Ford Construction Company

Plain-English summary

Ford Construction Company was cited after operators of a Caterpillar scraper and bulldozer were observed operating without seat belts. The ALJ vacated both citations after finding that the seat-belt standard did not cover the equipment. The Commission held that the scraper's tractor portion was covered as a semi-mounted scraper and that a bulldozer was a crawler tractor within the standard's listed categories. It reversed the ALJ's decision, remanded for a determination whether the scraper citation was significant and substantial, and ordered civil penalties to be assessed for both citations.

Decision snapshot

• Cited standards: 30 C.F.R. § 56.14130(a) and (g)
• Outcome: The ALJ's vacatur of both seat-belt citations was reversed, and the case was remanded for an S&S determination on one citation and penalty assessment.
• Key point: The seat-belt installation categories cover the tractor portion of a semi-mounted scraper and a bulldozer used as a crawler tractor.

Full text (FMSHRC public release)

Page 2

~1975
December 2, 1992

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 90-346-M
:
FORD CONSTRUCTION COMPANY :

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners

                                 DECISION

BY THE COMMISSION:

  This civil penalty proceeding arises under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), and
involves the validity of two citations issued by the Secretary of Labor to
Ford Construction Company ("Ford") for alleged violations of 30 C.F.R.
§ 56.14130(g),(Footnote 1) which requires the wearing of seat belts
Commission Administrative Law Judge John J. Morris vacated the two citations.
14 FMSHRC 373. (February 1992)(ALJ). The Secretary filed a timely petition
for discretionary review. For the reasons set forth below, we reverse the
judge's decision.
I.

                    Factual and Procedural Background

  Ford provides earth moving and construction contract services to mining

companies. In this case, Ford was in the process of preparing a settling pond
for Meridian Gold Company. During an inspection, Jaime Alvarez, an inspector
with the Secretary of Labor's Mine Safety and Health Administration ("MSHA"),
observed the operator of a large piece of earth moving equipment, a 637D
Caterpillar scraper, operating the equipment without wearing the seat belt
installed in the equipment. He issued a citation pursuant to section 104(a)
of the Mine Act, 30 U.S.C. § 814(a), alleging a violation of 30 C.F.R.
§ 56.14130(g), and designated it as being of a significant and substantial
nature ("S&S").(Footnote 2) That citation provided:

        The operator of the CAT-637-D (Co. No. 8-7) scraper
        was observed driving this vehicle on steep up and down
        grades on a bumpy roadway which would easily cause him
        to be knocked or bumped out of the driver's seat
        because he was not wearing his seat belt as required.

  During that same inspection, Inspector Alvarez observed the operator of

a D8H Caterpillar bulldozer operating the equipment without wearing the seat
belt. Accordingly, he issued another citation pursuant to section 104(a) of
the Mine Act alleging a second violation of 30 C.F.R. § 56.14130(g).
Inspector Alvarez did not designate this citation as being S&S.

  The judge vacated the scraper citation based on his determination that

section 56.14130(a) did not require seat belts to be installed in the cited
equipment.(Footnote 3) 14 FMSHRC at 378-80. The judge appeared to compare
the terminology used in the standard with the definition of "scraper" in the
Bureau of Mines, U.S. Department of the Interior, Dictionary of Mining,
Minerals and Related Terms at 971 (1968) ("DMMRT"). Id. The judge determined
that, although it "may well be that the term 'scraper' fits within one of the
six paragraphs enumerated in section 56.14130(a)," the record is "silent on
that issue" and he concluded that the citation should be vacated. 14 FMSHRC
at 380.

   The judge, similarly, vacated the bulldozer citation based on his

determination that the seat belt standard did not apply to the cited
equipment. 14 FMSHRC at 382-83. The judge stated that "section 56.14130(a)
is equipment specific as to what pieces and types of equipment are subject to
the requirements" and that "[d]ozers are not included in the specific list of
types of equipment covered by the seat belt requirements." 14 FMSHRC at 383.

2 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 in nature any
violation that "could significantly and substantially contribute to the cause
and effect of a ... mine safety or health hazard...."

3 Section 56.14130(a) provides:

        Equipment included. Roll-over protective structures
        (ROPS) and seat belts shall be installed on--
              (1)   Crawler tractors and crawler loaders;
              (2)   Graders;
              (3)   Wheel loaders and wheel tractors;
              (4)   The tractor portion of semi-mounted
              scrapers, dumpers, water wagons, bottom-dump
              wagons, rear-dump wagons, and towed fifth wheel
              attachments;
              (5)   Skid-steer loaders; and
              (6)   Agricultural tractors.

Page 3

~1976
56.14130(g), and designated it as being of a significant and substantia
nature ("S&S").(Footnote 2) That citation provided:

        The operator of the CAT-637-D (Co. No. 8-7) scraper
        was observed driving this vehicle on steep up and down
        grades on a bumpy roadway which would easily cause him
        to be knocked or bumped out of the driver's seat
        because he was not wearing his seat belt as required.

