               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 13-1310
                      ___________________________

        Thomas E. Perez, Secretary, United States Department of Labor

                           lllllllllllllllllllllPetitioner

                                         v.

                             Loren Cook Company

                           lllllllllllllllllllllRespondent
                                   ____________

                   Petition for Review of an Order of the
              Occupational Safety & Health Review Commission
                               ____________

                           Submitted: April 15, 2015
                            Filed: October 13, 2015
                                ____________

Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, MELLOY,
SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY,
Circuit Judges, En Banc.
                              ____________

SHEPHERD, Circuit Judge.
       Following an industrial accident, the Secretary of Labor (Secretary)1 determined
that the Loren Cook Company (Loren Cook) violated 29 C.F.R. § 1910.212(a)(1),
which requires barrier guards on certain industrial equipment. The Secretary imposed
a $490,000 fine against Loren Cook. An Administrative Law Judge (ALJ) rejected
the Secretary’s interpretation of section 1910.212(a)(1) and vacated the fine. The
Occupational Safety and Health Review Commission (Commission) adopted the
ALJ’s decision as its own. The Secretary petitioned this court for review of the
Commission’s order. A divided panel of this court granted the petition for review and
reversed the Commission’s order. In granting Loren Cook’s petition for rehearing en
banc, we vacated the panel decision. We now deny the Secretary’s petition for review
and affirm the Commission’s order.

                                           I.

       Loren Cook is an industrial manufacturer of air circulating equipment. Loren
Cook uses lathes, which are industrial turning machines used to form and mold metal
discs, in its manufacturing process. Lathes operate by holding heavily lubricated
pieces of metal that rotate rapidly, allowing the lathe operator to apply tools to shape
the metal into individual workpieces. Lathes vary in size depending on the size of the
workpiece being produced. In May 2009, a Loren Cook lathe operator was killed
when a 12-pound rotating metal workpiece broke free from the lathe, flew out of his
machine, and struck him in the head. The lathe ejected the workpiece at a speed of 50
to 70 miles per hour and, after the workpiece struck the operator in the head, it
traveled along the floor at least another 20 feet before crashing into metal shelving.




      1
       The Secretary acts through the Occupational Safety and Health Administration
(OSHA) to create and enforce workplace health and safety standards. Solis v. Summit
Contractors, Inc., 558 F.3d 815, 818 (8th Cir. 2009). We refer to OSHA and the
Secretary jointly as the “Secretary.”

                                          -2-
       In November 2009, the Secretary conducted an investigation of the industrial
accident and issued two citations against Loren Cook. Relevant to this appeal, one
citation found seven violations of 29 C.F.R. § 1910.212(a)(1) for failure to employ
barrier guards to protect workers from ejected workpieces. Section 1910.212(a)(1)
provides:

      Types of guarding. One or more methods of machine guarding shall be
      provided to protect the operator and other employees in the machine area
      from hazards such as those created by point of operation, ingoing nip
      points, rotating parts, flying chips and sparks. Examples of guarding
      methods are—barrier guards, two-hand tripping devices, electronic
      safety devices, etc.

The Secretary determined that Loren Cook’s failure to employ barrier guards to
prevent the ejection of a workpiece from this kind of catastrophic breakdown of a
lathe violated section 1910.212(a)(1). The Secretary assessed Loren Cook a fine of
$70,000 for each violation of this section, resulting in a total fine of $490,000.

       Loren Cook sought review from an ALJ, who, after conducting a 20-day
hearing and compiling an extensive record, concluded that section 1910.212(a)(1) did
not apply to the conduct for which the Secretary cited Loren Cook. The ALJ reasoned
that section 1910.212(a)(1) focuses on point-of-contact risks and risks associated with
the routine operation of lathes, such as flakes and sparks, but does not contemplate the
catastrophic failure of a lathe that would result in a workpiece being thrown out of the
lathe. The ALJ thus vacated the citation the Secretary issued against Loren Cook.
The Commission adopted the unmodified recommendation of the ALJ. The Secretary
subsequently petitioned our court for review of the Commission’s final order pursuant
to 29 U.S.C. § 660(b).




