United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-1310

___________________________

Thomas E. Perez, Secretary, United States Department of Labor

lllllllllllllllllllllPetitioner

v.

Loren Cook Company

lllllllllllllllllllllRespondent

____________

Petition for Review of an Order of the

 Occupational Safety & Health Review Commission

____________

 Submitted: April 15, 2015

 Filed: October 13, 2015

____________

Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, MELLOY,

SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY,

Circuit Judges, En Banc.

____________

SHEPHERD, Circuit Judge.
Following an industrial accident, the Secretary of Labor (Secretary)1

 determined

that the Loren Cook Company (Loren Cook) violated 29 C.F.R. § 1910.212(a)(1),

which requires barrier guards on certain industrial equipment. The Secretary imposed

a $490,000 fine against Loren Cook. An Administrative Law Judge (ALJ) rejected

the Secretary’s interpretation of section 1910.212(a)(1) and vacated the fine. The

Occupational Safety and Health Review Commission (Commission) adopted the

ALJ’s decision as its own. The Secretary petitioned this court for review of the

Commission’s order. A divided panel of this court granted the petition for review and

reversed the Commission’s order. In granting Loren Cook’s petition for rehearing en

banc, we vacated the panel decision. We now deny the Secretary’s petition for review

and affirm the Commission’s order.

I.

Loren Cook is an industrial manufacturer of air circulating equipment. Loren

Cook uses lathes, which are industrial turning machines used to form and mold metal

discs, in its manufacturing process. Lathes operate by holding heavily lubricated

pieces of metal that rotate rapidly, allowing the lathe operator to apply tools to shape

the metal into individual workpieces. Lathes vary in size depending on the size of the

workpiece being produced. In May 2009, a Loren Cook lathe operator was killed

when a 12-pound rotating metal workpiece broke free from the lathe, flew out of his

machine, and struck him in the head. The lathe ejected the workpiece at a speed of 50

to 70 miles per hour and, after the workpiece struck the operator in the head, it

traveled along the floor at least another 20 feet before crashing into metal shelving. 

1

The Secretary acts through the Occupational Safety and Health Administration

(OSHA) to create and enforce workplace health and safety standards. Solis v. Summit

Contractors, Inc., 558 F.3d 815, 818 (8th Cir. 2009). We refer to OSHA and the

Secretary jointly as the “Secretary.” 

-2-
In November 2009, the Secretary conducted an investigation of the industrial

accident and issued two citations against Loren Cook. Relevant to this appeal, one

citation found seven violations of 29 C.F.R. § 1910.212(a)(1) for failure to employ

barrier guards to protect workers from ejected workpieces. Section 1910.212(a)(1)

provides:

Types of guarding. One or more methods of machine guarding shall be

provided to protect the operator and other employees in the machine area

from hazards such as those created by point of operation, ingoing nip

points, rotating parts, flying chips and sparks. Examples of guarding

methods are—barrier guards, two-hand tripping devices, electronic

safety devices, etc. 

The Secretary determined that Loren Cook’s failure to employ barrier guards to

prevent the ejection of a workpiece from this kind of catastrophic breakdown of a

lathe violated section 1910.212(a)(1). The Secretary assessed Loren Cook a fine of

$70,000 for each violation of this section, resulting in a total fine of $490,000.

Loren Cook sought review from an ALJ, who, after conducting a 20-day

hearing and compiling an extensive record, concluded that section 1910.212(a)(1) did

not apply to the conduct for which the Secretary cited Loren Cook. The ALJ reasoned

that section 1910.212(a)(1) focuses on point-of-contact risks and risks associated with

the routine operation of lathes, such as flakes and sparks, but does not contemplate the

catastrophic failure of a lathe that would result in a workpiece being thrown out of the

lathe. The ALJ thus vacated the citation the Secretary issued against Loren Cook. 

The Commission adopted the unmodified recommendation of the ALJ. The Secretary

subsequently petitioned our court for review of the Commission’s final order pursuant

to 29 U.S.C. § 660(b). 

-3-
II.

We review a petition seeking review of a Commission order under a deferential

standard pursuant to the Administrative Procedures Act, upholding the Commission’s

factual findings if they are “supported by substantial evidence on the record

considered as a whole,” and upholding the Commission’s legal conclusions “unless

they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” Solis v. Summit Contractors, Inc., 558 F.3d 815, 823 (8th Cir. 2009)

(internal quotation marks omitted). The Commission adopted the ALJ’s order finding

section 1910.212(a)(1) does not address catastrophic failures of lathes resulting in the

ejection of workpieces and instead only considers routine risks of operation. The

Secretary argues this was in error because the Secretary’s interpretation of its own

regulation is entitled to considerable deference and the ALJ failed to afford the

Secretary’s interpretation such deference. 

Applying Seminole Rock2

 deference, we generally afford substantial deference

to the Secretary’s interpretation of his own regulations. See Thomas Jefferson Univ.

2

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (providing

framework for deference to agency regulatory interpretations). We recognize the

concerns raised about Seminole Rock’s consistency with separation-of-power

principles, see Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1342 (2013) (Scalia,

J., concurring in part and dissenting in part) (“[H]owever great may be the efficiency

gains derived from Auer deference, beneficial effect cannot justify a rule that not only

has no principled basis but contravenes one of the great rules of separation of powers: 

He who writes a law must not adjudge its violation.”); see generally Manning,

Constitutional Structure and Judicial Deference to Agency Interpretations of Agency

Rules, 96 Colum. L. Rev. 612 (1996), and the perverse incentive it provides agencies

to issue ambiguous regulations, see Christopher, 132 S. Ct. at 2168 (“[T]his practice

also creates a risk that agencies will promulgate vague and open-ended regulations

that they can later interpret as they see fit, thereby ‘frustrat[ing] the notice and

predictability purposes of rulemaking.’” (second alteration in original) (quoting Talk

Am., Inc. v. Mich. Bell Tele. Co., 131 S. Ct. 2254, 2266 (2011) (Scalia, J.,

concurring))); see also Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 525 (1994)

(Thomas, J., dissenting). Some Justices have indicated that the Court is willing to take

a serious look at the continued validity of the doctrine. Decker, 133 S. Ct. at 1338-39

(Roberts, C.J., concurring).

