issued, the shop truck was parked next to the
highwall above the pit where the crusher equipment was located,
and the keys were in the vehicle.  Tr. 14.  Miller observed that
the parking brake was not set and would not latch when Gates
tried to engage it.  Tr. 13-14.  At the time of the inspection,
Gates told Miller that he was not sure when the truck was last
used or when it would be used again.  Tr. 15, 71.

     The judge found that Good violated section 56.14101(a)(3)
because of an inoperative parking brake on the shop truck.  22
FMSHRC at 1086.  He rejected Good's argument that only "equipment
to be operated during a shift needs to be inspected on any given
day," noting that Good relied on "qualifying language in a
different regulatory standard" than the standard cited by the
inspector.  Id.  The judge found that the regulation required
braking systems on equipment be maintained in a functional
condition, and concluded that, because Good conceded the parking
brake was inoperative, the evidence established that Good
violated the cited standard.  Id.  The judge assessed a penalty
of $55.  Id. at 1089-90.

     In its petition, Good argues that the judge erroneously
rejected its assertion that the functional braking system
requirement contained in section 56.14101(a)(3) was qualified by
the requirement in section 56.14100(a) that equipment to be used
during a shift be inspected before the equipment is placed in
service, and the requirement in section 56.14100(b) that the
operator correct defects in a timely manner.  PDR at 2-3.[3]
Good clarified its position in its reply brief, stating that the
functional braking system standard only applies to "self-
propelled" mobile equipment to be used during a particular shift,
and not to all equipment on the mine site.  G. Reply Br. at 4-7.
Good maintains that the undisputed evidence supports its
contention that the shop truck was not in use on the date of the
inspection.  Id. at 3-4.

     The Secretary interprets Good's argument as requiring her to
first prove that the operator violated the inspection and defect
corrections provisions in order to make out a violation of the
functional braking system standard.  S. Br. at 8.  The Secretary
contends that substantial evidence supports the judge's finding
that Good violated section 56.14101(a)(3), that the judge's
finding is in accordance with the plain language of the standard
(which requires that braking systems on equipment be maintained
in a functional condition), and that Good's reliance on sections
56.14100(a) and (b) so as to limit application of the cited
standard is contrary to that standard's plain language.  Id. at
7-11.

     The "language of a regulation . . . is the starting point
for its interpretation."  Dyer v. United States, 832 F.2d 1062,
1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm'n v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980)).  Where the language of
a regulatory provision is clear, the terms of that provision must
be enforced as they are written unless the regulator clearly
intended the words to have a different meaning or unless such a
meaning would lead to absurd results.  See id.; Utah Power &
Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation Coal
Co., 15 FMSHRC 1555, 1557 (Aug. 1993).

     Good's argument that the functional braking system standard
only applies to "self-propelled" mobile equipment to be used
during a particular shift is inconsistent with the plain language
of the cited regulation.  Section 56.14101 is clearly a different
standard from section 56.14100, with separate requirements.
Section 56.14101(a), by its terms, applies to "self-propelled
mobile equipment."  Unlike sections 56.14100(a) and (b), section
56.14101(a) does not contain any language limiting its
application to equipment "to be used during a shift."  As long as
the cited equipment is not tagged out of operation and parked for
repairs, it fits within the definition of "mobile equipment"
contained in section 56.14000, and is "self-propelled," section
56.14101 applies, whether or not the equipment is to be used
during the shift.

     Good does not contend that the shop truck is not self-
propelled mobile equipment and does not dispute that the parking
brake was not functional.  Moreover, the requirement that all
braking systems on self-propelled mobile equipment be functional
avoids the problem of an operator using equipment with defective
braking systems despite its initial expectation that such
equipment would not be utilized.

     Similarly, we are not persuaded by Good's argument that the
standard as read by the Secretary would require maintenance of
braking systems on all equipment, including the mobile trailers
on which the crushing equipment is mounted.  According to Good,
these trailers are not "self-propelled," but rather, are parked
and placed on blocks.  G. Reply Br. at 5.  As noted, section
56.14101(a) applies only to "[s]elf-propelled" equipment.  The
preamble to the standard makes clear that not all mobile
equipment is self-propelled, and that the words "self-propelled"
are used in Subpart M to refer to mobile equipment "capable of
moving itself."  53 Fed. Reg. 32496, 32497-98 (Aug. 25, 1988).
Thus, Good's trailers would not fall within the definition of
"self-propelled" mobile equipment under section 56.14101(a).

     Based on the above, we conclude that substantial evidence[4]
supports the judge's finding that Good violated section
56.14101(a).