                                          -3-
                                          II.

       We review a petition seeking review of a Commission order under a deferential
standard pursuant to the Administrative Procedures Act, upholding the Commission’s
factual findings if they are “supported by substantial evidence on the record
considered as a whole,” and upholding the Commission’s legal conclusions “unless
they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” Solis v. Summit Contractors, Inc., 558 F.3d 815, 823 (8th Cir. 2009)
(internal quotation marks omitted). The Commission adopted the ALJ’s order finding
section 1910.212(a)(1) does not address catastrophic failures of lathes resulting in the
ejection of workpieces and instead only considers routine risks of operation. The
Secretary argues this was in error because the Secretary’s interpretation of its own
regulation is entitled to considerable deference and the ALJ failed to afford the
Secretary’s interpretation such deference.

       Applying Seminole Rock2 deference, we generally afford substantial deference
to the Secretary’s interpretation of his own regulations. See Thomas Jefferson Univ.

      2
        Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (providing
framework for deference to agency regulatory interpretations). We recognize the
concerns raised about Seminole Rock’s consistency with separation-of-power
principles, see Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1342 (2013) (Scalia,
J., concurring in part and dissenting in part) (“[H]owever great may be the efficiency
gains derived from Auer deference, beneficial effect cannot justify a rule that not only
has no principled basis but contravenes one of the great rules of separation of powers:
He who writes a law must not adjudge its violation.”); see generally Manning,
Constitutional Structure and Judicial Deference to Agency Interpretations of Agency
Rules, 96 Colum. L. Rev. 612 (1996), and the perverse incentive it provides agencies
to issue ambiguous regulations, see Christopher, 132 S. Ct. at 2168 (“[T]his practice
also creates a risk that agencies will promulgate vague and open-ended regulations
that they can later interpret as they see fit, thereby ‘frustrat[ing] the notice and
predictability purposes of rulemaking.’” (second alteration in original) (quoting Talk
Am., Inc. v. Mich. Bell Tele. Co., 131 S. Ct. 2254, 2266 (2011) (Scalia, J.,
concurring))); see also Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 525 (1994)
(Thomas, J., dissenting). Some Justices have indicated that the Court is willing to take
a serious look at the continued validity of the doctrine. Decker, 133 S. Ct. at 1338-39
(Roberts, C.J., concurring).

                                          -4-
v. Shalala, 512 U.S. 504, 512 (1994); Martin v. Occupational Safety & Health Review
Comm’n, 499 U.S. 144, 150-51 (1991). But deference to the Secretary’s
interpretation is only appropriate when both the interpretation itself and the manner
in which the Secretary announces the interpretation are reasonable. See Martin, 499
U.S. at 157-58.

       The Supreme Court has identified several circumstances under which a court
should not afford deference to an agency’s interpretation of its own regulation. First,
deference to an agency’s interpretation is inappropriate when the interpretation is
“‘plainly erroneous or inconsistent with the regulation.’” Auer v. Robbins, 519 U.S.
452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 359 (1989)). Second, deference is also inappropriate “when there is reason to
suspect that the agency’s interpretation ‘does not reflect the agency’s fair and
considered judgment on the matter in question.’” Christopher v. SmithKline Beecham
Corp., 132 S. Ct. 2156, 2166 (2012) (quoting Auer, 519 U.S. at 462). This may be
evidenced by an agency’s current position conflicting with prior interpretations, by
an agency’s use of the position as nothing more than a litigating position, or by the use
of the interpretation as a post hoc rationalization for a prior action. Id. at 2166.