-4-
v. Shalala, 512 U.S. 504, 512 (1994); Martin v. Occupational Safety & Health Review

Comm’n, 499 U.S. 144, 150-51 (1991). But deference to the Secretary’s

interpretation is only appropriate when both the interpretation itself and the manner

in which the Secretary announces the interpretation are reasonable. See Martin, 499

U.S. at 157-58. 

The Supreme Court has identified several circumstances under which a court

should not afford deference to an agency’s interpretation of its own regulation. First,

deference to an agency’s interpretation is inappropriate when the interpretation is

“‘plainly erroneous or inconsistent with the regulation.’” Auer v. Robbins, 519 U.S.

452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 359 (1989)). Second, deference is also inappropriate “when there is reason to

suspect that the agency’s interpretation ‘does not reflect the agency’s fair and

considered judgment on the matter in question.’” Christopher v. SmithKline Beecham

Corp., 132 S. Ct. 2156, 2166 (2012) (quoting Auer, 519 U.S. at 462). This may be

evidenced by an agency’s current position conflicting with prior interpretations, by

an agency’s use of the position as nothing more than a litigating position, or by the use

of the interpretation as a post hoc rationalization for a prior action. Id. at 2166. 

Finally, deference is inappropriate when an agency’s new interpretation of its

own regulation results in unfair surprise. Id. at 2167. In declining to afford deference

to the Department of Labor’s interpretation of one of its regulations, the Christopher

Court noted that giving the interpretation deference would “impose potentially

massive liability on [the regulated entity] for conduct that occurred well before that

interpretation was announced.” Id. When the relevant agency fails to provide the

regulated entity with a fair warning of what conduct a regulation prohibits, allowing

the agency’s interpretation to prevail would result in unfair surprise. Id. The risk of

unfair surprise is particularly relevant when the “agency’s announcement of its

interpretation is preceded by a very lengthy period of conspicuous inaction.” Id. at

2168. As the Court noted:

-5-
It is one thing to expect regulated parties to conform their conduct to an

agency’s interpretations once the agency announces them; it is quite

another to require regulated parties to divine the agency’s interpretations

in advance or else be held liable when the agency announces its

interpretations for the first time in an enforcement proceeding and

demands deference.

Id. Such a “decision to use a citation as the initial means for announcing a particular

interpretation may bear on the adequacy of notice to regulated parties, on 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.” Martin, 499 U.S. at 158 (citations omitted). 

Our court has also acknowledged the parameters under which we should afford

an agency’s interpretation deference: “[D]eference is due when an agency has

developed its interpretation contemporaneously with the regulation, when the agency

has consistently applied the regulation over time, and when the agency’s interpretation

is the result of thorough and reasoned consideration.” Solis, 558 F.3d at 823 (quoting

Advanta USA, Inc. v. Chao, 350 F.3d 726, 728 (8th Cir. 2003)); see also Advanta, 350

F.3d at 728 (“The DOL’s interpretation is not conclusive, and we are not necessarily

bound by the DOL’s interpretation of the [regulation].”); Sioux Valley Hosp. v.

Bowen, 792 F.2d 715, 720 (8th Cir. 1986) (“The erratic history of the labor/delivery

room policy is not the kind of interpretation justifying deference to the Secretary’s

expertise.”).

This precedent provides the framework under which we must assess the

Secretary’s interpretation of section 1910.212(a)(1), evaluating the current

interpretation: (1) for fidelity to the text of the regulation itself; (2) for its consistency

with prior interpretations; and (3) for the possibility of unfair surprise. Under this

framework, we conclude that the Secretary’s interpretation of section 1910.212(a)(1)

is unreasonable and thus is not entitled to deference. 

-6-
A.

First, the Secretary’s interpretation of section 1910.212(a)(1) strains a commonsense reading of the section. The basic operative language of the section identifies

five examples of hazards the barrier guards are meant to protect a lathe operator from:

“hazards such as those created by point of operation, ingoing nip points, rotating parts,

flying chips and sparks.” 29 C.F.R. § 1910.212(a)(1). We note that the inclusion of

the words “such as” in the language of the regulation indicates this list is illustrative

rather than exhaustive. See Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 327 (8th

Cir. 1981). These five hazards create two distinct categories: sources or causes of the

hazard (point of operation, ingoing nip points, and rotating parts) and by-products

from routine operation of the machinery (flying chips and sparks).

It follows that section 1910.212(a)(1) only covers the catastrophic failure of a

lathe and the ejection of a workpiece if such an event is like one of these two

categories. This event is not like the first category because a plain reading of the

regulation limits this category to sources of the hazard relating to the worker’s point

of contact with the machinery and does not encompass the ejection of a spinning

workpiece. Section 1910.212(a)(3)(i) defines “point of operation” as “the area on a

machine where work is actually performed upon the material being processed.” And

this section provides that the requisite barrier guard “shall be so designed and

constructed as to prevent the operator from having any part of his body in the danger

zone during the operating cycle.” 29 C.F.R. § 1910.212(a)(3)(ii). This definition of

“point of operation” is further supported by section 1910.212(a)(3)(iv), which lists

several machines—including shears, power presses, milling machines, and forming

rolls—which all require the operators to make contact with the machine’s operating

cycle. In the context of the lathes employed by Loren Cook, the point of operation is

where the lathe operator touches the tool to the spinning workpiece to shape the

workpiece.

-7-
Further, the use of “rotating parts” in the language of section 1910.212(a)(1)

does not encompass the event at issue here because the section contemplates hazards

from rotating parts related to the operator’s contact with the machine rather than the

anomalous ejection of objects from the machine. In reaching this conclusion, we

evaluate the meaning of the term “rotating parts” by considering the other enumerated

examples around it. See United States v. Williams, 553 U.S. 285, 294 (2008) (“In

context, however, those meanings are narrowed by the commonsense canon of

noscitur a sociis—which counsels that a word is given more precise content by the

neighboring words with which it is associated.”). The hazards that a lathe’s rotating

parts create—much like the hazards from point of operation and nip points—result

from contact with the lathe, including the danger of an operator’s clothing, limbs, or

hair becoming caught in or struck by the rotating parts. This limited interpretation of

rotating parts is consistent with OSHA’s machine guarding interpretative guidance. 