     B.   Handrail Violations

     Miller observed that there were no handrails on the elevated
platforms on which the roll crusher and the LJ cone crusher were
mounted.  22 FMSHRC at 1086-87; Tr. 24, 27; Ex. R-2 (front top
photo), R-5 (front bottom photo), R-6 (reverse bottom photo).  He
issued Citation No. 7974338 for the absence of handrails on the
roll crusher platform, and Citation No. 7974339 for the LJ cone
crusher platform, alleging violations of section 56.11002.[5]  22
FMSHRC at 1086-87.  The roll crusher and LJ cone crusher were
located on separate platforms that were between five and six feet
above the ground, and accessible by ladder.  Tr. 24-25, 27-29.
The areas lacking handrails were located at one end of both
platforms, where the access ladders were located, next to the
machinery.  Tr. 24, 27.  The roll crusher platform area adjacent
to the location of the missing handrail measured approximately
six feet by eight feet; the LJ cone crusher platform area
adjacent to the missing handrail measured approximately seven and
a half feet by six to seven feet.  Tr. 25, 27-28, 113.  These
areas had handrails along one side of the platforms, but not on
the side where the access ladders were located.  Tr. 25, 28, 120.
Miller testified that miners accessed the platforms to examine
and perform maintenance on the machinery.  Tr. 26, 77-79.  Gates
testified that the platform areas lacking handrails were about
six to eight feet away from the platform areas accessed to
service the machinery, and that miners never used these areas.
Tr. 94-95, 97-98.

     The judge concluded that Good violated section 56.11002.  22
FMSHRC at 1086-87.  He rejected Good's argument that the cited
areas were elevated platforms and not "travelways," and inferred
from the inspector's testimony that the areas of the platforms
cited were of sufficient size to permit walking.  Id. at 1087.
Based on his findings, the judge concluded that the areas of the
elevated platforms cited were "elevated walkways" within the
meaning of the standard, and assessed penalties of $55 for each
violation.  Id. at 1087, 1089-90.

     Good asserts that the judge erred by concluding that it
violated section 56.11002.  It contends that the record clearly
supports a finding that the areas of the platforms accessed by
miners had handrails, while the cited areas without handrails
were empty, unused spaces.  PDR at 3; G. Reply Br. at 7-9.  Good
argues that the evidence does not support a finding that the
cited areas were "travelways" or "elevated walkways."  PDR at 3-
4; G. Reply Br. at 7-9.  The Secretary responds that substantial
evidence supports the judge's conclusion that Good violated
section 56.11002 because the platform areas cited were "elevated
walkways."  S. Br. at 11-13.  She disagrees with Good's
contention that the cited areas are not "travelways" within the
meaning of section 56.2.  Id. at 12-14.

     First, we consider whether the judge properly concluded that
the cited platform areas were "elevated walkways" within the
meaning of section 56.11002.  There is no dispute that the
platforms were "elevated."  However, it is not clear whether
these platforms constitute "walkways" within the meaning of the
standard.  The term "walkway" is not defined in subpart J.  A
"walkway" is defined in the dictionary as "a passageway used or
intended for walking . . . a passageway in a place of employment
. . . designed to be walked on by the employees in the
performance of their duties."  Webster's Third New Int'l
Dictionary Unabridged 2572 (1993).[6]  A "passageway" is defined
as "a way that allows passage to or from a place or between two
points."  Id. at 1650.

     The judge's analysis of this issue was terse.  He stated:
"It may reasonably be inferred . . . from the testimony of the
citing inspector, that the cited area . . . was of sufficient
size to permit actual `walking'."  22 FMSHRC at 1087.  The
judge's inference that the platform constituted a "walkway" is
problematic for several reasons.  Based on the ordinary
definition of "walkway," the relevant question is whether the
areas in question were used, or intended to be used, for walking.
The inference that the areas were of sufficient size to permit
actual "walking" does not answer that question.

     The judge did not evaluate the record evidence pertaining to
whether the cited platform areas were used for walking by miners,
or were intended for such use.  However, we need not remand this
matter to the judge for analysis of the record evidence on this
point, because we find that the record simply cannot support a
conclusion that the cited platform areas constitute "walkways"
within the meaning of section 56.11002.  See Am. Mine Servs.,
Inc., 15 FMSHRC 1830, 1833-34 (Sept. 1993) (holding remand
unnecessary because evidence could justify only one conclusion).
With regard to Citation No. 7974338, although cited as an
unguarded "walkway," even the citation describes the area as a
"platform."  22 FMSHRC at 1086.  In addition, none of the record
testimony describes the cited areas as walkways or travelways as
referenced in the regulation.  For example, Inspector Miller
testified that miners walked on the platform, and that the cited
area was designed for miners to "walk on" or to "stand on."  Tr.
24, 77.  However, when asked whether the platform was an elevated
walkway, he responded that it was an "elevated platform."  Tr.
77.  He further testified that the cited area was "unused space,"
and that "workers don't normally access the platform unless it is
for maintenance and if so, when they climb to the top of the
ladder," they would be looking at the machinery located in front
of them and to their right, and would not likely fall down the
ladder or the side where the ladder was located.  Tr. 26, 77; Ex.
R-2 (front).  With respect to Citation No. 7974339, Inspector
Miller testified that the platform had railings on one side, but
that "the end of the trailer where persons would access to get up
and check the machinery" did not have a handrail.  Tr. 28, 79;
Exs. R-1 (front top photo); R-5 (front).  He conceded that an
accident was unlikely because of "the distance a person would
have to go walking to the end of the trailer to fall off . . .
and the absence of workers."  Tr. 29.  Gates testified without
contradiction that the unguarded areas of the platforms were
empty, unused spaces, about six to eight feet away from the
guarded areas which miners accessed to service the crushers, and
that there was no reason for anyone to go to the unguarded areas.
Tr. 94-97.