       Finally, deference is inappropriate when an agency’s new interpretation of its
own regulation results in unfair surprise. Id. at 2167. In declining to afford deference
to the Department of Labor’s interpretation of one of its regulations, the Christopher
Court noted that giving the interpretation deference would “impose potentially
massive liability on [the regulated entity] for conduct that occurred well before that
interpretation was announced.” Id. When the relevant agency fails to provide the
regulated entity with a fair warning of what conduct a regulation prohibits, allowing
the agency’s interpretation to prevail would result in unfair surprise. Id. The risk of
unfair surprise is particularly relevant when the “agency’s announcement of its
interpretation is preceded by a very lengthy period of conspicuous inaction.” Id. at
2168. As the Court noted:


                                          -5-
       It is one thing to expect regulated parties to conform their conduct to an
       agency’s interpretations once the agency announces them; it is quite
       another to require regulated parties to divine the agency’s interpretations
       in advance or else be held liable when the agency announces its
       interpretations for the first time in an enforcement proceeding and
       demands deference.

Id. Such a “decision to use a citation as the initial means for announcing a particular
interpretation may bear on the adequacy of notice to regulated parties, on the quality
of the Secretary’s elaboration of pertinent policy considerations, and on other factors
relevant to the reasonableness of the Secretary’s exercise of delegated lawmaking
powers.” Martin, 499 U.S. at 158 (citations omitted).

        Our court has also acknowledged the parameters under which we should afford
an agency’s interpretation deference: “[D]eference is due when an agency has
developed its interpretation contemporaneously with the regulation, when the agency
has consistently applied the regulation over time, and when the agency’s interpretation
is the result of thorough and reasoned consideration.” Solis, 558 F.3d at 823 (quoting
Advanta USA, Inc. v. Chao, 350 F.3d 726, 728 (8th Cir. 2003)); see also Advanta, 350
F.3d at 728 (“The DOL’s interpretation is not conclusive, and we are not necessarily
bound by the DOL’s interpretation of the [regulation].”); Sioux Valley Hosp. v.
Bowen, 792 F.2d 715, 720 (8th Cir. 1986) (“The erratic history of the labor/delivery
room policy is not the kind of interpretation justifying deference to the Secretary’s
expertise.”).

       This precedent provides the framework under which we must assess the
Secretary’s interpretation of section 1910.212(a)(1), evaluating the current
interpretation: (1) for fidelity to the text of the regulation itself; (2) for its consistency
with prior interpretations; and (3) for the possibility of unfair surprise. Under this
framework, we conclude that the Secretary’s interpretation of section 1910.212(a)(1)
is unreasonable and thus is not entitled to deference.



                                             -6-
                                           A.

       First, the Secretary’s interpretation of section 1910.212(a)(1) strains a common-
sense reading of the section. The basic operative language of the section identifies
five examples of hazards the barrier guards are meant to protect a lathe operator from:
“hazards such as those created by point of operation, ingoing nip points, rotating parts,
flying chips and sparks.” 29 C.F.R. § 1910.212(a)(1). We note that the inclusion of
the words “such as” in the language of the regulation indicates this list is illustrative
rather than exhaustive. See Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 327 (8th
Cir. 1981). These five hazards create two distinct categories: sources or causes of the
hazard (point of operation, ingoing nip points, and rotating parts) and by-products
from routine operation of the machinery (flying chips and sparks).

       It follows that section 1910.212(a)(1) only covers the catastrophic failure of a
lathe and the ejection of a workpiece if such an event is like one of these two
categories. This event is not like the first category because a plain reading of the
regulation limits this category to sources of the hazard relating to the worker’s point
of contact with the machinery and does not encompass the ejection of a spinning
workpiece. Section 1910.212(a)(3)(i) defines “point of operation” as “the area on a
machine where work is actually performed upon the material being processed.” And
this section provides that the requisite barrier guard “shall be so designed and
constructed as to prevent the operator from having any part of his body in the danger
zone during the operating cycle.” 29 C.F.R. § 1910.212(a)(3)(ii). This definition of
“point of operation” is further supported by section 1910.212(a)(3)(iv), which lists
several machines—including shears, power presses, milling machines, and forming
rolls—which all require the operators to make contact with the machine’s operating
cycle. In the context of the lathes employed by Loren Cook, the point of operation is
where the lathe operator touches the tool to the spinning workpiece to shape the
workpiece.




