Secretary of Labor v. Sims Crane

Plain-English summary

Sims Crane employees walked beneath a 625-pound spreader bar suspended 25 to 35 feet above the ground while a crane was being prepared for work. The Commission rejected an interpretation that would make necessary crane rigging impossible. Reading the suspended-load and maintenance standards together, it held that miners may enter a load's fall zone for necessary rigging work when the load is blocked against hazardous lowering. The violation nevertheless stood because the crane operator's second trip beneath the bar, after the inspector warned him to stay clear, was not shown to be necessary for rigging. Acting Chairman William I. Althen dissented from that application, viewing the return trip to retrieve records as incidental to the ongoing rigging process.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.16009
• Outcome: The violation for passing beneath the suspended spreader bar was affirmed in result, leaving the $300 penalty in place.
• Key point: Necessary rigging activity may occur within a suspended load's fall zone when protected against hazardous lowering, but unrelated or unnecessary passage beneath the load remains prohibited.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA)

v.

SIMS CRANE

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Docket No. SE 2015-315-M

BEFORE:  Althen, Acting
Chairman; Jordan, Young, and Cohen, Commissioners

DECISION

BY:  Jordan, Young, and Cohen,
Commissioners

This proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012)
(“Mine Act”), and involves a citation issued by the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) to Sims Crane (“Sims”). The citation
alleges that Sims violated 30 C.F.R. § 56.16009 [1]
by allowing miners to work under a suspended spreader bar. [2]
Sims contested the citation and the Secretary’s proposed civil penalty of $100.

After a hearing on the merits, an Administrative
Law Judge affirmed the citation and assessed a penalty of $300 because he found
that the operator’s negligence was greater than the Secretary had alleged. 38
FMSHRC 1008 (May 2016) (ALJ). Sims filed a petition for discretionary review challenging
the Judge’s definition of what constitutes a “suspended load” for purposes of
the standard. [3]

For the reasons that follow, we affirm in result
the Judge’s conclusion that Sims violated section 56.16009 when an employee
walked under the suspended spreader bar.  

I.

Factual
and Procedural Background

During an MSHA inspection of the S.D.I. Quarry,
a rock and sand mine in Florida, the inspector noticed a crane operating with a
spreader bar attached to its hoist hook. He observed William Assad, a crane
helper, standing under the spreader bar while the crane was scoping out [4]
its boom in preparation for dismantling and removing a shaker unit. Tr. 111.   

The spreader bar at issue is a 625-pound
cylindrical steel bar measuring between 10 and 14 feet long and 6 to 8 inches
in diameter. The spreader bar was attached to the crane’s hoist hook by means
of two cables extending from opposite ends of the bar. These cables were
secured to the spreader bar by u-shaped shackles which could only be detached
by removing steel safety pins. At the time of the inspection, the bar was
lifted approximately 25 to 35 feet in the air.

The inspector approached Assad and issued an
oral imminent danger order requiring him to move out from under the spreader
bar. 38 FMSHRC at 1014. While the inspector and Assad were talking, the crane
operator, Milton Minchener, left the crane’s cab and walked under the spreader
bar to join the conversation. The inspector informed Minchener that he
considered the spreader bar to be a “suspended load” and that MSHA regulations
prohibited miners from working in a suspended load’s fall zone. After Minchener
expressed his disagreement with that interpretation, the inspector requested
that Minchener provide his training papers for inspection. Minchener then
turned around and walked under the spreader bar, back towards the crane’s cab.

Afterwards, the inspector determined that the
situation did not warrant an imminent danger order, and thus did not commit his
oral order to writing. Instead, he issued a citation alleging a violation of 30
C.F.R. § 56.16009 for failing to stay clear of a suspended load. The violation
was designated as non-S&S [5]
and unlikely to cause fatal injuries. The citation attributed moderate
negligence to the operator. The Secretary proposed a penalty of $100.