     Thus, while the record evidence clearly indicates that
miners accessed the platforms to maintain and service the
equipment, it cannot support a conclusion that miners walked in
the areas of the platforms that were missing handrails, or that
those areas were intended to serve as walkways.  Accordingly, we
reverse the judge's finding of the handrail violations.[7]

     C.   Guarding Violations

     Miller issued five citations to Good for violations of
section 56.14107(a),[8] as follows:

     Citation No. 7974337: alleging that rollers on the roll
crusher were not guarded.  22 FMSHRC at 1082.  The rollers had a
handrail in front of them, and were guarded on the sides.  Tr.
20, 93.  Miller testified that when he stood in front of the
handrail, he could reach out and touch the rollers, which were
approximately two feet away, and five feet above the platform.
Tr. 20.  He also testified that he discussed the violation with
Gates at the time of the inspection, and that Gates agreed that
he could touch the rollers.  Tr. 21.

     Citation No. 7974340: alleging that a portion of the v-belt
drive located beneath the trailer platform on which the LJ cone
crusher was mounted was not guarded.  22 FMSHRC at 1083; Tr. 32-
33.  The belt drive was about one-foot wide and was located about
four feet from the edge of the platform.  Tr. 35.  It extended
approximately one foot beneath the trailer platform.  Tr. 35.
The portion of the belt drive located above the platform was
guarded on the top and sides.  Tr. 34.  However, the portion
below the platform was exposed.  Tr. 99.  Miller testified that
miners were required to go beneath the trailer to perform
maintenance or repair work on the equipment, and that they could
come into contact with the unguarded belt drive when working in
the area.  22 FMSHRC at 1083; Tr. 34-35, 80, 99.

     Citation No. 7974341: alleging that a tail pulley on the
feed underbelt of the LJ cone crusher was not guarded. 22 FMSHRC
at 1083-84.  Once material is sized by the LJ cone crusher, it
exits from the bottom of the crusher onto the feed underbelt
where it then travels to a screen plant.  Tr. 38.  The tail
pulley of the feed underbelt was located below the trailer
platform on which the LJ cone crusher was mounted, and was
accessible beneath the trailer.  Tr. 38-39, 80, 99.  The pulley
was about three feet wide and located about two feet from the
edge of the trailer in the center of the platform.  Tr. 39.
Gates testified that a miner would only go beneath the platform
for maintenance or repair work about twice a year and that the
machinery was shut down before the miner entered the area.  Tr.
100-01, 151-52, 156-57; Exs. R-1, R-3.

     Citation No. 7974342: alleging that a guard on the tail
pulley of the double-deck screen was inadequate.  22 FMSHRC at
1084.  The double-deck screen is a piece of equipment separate
from the crushers, approximately 12 to 15 feet high and eight
feet wide, and is used to size and sort rocks that come from the
crushers on a conveyor belt.  Tr. 41.  The tail pulley was
guarded on the side and top, and two-thirds of the backside, but
the bottom of the pulley was not guarded.  Tr. 42-43; Ex. R-6.
The pulley extended beyond the shaker screen about three feet
above the ground.  Tr. 42.  Miller testified that he could walk
right next to the conveyor and tail pulley and that a miner could
reach out and touch the moving part while maintaining or
servicing the equipment.  Tr. 43, 81.  Gates testified that the
tail pulley was adequately guarded, and had passed previous
inspections.  Tr. 101.

