UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HOMELITE, a division of Deere &

Company,

Petitioner,

v.

OCCUPATIONAL SAFETY & HEALTH

No. 94-2588

ADMINISTRATION,

Respondent.

AMERICAN PULPWOOD ASSOCIATION,

INCORPORATED,

Amicus Curiae.

On Petition for Review of an Order

of the Occupational Safety and Health Administration.

(No. S-048)

Argued: December 8, 1995

Decided: January 17, 1996

Before MURNAGHAN, WILLIAMS, and MICHAEL,

Circuit Judges.

_________________________________________________________________

Denied by unpublished per curiam opinion.

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COUNSEL

ARGUED: Gary E. Cross, DUNAWAY & CROSS, P.C., Washington, D.C., for Petitioner. Ann Rosenthal, Counsel for Appellate Litigation, Office of the Solicitor-OSH, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondent.

ON BRIEF: Mac S. Dunaway, DUNAWAY & CROSS, P.C., Washington, D.C., for Petitioner. Thomas S. Williamson, Jr., Solicitor of

Labor, Joseph M. Woodward, Associate Solicitor for Occupational

Safety and Health, Barbara A.W. McConnell, Office of the SolicitorOSH, UNITED STATES DEPARTMENT OF LABOR, Washington,

D.C., for Respondent. Kenneth R. Pierce, Michael B. Weir, Chet A.

Kronenberg, CHADBOURNE & PARKE, L.L.P., New York, New

York, for Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Homelite, a Division of Deere & Company, petitions for review of

a final safety standard applicable to all logging operations promulgated by the Occupational Safety and Health Administration (OSHA)

pursuant to § 655(b) of the Occupational Safety and Health Act of

1970, 29 U.S.C.A. §§ 651-678 (West 1985 & Supp. 1995). Specifically, Homelite challenges OSHA's requirement that all chain saws

used by professional loggers be equipped with a chain brake. See 59

Fed. Reg. 51,672, 51,743 (1994) (to be codified at 29 C.F.R.

§ 1910.266(e)(2)(i)). Because we conclude that substantial evidence

supports OSHA's chain brake requirement, we deny the petition for

review.

I.

In terms of injury and fatality rates, logging is among the more

dangerous occupations in this country. See 59 Fed. Reg. 51,672,

51,673-80 (1994). Loggers face a wide variety of hazards arising from

their working conditions and the equipment that they use. In particular, gruesome injuries occur when an operating chain saw "kicks

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back" and strikes a logger. "Rotational kickback" occurs when the

cutting chain near the upper portion of the tip of the guide bar (the

part of the saw that supports the chain and guides it into the wood)

contacts an obstruction, such as a nail or an untrimmed branch, causing the saw to move rapidly upward and backward toward the operator. "Pinch (or linear) kickback" occurs when the wood closes in on

the long edge of the cutting chain, pushing the saw toward the operator. While a chain saw can kick back in less than 0.3 of a second, the

average operator's reaction time is 0.75 of a second. Loggers often

cannot react quickly enough to avoid being struck by the chain saw.

Four safety devices have been developed to reduce or minimize the

risk of injury from chain-saw kickback. See id. at 51,690-91. Bar tip

guards (or nose tip guards) are wedge-shaped devices bolted or

screwed onto the guide bar and shield the tip of the chain saw from

the types of obstructions that cause rotational kickback. Reducedkickback guide bars, which are narrower at the tip than regular guide

bars, reduce the likelihood of chain contact where kickback most

often occurs. Low- or reduced-kickback chains have idler or spacer

links between the cutting links of the chain that limit the force of

kickback. Chain brakes, located inside the engine of the chain saw,

are designed to stop the chain before the chain strikes the operator

when kickback occurs.

In 1985, a committee of the American National Standards Institute

(ANSI) set forth a voluntary industry standard for the manufacture of

chain saws. See Gasoline-Powered Chain Saws-- Safety Requirements, ANSI Standard B175.1 (1985) (ANSI B175.1). ANSI B175.1

requires manufacturers to equip chain saws with an engine size smaller than 3.8 cubic inches of displacement with any two of the four

kickback safety devices. In addition, such saws must pass a performance test involving the saw's computed kickback angle (CKA).

Chain saws with an engine size of 3.8 cubic inches of displacement

and larger, however, are required to have only one kickback safety

device and need not pass a CKA test. ANSI B175.1 also provides that

the average stopping time for a chain brake must not exceed 0.12 of

a second and no single stopping time may exceed 0.15 of a second.

