Homelite, a Div. of Deere & Co. v. Occupational Safety & Health Admin.
| Decision Date | 08 December 1995 |
| Docket Number | No. 94-2588,94-2588 |
| Citation | 74 F.3d 1232 |
| Parties | , 17 O.S.H. Cas. (BNA) 1489, 1996 O.S.H.D. (CCH) P 30,958 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. HOMELITE, a division of Deere & Company, Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, Respondent. AMERICAN PULWOOD ASSOCIATION, INCORPORATED, Amicus Curiae. . Argued: |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Gary E. Cross, Dunaway & Cross, P.C., Washington, DC, for Petitioner. Ann Rosenthal, Counsel for Appellate Litigation, Office of the Solicitor-OSH, United States Department of Labor, Washington, DC, for Respondent. ON BRIEF: Mac S. Dunaway, Dunaway & Cross, P.C., Washington, DC, for Petitioner. Thomas S. Williamson, Jr., Solicitor of Labor, Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health, Barbara A.W. McConnell, Office of the Solicitor-OSH, United States Department of Labor, Washington, DC, for Respondent. Kenneth R. Pierce, Michael B. Weir, Chet A. Kronenberg, Chadbourne & Parke, L.L.P., New York, NY, for Amicus Curiae.
Before MURNAGHAN, WILLIAMS, and MICHAEL, Circuit Judges.
Homelite, a Division of Deere & Company, petitions for review of a final safety standard applicable to all logging operations promulgated by the Occupational Safety and Health Administration (OSHA) pursuant to Sec. 655(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C.A. Secs. 651-678 (West 1985 & Supp.1995). Specifically, Homelite challenges OSHA's requirement that all chain saws used by professional loggers be equipped with a chain brake. See 59 Fed.Reg. 51,672, 51,743 (1994) (). Because we conclude that substantial evidence supports OSHA's chain brake requirement, we deny the petition for review.
In terms of injury and fatality rates, logging is among the more dangerous occupations in this country. See 59 Fed.Reg. 51,672, 51,673-80 (1994). Loggers face a wide variety of hazards arising from their working conditions and the equipment that they use. In particular, gruesome injuries occur when an operating chain saw "kicks back" and strikes a logger. "Rotational kickback" occurs when the cutting chain near the upper portion of the tip of the guide bar (the part of the saw that supports the chain and guides it into the wood) contacts an obstruction, such as a nail or an untrimmed branch, causing the saw to move rapidly upward and backward toward the operator. "Pinch (or linear) kickback" occurs when the wood closes in on the long edge of the cutting chain, pushing the saw toward the operator. While a chain saw can kick back in less than 0.3 of a second, the average operator's reaction time is 0.75 of a second. Loggers often cannot react quickly enough to avoid being struck by the chain saw.
Four safety devices have been developed to reduce or minimize the risk of injury from chain-saw kickback. See id. at 51,690-91. Bar tip guards (or nose tip guards) are wedge-shaped devices bolted or screwed onto the guide bar and shield the tip of the chain saw from the types of obstructions that cause rotational kickback. Reduced kickback guide bars, which are narrower at the tip than regular guide bars, reduce the likelihood of chain contact where kickback most often occurs. Low- or reduced-kickback chains have idler or spacer links between the cutting links of the chain that limit the force of kickback. Chain brakes, located inside the engine of the chain saw, are designed to stop the chain before the chain strikes the operator when kickback occurs.
In 1985, a committee of the American National Standards Institute (ANSI) set forth a voluntary industry standard for the manufacture of chain saws. See Gasoline-Powered Chain Saws--Safety Requirements, ANSI Standard B175.1 (1985) (ANSI B175.1). ANSI B175.1 requires manufacturers to equip chain saws with an engine size smaller than 3.8 cubic inches of displacement with any two of the four kickback safety devices. In addition, such saws must pass a performance test involving the saw's computed kickback angle (CKA). Chain saws with an engine size of 3.8 cubic inches of displacement and larger, however, are required to have only one kickback safety device and need not pass a CKA test. ANSI B175.1 also provides that the average stopping time for a chain brake must not exceed 0.12 of a second and no single stopping time may exceed 0.15 of a second.
On May 2, 1989, OSHA published a notice proposing an employee safety standard for all types of logging operations that would replace standards previously applicable only to pulpwood logging. See 54 Fed.Reg. 18,798 (1989) () (proposed May 2, 1989). The proposed standard originally did not require any particular safety device to prevent or reduce kickback injuries; instead, it required frequent inspection of chain saws to ensure "that chainbrakes and all other manufacturer's safety features remain operational." Id. at 18,814. On May 11, 1990, OSHA published notice of public hearings on the proposed standard and requested comment on several issues, including "the adequacy of various chain saw safety devices and guards and the appropriate regulatory action for OSHA." 55 Fed.Reg. 19,745, 19,746 (1990). OSHA conducted two public hearings on its proposed rule and received posthearing comments until November 21, 1990.
During the rulemaking proceedings, OSHA received comments and heard testimony from individuals involved in the logging industry and from representatives of logging safety organizations. Most commenters either reported that chain brakes had reduced kickback injuries or predicted that chain brakes would reduce kickback injuries if required. Many of these commenters also criticized the protective value of the other safety devices, which were easily removed and tended to interfere with cutting efficiency. The commenters favoring chain brakes based their recommendations on general experience, rather than empirical data. In addition to anecdotal commentary, OSHA received statistics compiled by The State of Maine Bureau of Labor Statistics (Maine BLS) in 1982, which indicated that chain brakes had lessened the effects of kickback injuries. See 59 Fed.Reg. at 51,691.
Some commenters, however, preferred that OSHA adopt the ANSI standard that all chain saw manufacturers had been following because a significantly different standard would disrupt the marketplace. See id. A few commenters disputed the effectiveness of chain brakes, but OSHA determined that their contentions were unsupported by evidence or data. See id. One of these commenters, however, submitted the 1982 Survey of Chain Brake Stopping Time in Eastern Canada by the Forest Engineering Research Institute of Canada (FERIC). The FERIC study indicated that only 25.2% of the saws tested stopped within 0.15 of a second while 19.6% did not stop at all. Although the commenter offered to provide OSHA with additional studies on chain brake failure rates, OSHA never responded to his offer.
The administrative record also included Safe Chain Saw Design, a book published in 1989 by the Institute of Public Safety (IPS). Although not cited by OSHA in the final logging standard, IPS noted that the Canadian Standards Association Committee on Chain Saws, which had initiated the FERIC study, rejected the study's results and continued to advocate chain brakes. IPS also supported the use of chain brakes despite the FERIC study.
On October 12, 1994, OSHA promulgated its final logging standard, which requires that
[e]ach chain saw placed into initial service after the effective date of this section [February 9, 1995] shall be equipped with a chain brake and shall otherwise meet the requirements of the ANSI B175.1-1991 "Safety Requirements for Gasoline-Powered Chain Saws."
Id. at 51,743 (). Based upon the comments it had received, OSHA concluded that chain brakes should be required because: (1) chain brakes are effective and the most widely used kickback safety device; (2) chain brakes have widespread acceptance by logging professionals and are standard equipment on almost all chain saws; (3) chain brakes lack the disadvantages of other safety devices; (4) other countries require chain brakes; (5) the ANSI standard requires the use of sophisticated equipment and exacting procedures to determine compliance; and (6) the...
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