     Citation No. 7974343: alleging that the guarding of the
flywheel on the jaw crusher was inadequate.  22 FMSHRC at 1084.
The flywheel was approximately five feet in diameter and was
located on the lower level platform of the crusher, next to the
walkway and ladder used to access the platform.  Tr. 45-46. The
flywheel was located along the edge of the trailer and was
approximately four feet above the ground.  Tr. 47, 51.  The outer
side of the flywheel next to the ladder was guarded, but the
inside of the flywheel, which was about two feet away from the
crusher, was not guarded.  Tr. 46-47, 51-52.  The jaw crusher
operator climbed the ladder onto the platform and walked past the
flywheel to access the operator station located on the second
level of the platform above the flywheel.  Tr. 45-46.  According
to Miller, once a miner climbed the ladder and stood on the
platform, he could reach out and touch the exposed flywheel. Tr.
47.  Miller testified that the flywheel moved at fast speeds and
that a miner could get a part of his clothing or body caught in
the wheel and be crushed.  Tr. 51-52.  Gates testified that the
jaw crusher operator would not pass the flywheel while it was
operating, that no other miner would access the area while the
equipment was operating, and that the part of the flywheel that
was guarded was sufficient.  Tr. 101-02.

     The judge relied on Inspector Miller's testimony to conclude
that Good violated section 56.14107(a).  22 FMSHRC at 1082-85.
The judge rejected Good's contention that the standard was
previously inconsistently enforced and therefore
unconstitutionally vague, holding that Good had failed to provide
"necessary factual support."  Id. at 1082.  The judge held that,
to prevail on this claim, Good had to provide credible testimony
of an inspector who "had inspected the precise areas now cited
and found those areas adequately guarded."  Id.  Characterizing
the inspector as a reasonably prudent person, the judge found
that a reasonably prudent person familiar with the mining
industry and the protective purposes of the standard would have
been on notice that section 56.14107(a) applied to the unguarded
portions of the machinery cited by MSHA.  Id.  The judge
concluded that the violation for the unguarded flywheel (Citation
No. 7974343) was "significant and substantial," and assessed a
penalty of $200.  Id. at 1084-85, 1089-90.  For the remaining
four violations, he assessed penalties of $55 each. Id. at 1089-
90.

     Good contends that the language of section 56.14107(a) does
not provide reasonably clear guidance regarding how any
particular moving part should be guarded, allows inconsistent
interpretation by inspectors, and is unconstitutionally vague
based on the fact that other MSHA inspectors never cited these
same conditions over the past 18 years.  PDR at 4-5; G. Reply Br.
at 11-13.  Good argues that the judge erred by ignoring Gates'
testimony regarding prior inconsistent enforcement, by relying
solely on Inspector Miller's testimony regarding the violations,
and by failing to make any findings of fact with regard to the
conflicting testimony.  G. Reply Br. at 10-11.  Good disclaims an
affirmative defense of estoppel.  Id. at 13.

     The Secretary maintains that the language of section
56.14107(a) is sufficiently specific to provide adequate notice
and is not unconstitutionally vague.  S. Br. at 14-16.  The
Secretary asserts that Good's argument that the cited conditions
were previously inspected and not cited by other inspectors is an
estoppel argument which must be rejected as a matter of law. Id.
at 16-17.

     Distilled to its essence, Good's appeal rests on its
contention that it did not have adequate notice of the
requirements of section 56.14107(a).  The parties do not dispute
the facts regarding what parts of the machinery were or were not
guarded.  Good does not challenge the application of the
regulation to the machinery cited.  Thus, we construe Good's
challenge to the judge's finding of violations as a defense of
lack of notice of the Secretary's interpretation and application
of the standard to the cited exposed moving parts based on prior
inconsistent enforcement.

     The Commission's vote on the guarding violations is split.
Chairman Verheggen and Commissioner Riley would reverse the
judge's decision. Commissioners Jordan and Beatty would vacate
the decision and remand to the judge for further consideration.
However, Chairman Verheggen and Commissioner Riley concur in
result with their colleagues' remand opinion in order to avoid
the effect of an evenly divided decision.[9]  The separate
opinions of the Commissioners follow.


**FOOTNOTES**

     [1]:  The S&S terminology is taken from section 104(d)(1) of
the Act, 30 U.S.C.   814(d)(1),  which distinguishes as more 
serious "any violation of mandatory health  and  safety standard
that could significantly  and  substantially  contribute to the 
cause and effect of a . . . mine safety or health hazard."

     [2]:   30  C.F.R.    56.14101(a)(3) provides:  "All braking
systems  installed  on  the  equipment  shall  be  maintained  in
functional condition."

     [3]:  Good designated its PDR as its opening brief.

     [4]:  When reviewing an administrative  law  judge's factual
determinations, the Commission is bound by the terms  of the 
Mine Act to apply the substantial evidence test.  30 U.S.C.
 823(d)(2)(A)(ii)(I).   "Substantial  evidence"  means  "`such
relevant  evidence  as a reasonable mind might accept as adequate
to support [the judge's]  conclusion.'"   Rochester  & Pittsburgh
Coal  Co.,  11  FMSHRC  2159,  2163  (Nov. 1989) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

     [5]:   30  C.F.R.   56.11002 provides  in  pertinent  part:
"Crossovers, elevated walkways,  elevated  ramps,  and  stairways
shall be of substantial construction provided with handrails, and
maintained in good condition."