On May 2, 1989, OSHA published a notice proposing an employee

safety standard for all types of logging operations that would replace

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standards previously applicable only to pulpwood logging. See 54

Fed. Reg. 18,798 (1989) (to be codified at 29 C.F.R.§ 1910.266)

(proposed May 2, 1989). The proposed standard originally did not

require any particular safety device to prevent or reduce kickback

injuries; instead, it required frequent inspection of chain saws to

ensure "that chainbrakes and all other manufacturer's safety features

remain operational." Id. at 18,814. On May 11, 1990, OSHA published notice of public hearings on the proposed standard and

requested comment on several issues, including "the adequacy of various chain saw safety devices and guards and the appropriate regulatory action for OSHA." 55 Fed. Reg. 19,745, 19,746 (1990). OSHA

conducted two public hearings on its proposed rule and received posthearing comments until November 21, 1990.

During the rulemaking proceedings, OSHA received comments and

heard testimony from individuals involved in the logging industry and

from representatives of logging safety organizations. Most commenters either reported that chain brakes had reduced kickback injuries or predicted that chain brakes would reduce kickback injuries if

required. Many of these commenters also criticized the protective

value of the other safety devices, which were easily removed and

tended to interfere with cutting efficiency. The commenters favoring

chain brakes based their recommendations on general experience,

rather than empirical data. In addition to anecdotal commentary,

OSHA received statistics compiled by The State of Maine Bureau of

Labor Statistics (Maine BLS) in 1982, which indicated that chain

brakes had lessened the effects of kickback injuries. See 59 Fed. Reg.

at 51,691.

Some commenters, however, preferred that OSHA adopt the ANSI

standard that all chain saw manufacturers had been following because

a significantly different standard would disrupt the marketplace. See

id. A few commenters disputed the effectiveness of chain brakes, but

OSHA determined that their contentions were unsupported by evidence or data. See id. One of these commenters, however, submitted

the 1982 Survey of Chain Brake Stopping Time in Eastern Canada by

the Forest Engineering Research Institute of Canada (FERIC). The

FERIC study indicated that only 25.2% of the saws tested stopped

within 0.15 of a second while 19.6% did not stop at all. Although the

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commenter offered to provide OSHA with additional studies on chain

brake failure rates, OSHA never responded to his offer.

The administrative record also included Safe Chain Saw Design, a

book published in 1989 by the Institute of Public Safety (IPS).

Although not cited by OSHA in the final logging standard, IPS noted

that the Canadian Standards Association Committee on Chain Saws,

which had initiated the FERIC study, rejected the study's results and

continued to advocate chain brakes. IPS also supported the use of

chain brakes despite the FERIC study.

On October 12, 1994, OSHA promulgated its final logging standard, which requires that

[e]ach chain saw placed into initial service after the effective date of this section [February 9, 1995] shall be equipped

with a chain brake and shall otherwise meet the requirements of the ANSI B175.1-1991 "Safety Requirements for

Gasoline-Powered Chain Saws."

Id. at 51,743 (to be codified at 29 C.F.R.§ 1910.266(e)(2)(i)). Based

upon the comments it had received, OSHA concluded that chain

brakes should be required because: (1) chain brakes are effective and

the most widely used kickback safety device; (2) chain brakes have

widespread acceptance by logging professionals and are standard

equipment on almost all chain saws; (3) chain brakes lack the disadvantages of other safety devices; (4) other countries require chain

brakes; (5) the ANSI standard requires the use of sophisticated equipment and exacting procedures to determine compliance; and (6) the

ANSI standard is primarily directed toward chain-saw manufacturers,

rather than employers and employees. See id. at 51,692.

The Portable Power Equipment Manufacturers Association

(PPEMA), a trade association representing chain saw manufacturers,

participated in the rulemaking proceedings and opposed the requirement of any specific kickback protection device. PPEMA and Homelite, one of its member companies, petitioned this Court for review of

the logging standard. Subsequently, PPEMA voluntarily withdrew its

petition.

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II.

Upon judicial review of a final standard promulgated by OSHA,

"determinations of the Secretary [of Labor] shall be conclusive if supported by substantial evidence in the record considered as a whole."

29 U.S.C.A. § 655(f). Substantial evidence is"such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion." American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 522

(1981) (internal quotation marks omitted). The substantial evidence

standard does not require OSHA to prove that the record supports

only one possible conclusion; indeed, "[t]he existence of a viable

alternative does not preclude the acceptance of an agency determination as supported by substantial evidence." Color Pigments Mfrs.

Ass'n v. OSHA, 16 F.3d 1157, 1160 (11th Cir. 1994); see also

Bedford County Memorial Hosp. v. Health & Human Servs., 769 F.2d

1017, 1021 (4th Cir. 1985) (stating that "an agency need not pick a

theoretical best solution for a problem, but rather, need only implement a reasonable solution"). Therefore, OSHA need only show that

its "determination is supported by evidence presented to or produced

by it and does not rest on faulty assumptions or factual foundations."

Color Pigments Mfrs. Ass'n, 16 F.3d at 1160.

