Cargill, Inc.

Plain-English summary

OSHA cited Cargill after finding an extension ladder leaning against a truck-receiving scale at its Portland marine terminal. The ladder had slip-resistant feet, but its top could move seven inches to one side and neither end was secured. The Commission held that 29 C.F.R. § 1917.119(f)(9) clearly requires both slip-resistant bases and securing at the top or bottom to prevent slipping. It agreed that the standard does not mandate lashing or blocking in every case, because another effective method such as a ground attendant could secure a ladder. Cargill's supervisor's belief that the ladder felt secure did not rebut evidence that it could slip and expose a worker to a fall of up to 14 feet. The Commission affirmed the repeat violation and assessed the uncontested $100 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1917.119(f)(9).
• Outcome: The repeat ladder violation was affirmed, with a $100 penalty.
• Key point: Slip-resistant feet do not replace the separate requirement to secure a portable ladder at its top or bottom against slipping.

Full text (OSHRC public release)

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW.
4TH FLOOR
WASHINGTON DC. 20006-1246

FAX:
COM (202) 634-4008

FTS 634-4008
SECRETARY OF LABOR,
Complainant,
v. ; OSHRC Docket No. 90-3191
CARGILL, INC,
Respondent.

DECISION
Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:

Cargill, Inc. (“Cargill”) operates a facility at Terminal 4, North Lombard, Portland,
Oregon, where it is engaged in marine terminal operations. Following an inspection at that
facility, the Occupational Safety and Health Administration (“OSHA”) issued a citation
which alleged in part a repeat violation of 29 C.F.R. § 1917.119(f)(9) for Cargill’s failure to
“secure” a ladder within the meaning of the standard.’ Review Commission Administrative
Law Judge James H. Barkley found that the ladder was not secured as the standard requires
and assessed a penalty of $100. For the reasons set forth below, we find that the judge did
not err in finding that Cargill violated the standard.

1 The cited standard provides:
§ 1917.119 Portable ladders.
(f) Ladder usage.

(9) Ladders shall be fitted with slip-resistant bases and secured at top or bottom to prevent
the ladder from slipping.

2

I. Background

On October 31, 1990, OSHA Compliance Officer Charles Penrod inspected Cargill’s
facility at Terminal 4. During his inspection, the compliance officer observed a wooden
extension ladder leaning against a metal truck-receiving scale at the northeast end of the
distribution floor. The ladder was extended to a length of approximately 14 feet. It stood
on a concrete floor and was equipped with slip-resistant bases. The top of the ladder was
positioned between an angle iron on its left side and a cable on the right side to which was
attached 8000 pounds of test weight. The ladder could not be shifted to the left at all,
though it could be moved 7 inches to the right before it contacted another angle iron. The
cable impeded the ladder’s movement to the right, however.

As a result of the inspection, Cargill was cited for several violations of the
Occupational Safety and Health Act (“the Act”), including Repeat Citation No. 2, Item 1,
alleging a violation of 29 C.F.R. § 1917.119(f)(9).* The Secretary proposed a $100 penalty
for this item. At the hearing, the compliance officer testified that he cited Cargill for the
alleged violation because he did not observe anything holding the ladder to the scale. He
testified that for the ladder to be “secured” within the meaning of the standard, it should
have been either lashed to the surrounding structure with a material such as rope or wire
to prevent it from “shifting[,] moving[,] or falling down,” or placed in such a position that
it could not fall from the scale. The compliance officer testified that the ladder could fall
off of the scale and subject an employee climbing it to a 1- to 14-foot fall. He testified that
the ladder was used a maximum of once or twice a day by up to three employees.

Cargill’s maintenance supervisor, Mark Bonk, who accompanied the compliance
officer on his inspection, testified that the floor in the area was not slippery and that when

he climbed halfway up the ladder, he did not think the ladder was unsafe and felt that it was

2 Repeat Citation No. 2, Item 1 alleges:

29 C.F.R. § 1917.119(f)(9): Ladders were not fitted with slip[-]resistant bases and secured at
top or bottom to prevent the ladder from slipping:

(a) The 28-foot wooden extension ladder leaning against the truck receiving
scale on the northeast end of the distribution floor was not secured to
prevent it from shifting.