     [6]:   In  the  absence  of  an  express  definition  or  an
indication  that  the  drafters  intended  a technical usage, the
Commission has relied on the ordinary meaning  of  the word to be
construed.   Peabody  Coal  Co.,  18 FMSHRC 686, 690 (May  1996),
aff'd, 111 F.3d 963 (D.C. Cir. 1997) (table).

     [7]:   Commissioner  Jordan  agrees   that   these  elevated
platforms  do  not  constitute  "elevated  walkways"  within  the
meaning  of  section  56.11002, and therefore, joins in reversing
the judge's finding of violations of that standard.  However, she
notes  that  section  56.11027   requires  handrails  on  working
platforms.  30 C.F.R.  56.11027.   Based on the record evidence,
she  would  conclude  that the elevated  platforms  are  "working
platforms"  within the meaning  of  section  56.11027,  and  that
consequently handrails would be required under that provision.

     Commissioner  Beatty  would  vacate  and  remand  these  two
citations, rather than simply reverse the judge's findings of two
violations of section 56.11002, to enable the judge, as the trier
of fact, to make factual findings on whether, and to what extent,
the  two  areas  in  dispute  were  actually  used  by  miners as
walkways.

     [8]:   30  C.F.R.    56.14107(a) provides:  "Moving machine
parts shall be guarded to protect  persons from contacting gears,
sprockets,  chains,  drive,  head,  tail,   and  takeup  pulleys,
flywheels,  couplings,  shafts,  fan blades, and  similar  moving
parts that can cause injury."

     [9]:   For the reasons set forth  in  Pennsylvania  Electric
Co., 12 FMSHRC  1562,  1563-65  (Aug. 1990), aff'd, 969 F.2d 1501
(3d Cir. 1992), the effect of the  split  decision  would  be  to
allow the judge's decision to stand as if affirmed.


                              III.

             Separate Opinions of the Commissioners

     Commissioners Jordan and Beatty, in favor of vacating the
finding of guarding violations, and remanding to the judge for
further consideration of the notice issue:

     To determine whether Good had adequate notice of the
Secretary's interpretation of the regulation, we must first
consider whether the regulation is plain or ambiguous.  We
conclude that the standard is ambiguous, since its language is
broad and does not specify the extent of guarding required or
explain how moving parts should be guarded.  Accordingly, we
would normally be required to decide whether the Secretary's
interpretation of the regulation is reasonable.  See Island Creek
Coal Co., 20 FMSHRC 14, 19 (Jan. 1998) (Commission must decide
whether the Secretary's interpretation is reasonable, which is
separate from the inquiry as to whether there was fair notice of
its requirements).  We must defer to an agency's interpretation
of a regulation as long as it is reasonable, consistent with
statutory purpose, and not in conflict with the statute's plain
language.  Coal Employment Project v. Dole, 889 F.2d 1127, 1131
(D.C. Cir. 1989); see Nolichuckey Sand Co., Inc., 22 FMSHRC 1057,
1062 (Sept. 2000) (traditional principles of regulatory
interpretation must be applied to determine if the Secretary's
interpretation of guarding regulation was reasonable and entitled
to deference).  In this case, the judge did not consider whether
the regulation is plain or ambiguous or address the issue of the
reasonableness of the Secretary's interpretation that all moving
machine parts be guarded, skipping immediately to the notice
issue.  22 FMSHRC at 1082.  Since neither the judge nor the
parties discuss the reasonableness issue, we choose not to
address it.

     When "a violation of a regulation subjects private parties
to criminal or civil sanctions, a regulation cannot be construed
to mean what an agency intended but did not adequately express."
Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193 (9th Cir.
1982), quoting Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649
(5th Cir. 1976).  To determine whether an operator received fair
notice of the agency's interpretation, the Commission asks
"whether a reasonably prudent person familiar with the mining
industry and the protective purposes of the standard would have
recognized the specific prohibition or requirement of the
standard."  Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990).
Because we conclude that the judge erred when he applied this
test, we would vacate his decision and remand the case to him for
additional analysis.

      The judge "inferred" that the inspector was a reasonably
prudent person familiar with the mining industry and the
protective purposes of the standard, and that consequently his
testimony sufficed to prove that adequate notice existed,
pursuant to the criteria in Ideal Cement.  22 FMSHRC at 1082.
The "reasonably prudent person" test, however, is an objective
standard.  BHP Minerals Int'l Inc., 18 FMSHRC 1342, 1345 (Aug.
1996).  Relying solely on the testimony of the inspector to
determine whether an operator had fair notice of a regulation's
requirements (as the judge did in this case) transforms this
analysis into a subjective inquiry based on the views of an MSHA
inspector.  Although an inspector's views are generally relevant
to the notice inquiry, they do not automatically equate to what
the prototypical  "reasonable person" would conclude about the
scope of the guarding requirements at issue here.  On this basis
alone we would vacate the judge's decision and remand for him to
use the objective standard we have consistently applied.