  During that same inspection, Inspector Alvarez observed the operator of

a D8H Caterpillar bulldozer operating the equipment without wearing the seat
belt. Accordingly, he issued another citation pursuant to section 104(a) of
the Mine Act alleging a second violation of 30 C.F.R. 56.14130(g).
Inspector Alvarez did not designate this citation as being S&S.

  The judge vacated the scraper citation based on his determination that

section 56.14130(a) did not require seat belts to be installed in the cited
equipment.(Footnote 3) 14 FMSHRC at 378-80. The judge appeared to compare
the terminology used in the standard with the definition of "scraper" in the
Bureau of Mines, U.S. Department of the Interior, Dictionary of Mining,
Minerals and Related Terms at 971 (1968) ("DMMRT"). Id. The judge determined
that, although it "may well be that the term 'scraper' fits within one of the
six paragraphs enumerated in section 56.14130(a)," the record is "silent on
that issue" and he concluded that the citation should be vacated. 14 FMSHRC
at 380.

   The judge, similarly, vacated the bulldozer citation based on his

determination that the seat belt standard did not apply to the cited
equipment. 14 FMSHRC at 382-83. The judge stated that "section 56.14130(a)
is equipment specific as to what pieces and types of equipment are subject to
the requirements" and that "[d]ozers are not included in the specific list of
types of equipment covered by the seat belt requirements." 14 FMSHRC at 383.

2 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 in nature any
violation that "could significantly and substantially contribute to the cause
and effect of a ... mine safety or health hazard...."

3 Section 56.14130(a) provides:

        Equipment included. Roll-over protective structures
        (ROPS) and seat belts shall be installed on--
              (1)   Crawler tractors and crawler loaders;
              (2)   Graders;
              (3)   Wheel loaders and wheel tractors;
              (4)   The tractor portion of semi-mounted
              scrapers, dumpers, water wagons, bottom-dump
              wagons, rear-dump wagons, and towed fifth wheel
              attachments;
              (5)   Skid-steer loaders; and
              (6)   Agricultural tractors.

Page 4

~1977
The judge concluded that, because the standard did not require the
installation of seat belts on either piece of equipment, the citations issued
for the failure to wear seat belts could not stand.

  The Commission granted review of the Secretary's petition for

discretionary review, which challenges the judge's factual conclusions that
the scraper and dozer were not covered by the requirements of 30 C.F.R.
§ 56.14130, as being without substantial evidence in the record. She also
asserts that the plain language of the standard includes the scraper and dozer
within its coverage and that the preamble to the standard supports her
position.
II.

                          Disposition of Issues

  The judge correctly determined that subsection (g) of section 56.14130,

requiring that equipment operators wear seat belts, is only applicable if
subsection (a) of the standard requires the installation of seat belts on the
particular type of equipment being operated. Thus, in order to establish a
violation of subsection (g), the Secretary must show both that a seat belt was
required to be installed on the equipment and that the operator was not
wearing the seat belt.

  A.   The Scraper

  The judge stated in his decision that Ford may have been required to

install seat belts on the scraper. Nonetheless, he vacated the citation based
on his determination that the record did not adequately demonstrate that the
term "scraper" was included within one of the categories set forth in section
56.14130(a), requiring the installation of seat belts. The judge reasoned
that because the cited equipment was not expressly listed in subsection (a),
the standard requiring the wearing of seat belts was not applicable. We agree
with the Secretary that the judge misconstrued the meaning and scope of the
standard.

  Subsection (a)(4) of section 56.14130 provides that seat belts shall be

installed on the "tractor portion of semi-mounted scrapers...." A tractor is
defined as a "self-propelled vehicle which may be mounted on crawler tracks,
on wheels with large pneumatic tires, or on a mixture of both." DMMRT at
1156. A "scraper" is defined as a:

         steel tractor-driven surface vehicle, 6 to 12 cubic
         yard capacity, mounted on large rubber-tired wheels.
         The bottom is fitted with a cutting blade which, when
         lowered, is dragged through the soil. When full, the
         scraper is transported to the dumping point ...

DMMRT at 971 (Emphasis added). As the definition makes clear, scrapers are
tractor-driven. Considering these definitions, it is clear that the language
of subsection (a)(4) describes a scraper, as that term is ordinarily used.
The designation "semi-mounted scraper" does not denote a unique classification

Page 5

~1978
of "scraper" but simply describes the ordinary configuration of a scraper,
i.e. two components, tractor and bowl.(Footnote 4) Thus, scrapers, more
particularly the tractor portion where the operator sits, are required to have
seat belts.