3

secure. According to Bonk, Chuck Landis, the plant electrician, had used the ladder for a
few minutes to check a switch at that gate, and Bonk himself also used the ladder briefly to
check the switch. Bonk testified that Landis had worked on the switch one to two weeks
prior to the inspection, but that the ladder had remained in place since that time. Bonk
removed the ladder shortly after the compliance officer observed it. Bonk testified that
Cargill does not have a policy of tying off wooden or metal ladders.

The alleged violation was characterized as a repeat violation because Cargill was
previously cited in February 1989 for the same violation, although under a different standard,
29 C.F.R. § 1910.25(d)(2)(i).3 The compliance officer testified that although the prior
citation was for a violation of the general industry standards, OSHA had changed its policy.
OSHA now cites under the marine terminal standards for facilities such as Cargill’s.

In his decision, the judge found that the restricted lateral movement of the upper end
of Cargill’s ladder was insufficient to bring it into compliance with the standard. He
determined that the plain language of the standard “requires that ladders be secured at
either the top or the bottom, in addition to being fitted with slip[-]resistant bases, in order
to prevent the base of the ladder from slipping outward.” The judge held that in this case,
“(t]he fact that the top of the ladder rests between two steel beams that restrict lateral
movement does nothing to prevent the base from slipping.” In response to Cargill’s
argument that the condition of the floor was such that the slip-resistant bases on the ladder’s

feet were sufficient to prevent it from slipping, the judge found that “the standard makes

3 The standard provides:

§ 1910.25 Portable wood ladders.
(d) Care and use of ladders{.}

(2) Use. The following safety precautions shall be observed in connection with the use of
ladders:

(i) Portable rung and cleat ladders shall, where possible, be used at such a pitch that the
horizontal distance from the top support to the foot of the ladder is one-quarter of the
working length of the ladder (the length along the ladder between the foot and the top
support). The ladder shall be so placed as to prevent slipping, or it shall be lashed, or held
in position. Ladders shall not be used in a horizontal position as platforms, runways, or
scaffolds[.]

4

no exception for situations where slippage of the ladder’s feet is unlikely because of the
condition of the floor.” The judge assessed a penalty of $100 for this item.

In its petition for review, Cargill did not contest the penalty amount or the “repeat”
characterization of the alleged violation. Cargill requested review solely on the issue of
whether the ladder was “secured” within the meaning of the standard.

II. Issue on Review

Whether the administrative law judge erred in affirming Repeat Citation No. 2, Item 1,
alleging a violation of 29 C.F.R. § 1917.119(f)(9), on the ground that Respondent’s ladder
was not “secured” within the meaning of the cited standard.

Contentions of the Parties

On review, Cargill argues that the interpretation of the standard by the compliance
officer and the judge “denied Cargill proper notice of what was required of it under the
OSH Act.” Cargill claims that the plain meaning of the standard does not require a
portable ladder to be lashed or blocked in some manner “and to read them into its language
deprived Cargill of fair and proper notice of its obligations under the OSH Act.” Cargill
argues that “[t]he Secretary specifically rejected adding lashing and blocking requirements
to 29 C.F.R. § 1917.119(f)(9) when it first promulgated the provision,” citing Marine
Terminals final rule, 48 Fed. Reg. 30,886, 30,904-05 (1983). Cargill further argues that “if
OSHA had wanted lashing or blocking to be part of the standard it would have expressly
stated so, as it has done in numerous other standards” such as 29 C.F.R. § 1918.25(f)
(Longshoring), § 1926.450(a)(10) (Construction), and § 1915.72(a)(3) (Shipyards). It
believes that “[t]he absence of specific language concerning lashing or blocking in section
1917.119(f)(9) indicates that these requirements are not part of that standard.4

Cargill claims that Webster’s Dictionary defines the term “secure” as “strong, stable,
or firm enough to insure safety.”5 Cargill noted that its maintenance supervisor, Mark Bonk,

testified that when he climbed halfway up the ladder, he did not think that the ladder was

4 Cargill incorrectly asserts that under the judge’s decision, Cargill must secure the top and bottom of its
portable ladders to comply with the standard. The judge specifically held that the “standard requires that
ladders be secured at either the top or the bottom.”

5 Cargill did not specify the edition of the dictionary from which it drew its definition.

5

unsafe and felt that it was secure. Cargill contends that the Secretary failed to present
testimony indicating a concern that the ladder’s base was in danger of slipping.6 Cargill
asserts that had the compliance officer touched the ladder, “he would have discovered that
the ladder was positioned so that it was ‘secure’ from movement.” Cargill notes that its
operations require extensive use of ladders for maintaining and servicing equipment and
machinery, and that “often, employees do not have an adequate surrounding structure [to]
which a ladder can be tied or lashed.”