     In applying the reasonably prudent person standard to a
notice question, the Commission has taken into account a wide
variety of factors, including the text of a regulation, its
placement in the overall regulatory scheme, its regulatory
history, the consistency of the agency's enforcement, and whether
MSHA has published notices informing the regulated community with
"ascertainable certainty" of its interpretation of the standard
in question.  See Island Creek Coal Co., 20 FMSHRC at 24-25;
Morton Int'l, Inc., 18 FMSHRC 533, 539 (Apr. 1996); Ideal Cement
Co., 12 FMSHRC at 2416; U.S. Steel Mining Co., 10 FMSHRC 1138,
1141, 1142 (Sept. 1988); Al. By-Prods. Corp., 4 FMSHRC 2128,
2131-32 (Dec. 1982).  Also relevant is the testimony of the
inspector and the operator's employees as to whether certain
practices affected safety.  Ideal Cement Co., 12 FMSHRC at 2416.
Finally, we have looked to accepted safety standards in the
field, considerations unique to the mining industry, and the
circumstances at the operator's mine.[1]  Island Creek Coal Co.,
20 FMSHRC at 24-25; BHP Minerals, 18 FMSHRC at 1345, citing U.S.
Steel Corp., 5 FMSHRC 3, 5 (Jan. 1983).  On remand, the judge
should discuss and evaluate all of these factors.

     Of all of the factors listed above, Good relies most heavily
on the lack of prior enforcement of this regulation.  In
rejecting this defense the judge declared: "Respondent could very
well have prevailed in it's [sic] argument if any of those
inspectors had offered credible testimony at trial that he had
inspected the precise areas now cited and found those areas
adequately guarded."  22 FMSHRC at 1082. The judge erred in so
limiting the manner in which Good could prove prior inconsistent
enforcement.  In fact, Commission Procedural Rule 63 suggests
that "relevant" evidence can serve to satisfy a party's burden of
proof.  29 C.F.R.  2700.63.

     Both Gates and Alan Good testified, without contradiction,
that other MSHA inspectors had inspected and not cited the same
conditions that are at issue in this case.  Tr. 93-94, 99, 101-
02, 133, 168-69, 177-79.  The record indicates that in the 24-
month period preceding the hearing, Good received three
citations, and the judge determined that these citations were not
issued for the same conditions cited by Miller.  22 FMSHRC at
1089; G. Pre-Hearing Report at 3; S. Consol. Pre-Hearing
Submission at 3.[2]   On remand, the judge should take this into
account.

     We also note that, as the above-cited cases indicate, prior
inconsistent enforcement is only one of several factors that the
Commission considers in evaluating whether an operator has
received fair notice of the Secretary's interpretation of an
ambiguous regulation.  In his analysis of the notice issue,
however, the judge only looked at prior inconsistent enforcement,
and failed to consider the other notice factors.[3]  On remand,
the judge should also consider these other factors, including the
language of the regulation, its purpose, the regulatory history,
whether MSHA has published notices informing the regulated
community of its interpretation of the standard, and the facts of
each violation to determine whether Good would have had notice
that the standard required the moving machine parts to be guarded
entirely.  In this connection, the judge failed to make necessary
findings of fact on matters such as the existing guarding on each
moving part, the location of each part in relation to where
miners worked and traveled, and when and how miners accessed each
part.  Based on such findings, the judge should have determined
whether a reasonably prudent person familiar with the mining
industry and the protective purpose of the standard would have
understood that the partial or area guarding Good provided on
each moving part was inadequate to protect miners from contacting
it.


**FOOTNOTES**

     [1]:   To analyze the "circumstances at the operator's mine"
in this case,  the  judge  would need to make additional findings
regarding the existing guarding on each moving part, the location
of each part in relation to where miners traveled and worked, and
when and how miners accessed each part, if at all.

     [2]:  The Secretary did  not  address  the  issue  of  prior
inconsistent enforcement below or on review.

