Owl Rock Products Company

Plain-English summary

Owl Rock Products Company was cited after a one-ton service truck with a partially obstructed rear view operated without an audible reverse alarm. The judge found that the truck was heavy-duty mobile equipment under 30 C.F.R. § 56.9087, even though it was used for service work rather than loading, hauling, or dumping. The citation was affirmed, but the proposed $56 penalty was reduced to $25 because the operator's negligence was minimal and it promptly corrected the condition. The company was ordered to pay the $25 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9087
• Outcome: Citation No. 2671370 was affirmed, and the civil penalty was reduced from $56 to $25.
• Key point: A service pickup can qualify as heavy-duty mobile equipment requiring a reverse alarm when its rear view is obstructed.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. OWL ROCK PRODUCTS
DDATE:
19871106
TTEXT:

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              Federal Mine Safety and Health Review Commission
                     Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 86-124-M
PETITIONER A.C. No. 04-03821-05506
v.
Azusa Plant
OWL ROCK PRODUCTS COMPANY,
RESPONDENT

                                  DECISION

Before: Judge Morris

 The Secretary of Labor on behalf of the Mine Safety and

Health Administration, charges respondent with violating 30
C.F.R. 56.9087, a safety regulation promulgated under the
Federal Mine Safety and Health Act, 30 U.S.C. 801, et seq.,
(the Act).

 The parties waived their right to a hearing and submitted

the case for a decision on stipulated facts.

                                   Issues

 The issues are whether respondent violated the regulation,

if so, what penalty is appropriate.

                                 Stipulation

    The parties stipulated as follows:

 1. Respondent is subject to the Federal Mine Safety and

Health Act of 1977 (hereinafter called the Act) and the Federal
Mine Safety & Health Review Commission (FMSHRC) has jurisdiction
over the subject matter of this action and over the parties.

 2. A citation was issued to Respondent alleging a violation

of 30 C.F.R. 56.9087 in that a number 8247 service repair
truck, (a one-ton Ford pickup), which had a partially obstructed
rear view was operated without an audible reverse signal alarm on
the day of the inspection. A proposed civil money penalty of
$56.00 was assessed and timely contested.

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3. The standard allegedly violated, 30 C.F.R. 56.9087 provides
   as follows:

   56.9087 Ä Audible warning devices and back-up alarms.

     Heavy duty mobile equipment shall be provided with
     audible warning devices. When the operator of such
     equipment has an obstructed view to the rear, the
     equipment shall have either an automatic reverse signal
     alarm which is audible above the surrounding noise
     level or an observer to signal when it is safe to back
     up.
   

   4. The payment of $56.00 civil money penalty will not affect
      respondent's ability to stay in business.

   5. The size of respondent's company was 233,367 production
      tons or hours worked per year at the time of the citation.

   6. The size of respondent's mine was 29,526 production tons
      or hours worked per year at the time of the citation.

   7. In the 24 months preceding the issuance of the instant
      citation the total number of assessed violations against
      respondent is one.

   8. Respondent abated the instant citation by installing an
      electric back-up alarm on the truck.

   9. The truck in issue which is equipped with extended side
      mirrors on both sides, is a number 8247, Ford one-ton pickup
      truck.

   10. Respondent uses this truck as a service repair vehicle.
       As such it loads and carries service equipment where needed
       throughout the mine. The majority of the time it is parked by the
       mechanics' shop.

   11. The vehicle is not used for loading, hauling or dumping
       activities.

   12. The drivers' tools are carried in the bed of the pickup.
       The bed is in the back. The driver can observe hazards to the
       rear prior to moving the pickup, when he replaces the tools,
       after completing whatever job he was performing.

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13. The judge may consider MSHA's policy memorandum (Exhibit R1)
in ruling on respondent's position.

 14. The Mesa Health and Safety report, Exhibit P2, may be

considered by the judge concerning the issue of gravity if a
violation is established.

                              Discussion

 The issue in this case focuses on whether a one-ton Ford

pickup truck qualifies as heavy-duty mobile equipment within the
meaning of 30 C.F.R. 56.9087.