See Occupational Safety and Health Administration, Machine Guarding eTools, 

https://www.osha.gov/SLTC/etools/machineguarding/motions_actions.html (last

visited Sept. 30, 2015) (“Rotating motion can be dangerous; even smooth, slowly

rotating shafts can grip hair and clothing, and through minor contact force the hand

and arm into a dangerous position.”).

The Secretary’s hyper-literal interpretation of a hazard created by “rotating

parts” defies logic and seems to permit section 1910.212(a)(1) to apply to virtually

any situation, no matter how remote or atypical, in which a hazard can be tied to some

movement on a machine. Cf. White Indus., Inc. v. Fed. Aviation Admin., 692 F.2d

532, 535 (8th Cir. 1982) (rejecting the FAA’s interpretation of a regulation as “unduly

technical”). The guarding devices section 1910.212(a)(1) enumerates—barrier guards,

two-hand tripping devices, and electronic safety devices—aim to prevent ingress by

the operator into the danger zone while the lathe is running. This supports Loren

Cook’s limited interpretation of this section. These guarding devices would do little

to prevent the hazard for which the Secretary cited Loren Cook: the high-speed

ejection of a workpiece nearly 3 feet in diameter and weighing 12 pounds. 

-8-
This event also is not like the second category of hazards because a 12-pound

ejected workpiece differs greatly both in nature and quality from a by-product hazard

created by routine operation of a lathe. The enumerated by-product hazards in the

regulation—flying chips and sparks—are incidental to the normal operation of a lathe,

and differ markedly from the hazard created by the ejection of a 12-pound workpiece

from a spinning lathe. Because these hazards differ so significantly, we cannot

conclude that a 12-pound ejected workpiece is the same kind of hazard so as to be

included by the regulation’s use of the phrase “such as.” See Donovan, 666 F.2d at

327 (explaining that the use of “such as” in regulation indicates illustrative rather than

exhaustive list). We thus conclude the Secretary’s interpretation does not comport

with the language of the regulation itself. 

B.

Second, the Secretary has failed to provide any evidence showing that he has

consistently interpreted section 1910.212(a)(1) to apply to the ejection of large objects

from a lathe. Although alone not dispositive, the Secretary himself concedes that he

has never issued a citation like the one he issued to Loren Cook. We recognize the

Secretary’s need for flexibility to adapt regulatory language to a variety of situations

and that a variety of factors influence his discretionary decision to issue a citation. 

See Christopher, 132 S. Ct. at 2168. And, in affording the Secretary this flexibility,

we also recognize that the Secretary could piece together a series of interpretations

that demonstrate a trend toward the current interpretation. But the Secretary has failed

to produce a single citation, publication, or interpretation that could fairly be

characterized as similar to the position the Secretary announced in the citation against

Loren Cook.

-9-
The Secretary argues that the standard interpretation letters3

 that he cites

indicate that section 1910.212(a)(1) is to be broadly construed to guard “against all”

hazards and his current interpretation is simply a “natural extension” of such an

interpretation. But these interpretation letters only vaguely indicate that section

1910.212(a)(1) should be construed broadly to cover a variety of hazards and only

serve to underscore that the Secretary has consistently failed to take his current

position. Allowing such an interpretation to prevail could create the risk that the

Secretary may never provide more specific interpretative guidance so as to avoid

limiting his future ability to construe his own ambiguous regulations. See

Christopher, 132 S. Ct. at 2168 (“[The] practice [of deferring to an agency’s

interpretation of its own ambiguous regulations] also creates a risk that agencies will

promulgate vague and open-ended regulations that they can later interpret as they see

fit.”). 

The Secretary’s own current machine guarding guidance provides the following

description of the hazards created by rotating parts:

Rotating motion can be dangerous; even smooth, slowly rotating shafts

can grip hair and clothing, and through minor contact force the hand and

arm into a dangerous position. Injuries due to contact with rotating parts

can be severe. Collars, couplings, cams, clutches, flywheels, shaft ends,

spindles, meshing gears, and horizontal or vertical shafting are some

examples of common rotating mechanisms which may be hazardous. 

The danger increases when projections such as set screws, bolts, nicks,

abrasions, and projecting keys or set screws are exposed on rotating

parts. 

Occupational Safety and Health Administration, Machine Guarding eTools, supra; see

also Loren Cook’s App. at 1333-35, 1427. This interpretation, focused on the

3

OSHA Std. Interp. 1910.212 (D.O.L.), 2008 WL 4455006 (May 16, 2008);

OSHA Std. Interp. 1910.212 (D.O.L.), 2005 WL 3801510 (Feb. 8, 2005); OSHA Std.

Interp. 1910 Subpart O (D.O.L.), 1990 WL 10090096 (Mar. 21, 1990).

-10-
potential of a machine’s intact rotating part grabbing or snagging hair or clothing and

striking, crushing, or pining body parts, differs considerably from the interpretation

espoused in the Secretary’s citation to Loren Cook, which asserts that rotating parts

could cause the ejection of a large workpiece from a lathe. 

Further, the Secretary’s unarticulated intent to interpret section 1910.212(a)(1)

to cover the hazard of an ejected workpiece runs counter to the prevailing opinion

about the scope of this section. See, e.g., Long Mfg. Co., N.C., Inc. v. Occupational

Safety & Health Review Comm’n, 554 F.2d 903, 908 (8th Cir. 1977) (“When [section

1910.212(a)(1)] is read as a whole, it simply requires that when a machine is a source

of danger to operatives at the point of operation, that point must be guarded by some

appropriate means or device for the purpose of preventing any part of the body of the

operator from being in the danger zone during the machine’s operating cycle . . . .”);

Caterpillar, Inc., 1994 CCH OSHD ¶ 42318, at *1 (No. 93-373, 1994) (ALJ) (“Section

1910.212(a) . . . generally protects the operator from dangers associated with the point

of operation. While the type of machine covered by the standard varies widely, the

basic targeted hazard does not. A machine’s function and the manner in which it is

operated create the hazard anticipated by the standard.” (citation omitted)), aff’d, 17

BNA OSHC 1731 (No. 93-373, 1996).