     [3]:  In Commissioner Beatty's view, Chairman Verheggen  and
Commission  Riley continue this error when they direct the judge,
on remand, to  focus exclusively on his prior finding of no prior
inconsistent enforcement,  with  no  mention of the other factors
that,  under  Commission law, are entitled  to  consideration  in
evaluating the  notice  issue.   See slip op. at 16.  He suspects
that  this  may  be  the  result  of  the  determination  by  his
colleagues that there is "nothing else  in the record to indicate
that Good knew or should have known that  its guarding might have
been  considered  inadequate  by  some at MSHA."   Id.  (footnote
deleted).   Commissioner  Beatty  believes   that   this  factual
determination  by Chairman Verheggen and Commission Riley  usurps
the role of the  judge  as  the trier of fact.  Where, as here, a
judge  fails  to adequately address  the  evidentiary  record,  a
remand is necessary  for  fuller evaluation.  Mid-Continent Res.,
Inc., 16 FMSHRC 1218, 1222-23  (June  1994).   It is Commissioner
Beatty's position that the judge, as fact finder,  is in the best
position to evaluate the relevant factors relating to  the notice
issue.
     In sum, we would vacate the judge's finding of the guarding
violations and remand for further consideration of whether Good
had adequate notice of the Secretary's interpretation of section
56.14107(a).  On remand, we would instruct the judge to consider
all of the relevant record evidence in applying the notice
factors discussed above, and to determine whether a reasonably
prudent person would have known that the conditions at issue
violated the standard.


                              Mary Lu Jordan, Commissioner


                              Robert H. Beatty, Jr., Commissioner


     Chairman Verheggen and Commissioner Riley, who would reverse
the judge's findings of liability on all of the guarding
citations, but who concur in result with their colleagues' remand
opinion in order to avoid the effect of an evenly divided
decision:

     To determine whether Good had adequate notice of the
Secretary's interpretation of the regulation, we must first
consider whether the regulation is plain or ambiguous.  The judge
did not examine this question or attempt to construe section
56.14107(a).  Where the language of a regulatory provision is
clear, the terms of that provision must be enforced as they are
written unless the regulator clearly intended the words to have a
different meaning or unless such a meaning would lead to absurd
results.  See Dyer v. United States, 832 F.2d 1062, 1066 (9th
Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct.
1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993).
If, however, a standard is ambiguous, courts have deferred to the
Secretary's reasonable interpretation of the regulation.  See
Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir.
1994); accord Sec'y of Labor v. Western Fuels-Utah, Inc., 900
F.2d 318, 321 (D.C. Cir. 1990) ("agency's interpretation of its
own regulation is `of controlling weight unless it is plainly
erroneous or inconsistent with the regulation'" (quoting Bowles
v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (other
citations omitted)).

     We conclude that the language of section 56.14107(a) is
ambiguous as applied to the circumstances of this case.  See
Nolichuckey Sand Co., 22 FMSHRC 1057, 1062-63 (Sept. 2000)
(finding that the term "unguarded" as used in 30 C.F.R. 
56.14109 was ambiguous).  Section 56.14107(a) provides that
moving machine parts shall be guarded "to protect persons from
contacting" types of moving machine parts covered by the
regulation.  The term "guarded" is not defined in subpart M.
Although the standard clearly applies to the moving parts in
question, i.e., rollers, tail pulleys, flywheels, and belt
drives, it does not make clear how or the extent to which the
moving parts should be guarded.[1]

     Normally, we would turn next to the question of whether the
Secretary's interpretation of the standard is reasonable.  During
the course of this litigation, the Secretary has maintained
consistently that section 56.14107(a) requires all moving machine
parts be guarded even if located in areas where miners do not
frequently work or travel or may work or travel only when the
equipment is shut down.  Good has not argued that the Secretary's
interpretation is unreasonable.

     Separate from the issue of regulatory interpretation,
however, is whether Good had received fair notice of the
Secretary's interpretation of the regulation.  Where the
imposition of a civil penalty is at issue, considerations of due
process "prevent[] . . . deference [to an agency's
interpretation] from validating the application of a regulation
that fails to give fair warning of the conduct it prohibits or
requires."  Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C.
Cir. 1986) (citations omitted).  An agency's interpretation may
be permissible but nevertheless may fail to provide the notice
required to support imposition of a civil penalty.  See Gen.
Elec. Co. v. EPA, 53 F.3d 1324, 1333-34 (D.C. Cir. 1995); Phelps
Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193 (9th Cir. 1982).  As
we explain below, we find that Good did not have fair notice, and
thus need not reach whether the Secretary's interpretation of
section 56.14107(a) is reasonable.

     The Commission has not required that an operator receive
actual notice of the Secretary's interpretation of a cited
standard.  Rather, the Commission has applied an objective
standard of notice, i.e., the reasonably prudent person test.
E.g., Otis Elevator Co., 11 FMSHRC 1896, 1906 (Oct. 1989), aff'd,
921 F.2d 1285, 1292 (D.C. Cir. 1990); Alabama By-Prods. Corp., 4
FMSHRC 2128, 2129 (Dec. 1982).  The Commission has summarized
this test as "whether a reasonably prudent person familiar with
the mining industry and the protective purposes of the standard
would have recognized the specific prohibition or requirement of
the standard."  Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov.
1990).  In deciding whether a party had adequate notice of a
regulation's requirements, the Commission has also examined,
among other factors, the consistency of the Secretary's
interpretation.  Island Creek Coal Co., 20 FMSHRC 14, 24-25 (Jan.
1998).