                                          -7-
       Further, the use of “rotating parts” in the language of section 1910.212(a)(1)
does not encompass the event at issue here because the section contemplates hazards
from rotating parts related to the operator’s contact with the machine rather than the
anomalous ejection of objects from the machine. In reaching this conclusion, we
evaluate the meaning of the term “rotating parts” by considering the other enumerated
examples around it. See United States v. Williams, 553 U.S. 285, 294 (2008) (“In
context, however, those meanings are narrowed by the commonsense canon of
noscitur a sociis—which counsels that a word is given more precise content by the
neighboring words with which it is associated.”). The hazards that a lathe’s rotating
parts create—much like the hazards from point of operation and nip points—result
from contact with the lathe, including the danger of an operator’s clothing, limbs, or
hair becoming caught in or struck by the rotating parts. This limited interpretation of
rotating parts is consistent with OSHA’s machine guarding interpretative guidance.
See Occupational Safety and Health Administration, Machine Guarding eTools,
https://www.osha.gov/SLTC/etools/machineguarding/motions_actions.html (last
visited Sept. 30, 2015) (“Rotating motion can be dangerous; even smooth, slowly
rotating shafts can grip hair and clothing, and through minor contact force the hand
and arm into a dangerous position.”).

       The Secretary’s hyper-literal interpretation of a hazard created by “rotating
parts” defies logic and seems to permit section 1910.212(a)(1) to apply to virtually
any situation, no matter how remote or atypical, in which a hazard can be tied to some
movement on a machine. Cf. White Indus., Inc. v. Fed. Aviation Admin., 692 F.2d
532, 535 (8th Cir. 1982) (rejecting the FAA’s interpretation of a regulation as “unduly
technical”). The guarding devices section 1910.212(a)(1) enumerates—barrier guards,
two-hand tripping devices, and electronic safety devices—aim to prevent ingress by
the operator into the danger zone while the lathe is running. This supports Loren
Cook’s limited interpretation of this section. These guarding devices would do little
to prevent the hazard for which the Secretary cited Loren Cook: the high-speed
ejection of a workpiece nearly 3 feet in diameter and weighing 12 pounds.


                                         -8-
       This event also is not like the second category of hazards because a 12-pound
ejected workpiece differs greatly both in nature and quality from a by-product hazard
created by routine operation of a lathe. The enumerated by-product hazards in the
regulation—flying chips and sparks—are incidental to the normal operation of a lathe,
and differ markedly from the hazard created by the ejection of a 12-pound workpiece
from a spinning lathe. Because these hazards differ so significantly, we cannot
conclude that a 12-pound ejected workpiece is the same kind of hazard so as to be
included by the regulation’s use of the phrase “such as.” See Donovan, 666 F.2d at
327 (explaining that the use of “such as” in regulation indicates illustrative rather than
exhaustive list). We thus conclude the Secretary’s interpretation does not comport
with the language of the regulation itself.

                                           B.

       Second, the Secretary has failed to provide any evidence showing that he has
consistently interpreted section 1910.212(a)(1) to apply to the ejection of large objects
from a lathe. Although alone not dispositive, the Secretary himself concedes that he
has never issued a citation like the one he issued to Loren Cook. We recognize the
Secretary’s need for flexibility to adapt regulatory language to a variety of situations
and that a variety of factors influence his discretionary decision to issue a citation.
See Christopher, 132 S. Ct. at 2168. And, in affording the Secretary this flexibility,
we also recognize that the Secretary could piece together a series of interpretations
that demonstrate a trend toward the current interpretation. But the Secretary has failed
to produce a single citation, publication, or interpretation that could fairly be
characterized as similar to the position the Secretary announced in the citation against
Loren Cook.




                                           -9-
        The Secretary argues that the standard interpretation letters3 that he cites
indicate that section 1910.212(a)(1) is to be broadly construed to guard “against all”
hazards and his current interpretation is simply a “natural extension” of such an
interpretation. But these interpretation letters only vaguely indicate that section
1910.212(a)(1) should be construed broadly to cover a variety of hazards and only
serve to underscore that the Secretary has consistently failed to take his current
position. Allowing such an interpretation to prevail could create the risk that the
Secretary may never provide more specific interpretative guidance so as to avoid
limiting his future ability to construe his own ambiguous regulations. See
Christopher, 132 S. Ct. at 2168 (“[The] practice [of deferring to an agency’s
interpretation of its own ambiguous regulations] also creates a risk that agencies will
promulgate vague and open-ended regulations that they can later interpret as they see
fit.”).