The Second Circuit, in Carlyle Compressor Co. v. Occupational Safety &

Health Review Commission, 683 F.2d 673 (2d Cir. 1982), rejected the Secretary’s

attempt to interpret section 1910.212(a)(1) to include large objects thrown from a

spinning machine. Id. at 674-75. Although the Second Circuit acknowledged its

obligation to “give deference to an agency’s reasonable interpretation of its own

standards,” it reasoned that section 1910.212(a)(1) could not be reasonably “stretched”

to “cover[] anything flying out of machines.” Id. at 675. The Secretary did nothing

to react to the Second Circuit’s unequivocal rejection of this interpretation. Moreover,

the Secretary knew how Loren Cook conducted its production process after having

issued a 2004 citation to Loren Cook for violating section 1910.212 by failing to

guard its semi-automatic spinning lathes, which operate similarly to the lathes at issue

-11-
here. See Loren Cook Co., 21 BNA OSHC 1705 (No. 04-2179, 2006) (ALJ). The

ALJ noted that “[t]he only hazard established by the Secretary [in the 2004 violation]

is the point of operation hazard created by the spinning blank,” and continued that

“[t]he Secretary failed to show any other part of the spinning machines presented a

hazard requiring guarding.” Id. at *3. The focus of the Secretary’s 2004 inspection

was on points of operation—consistent with its machine guarding guidance, Carlyle,

and established practice—not on ejected workpieces. Based on this evidence, we

cannot conclude the Secretary’s current interpretation is consistent with his prior

interpretations.

C.

Finally, the Secretary’s announcement of such an unprecedented interpretation

in the citation against Loren Cook amounted to unfair surprise. There are “strong

reasons” for withholding deference from an agency’s interpretation of an ambiguous

regulation when an agency acquiesces in an interpretation for an extended period of

time and then changes its interpretation to sanction conduct that occurred prior to the

new interpretation. See Christopher, 132 S. Ct. at 2167-69; see also Long Island Care

at Home, Ltd. v. Coke, 551 U.S. 158, 170-71 (2007) (“[A]s long as interpretive

changes create no unfair surprise . . . the change in interpretation alone presents no

separate ground for disregarding the Department’s present interpretation.”). When

“an agency’s announcement of its interpretation is preceded by a very lengthy period

of conspicuous inaction, the potential for unfair surprise is acute.” Christopher, 132

S. Ct. at 2168. 

After the Second Circuit issued its opinion in Carlyle, the Secretary failed to

issue a single citation proclaiming his current interpretation, amend the language of

the section to clarify the section’s scope, or issue interpretative guidance indicating

his current position. Cf. Solis, 558 F.3d at 826-27 (reasoning that the Secretary’s

position was consistent because the Secretary continued to take a broad view of the

applicable regulation despite contrary administrative decisions). The Secretary

-12-
instead appeared to agree with the Carlyle Court that the regulation did not require

machine guarding to protect operators against the risk of the unexpected ejection of

large workpieces. The Secretary’s “conspicuous inaction” here is only amplified by

his history with Loren Cook, providing evidence that the Secretary was familiar with

the manner in which Loren Cook conducted its operations, particularly with respect

to the operation of its lathes. We thus conclude that the Secretary’s announcement of

his current interpretation in the citation he issued to Loren Cook amounted to unfair

surprise.

III. 

In sum, although we recognize both the Secretary’s expertise in workplace

safety matters and his need for flexibility in construing ambiguous regulations,

viewing the interpretation of section 1910.212(a)(1) through the lens of Seminole

Rock deference requires us to conclude that this interpretation is not entitled to

substantial deference. Having determined the Secretary’s interpretation of section

1910.212(a)(1) is not entitled to deference, we conclude that this section does not

cover the conduct for which the Secretary cited Loren Cook. For the foregoing

reasons, we deny the petition for review and affirm the Commission’s order. We also

deny Loren Cook’s pending motions to strike. 

MELLOY, Circuit Judge, with whom MURPHY, BYE, and KELLY, Circuit Judges,

join, dissenting.

I. Introduction

The majority correctly notes that the Secretary’s deviation from a longstanding

interpretation of a regulation can be a factor in assessing the reasonableness of a new

interpretation. This factor appears to enjoy the support of two rationales. First,

notice concerns arise if the regulated entity is unaware of the interpretation prior to

taking action (notice concerns). And second, it is possible that through the

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pronouncement of a new interpretation in an administrative adjudication, the

Secretary’s delegatees may be skirting normal agency process and advancing an

interpretation that reflects an ad hoc rationalization for an action or more simply does

not reflect the Secretary’s reasoned and considered judgment (agency-process

concerns).

It does not follow, however, that we must address notice concerns through a

wholesale rejection of the Secretary’s new interpretation. Rather, the Secretary’s

interpretation may stand, and notice concerns may affect the penalty, if any, to be

imposed. It also does not follow that a court should reject the new interpretation as

failing to honor agency process when an administrative adjudication is a permissible

vehicle for articulating an interpretation, the interpretation is consistent with the text

of the regulation, and the Secretary’s past interpretation is not an expressly announced

position, but rather a pattern of agency inaction.

The question at the heart of this appeal is whether our court should exercise

restraint and defer to the evolving views of the Secretary in this matter. The majority

appears to at least partially share the view that the Secretary possesses "expertise in

workplace safety matters and . . . need[s] flexibility in construing ambiguous

regulations." The majority, however, goes to great lengths in an attempt to make the

Secretary’s clear and textually supported interpretation of the regulation appear

unreasonable in order to justify a refusal to extend deference. In doing so, the

majority relies heavily on materials outside the regulation—materials which may be

evidence of inconsistent interpretations but which do not disprove the simple fact that

the Secretary’s interpretation is a straightforward and clear reading of the regulation. 

Ultimately, I disagree with the majority’s conclusion that its interpretation,

rather than the Secretary’s interpretation, is more reasonable. I also believe that,

because the Secretary’s interpretation enjoys substantial textual support, we should

grant the agency the substantial deference it is owed in interpreting its own regulation. 

See Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding that the Secretary’s

-14-
interpretation of its “own regulations . . . is . . . controlling unless ‘plainly erroneous

or inconsistent with the regulation’”) (quoting Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410, 414 (1945)) (additional citation omitted). Any notice concerns should

be dealt with in terms of the penalty, if any, to be imposed and not a wholesale

rejection of the Secretary’s interpretation.

II. Background

I add upon the facts presented by the majority because I find additional facts to

be material and because the ALJ failed to make certain findings that would have been

material to the reasonableness of the Secretary’s interpretation. Loren Cook uses

lathes of different sizes to form workpieces of different sizes. Large lathes employ

barrier guards to protect workers from ejected objects. In the past, small lathes also

employed such guards. By May 2009, however, Loren Cook had removed guards

from the small lathes. At that time, the twelve-pound workpiece at issue broke loose,

shot out, and struck a worker in the head, killing him. Although the parties dispute

the frequency with which similar ejections of workpieces occurred in the past, it is

undisputed that prior workpiece ejections had occurred. For example, approximately

two weeks before the incident that killed the worker, a workpiece from a small lathe

shot out and narrowly missed a worker twenty feet away.4

When Loren Cook sought review of the Secretary’s charge, the ALJ held a

twenty-day hearing that resulted in an extensive record. The ALJ concluded that 29

C.F.R. § 1910.212(a)(1) did not apply in the context of the present case. According

4

After the May 2009 fatality, at least one lathe operator reattached a guard to

his small lathe. A Loren Cook supervisor questioned the operator about the guard and

later removed it. This guard, and other guards that previously had been used on small

lathes, were purportedly removed for inspection. The guards, however, could not be

located when demanded by the Secretary in this matter. The Secretary moved for

sanctions alleging spoliation of evidence. The ALJ denied the motion, but stated he

was “troubled by the disappearance of the guards.” 

-15-
to the ALJ, the regulation only required guards on lathes to prevent debris or waste

material from being ejected; it did not apply to guard against the ejection of the actual

item being worked on, i.e., the ejection of the actual workpiece. As a result of this

threshold determination, and notwithstanding the substantial record, the ALJ elected

not to reach several other elements of the charge and defenses to the charge, stating,

“it is not necessary to address several of the issues raised at the hearing, including the

feasibility of abatement, fair notice, credibility of experts, willful classification, and

collateral estoppel.” (Emphasis added). Finally, the ALJ denied any pending motions

not previously ruled on, presumably as moot, in light of the ALJ’s holding. The

Commission declined further review, and the ALJ’s decision became a final order of

the Commission. It is clear to me that, had the ALJ found the regulation to be

applicable, the twenty-day hearing and the resulting record made the case fully ripe

for the ALJ to rule on the issue of whether guards on small lathes would be feasible

and whether fair notice concerns otherwise would have precluded the imposition of

a fine. The ALJ simply chose not to address those issues.

Notwithstanding the ALJ’s failure to address the issue of feasibility, the facts

strongly suggest the use of barrier guards on small lathes is feasible: they were used

in the past; after the fatality at least one lathe operator unilaterally reinstalled such a

guard; and such guards are still in use on the larger lathes. I view these facts as

militating strongly against an assumption that use of the guards might be infeasible

or ineffectual.5

5

The majority, supra at 9, states, “These guarding devices would do little to

prevent the hazard for which the Secretary cited Loren Cook: the high speed ejection

of a workpiece nearly 3 feet in diameter and weighing 12 pounds.” This conclusion

appears to ignore the fact that such guards on large lathes protect against the ejection

of even larger workpieces. At a minimum, the majority’s commentary on feasibility

addresses an issue not reached by the ALJ.

-16-
III. Discussion

A. Martin

Normally, our review of a petition from a Commission order would be standard

deferential review pursuant to the Administrative Procedures Act. See Omaha Paper

Stock Co. v. Sec’y of Labor, 304 F.3d 779, 782 (8th Cir. 2002) (“We will uphold the

Commission’s legal conclusions unless they are ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’” (quoting 5 U.S.C.

§ 706(2)(A))). Here, however, the Secretary appeals as to a question of regulatory

interpretation upon which the Secretary and the Commission have adopted competing

positions. Assuming the competing interpretations are reasonable, we must defer to

the Secretary. See Martin v. Occ. Safety & Health Review Comm’n, 499 U.S. 144,

152–53 (1991) (resolving the relative authority of the Secretary and Commission); 

Solis v. Summit Contractors, Inc., 558 F.3d 815, 823–25 (8th Cir. 2009) (applying

Martin). 

In Martin, the Court resolved a circuit split and held that “a reviewing court

may not prefer the reasonable interpretations of the Commission to the reasonable

interpretations of the Secretary.” 499 U.S. at 158. In reaching this conclusion, the

Court addressed Congressional intent in depth and examined the specific statutory

division of adjudicatory and policymaking authority between the Commission and the

Secretary. Id. at 151–54. The Court emphasized that the Occupational Safety and

Health Act (“OSHA”) did not create a typical unitary administrative agency, but that

the Commission and Secretary represented a separation of neutral, adjudicatory

functions, on the one hand, from enforcement and policymaking functions, on the

other. Id. The Court concluded unequivocally that deference in the interpretation of

regulations was owed to the Secretary rather than the Commission, stating:

[T]he Commission is authorized to review the Secretary’s interpretations

only for consistency with the regulatory language and for

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reasonableness. In addition, . . . Congress expressly charged the

Commission with making authoritative findings of fact and with

applying the Secretary’s standards to those facts in making a decision. 

See 29 U.S.C. § 660(a) (Commission’s factual findings “shall be

conclusive” so long as “supported by substantial evidence”). The

Commission need be viewed as possessing no more power than this in

order to perform its statutory role as “neutral arbiter.”

Id. at 154–55. 