     Prior inconsistent enforcement (i.e., a lack of consistency
in the Secretary's interpretation) is the bedrock of Good's
defense of inadequate notice.  In rejecting this defense, the
judge held that, essentially, prior inconsistent enforcement can
only be proven by testimony from MSHA inspectors that they
previously found areas now cited to be adequately guarded.  22
FMSHRC at 1082 (stating that Good could have carried its burden
on the defense by offering "credible testimony at trial that
[MSHA inspectors] had inspected the precise areas now cited and
found those areas adequately guarded").  We join our colleagues
in rejecting this higher burden of proof for a prior inconsistent
enforcement defense.  Slip op. at 11.  To the contrary,
Commission Procedural Rule 63 suggests that any "relevant"
evidence can satisfy a party's burden of proof.  29 C.F.R.
 2700.63.

     Based on the record evidence, we conclude that substantial
evidence does not support the judge's conclusion that there was
no prior inconsistent enforcement.  Most significantly, the
Secretary failed to rebut the testimony of Gates and Alan Good
that other MSHA inspectors had inspected the same conditions at
issue in this case and not issued any citations.  Tr. 93-94, 99,
101-02, 133, 168-69, 177-79.  In fact, Good had maintained the
cited areas for 18 years, during which time MSHA inspected them
repeatedly - as many as twenty times (Tr. 176-77) - and did not
cite them.  We also note that during the 24 months before the
citations were issued, Good received only three citations, none
of which were issued for the conditions cited by Miller.
22 FMSHRC at 1089; G. Pre-Hearing Report at 3; S. Consol. Pre-
Hearing Submission at 3.  Significantly, the Secretary did not
address the issue of prior inconsistent enforcement either below
or on review.

     We find nothing else in the record to indicate that Good
knew or should have known that its guarding might have been
considered inadequate by some at MSHA.[2]  We thus conclude that
Good did not have notice of the Secretary's interpretation of the
regulation that led her to issue the citations under review here.
We thus would reverse the judge's decision and vacate the five
guarding citations.

     However, in order to avoid the effect of an evenly divided
decision, we concur in result with our colleagues' remand
opinion.  See Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65
(Aug. 1990), aff'd on other grounds, 969 F.2d 1501 (3d Cir. 1992)
(holding that the effect of a split Commission decision is to
leave standing the disposition from which relief has been
sought).  We thus join Commissioners Jordan and Beatty in
remanding the case, but only on the following grounds:  first,
the judge must reconsider his finding that there was no prior
inconsistent enforcement in light of the ample record evidence to
the contrary.  We also agree with our colleagues that the judge
improperly transformed his notice analysis "into a subjective
inquiry based on the views of an MSHA inspector" (slip op. at 10-
11) when he found that Good was on notice of the Secretary's
interpretation by virtue of Miller somehow embodying the
"reasonably prudent person familiar with the mining industry and
the protective purposes of the standard" (Ideal Cement Co., 12
FMSHRC at 2416).  See 22 FMSHRC at 1082.  The judge must
therefore also reconsider this finding, again in light of the
record evidence of the Secretary's inconsistent prior
enforcement.

     Accordingly, we join our colleagues in vacating the judge's
findings of guarding violations and remand for reconsideration of
whether Good had adequate notice of the Secretary's
interpretation of section 56.14107(a).


                              Theodore F. Verheggen, Chairman

                              James C. Riley, Commissioner

Distribution

Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA  22203

James A. Nelson, Esq.
205 Cowlitz
P.O. Box 878
Toledo, WA 98591

William W. Kates, Esq.
Office of the Solicitor
U.S. Department of Labor
1111 Third Avenue, Suite 945
Seattle, WA 98101-3212

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041


**FOOTNOTES**

     [1]:  Significantly, the regulatory history of the  standard
suggests   that  the  degree  of  protection  required  may  vary
according  to   the   circumstances.   The  preamble  to  section
56.14107(a) states that  the  purpose  of  the  standard  is  "to
protect  persons  from  coming into contact with hazardous moving
machine parts," and that  a  "guard must enclose the moving parts
to the extent necessary to achieve this objective."  53 Fed. Reg.
32509 (Aug. 25, 1988) (emphasis added).

     [2]:  The Secretary attempted  at  trial  to  introduce into
evidence   a   guarding   handbook  which  Miller  gave  to  Good
approximately one month after  issuing  the  guarding  citations.
Tr.  67.   The  judge,  however, did not admit the pamphlet  into
evidence and struck it from  the  record  after  the  Secretary's
counsel conceded it was not relevant.  Tr. 68.