      The Secretary’s own current machine guarding guidance provides the following
description of the hazards created by rotating parts:

      Rotating motion can be dangerous; even smooth, slowly rotating shafts
      can grip hair and clothing, and through minor contact force the hand and
      arm into a dangerous position. Injuries due to contact with rotating parts
      can be severe. Collars, couplings, cams, clutches, flywheels, shaft ends,
      spindles, meshing gears, and horizontal or vertical shafting are some
      examples of common rotating mechanisms which may be hazardous.
      The danger increases when projections such as set screws, bolts, nicks,
      abrasions, and projecting keys or set screws are exposed on rotating
      parts.

Occupational Safety and Health Administration, Machine Guarding eTools, supra; see
also Loren Cook’s App. at 1333-35, 1427. This interpretation, focused on the


      3
        OSHA Std. Interp. 1910.212 (D.O.L.), 2008 WL 4455006 (May 16, 2008);
OSHA Std. Interp. 1910.212 (D.O.L.), 2005 WL 3801510 (Feb. 8, 2005); OSHA Std.
Interp. 1910 Subpart O (D.O.L.), 1990 WL 10090096 (Mar. 21, 1990).

                                         -10-
potential of a machine’s intact rotating part grabbing or snagging hair or clothing and
striking, crushing, or pining body parts, differs considerably from the interpretation
espoused in the Secretary’s citation to Loren Cook, which asserts that rotating parts
could cause the ejection of a large workpiece from a lathe.

       Further, the Secretary’s unarticulated intent to interpret section 1910.212(a)(1)
to cover the hazard of an ejected workpiece runs counter to the prevailing opinion
about the scope of this section. See, e.g., Long Mfg. Co., N.C., Inc. v. Occupational
Safety & Health Review Comm’n, 554 F.2d 903, 908 (8th Cir. 1977) (“When [section
1910.212(a)(1)] is read as a whole, it simply requires that when a machine is a source
of danger to operatives at the point of operation, that point must be guarded by some
appropriate means or device for the purpose of preventing any part of the body of the
operator from being in the danger zone during the machine’s operating cycle . . . .”);
Caterpillar, Inc., 1994 CCH OSHD ¶ 42318, at *1 (No. 93-373, 1994) (ALJ) (“Section
1910.212(a) . . . generally protects the operator from dangers associated with the point
of operation. While the type of machine covered by the standard varies widely, the
basic targeted hazard does not. A machine’s function and the manner in which it is
operated create the hazard anticipated by the standard.” (citation omitted)), aff’d, 17
BNA OSHC 1731 (No. 93-373, 1996).

       The Second Circuit, in Carlyle Compressor Co. v. Occupational Safety &
Health Review Commission, 683 F.2d 673 (2d Cir. 1982), rejected the Secretary’s
attempt to interpret section 1910.212(a)(1) to include large objects thrown from a
spinning machine. Id. at 674-75. Although the Second Circuit acknowledged its
obligation to “give deference to an agency’s reasonable interpretation of its own
standards,” it reasoned that section 1910.212(a)(1) could not be reasonably “stretched”
to “cover[] anything flying out of machines.” Id. at 675. The Secretary did nothing
to react to the Second Circuit’s unequivocal rejection of this interpretation. Moreover,
the Secretary knew how Loren Cook conducted its production process after having
issued a 2004 citation to Loren Cook for violating section 1910.212 by failing to
guard its semi-automatic spinning lathes, which operate similarly to the lathes at issue

                                         -11-
here. See Loren Cook Co., 21 BNA OSHC 1705 (No. 04-2179, 2006) (ALJ). The
ALJ noted that “[t]he only hazard established by the Secretary [in the 2004 violation]
is the point of operation hazard created by the spinning blank,” and continued that
“[t]he Secretary failed to show any other part of the spinning machines presented a
hazard requiring guarding.” Id. at *3. The focus of the Secretary’s 2004 inspection
was on points of operation—consistent with its machine guarding guidance, Carlyle,
and established practice—not on ejected workpieces. Based on this evidence, we
cannot conclude the Secretary’s current interpretation is consistent with his prior
interpretations.

