.
GOOD CONSTRUCTION
April 27, 1995
WEST 94-236-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                            April 27, 1995

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 94-236-M
               Petitioner       :  A.C. No. 45-03086-05507
           v.                   :
                                :  Docket No. WEST 94-265-M
GOOD CONSTRUCTION,              :  A.C. No. 45-03086-05508
               Respondent       :
                                : Mine:  Good Portable Crusher

                               DECISION

Before:  Judge Amchan

     These cases are before me upon a stipulated record.  They
involve three non-significant and substantial citations issued
to Respondent on November 4, 1993, about which there is no
material factual dispute.  Citation No. 4128396 was issued
because the manually-operated horn on Respondent's Dresser
front-end loader did not work when tested (Agreed Statement of
Facts, No. IV).  There is no indication as to how long the
horn was not working prior to the issuance of the citation (Ibid.)

     The violation was cited as a violation of 30 C.F.R. � 56.14132(a).
The cited regulation requires that "[m]anually operated horns or
other audible warning devices provided as a safety feature shall
be maintained in functional condition."  A $50 civil penalty
was proposed for this alleged violation.

     Respondent's primary contention is that the cited regulation
must be read in conjunction with � 56.14100(b), which provides
that "[d]efects on any equipment, machinery, and tools that affect
safety shall be corrected in a timely manner to prevent creation
of a hazard to persons."   Thus, Respondent argues that unless the
Secretary can show that it failed to correct the defective horn in
a timely manner, the instant citation should be vacated.

     I reject Respondent's contention.  Section 56.14132(a)
imposes upon an operator a duty to keep a vehicle horn or other
audible warning equipment in working condition.  This duty
imposes obligations that are to some extent different from the
obligation to timely correct defects.  It may require, for example,
preventative maintenance.  An inoperative horn could form the
basis in some situations for citation under both regulations,
if the horn did not work and the operator also failed to fix
it in a timely manner.

     Underlying Respondent's argument is the concept that an
inoperative horn by itself cannot establish a violation.
Good Construction suggests that a citation is valid only if
the horn was inoperative due to an act or omission on its part.
However, under the Mine Safety and Health Act an operator is
liable for a violation regardless of fault.  For example, in
El Paso Rock Quarries, Inc., 3 FMSHRC 35, at 38-39, 2 BNA MSHC
1132 at 1135 (January 1981), the Commission reversed a judge
who vacated a citation for the absence of a reverse signal alarm
on the grounds that the Secretary failed to establish that the
operator knew or should have known that a reverse signal alarm
was inoperative.  I find this decision indistinguishable from
the instant case and therefore affirm Citation No. 4128396.

     While the fault of the operator is irrelevant to the
validity of the citation, it is relevant to the assessment of
a civil penalty.  As the record herein is silent as to the
negligence of Respondent, I assess a $25 civil penalty after
considering the penalty criteria in section 110(i) of the Act.
I would assess an even lower penalty if the record
demonstrated an absence of fault on the part of Respondent.
Such a situation, for example, would be one in which the operator
established that the horn was working properly when that day's
pre-shift exami- nation was performed.

                          The Parking Brake

     Citation No. 4128397 was issued pursuant to 30 C.F.R.
� 56.14101(a)(2) because the parking brake on the same
front-end loader was not able to hold its typical load on
the maximum grade it travels (Agreed Statement of Facts,
page 2, para. 6).  I assume, for the purposes of this
decision, that the parking brake on this loader met its
manufacturer's specifications, and that it was capable of
holding its typical load on level ground (Affidavit of
Alan Good, page 3).

     Respondent's challenge to this citation and the $50 proposed
penalty is essentially an attack on the wisdom of the
standard's requirements.  This is outside the jurisdiction
of the Review Commission.  Section 56.14101(a)(2) was
promulgated as the result of notice and comment rulemaking
on August 25, 1988, 53 Fed. Reg. 32522.  Exclusive jurisdiction
of challenges to its validity must be made to an appropriate
court of appeals, within 60 days of promulgation, Section
101(d) of the Act, 30 U.S.C. � 811(d).