In his decision, the Judge applied a literal
definition of what constitutes a “suspended load.” Relying on a dictionary
definition, the Judge found that, because the ordinary meaning of a “load” is
so broad as to include anything having weight or mass, the spreader bar fit
within the plain meaning of the standard. The Judge further found that the Occupational
Safety and Health Administration (“OSHA”) regulations addressing cranes are not
dispositive for determining whether the spreader bar was a “load” under the
MSHA standard. 38 FMSHRC at 1015-1016.

In determining an appropriate penalty, the Judge
took into account that Minchener had walked under the spreader bar after Peters
informed him that doing so was a violation of a mandatory safety standard. Accordingly,
the Judge determined that the violative conduct was the result of high
negligence and increased the civil penalty to $300. Id . at 1017.

II.

Disposition

A.        Interpretation
of Section 56.16009

The issue before the
Commission is whether the necessary presence of a miner in the fall zone of a
spreader bar while rigging it for use violates section 56.16009. Sims contends
that MSHA and OSHA regulations and industry standards distinguish a crane’s
load from load-attaching equipment, i.e., spreader
bars, slings, hooks, load blocks, etc., which, it asserts, are actually raised
components of the crane. Further, Sims argues that, by including load-attaching
equipment in the definition of “suspended load,” the Secretary’s construction
of the standard would preclude certain tasks in the
rigging process that require miners to work within the fall zone of load-attaching
equipment.

The
Secretary contends that the presence of a miner within the fall zone of a
spreader bar for any purpose violates section 56.16009. During the briefing
period, however, MSHA issued a Program Policy Letter (“PPL”) recognizing that “it
is occasionally necessary for miners, including riggers, to stand near load
attaching equipment in order to attach and detach this equipment to the object
or materials being hoisted.” No. P17-IV-01 (Feb. 6, 2017). Although the
Secretary continues to assert that any presence within the fall zone is a
violation, the PPL assures operators that MSHA will not issue a citation if two
conditions are met: (1) the miner must be “involved in the attachment of
objects or materials to the load-attaching equipment or are detaching the load”
and (2) “adequate measures are in place to protect miners from hazards
associated with load-attaching equipment during these processes.” Id .

Absent some contrary
indication, “words of statutes or regulations must be given their ‘ordinary,
contemporary, common meaning.’” FTC v. Tarriff , 584 F.3d 1088, 1090
(D.C. Cir. 2009) (quoting Williams v. Taylor , 529 U.S. 420, 431 (2000)).
It is also axiomatic that regulatory language cannot be construed in a vacuum
and must instead be read in its context and with a view to its place in the
overall regulatory scheme. See Davis v. Michigan Dept. of Treasury , 489
U.S. 803, 809 (1989).

Similarly, statutes
and regulations should not be construed to produce an absurd result. Cf.
Haggar Co. v. Helvering , 308 U.S. 389, 394 (1940) (“A literal
reading of [statutes] which would lead to absurd results is to be avoided when
they can be given a reasonable application consistent with their words and with
the legislative purpose.”). As recognized by the Secretary, miners going into
the fall zone may be necessary for the rigging of load-attaching equipment on a
crane. See PPL quoted supra ; Oral Arg. Tr. 58-63. An
interpretation that section 56.16009 prohibits an activity that is required for
safe and efficacious lifting and that may be performed safely is unreasonable.  

A
central goal of MSHA’s regulatory scheme is to protect miners from falling or swinging
objects. To this end, MSHA has promulgated several standards to achieve this
goal for the safe operation of equipment at mines. The general rule guiding
miners’ interactions with objects suspended from cranes is set forth in 30
C.F.R. § 56.16009, which requires that miners “stay clear of suspended loads.” It does not cover specific uses of spreader bars or suspended loads.
Other MSHA regulations are more precise and explicitly allow miners to work
within a fall zone of suspended loads or objects in specific circumstances. Under
30 C.F.R. § 56.14211, miners
may perform work on top of, under, or from a raised component of mobile
equipment once the component has been adequately blocked or mechanically
secured to prevent accidental lowering . [6] This allows miners to
work within the fall zone of the spreader bar while rigging a load, if the
standard’s conditions are met. Applied literally, section 56.16009 would
disapprove conduct that section 56.14211 expressly permits under the prescribed
conditions.