Martin remains good law, although several courts have recognized the limited

scope of Martin’s holding. For example, courts have refused to apply Martin in cases

involving different agencies. See, e.g., Hinson v. Nat’l Transp. Safety Bd., 57 F.3d

1144, 1148 n.2 (D.C. Cir. 1995) (recognizing the narrow applicability of Martin and

refusing to apply Martin in a case involving competing interpretations from the

Federal Aviation Administration and the National Transportation Safety Board). And

courts have determined that Martin was not controlling as to questions of statutory

interpretation. See, e.g., Chao v. Occ. Safety & Health Review Comm’n, 540 F.3d

519, 525 (6th Cir. 2008) (“Left undecided by Martin, however, is to whom does a

reviewing court defer when the Secretary and Commission offer conflicting

interpretations of a provision of [OSHA].”). These refusals by other courts to expand

Martin do not undercut Martin’s holding because the Supreme Court in Martin defined

the issue narrowly and did not purport to issue a broad ruling that might apply in other

contexts or to other agencies. Martin, 499 U.S. at 157 (“We emphasize the

narrowness of our holding. We deal in this case only with the division of powers

between the Secretary and the Commission under the OSH Act.”). In fact, the nature

of the issue raised in Martin was such that courts would not expect Martin to find

application except in this very specific context: Martin rested on the careful division

of authority Congress set out for the Secretary and the Commission, and that type of

division of authority likely will vary from agency to agency and statute to statute.

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The analysis in Martin itself also makes clear that the Secretary’s understanding

of the effect of an interpretation may develop over time given the Secretary’s

involvement with many more enforcement actions than the Commission.6

 The Court

identified this fact as one of the Secretary’s “structural advantages” over the

Commission in the interpretation of regulations. Id. at 152. Because the Court

expressly anticipated that the Secretary may adjust its interpretation of a regulation

over time, we should guard against championing the need for consistency at the

expense of the Secretary’s flexibility. Like the Supreme Court, I believe a general

review for reasonableness and for adherence to regulatory language is strong

protection against surprising, biased, or abusive interpretations. See id. at 156

(“Congress also intended to protect regulated parties from biased interpretations of the

Secretary’s regulations. But this objective is achieved when the Commission, and

ultimately the court of appeals, review the Secretary’s interpretation to assure that it

is consistent with the regulatory language and is otherwise reasonable.”).

Our review in this matter therefore requires that we address the Secretary’s

interpretation of § 1910.212(a)(1) to determine whether it is a reasonable and textually

supported interpretation that merits deference pursuant to Martin in the face of a

competing and inconsistent interpretation by the Commission.

6

The Court in Martin stated:

[B]y virtue of the Secretary’s statutory role as enforcer, the Secretary

comes into contact with a much greater number of regulatory problems

than does the Commission, which encounters only those regulatory

episodes resulting in contested citations. Consequently, the Secretary is

more likely to develop the expertise relevant to assessing the effect of a

particular regulatory interpretation.

499 U.S. at 152–53 (emphasis added) (internal citation omitted).

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B. Interpretation of 29 C.F.R. § 1910.212(a)(1) 

The regulation at issue provides:

Types of guarding. One or more methods of machine guarding shall be

provided to protect the operator and other employees in the machine area

from hazards such as those created by point of operation, ingoing nip

points, rotating parts, flying chips and sparks. Examples of guarding

methods are—barrier guards, two-hand tripping devices, electronic

safety devices, etc. 

29 C.F.R. § 1910.212(a)(1). 

Like the ALJ, the majority concludes that “hazards such as those created by

point of operation, ingoing nip points, rotating parts, flying chips and sparks” applied

only to hazards in the form of ejected debris and not ejected workpieces. The majority

also concludes the regulation applies only to machines in the normal course of

operation, ejection of an actual workpiece could occur only in the event of a

malfunction, and therefore, the regulation should not apply. The Secretary argues this

same language contains no inherent limitation to protections only against ejected

debris rather than workpieces and no inherent limitation to situations involving normal

machine operation rather than machine malfunctions. 

In reviewing the interpretation of a regulation, meaning should be accorded to

all terms, and “[a]ny interpretation of [an OSHA regulation] generally should conform

to the accepted rules of grammar.” Solis, 558 F.3d at 823–24. As an initial matter,

the list “point of operation, ingoing nip points, rotating parts, flying chips and sparks”

is preceded by the phrase “hazards such as those created by.” Because the phrase

preceding the list employs the term “created by,” the list necessarily refers to items or

conditions that cause the hazards, rather than merely and narrowly setting forth an

enumeration of actual hazards. When meaning is accorded to the phrase “created by,”

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it becomes apparent that the potential class of hazards covered by the regulation

necessarily is larger than the enumerated causes. Each cause for a hazard could give

rise to several different actual hazards. In conducting its analysis, the majority fails

to fully account for this broad language. Supra at 7 (referring to the list as “five

examples of hazards”).

Second, because the phrase preceding the list uses the term “such as,” the list

is exemplary and not exhaustive. Orion Fin. Corp. of S.D. v. Am. Foods Grp., Inc.,

281 F.3d 733, 739 (8th Cir. 2002) (“An objective reader would interpret the phrase

‘such as’ to mean ‘for example.’”); Donovan v. Anheuser-Busch, Inc., 666 F.2d 315,

327 (8th Cir. 1981) (“The phrase ‘such as’ is not a phrase of strict limitation, but is a

phrase of general similitude indicating that there are includable other matters of the

same kind which are not specifically enumerated by the standard.”). This fact alone

suggests it may be inappropriate to engage in a hypertechnical analysis as done by the

majority when citing materials outside the regulation to limit the meanings of express

terms and arrive at a narrow construction (and not merely to illustrate an inconsistent

interpretation). See Donovan, 666 F.2d at 327 (concluding that use of the phrase

“such as” required the court to interpret an OSHA standard as reaching beyond the

enumerated items to cover other, similar items “of the kind specified”).

Turning to the exemplar list of items set forth as nonexclusive causes for

hazards, the regulation itself defines “point of operation” as “the area on a machine

where work is actually performed upon the material being processed.” 29 C.F.R.

§ 1910.212(a)(3)(i). The lathes at issue have several “rotating parts,” and the

workpiece itself rotates in tandem with those parts when affixed to the machine—such

is the essence of a lathe. The “point of operation” is the workpiece when rotating in

tandem with the lathe. Accordingly, even without reaching the reference to flying

chips and sparks, there exist two grammatically simple and clear routes that support

finding the regulation applicable to the present case: the danger associated with a

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workpiece being ejected from the lathe is a “hazard[] such as [that] created by point

of operation [or] rotating parts.”