The Secretary notes that in Webster’s Third International Dictionary, p. 2053 (3d ed.
1961), there are twelve definitions for the word “secure,” and that the word in the standard
appears as a verb, which in Webster’s is defined as “to make fast: tie down.” He notes that
the same explanation appears as the second definition in Webster’s New Collegiate Dictionary
at p. 1045 (5th ed. 1977).

The Secretary argues that the cable hanging on the right side of the ladder was not
in itself enough to prevent the ladder’s slipping to the right, but would only slow down any
such movement. He notes the judge’s finding that “[t]he fact that the top of the ladder rests
between two steel beams that restrict lateral movement does nothing to prevent the base

from slipping.” He claims that “[t]he instant standard very simply requires that portable
ladders used in marine terminals be stabilized at one end or the other so that they cannot
slip or move unexpectedly, exposing employees to falls.”

The Secretary agrees that under Chevron U.S.A. v. Natural Resources Defense Council,
467 U.S. 837 (1984), the plain meaning of a statute controls the interpretation, but he
contends that the contemporaneous explanation of a term may be consulted where the terms
are ambiguous. The Secretary argues that he “modified the language of the proposed
standard by deleting specific references to lashing or blocking in order to make the standard
more performance-oriented” and that “[a]s the preamble makes clear, the use of a ‘ground

attendant’ to hold the ladder is a permissible alternative if lashing or blocking ‘cannot be

6 The compliance officer testified that he did not recall seeing anything that would secure that ladder to keep
it from falling. He testified that the ladder could fall off the scale, exposing the person climbing it to a 1- to
14-foot fall.

6

effectively performed,’” citing Marine Terminals final rule, 48 Fed. Reg. at 30,904-05.7 He
argues that “[n]othing in the standard or the preamble, however, suggests that anything less
than fully securing a ladder against movement will suffice.” The Secretary argues that “[i]n
modifying the language of the proposed requirement, the Secretary did not reject the
concept that portable ladders must be lashed or blocked to render them secure, but simply
added an additional method by which an employer could assure stability.” The Secretary
argues that interpreting the term “secured” to mean stabilized is not unique to this standard
and notes that “Cargill’s acknowledged familiarity with the meaning of the term ‘secured’
from similar standards applicable to other industries, particularly when added to its own
prior citation for violation of the general industry standard, wholly undermines [Cargill’s]
attempt to argue that the standard was so vague as to leave Cargill to simply guess at its
meaning.”

In its reply brief, Cargill argues that its subjective knowledge or familiarity with
OSHA regulations is completely irrelevant to whether Cargill could be held to have violated
the standard because it has not lashed or blocked a portable ladder. Cargill argues that a
“reasonable person test” is the proper test used to determine whether an OSHA regulation
is too vague to properly apprise employers of its requirements and cites Brennan v. OSHRC,
505 F.2d 869, 872-73 (10th Cir. 1974). Cargill argues that given the Secretary’s assertion in
his brief that the specific requirements for lashing and blocking were omitted from the final
version of the standard in order to make the standard more performance-oriented, “it is
even more confounding that Compliance Officer Penrod issued the citation simply because

he observed that the ladder was not tied, lashed or blocked.”

7 The pertinent text is as follows:

Paragraph (f)(9), as proposed[,] provided that ladders be fitted with slip[-]resistant bases and
be lashed, blocked or otherwise secured at top or bottom to prevent the ladder from slipping
[46 Fed. Reg. 4245 (1981)]. A commenter, though, pointed out that there were many
situations where lashing or blocking is either impossible or impractical, and advocated that
in those instances, OSHA required that a ladder with a slip-resistant base be used in
conjunction with a ground attendant .... The Agency has modified the provision to permit
the employer to use this practice where [lashing] or blocking cannot be effectively performed.
This suggestion was initially [listed] as an alternative provision [47 Fed. Reg. 14,730-31
(1982)].

7
Analysis

To prove a violation of the Act, the Secretary must show by a preponderance of the
evidence that (1) the cited standard applies, (2) there was a failure to comply with the cited
standard, (3) employees had access to the violative condition, and (4) the cited employer
knew or could have known of the condition with the exercise of reasonable diligence. Astra
Pharmaceutical Prods., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, p. 31,899-900
(No. 78-6247, 1981), aff'd in part, 681 F.2d 69 (1st Cir. 1982). Of these four elements, the
only issue in dispute is whether there was a failure to comply with the cited standard.