Our
interpretation of the general mandate in section 56.16009 must take into
account the more precise language of section 56.14211. See Harry C. Crooker
& Sons, Inc. v. OSHRC , 537 F.3d 79, 84
(1st Cir. 2008) (“ It is a conventional canon of legal interpretation
that specific provisions trump more general ones”) ; Edmond
v. United States , 520 U.S. 651, 657 (1997) (“Ordinarily, where a specific
provision conflicts with a general one, the specific governs.”) (citation
omitted).

We conclude that sections 56.16009 and
56.14211 may be read harmoniously to arrive at a reasonable result—a result
that is consistent with the requirements for both mine safety and necessary
work on load-attaching equipment. See Morton Salt , 18 FMSHRC 533, 536 (Apr.
1996) (It is well-established that regulations should be read as a whole,
giving comprehensive, harmonious meaning to all provisions). Hence, if miners
rig a spreader bar under the conditions prescribed by section 56.14211, there
is no violation of section 56.16009. However, section 56.16009 prohibits miners
from being in a fall zone when they are not engaged in rigging work. This
interpretation is consistent with MSHA’s general approach as expressed in the
PPL.

It would be
unreasonable to find that the Secretary adopted a standard, the effect of which
is to make operators unable to perform necessary mining tasks, when such necessary
tasks may be performed safely. See Emery Mining Corp. v. Sec’y of
Labor , 744 F.2d 1411, 1414 (10th Cir. 1984) (regulations must be read to
harmonize, not conflict, with the objectives of the Mine Act); Consolidation
Coal Co. , 15 FMSHRC 1555, 1557-58 (Aug. 1993) (rejecting a literal reading
of a standard derived from dictionary definition because it would lead to an absurd result ).

B.        Application of
Interpretation to this Case

Our
rejection of the Judge’s interpretation of section 56.16009 does not fully
resolve this case. [7]
   The record shows three distinct instances
of miners standing or walking under the spreader bar, possibly in violation of
section 56.16009 . The first instance was when Assad was under the
spreader bar while the crane was scoping out its boom. The second instance was
when Minchener walked under the spreader bar to talk to the inspector. The
third instance was when Minchener walked under the spreader bar towards the
crane’s cab to retrieve his training papers.

We affirm
the Judge in result based on the actions of Minchener, specifically the second
time he went under the spreader bar. [8]
Minchener’s second trip under the spreader bar, which was the basis of the
Judge’s increase in the degree of negligence and the penalty, occurred after
the inspector stated that doing so would be a violative act, and was not work
in furtherance of rigging the crane. [9]
Thus, Minchener’s second trip under the spreader bar cannot be construed as “work”
under section 56.14211 and is clearly a violative act.

III.

Conclusion

For
the reasons set forth herein, we affirm in result the Judge’s determination
that Sims violated section 56.16009.

/s/
Mary Lu Jordan

Mary
Lu Jordan, Commissioner

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

Acting Chairman Althen, concurring and dissenting:

I join in my colleagues’ analysis and
interpretation of the mandatory safety standard. I disagree only with their
finding of a violation.

The inspector interrupted an ongoing lawful
rigging process to declare a mistaken imminent danger. The miner left the cab
and walked to the inspector to find the basis for the interruption just as he
would if there were some other interruption in the midst of the process. My
colleagues do not find his path to the inspector to be a violation.

Once the miner reached the inspector, the
inspector ordered the miner to get his training papers from the cab. Obtaining
those papers was as important to, or even more so, the continuation of ongoing
rigging as the initial walk to the inspector. Clearly, the return to the cab
was necessary for continuation of occurring lawful rigging tasks. The miner’s
disobedience of the inspector’s prior instruction, although clearly improper, [10]
is irrelevant to whether obtaining the demanded papers related to the ongoing
rigging process.