     The preamble to the final rule indicates that comments were
in fact received on the proposal that was promulgated as
section 56.14102(a)(2).  At 53 Fed. Reg. 32505, column one,
MSHA dis-cussed comments asking the agency to limit this
requirement to testing up to a maximum grade of 15 percent.
This discussion establishes that MSHA gave serious
considerations to objections concerning the proposal.  It
also demonstrates why the under-signed should not evaluate
the wisdom of the regulation when he does not have before
him the rulemaking record that led to the promulgation of
the standard.

     As Respondent admittedly violated the standard, I affirm
the citation and assess the $50 penalty proposed.
Respondent certainly had the capability to test the parking
brake to see whether it complied with section 56.14101(a)(2)
before the citation was issued.  Its failure to do so
warrants a penalty of this magnitude[1].

                         The Part 50 Reports

     Citation No. 4128400 was issued because Respondent did not
have copies of the reports that it is required to submit to
MSHA  pursuant to sections 50.20 and 50.30 at the quarry
site where the instant inspection took place.  These records
were kept at Respondent's business office in Toledo, Washington,
and MSHA inspectors had reviewed these reports at that location
previously (Affidavit of Pam Good, page 1)[2].

     The cited regulation, 30 C.F.R. � 50.40(b), requires that
these reports be kept at the office closest to the mine.
Respondent argues that there was no office at the quarry and
that it complied with the regulation by maintaining these
records at its business office.  I conclude that the terms
of this regu-lation must be read in conjunction with Section
109(a) of the Act.  That provision states that, "[a]t each
coal or other mine there shall be maintained an office with
a conspicuous sign designating it as the office of such
mine."

     Thus, I find that Respondent was required to maintain an
office at the quarry site and to maintain the part 50
records at that location.  Previously, I reached the same
conclusion in Mechanicsville Concrete, 16 FMSHRC 1444, 1448-9
(ALJ July 1994).  As noted in that case, there is a Commission
judge's decision, Sierra Aggregate Company, 9 FMSHRC 426, 430
(ALJ March 1987), which reaches the opposite conclusion.

     MSHA proposed a $100 civil penalty for this violation,
characterizing Respondent's negligence as "high."
Respondent had the reports, which indicates no intent to conceal
information.  Moreover, the wording of the standard is very
confusing and other MSHA inspectors apparently reviewed the
company's reports at the business office.  I conclude
therefore that Respondent's negligence was very low.  As a
result I assess a $10 civil penalty after consideration of
all six factors in section 110(i) of the Act.


**FOOTNOTES**

     [1]:  The standard does not require or encourage, as
Respondent suggests, that an operator get out of his vehicle
while testing the parking brake.  I also reject Respondent's
contention that the standard is unconstitutionally vague because
its requirements are different depending on the terrain on which
a vehicle travels and the manner in which it is used.  I find the
regulation provides an operator with sufficient notice of what
constitutes compliance, Ideal Cement Co., 12 FMSHRC 2409, 2416
(November 1990).

     [2]:  For purposes of this decision, I am assuming that the
factual matters in Respondent's affidavits are established.

                                ORDER

     Citation Nos. 41288396, 4128397 and 4128400 are affirmed.
Respondent shall pay the $85 assessed civil penalties within
30 days of this decision.


                                 Arthur J. Amchan
                                 Administrative Law Judge

Distribution:

Marshall P. Salzman, Esq., Office of the Solicitor, U.S.
Department of Labor, 71 Stevenson St., Suite 1110, San
Francisco, CA 94105-2999  (Certified Mail)

James A. Nelson, Esq., 205 Cowlitz, P.O. Box 878, Toledo,
WA 98591(Certified Mail)


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