Cargill claims that the standard is so vague that it had to guess at its meaning. In
determining whether a standard is vague, the words of the standard are to be viewed in
context, not in isolation, and the purported vagueness of the standard is not judged from the
face of the standard but is determined in light of the application of the standard to the facts
of the case. Ormet Corp., 14 BNA OSHC 2134, 2135, 1991 CCH OSHD ¶ 29,254, p. 39,200
(No. 85-531, 1991). However, the due process clause does not impose drafting requirements
of mathematical precision or impossible specificity. Id.

Section 1917.119(f)(9) clearly requires that a ladder used in a marine terminal facility
must be fitted with slip-resistant bases and be secured at either the top or bottom to prevent
it from slipping. We agree with Cargill that the plain meaning of the standard does not
require that a ladder must either be lashed or blocked to be secured. For example, a ladder
may also be secured by having a ground attendant hold it.

Here, the ladder was not secured at the bottom. The top of the ladder could not be
moved to the left but it could move seven inches to the right. Based on this failure to secure
the ladder, the compliance officer testified that it could slip and cause an employee to fall
up to 14 feet. Cargill contends that the ladder was fitted with slip-resistant bases and was
on a concrete surface. It further relies on the testimony of its maintenance supervisor who
felt that the ladder was secure. However, neither of these factors rebut the compliance
officer’s testimony that the ladder could slip because it was not secured. Slip-resistant bases
are also required by the standard but their use does not secure the ladder against slipping.

Although we do not question the opinion of Cargill’s supervisor that he felt the ladder was

8

secure, that testimony does not establish compliance with the standard, which requires that
the ladder be secured to keep it from slipping. Therefore, because Cargill did not rebut the
compliance officer’s testimony that the ladder could slip, we find no basis for concluding that
the judge erred in his finding that the ladder was not secured to prevent it from slipping, as
required by the standard, and that Cargill failed to comply with the standard.
III. Order

Accordingly, we find that the administrative law judge did not err in affirming Repeat

Citation No. 2, Item 1, alleging a violation of 29 C.F.R. § 1917.119(f)(9). Since the parties

did not contest the penalty amount, we assess a penalty of $100.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: January 27, 1993

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,

OSHRC DOCKET
NO. 90-3191

v.
CARGILL, INC.,

Respondent.

APPEARANCES :
For the Complainant:
Cathy L. Barnes, Esq., Office of the Solicitor,
U. S. Department of Labor, Seattle, Washington
For the Respondent:
Jeffrey Baker, Esq., Portland, Oregon

DECISION AND ORDER

Barkley, Judge:

This proceeding arises under the Occupational Safety and
Health Act of 1970 (29 U.S.C., Section 651, et. seq, hereafter
referred to as the Act).

Respondent, Cargill, Inc., at all times relevant to this
action, maintained a place of business at Terminal 4, North
Lombard, Portland, Oregon, where it was engaged in marine terminal
operations (Answer ¶1). Respondent admits it is an employer
engaged in a business affecting commerce and is subject to the

requirements of the Act (Answer ¶2).

Following an October 31, 1991, inspection by an Occupational
Safety and Health Administration (OSHA) Compliance Officer (CO),
respondent was issued citations and penalties pursuant to the Act
(Tr. 10). By filing a timely notice of contest respondent brought
this proceeding before the Occupational Safety and Health Review
Commission (Commission).

On June 4, 1991 a hearing was held in Portland, Oregon on the
contested violations. The Secretary withdrew Serious Citation 1,
items 1 and 2(b), and Other than Serious Citation 3, item 4
(Tr. 4). Respondent withdrew its contest to Serious Citation 1,
item 2(a), but continued to contest the proposed penalty of $400.00
for that violation (Tr. 6).

Remaining at issue are Repeat Citation 2, item 1, alleging
violation of 29 CFR §1917.119(f)(9); Other than Serious Citation 3,
item 6, alleging a violation of 29 CFR §1917.120(b)(3), and the
appropriate penalty for respondent's violation of §1917.151(h)(1)
described in Serious Citation 1, item 2(a).

Alleged Violations

Serious citation 1, item 2 alleges:

29 CFR 1917.151(h)(1): Rotating parts located 7 feet or
less above working surfaces were not guarded to prevent
employee contact with moving parts.