  The regulatory history of this standard provides added support for the

Secretary's position. The predecessor to the current seat belt standard
described scrapers as "self-propelled scrapers." In 1988, MSHA issued new
standards for machinery and equipment at surface metal and nonmetal mines.
Department of Labor, Mine Safety and Health Administration, "Safety Standards
for Loading, Hauling, and Dumping and Machinery and Equipment at Metal and
Nonmetal Mines," 53 Fed. Reg. 32496 (August 25, 1988). The preamble to the
new standards expressed a clear intent to include scrapers within its
coverage.(Footnote 5) It stated that the different terminology used in the
new standard did not narrow the breadth of the standard and that "the final
standard retain[ed] the existing standard's scope." 53 Fed. Reg. at 32511. A
table was included which provided, in relevant part, that the term "tractor
portion of semi-mounted scrapers" in the new regulation was to have the same
meaning as did the term "self-propelled scrapers" used in the prior
regulation. Id. It is undisputed that the cited scraper was self-propelled.
Thus, while new terms were employed to describe a scraper, it remained within
the standard's coverage.

   The record in this case contains sufficient evidence to establish that

the cited equipment fits within section 56.14130(a)(4). The inspector's
testimony concerning the size of the cited equipment, its function and its
ability to articulate describes the type of equipment covered by the standard.
Tr. 12-16. Thus, the judge failed to properly construe the scope and meaning
of the standard and, therefore, erred in failing to recognize the cited
equipment as being within the list of equipment requiring seat belts. The
judge's finding that seat belts were not required in the scraper is not
supported by substantial evidence. Since there is no dispute that the
operator of the cited scraper was not wearing his seat belt, we reverse the
judge's decision to vacate the citation.(Footnote 6)

4 The bowl, often called the pan, scrapes the ground and scoops up
overburden or other material. See Missouri Rock, 11 FMSHRC 136 (February
1989).

5 It would have been helpful to the judge for the Secretary to have placed
in the record the relevant portions of the preamble to the Federal Register
notice since that information is not reprinted in the Code of Federal
Regulations.

6 Concern for safety alone should have resulted in use of the seat belt.

Page 6

~1979
B. The Bulldozer

  The judge based his decision to vacate the second citation on the ground

that the record did not adequately demonstrate that the term "dozer" was
included within one of the categories set forth in subsection (a) of the cited
standard. 14 FMSHRC at 383. He reasoned that, because the cited equipment
did not require seat belt installation, there was no requirement to wear seat
belts. We believe, as in the case of the scraper, that the judge misconstrued
the meaning and scope of the standard.

  Although the language of the standard itself does not include the

specific term "dozer" or "bulldozer" in the six categories of equipment
requiring the installation of seat belts, subsection (a)(1) provides that seat
belts shall be installed on "crawler tractors and crawler loaders." A
"bulldozer" is defined as a "tractor on the front end of which is mounted a
vertically curved steel blade ...." DMMRT at 150. A "crawler" is defined as:

           One of a pair of an endless chain of plates driven by
           sprockets and used instead of wheels, by certain power
           shovels, tractors, bulldozers, drilling machines,
           etc., as a means of propulsion. Also any machine
           mounted on such tracks.

DMMRT at 275 (emphasis added). It is clear that bulldozers are "crawler
tractors" and are within the scope of the standard requiring the installation
of seat belts.

  The Secretary's position is again further supported by reference to the

regulatory history. The preamble to the standard stated that the new
terminology used in subsection (a) did not limit the breadth of the standard
but rather retained "the existing standard's scope." 53 Fed. Reg. 32511
(1988). As in the case of the scraper, a table in the preamble provided that
the terms crawler tractors and crawler loaders in the new standard were to
have the same meaning as the terms used in the prior standard, which
specifically included the term "dozer." Id. Thus, while new terms were
employed to describe a dozer, such equipment clearly remained within the
standard's coverage.

  The record contains sufficient evidence to establish that the cited

dozer was adequately described to place it within the coverage of the
standard. The inspector's testimony concerning the equipment's size and its
function together with his testimony as to its common names, "caterpillar,"
and "dozer," provide a sufficiently specific description to place it within
the scope of the standard. Tr. 12-13, 48-50. Thus, the judge failed to
properly construe the scope and meaning of the standard and, therefore, erred
in failing to recognize the cited equipment as being within the list of
equipment requiring seat belts. The judge's finding that dozers are not
included in the categories of equipment that require seat belts is not
supported by substantial evidence. Since it is undisputed that the operator
of the cited dozer was not wearing his seat belt, we reverse the judge's
decision to vacate the citation.

Page 7

~1980
III.

                             Conclusion

  For the foregoing reasons, we reverse that part of the judge's decision

vacating citation Nos. 3458357 and 3458425, issued because equipment operators
failed to wear seat belts. We remand this proceeding to the judge to
determine whether the scraper citation was properly designated as being S&S
and to assess civil penalties for both citations.

                                Arlene Holen, Chairman

                                Richard V. Backley, Commissioner

                                Joyce A. Doyle, Commissioner

                                L. Clair Nelson, Commissioner