Homelite raises three challenges to OSHA's evidentiary support for

the logging standard. Homelite contends that OSHA: (1) lacked relevant statistical data to support the chain brake requirement; (2) failed

to consider data indicating that chain brakes were ineffective; and (3)

lacked support for requiring both chain brakes and compliance with

ANSI B175.1. We reject these arguments and conclude that substantial evidence supports OSHA's chain brake requirement.

Homelite first argues that OSHA could not have relied on its only

statistical data, the 1982 Maine BLS study, because it involved only

twenty-nine kickback injuries and reported the effects of the presence

of chain brakes in all chain-saw accidents, not accidents involving

kickback. Nonetheless, the study states that chain brakes "appear[ ] to

have played a significant role in lessening the effects of the injury.

Basically, the person injured in the kickback accident with the chain

brake was less likely to lose time or if the injury were disabling was

likely to lose fewer days." (J.A. 252.) Moreover, even if this Court

ignored the 1982 Maine BLS study, the numerous comments of chain

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brake advocates based on their experiences constitute substantial evidence supporting OSHA's determination that all chain saws should be

equipped with a chain brake.

Homelite's second contention, that OSHA refused to consider data

critical of the performance of chain brakes, is more troublesome.

Although some commenters disputed the effectiveness of chain

brakes, OSHA stated that none of them had submitted evidence or

data supporting their claims. See id. at 51,691. The 1982 FERIC study

submitted by one commenter, however, indicated that chain brakes

performed dismally under test conditions. OSHA now offers four

responses to the study: (1) the committee that initiated the study

rejected its results; (2) laboratory tests are less indica tive of effectiveness than the favorable comments based on actual use in the forest;

(3) IPS recommended chain brakes despite the study; and (4) no certification program existed in Canada at the time of the study, rendering

it impossible to know how many tested saws had been manufactured

to stop the chain within 0.15 of a second.

Although OSHA probably should not have waited until this petition to defuse the results of the FERIC study, OSHA need not discuss

and defeat every comment contrary to the chosen standard, provided

its conclusion is supported by "such relevant evidence as a reasonable

mind might accept as adequate." American Textile Mfrs. Inst., 452

U.S. at 522. The majority of commenters, who based their recommendations on years of experience, advocated chain brakes and criticized

the effectiveness of other safety devices. Thus, OSHA reasonably

could have discounted the single FERIC study, the results of which

were discredited by other materials in the administrative record.*

Finally, Homelite contends that OSHA lacked support for requiring

both chain brakes and compliance with ANSI B175.1, thereby establishing different safety standards for larger and smaller chain saws

_________________________________________________________________

*Homelite also argues that chain brakes are ineffective and impractical

because loggers cannot determine whether the chain brake is working

properly, i.e., whether it will stop the chain quickly enough to avoid an

injury. The factual basis for this concern, however, is contradicted in the

administrative record by the many commenters who reported fewer and

less serious kickback injuries when chain brakes were used.

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used by loggers. Homelite asserts that it is illogical to require a more

stringent standard for smaller saws than larger saws and that OSHA

simply did not consider the full effect of incorporating ANSI B175.1

by reference. Some commenters, however, warned OSHA that adopting standards significantly different from ANSI B175.1 would disrupt

the marketplace because all chain saw manufacturers had been following the ANSI standard. See id. at 51,691-92. Moreover, OSHA

reasonably could have determined that incorporating ANSI B175.1 by

reference would provide loggers with additional protection because it

establishes minimum performance criteria for chain brakes, as well as

other safety requirements.

Unpersuaded by Homelite's arguments, we conclude that OSHA's

determination that chain brakes should be required on all chain saws

satisfies the substantial evidence standard. Many representatives of

logging companies and safety organizations advocated chain brakes.

See id. at 51,691. Based on their experiences, these commenters

reported that chain brakes had been the most effective safety device

against kickback injuries. Although these commenters lacked statistics to support their claims, OSHA reasonably could have relied on

the experiences of members of the industry affected by the standard,

especially if, as here, statistical data is sparse.

In addition to advocating chain brakes, many commenters pointed

out deficiencies in the other safety devices permitted by ANSI

B175.1. Many commenters noted that although bar or nose tip guards,

reduced kickback guide bars, and reduced kickback chains effectively

reduce the likelihood and severity of kickback injuries when used,

they are easily removed from chain saws. See id. at 51,690-91. Furthermore, these devices prevent certain logging maneuvers and tend

to reduce cutting efficiency, giving loggers incentives to remove or

replace them. Based on these comments, we conclude that OSHA reasonably could have determined that chain brakes would be more

effective than the other devices because a logger would be less likely

to disengage or remove a safety device that did not interfere with the

chain saw's performance.

III.

Because the majority of commenters advocated chain brakes and

criticized other safety devices, we conclude that substantial evidence

supports OSHA's determination that chain brakes should be required

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on all chain saws used by professional loggers. Accordingly, we deny

the petition for review.

DENIED

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