Focusing on the language “rotating parts,” the majority concludes that, because

a clear and undisputed danger of rotating parts is the possibility of a worker being

crushed or pulled when a body part, hair, or clothing is caught on the rotating part, the

term cannot also refer to danger in the form of ejected parts. To support its

interpretation, the majority looks outside the regulation itself at OSHA’s online

interpretative guidance. This source, however, does not purport to identify an

exclusive type of danger associated with rotating parts. Rather, as quoted by the

majority, this source simply stresses that even slowly rotating parts can be dangerous. 

The apparent need to stress this fact indicates that the same source implicitly

recognizes—or assumes the clarity of—risk associated with rapidly rotating parts. In

any event, the ejection of a workpiece is merely the consequence of inadequate

connections and the centrifugal force associated with rapid rotation. Under the

simplest and most straightforward interpretation of the regulation itself, and without

resort to sources outside the regulation, the phrase “hazards . . . created by . . . rotating

parts” can refer to items ejected from a rapidly rotating lathe. Nothing about the

agency’s online guidance and a reference to additional risks from slowly rotating parts

suggests exclusivity. And, the Secretary’s broad interpretation recognizes the

regulation’s broadening language “such as” and “created by.”

Finally, use of the expansive language “such as” to indicate an exemplary rather

than an exhaustive list comports with the undisputed purpose of the regulation: “to

‘assure so far as possible every working man and woman in the Nation safe and

healthful working conditions.’” Donovan, 666 F.2d at 327 (quoting 29 U.S.C.

§ 651(b)); Arkansas-Best Freight Sys., Inc. v. Occ. Safety & Health Review Comm’n,

529 F.2d 649, 653 (8th Cir. 1976) (“The legislative decision has been made to protect

the health of employees even though increased production costs may result.”). The

court in Donovan concluded that a “restrictive” interpretation of a term in an OSHA

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regulation would not be consistent with the broad and protective statutory purpose but

that the regulatory interpretation “should extend to those [situations] which in the

reasonable judgment of the Secretary need protection from injury by guardrails.” 

Donovan, 666 F.2d at 327. While this broad statement of purpose is by no means

conclusive, the consistency between this broad purpose and the plain text as urged by

the Secretary further demonstrates the reasonableness of the Secretary’s interpretation.

To reach the opposite conclusion, the majority appears to employ three tools. 

First, the majority identifies an unwritten distinction within the exemplar list of items

that would separate the regulation’s list into distinct and mutually exclusive groups. 

Second, the majority identifies an unwritten distinction between protections required

in common, everyday situations and protections required to guard against less

common hazards. And third, the majority relies upon the Second Circuit’s opinion

interpreting the regulation, Carlyle Compressor Company v. Occupational Safety &

Health Review Commission, 683 F.2d 673 (2d Cir. 1982).

The majority’s subdivision of the regulation’s list suffers from a lack of express

textual support and fails to accord meaning to the regulation’s use of exemplar

language. The majority concludes, “These five hazards create two distinct categories:

sources or causes of the hazards (point of operation, ingoing nip points, and rotating

parts) and by-products from routine operation of the machinery (flying chips and

sparks).” Supra, at 7. It appears the majority concludes that the express listing of

“flying chips and sparks” impliedly excludes from the list any other form of ejected

material even if that other ejected material is a “hazard[] . . . created by” the “point of

operation, ingoing nip points, [or] rotating parts.” 

This reading of the enumerated list as creating mutually exclusive categories

is inconsistent with the balance of text that clearly indicates the list is exemplar and

nonexclusive. This distinction is also curious, not only for its absence from the actual

text, but in its creation of an inherently unworkable and apparently outcome-

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determinative dividing line acknowledged nowhere in the majority’s opinion. There

can be no dispute that the regulation requires protection against hazards such as those

created by “flying chips.” Certainly, then, a dividing line must exist somewhere

between very small flying chips (triggering worker protection under the majority’s

interpretation of the regulation) and larger pieces of flying debris (conclusively

precluding application of the regulation). In either case, the debris is, in fact, a portion

of the blank, i.e., the workpiece. I find no actual support for any method that might

be used to identify this dividing line. I certainly find no support containing sufficient

nuance to define the size limit at which a “chip” no longer invokes the need for a

protective device under the regulation. 

Nevertheless, the majority labels the Secretary’s straightforward interpretation

as strained, unsupported by common sense, and hypertechnical. All of these labels

ring hollow given the majority’s unjustified and extra-textual division of the list into

two discrete and mutually exclusive categories. In fact, I find just the opposite to be

true; the majority’s interpretation which requires the invocation of outside materials

and a discounting of the regulation’s broadening terms appears to be a hypertechnical

and unnatural reading that departs from our general rules of construction. 

C. Carlyle and the Normal Operation/Malfunction Distinction

Because the majority’s interpretation enjoys little support in the actual text of

the regulation, the result today would appear to rest almost entirely on the history of

agency acquiescence following the Carlyle opinion. This inertial support, however

does not speak in any way to the question of whether the Secretary’s interpretation is

textually sound. Moreover, even if it were appropriate to deny the Secretary

flexibility and force adherence to past inaction, continued reliance on Carlyle is

misplaced for two reasons. First, Carlyle is fundamentally flawed in that it rests upon

an invented distinction between normal and abnormal operations and ignores the need

to guard against harm arising from foreseeable and often-repeated machine

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malfunctions or human errors. Second, Carlyle simply does not apply to the present

case because the record indicates fairly clearly that the ejection of workpieces was a

common occurrence at Loren Cook that cannot truthfully be labeled “abnormal.” 