(a) Guards have not been provided on the two open shafts
for the two motors for the truck dust load out system,
exposing employees to the rotating shafts.

The cited standard provides:

(h) Rotating parts, drives and connections. (1) Rotating
parts, such as gears and pulleys, that are located 7 feet
(2.1m) or less above working surfaces shall be guarded to
prevent employee contact with moving parts.

2

Repeat citation 2, item 1 alleges:

29 CFR 1917.119(f)(9): Ladders were not fitted with slip re-
sistant bases and secured at top or bottom to prevent the lad-
der from slipping:

(a) The 28-foot wooden extension ladder leaning against
the truck receiving scale on the northeast end of the
distribution floor was not secured to prevent it from
shifting.

The cited standard provides:

(9) Ladders shall be fitted with slip resistant bases and
secured at top or bottom to prevent the ladder from slipping.

Other than serious citation 3, item 6 alleges:

29 CFR 1917.120(b)(3): Fixed stairs having four or more
risers did not have stair railings or handrails complying with
29 CFR 1916.112(c)(1):

(a) The crossover stairs, 5 steps each, on the basement
belts have not been provided with handrails. This in-
cludes the 3 belts with 2 crossover stairs on each belt
for a total of 6 crossover stairs.

The cited standard provides:
(b) New installations.

kk *

(3) Fixed stairs having four or more risers shall have stair
railings or handrails complying with §1917.112(c)(1).

Penalty Assessment for Violation of 1917.151(h) (1)

The determination of what constitutes an appropriate penalty

is within the discretion of the Review Commission. Long Manufac-

turing Co. v. OSHRC, 554 F.2d 902 (8th Cir. 1977). In determining

the penalty the Commission is required to give due consideration to
the size of the employer, the gravity of the violation and the

employer's good faith and history of previous violations.

The gravity of the offense is the principle factor to be

considered. Nacirema Operating Co., 1 BNA OSHC 1001, (No. 4,

1972).

Cargill is a large employer, with 60,000 employees nationwide
(Tr. 12). The CO testified that he had cited Cargill's Oregon
sites for approximately 14 violations in the past (Tr. 13, 40), but
noted that Cargill had a good safety program and responded quickly
to abate the violation (Tr. 14). Employees were exposed to the
rotating shafts and couplings of respondent's dust loadout platform
during the operation of the loading platform as well as during
daily maintenance procedures, i.e. grease and oil fittings (Tr.
11). The CO testified that maintenance personnel could catch
pieces of their clothing in the moving machinery and be drawn into
the equipment, sustaining fractures and possibly amputation (Tr.
12).

This Judge finds that the proposed penalty is appropriate.
$400.00 will be assessed.

Alleged Violation of §1917.119(f)(9)

During the inspection the CO noted a 32 foot wooden extension
ladder leaning against a metal truck receiving scale at the north-
east end of the distribution floor (Tr. 15, 64). The ladder had
skid pads on its feet and stood on a concrete floor (Tr. 30, 61).
The ladder was not secured at either the top or the bottom (Tr. 15-
16, 55). The CO made no attempt to climb or move the ladder and
could not say whether it was actually stable in its position (Tr.

27, 31).

Mark Bonk, Cargill's Maintenance Supervisor (Tr. 51),
testified that on the day of the inspection, the extension ladder
was placed against a piece of angle iron on the left, and seven
inches from a second piece of iron on the right (Tr. 58-59; Ex. R-1
through R-4). A cable attached to 8,000 pounds of test weights was
located on the right side of the ladder (Tr. 60). Bonk stated that
the ladder, in that position, could not be shifted to the left at
all. Bonk could shift the ladder seven inches to the right, but
stated that its movement was slowed by the cable (Tr. 60, 72).

Bonk testified that the floor in the area was not slippery,
and felt that the ladder was secure in its position on the day of
the inspection (Tr. 55, 62).

Bonk testified that the ladder had been used in the cited
position for only a few minutes by the plant electrician, Chuck
Landis, to check the limit switch at that gate (Tr. 62-64, 74).
Bonk stated that Landis had worked on the switch a week to two
weeks prior to the inspection, but that the ladder had remained in
place since that time (Tr. 75).

Discussion

Respondent contends that it was in compliance with the cited
standard because, 1) its ladder was placed so that only minimal
lateral movement was possible at the top of the ladder and, 2) the
condition of the floor was such that the skid resistant pads on the
ladder's feet were sufficient to prevent it from slipping.