Rigging is a short-term, continual process. Walking
a route to the inspector was OK, but walking the same route to comply with the
inspector’s demand for records was not? If during the rigging process, a miner
pauses, and briefly passes under the spreader bar to get his water bottle, he
still is engaged in the process of rigging. If a miner briefly leaves one side
of the spreader bar to answer a supervisor’s question and walks beneath the
spreader bar in returning to his station, he still is engaged in the process of
rigging. I do not find reason to carve each movement during such an integrated
process into second-to-second, moment-to-moment, violation/non-violation,
metaphysical decision-making.  

Because the miner’s contumacy is irrelevant, I
see no basis to differentiate his walk to the inspector to see what was
occurring from his return to the cab to comply with the inspector’s demand and
permit continuation of the process. I would find the miner’s return to the cab
was incidental to continuation of an active and ongoing lawful rigging process
and was not a violation of section 56.16009.

/s/
William I. Althen

William
I. Althen, Acting Chairman

[1] Section 56.16009 provides that “[p]ersons shall stay
clear of suspended loads.”

[2]
A spreader bar is a lifting device located below the hook of a crane. It assists
crane operators in balancing heavy objects by allowing the crane to attach to an
object at multiple points. Tr. 29, 134-35. A spreader bar distributes the load across more than one point, thereby
increasing stability during lifting. 38 FMSHRC at 1013.

[3] Sims is joined in its opening brief by the following
amicus curiae: Texas Crane Owners
Association; Barnhart Crane and Rigging Co.; Chellino Crane, Inc.; Olori Crane
Service, Inc.; L.W. Connelly and Son, Inc.; the International Union of
Operating Engineers; Nabholz Industrial Services; Allegiance Crane and
Equipment; Fagioli, Inc.; H.K.B., Inc.; Blackhawk Mining, LLC; and Revelation
Energy, LLC. Additionally, t he
Specialized Carriers and Rigging Association, Crane Owners Association, and
Mobile Crane Operators Group received leave of the Commission to file a
separate joint amicus brief after the completion of the normal briefing period.

[4]
“Scoping out” means extending the boom in order to position it above the object
to be lifted.

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

[6]
In addition, 30 C.F.R. § 56.14210 permits
operators of self-propelled mobile equipment to work under “suspended loads” as
long as the equipment is designed to protect the operator from falling objects. Also,
miners are generally
prohibited from riding on suspended loads or hoist hooks, 30 C.F.R. § 56.16011, and must use tag lines for loads that may require steadying
or guidance while suspended. 30 C.F.R. §
56.16007.

[7]
MSHA did not cite the operator for violating
section 56.14211.

[8]
Because we have found Minchener’s second trip under the spreader bar to be a
violation of section 56.16009, it is not necessary to determine whether Assad
violated the regulation or whether Minchener violated it the first time he went
under the spreader bar.

[9] We decline to define the full scope of what types of
work are part of the rigging process, as such a finding is not necessary to our
conclusion that the standard was violated by Minchener’s second trip under the
spreader bar. At that point, Minchener had left the cab of the crane with the
spreader bar suspended. After the inspector told Minchener that passing beneath
the bar was a violation, he walked directly under it without any demonstrated
need for doing so as part of the rigging process. Our colleague disagrees that
there is a distinction between Minchener’s two trips beneath the bar, but the
Judge properly found that he had been told that doing so would be a violation. The
inspector’s theory of the violation was incorrect, but that doesn’t change the
fact that Minchener’s second passage was unnecessary to the rigging process,
and that he was given notice that this would be a violation before deciding to walk
under the spreader bar a second time.

[10]
I do not in any way excuse the miner’s mistake in disobeying the inspector’s
demand to stay clear from the spreader bar. Apparently having heard the
inspector’s instruction, the miner needed to obey that instruction.