In Carlyle, the Second Circuit addressed a situation involving a machine that

held and rapidly rotated a shaft so that the shaft could be subjected to grinding. 683

F.2d at 674. There, the court interpreted the language of the regulation narrowly,

found the regulation inapplicable to a thrown workpiece, and recognized a distinction

between “normal projectiles” and “abnormal projectiles.” Id. at 675 (“The ALJ

apparently interpreted ‘flying chips’ to include shafts thrown by the machine. . . . [But

h]ere, the standard is directed at the hazards attendant upon the wastage created by

more normal projectiles such as flying chips and sparks, rather than abnormal

projectiles such as flying workpieces.” (emphasis added)). The Court in Carlyle,

nevertheless, found that the absence of a machine guarding device comprised a

violation of a more general regulatory section regarding unsafe working conditions. 

See id. at 676 (“Despite our conclusion that the specific duty clause does not apply,

we hold that the Commission properly determined that Carlyle violated the general

duty clause, 29 U.S.C. § 654(a)(1) (1976), by not eliminating the danger of shafts

expelled from the grinder.”).

In reaching a narrow and limited interpretation of the regulation, the Carlyle

court rested its analysis upon an invented distinction between normal operations on

the one hand (producing normal projectiles), and abnormal situations or machine

malfunctions, on the other (producing abnormal projectiles). This distinction not only

lacks support in the regulation’s text, it fails to comport with the common sense need

for protection from machine malfunction, unsafe operating practices, operator error,

or inadvertent mistake—often the primary sources of risk in the workplace. 

See Signode Corp., 4 BNA OSCH 1078, *2 (No. 3527, 1967) (“One purpose of the

Act is to prevent accidents. . . . Although there is little chance of an injury if the

machines are operated properly, the standard is plainly intended to eliminate danger

-25-
from unsafe operating procedures, poor training, or employee inadvertence.” (internal

citations omitted)); see also Donovan, 666 F.2d at 327–28 (addressing a regulation

requiring railings on “platforms” and rejecting a limiting interpretation that would

have excluded from coverage raised surfaces accessed by workers only on an

intermittent rather than regular basis). If such a distinction were to be recognized

consistently, it would beg the question of why access to confined spaces is carefully

regulated or why workers at heights must wear harnesses. Walls collapse, workers

fall, and workpieces fly from lathes. The purpose of OSHA is thwarted if protections

extend only to workplace situations involving perfectly functioning machines and

error-free workers. 

Turning to the record, several employees testified as to the frequency with

which the Loren Cook lathes ejected entire workpieces. While some dispute remains

as to the exact percentage of workpieces ejected7

, it is undisputed that the accident

resulting in the fatality was not an isolated or unexpected event. As noted, guards are

still employed on the large lathes, the small lathes for years employed such guards,

and at least one worker re-installed a guard on his small lathe after the fatality (before

a supervisor removed the guard “for inspection” and before all such small-lathe guards

disappeared). And, even Loren Cook’s work instruction manual stated, “The first rule

of manual spinning lathe operations is CAUTION. This is one of the most difficult

operations performed at Loren Cook Company. The very nature of manual spinning

lathe equipment possesses the potential for accidents.” (emphasis in original). 

7

 Police reports of employee interviews after the fatality suggested as many as

20% of workpieces detached from lathes during operation. This number seems

facially suspect given the low number of actual injuries and given that the percentage

would appear to be an economically infeasible amount of waste. In any event, neither

party suggests the accident in this case was an isolated event.

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The interpretation favored by the majority, then, enjoys historic inertia rooted

in a flawed Second Circuit opinion easily distinguishable from the present case. It

does not enjoy a claim to being the more reasonable interpretation of the regulation. 

Further, in this case, the majority employs rhetorical tools to “double down” on the

normal operation/malfunction distinction, repeatedly characterizing ejection of the

workpiece as a “catastrophic failure” in an effort to illustrate a difference between a

rotating part slipping from the lathe and some other piece of material or chip or spark

being ejected from the lathe.8

III. Conclusion

Because Martin makes clear the Secretary is specifically qualified and

empowered to amend its own interpretations over time, I believe it is important to

guard against an overeagerness to declare a new interpretation unreasonable. In

Martin itself, the Supreme Court acknowledged that consistent application of an

interpretation is “a factor bearing on the reasonableness of the Secretary’s position.” 

Martin, 499 U.S. at 157. And, I do not deny that the Secretary’s failure to put forth

the present interpretation earlier or in a different format creates notice concerns. Id.

at 158 (“[T]he Secretary’s interpretation is not undeserving of deference merely

because the Secretary advances it for the first time in an administrative adjudication[,

8

The consequences of the ejection of the workpiece in this case were, no doubt,

catastrophic. The majority’s characterization of a workpiece ejection itself as

catastrophic, however, suggests the ejection of a workpiece is somehow an isolated

or highly unusual event that renders the lathe unusable. The facts as referenced above

demonstrate otherwise and suggest appropriate labeling for the different types of

ejected materials might be “commonly ejected materials” and “less commonly ejected

materials.” In any event, the choice of the language “catastrophic” to distinguish the

ejection of a workpiece from the ejection of tooling shavings disregards the record

regarding the potential frequency of workpiece ejections. 

-27-
but] the 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 question that remains, however, is how we should address the notice

concerns in this case. If the Secretary’s interpretation of the regulation were somehow

extra-textual or strained, I likely would agree with the majority. As set forth at length

above, however, the Secretary’s interpretation is not strained. The Secretary’s

interpretation comports with the plain language of the statute, gives effect to the

language “created by,” and interprets the phrase “such as” according to our normal

construction of language setting forth exemplary lists. It does so without confusing

the process of textual analysis with the process of examining a pattern of prior

interpretations. Therefore, I would take the Supreme Court at its word and view

consistency with past practice and interpretation as “a factor” rather than—as the

majority advocates—the controlling factor or the only factor in assessing the

reasonableness of an interpretation. In other words, the Secretary’s present advocacy

of a different interpretation is not impermissible or per se unreasonable, although it

may “bear on the adequacy of notice to regulated parties.” Id.

In conclusion, I find nothing about Carlyle or the Secretary’s past enforcement

of the regulation sufficient to demonstrate that the Secretary’s current, plain-language

interpretation is unreasonable. As such, I would defer to the Secretary rather than the

Commission, allow the Secretary’s interpretation to stand, and address notice concerns

on remand. 

I would grant the petition for review, reverse the order of the Commission, and

remand for further proceedings consistent with this opinion.

______________________________

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