 I conclude it does. In King Knob Coal Company, Inc., 3

FMSHRC 1417 (1981) the Commission construed a similar regulation,
30 C.F.R. 77.410. (FOOTNOTE 1) In that case the Commission ruled that
["t]ruck is a generic term and, of course, pickups are a familiar
type of light truck." Further, the Commission observed that

      "the obvious purpose of   77.410 is to protect miners
      from vehicles of various size moving in reverse. The
      standard is premised on the general recognition that a
      driver's rear view is ordinarily not as good, and hence
      as safe, as the forward view. Even if their role at a
      mine is primarily auxiliary, three-quarter ton pickups
      are nevertheless medium-sized vehicles whose relative
      speed compared with heavier vehicles constitutes a
      hazard in the busy mine setting."

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Respondent argues that MSHA's policy memorandum excludes the
necessity of compliance. The policy memorandum provides as
follows:

    12,258    MSHA Policy Memorandum Explains
              Mobile Equipment Reverse Alarm
              Requirements for Metal and NonÄ
              Metal Mines

       Mobile equipment engaged in "loading, hauling and
       dumping" at surface mines or surface areas of
       underground mines must have either back-up alarms or
       signalmen to comply with 55/56/57.9Ä87 if rear view is
       obstructed, according to the March 26, 1981, MSHA
       Policy Memorandum No. 81Ä3 MM. Text is as follows:

Subject: Program Directive: Citation of Standard 55/56/57.9Ä87,
Audible Reverse Alarms

       This document provides guidance for the uniform
       application of standard 55/56/57.9Ä87 and reflects
       recent Administrative Law Judge decisions which relate
       to the subject matter.

       The standard is applicable only to surface mines and
       surface operations of underground mines. The heavy duty
       mobile equipment addressed by the standard must be
       engaged in "loading, hauling, dumping" activities and
       must present an obstructed view to the rear.

                                     (Exhibit R1)

 In King Knob the Commission noted that MSHA's policy is not

binding on the Commission, 3 FMSHRC at 1420.

 Respondent's further argument is that the pickup was not

engaged in any "loading, hauling or dumping." Particularly,
respondent relies on the scope-note containing 30 C.F.R.
56.9087. Specifically, the scope-note reads, "Subpart H Ä Ä Loading,
Hauling and Dumping."

 As a general rule of statutory construction a scope-note

does not prevail over the text of a regulation.

 Finally, respondent argues that the truck driver can

"observe" hazards to the rear prior to moving the pickup when he
replaces the tools after completing whatever job he was
performing.

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Respondent's argument on this issue arises from paragraph 12 of
the stipulation. However, observations by the truck driver prior
to moving the truck do not assist him when he is actually moving
the vehicle to the rear. It is at that point that his vehicle
must have an unobstructed view to the rear or a backup alarm.

 For the foregoing reasons, Citation No. 2671370 should be

affirmed.

                             Civil Penalty

 The statutory authority to assess a civil penalty is

contained in Section 110(i) of the Act.

 The stipulation of the parties addresses most of the

statutory criteria. However, the issues of negligence, gravity
and abatement should be considered.

 The operator's negligence is minimal since it relied on

MSHA's policy memorandum in determining potential liability. The
gravity is high. Exhibit P2 focuses on a MESA investigation of a
fatality involving the failure to have an audible backup alarm on
an International "CargoÄStar" Model 1950 maintenance truck. The
operator is to be credited with statutory good faith in promptly
abating the violative condition.

 Considering all of the statutory criteria, I conclude that a

civil penalty of $25 is appropriate.

                          Conclusions of Law

 Based on the entire record and the stipulation of the

parties the following conclusions of law are entered:

 1. The Commission has jurisdiction to decide this case.

 2. Respondent violated 30 C.F.R.   56.9087 and Citation No.

2671370 should be affirmed.

 Based on the stipulation of the parties and the conclusions

of law I enter the following:

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ORDER

 Citation No. 2671370 is affirmed and a civil penalty of $25

is assessed.

                            John J. Morris
                            Administrative Law Judge

FOOTNOTE_ONE
1 The standard reads:
Mobile equipment; automatic warning devices.
Mobile equipment, such as trucks, forklifts, front-end
loaders, tractors and graders, shall be equipped with an adequate
automatic warning device which shall give an audible alarm when
such equipment is put in reverse.