The restricted lateral movement of the upper end of Cargill's

ladder is insufficient to bring it into compliance with

§1917.119(f)(9). The plain language of the cited standard requires
that ladders be secured at either the top or the bottom, in
addition to being fitted with slip resistant bases, in order to
prevent the base of the ladder from slipping outward. The fact
that the top of the ladder rests between two steel beams that
restrict lateral movement does nothing to prevent the base from
slipping. With respect to respondent's second argument, the
standard requires slip resistance bases and a secured top or bottom
in all cases; the standard makes no exception for situations where
Slippage of the ladder's feet is unlikely because of the condition
of the floor.

Respondent admits that at least one employee, the plant
electrician was exposed to the hazard posed by the ladder.

The record establishes that Cargill violated §1917.119(f)(9).

OSHA's CO testified that in 1989, Cargill was cited under the
general industry standard, §1910.25(d)(2)(i), for failing to secure
a ladder (Tr. 20, Ex. C-1). The 1989 violation and the violation
at bar are clearly "substantially similar," therefore, the
violation is properly characterized as a "repeat" violation.

Potlatch Corporation, 7 BNA OSHC 1061, 1063 (No. 16183, 1979).

The CO testified that a fall from the ladder could result in
physical harm, but did not assess the severity of possible harm
because of the improbability of an accident actually occurring (Tr.
18, 95). Taking his testimony, and the other relevant factors into
consideration, this Judge finds that the proposed penalty of

$100.00 is appropriate.

Alleged Violation of §1917.120(b) (3)

In Cargill's basement stairs were affixed to respondent's
conveyor belts as crossover stairs (Tr. 65, 69). The stairs had
been in place since at least 1979 (Tr. 87). At least four of the
stairs had four risers or more. (Tr. 22, 66; Ex. R-5, R-6). The
conveyor is 41 inches off the ground (Tr. 67). There were no
handrails near the stairs (Tr. 23).

Bonk testified that employees using the crossover stairs could
not stand upright because of hydraulic lines and electrical
conduits passing over the conveyor belt (Tr. 68).

Discussion

Respondent contends that all of subpart (b) applies only to
fixed stairs installed after October 3, 1983 and the stairs subject
to the citation were installed prior to that date and therefore,
not subject to the standard. Complainant argues that cut-off date
applies only to the requirements of paragraph (b)(1), but not the
remaining paragraphs under subpart (b).

Section 1917.120(b) specifically states the scope of the
cited standard, i.e. "New installations." Subsection (b)(1)
contains riser size and loading specifications applicable to
"[f]ixed stairs installed after October 3, 1983." Subsections
(b)(2) through (b)(5) also contain construction specifications for
fixed stairs, specifying landing and handrail dimensions, and
providing discrete requirements for stairs in restricted areas.

The latter subsections do not refer to a particular installation

date; however, they, like (b)(1), fall under the subtitle "New
installations."

The Commission has held that "[a]lthough titles and topic
headings are merely tools of statutory interpretation which cannot
limit the plain meaning of the text, they clearly do indicate or

characterize the subject matter of the standard." Everglades Sugar

Refinery, Inc., 7 BNA OSHC 1410, 1412 (No. 76-2643, 1979) (cita-

tions omitted).

Because of the similarity of sections (b)(1) through (5), all
of which contain construction specifications, and because of their
placement under the same topic heading without specifying different
ranges of application, this Judge finds that all subsections under
paragraph (b) were intended to apply only to fixed stairs installed
after October 3, 1983, the date provided in subsection (b)(1).

See, Austin Building Company, 8 BNA OSHC 2150, 2153 fn. 7 (No. 77-

3878, 1980). Accordingly, respondent's stairs having been
installed prior to October 3, 1983 are not subject to the standard.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and
necessary to a determination of the contested issues have been
found specially and appear in the decision above.

Order

1. For violation of Serious citation 1, item 2 alleging

violation of 29 CFR §1917.151(h)(1), a penalty of $400.00 is AS-

SESSED.

2. Repeat violation 2, item 1, alleging violation of 29 CFR
   §1917.119(f)(9) is AFFIRMED, and a penalty of $100.00 is ASSESSED.
3. Other than serious citation 3, item 6, alleging violation

of 29 CFR §1917.120(b)(3) is DISMISSED.

James H. Barkley
Judge, OSHRC

Dated: October 9, 1991