                                          C.

       Finally, the Secretary’s announcement of such an unprecedented interpretation
in the citation against Loren Cook amounted to unfair surprise. There are “strong
reasons” for withholding deference from an agency’s interpretation of an ambiguous
regulation when an agency acquiesces in an interpretation for an extended period of
time and then changes its interpretation to sanction conduct that occurred prior to the
new interpretation. See Christopher, 132 S. Ct. at 2167-69; see also Long Island Care
at Home, Ltd. v. Coke, 551 U.S. 158, 170-71 (2007) (“[A]s long as interpretive
changes create no unfair surprise . . . the change in interpretation alone presents no
separate ground for disregarding the Department’s present interpretation.”). When
“an agency’s announcement of its interpretation is preceded by a very lengthy period
of conspicuous inaction, the potential for unfair surprise is acute.” Christopher, 132
S. Ct. at 2168.

       After the Second Circuit issued its opinion in Carlyle, the Secretary failed to
issue a single citation proclaiming his current interpretation, amend the language of
the section to clarify the section’s scope, or issue interpretative guidance indicating
his current position. Cf. Solis, 558 F.3d at 826-27 (reasoning that the Secretary’s
position was consistent because the Secretary continued to take a broad view of the
applicable regulation despite contrary administrative decisions). The Secretary

                                         -12-
instead appeared to agree with the Carlyle Court that the regulation did not require
machine guarding to protect operators against the risk of the unexpected ejection of
large workpieces. The Secretary’s “conspicuous inaction” here is only amplified by
his history with Loren Cook, providing evidence that the Secretary was familiar with
the manner in which Loren Cook conducted its operations, particularly with respect
to the operation of its lathes. We thus conclude that the Secretary’s announcement of
his current interpretation in the citation he issued to Loren Cook amounted to unfair
surprise.

                                         III.

      In sum, although we recognize both the Secretary’s expertise in workplace
safety matters and his need for flexibility in construing ambiguous regulations,
viewing the interpretation of section 1910.212(a)(1) through the lens of Seminole
Rock deference requires us to conclude that this interpretation is not entitled to
substantial deference. Having determined the Secretary’s interpretation of section
1910.212(a)(1) is not entitled to deference, we conclude that this section does not
cover the conduct for which the Secretary cited Loren Cook. For the foregoing
reasons, we deny the petition for review and affirm the Commission’s order. We also
deny Loren Cook’s pending motions to strike.

MELLOY, Circuit Judge, with whom MURPHY, BYE, and KELLY, Circuit Judges,
join, dissenting.

                                   I. Introduction

       The majority correctly notes that the Secretary’s deviation from a longstanding
interpretation of a regulation can be a factor in assessing the reasonableness of a new
interpretation. This factor appears to enjoy the support of two rationales. First,
notice concerns arise if the regulated entity is unaware of the interpretation prior to
taking action (notice concerns). And second, it is possible that through the

                                         -13-
pronouncement of a new interpretation in an administrative adjudication, the
Secretary’s delegatees may be skirting normal agency process and advancing an
interpretation that reflects an ad hoc rationalization for an action or more simply does
not reflect the Secretary’s reasoned and considered judgment (agency-process
concerns).

        It does not follow, however, that we must address notice concerns through a
wholesale rejection of the Secretary’s new interpretation. Rather, the Secretary’s
interpretation may stand, and notice concerns may affect the penalty, if any, to be
imposed. It also does not follow that a court should reject the new interpretation as
failing to honor agency process when an administrative adjudication is a permissible
vehicle for articulating an interpretation, the interpretation is consistent with the text
of the regulation, and the Secretary’s past interpretation is not an expressly announced
position, but rather a pattern of agency inaction.

       The question at the heart of this appeal is whether our court should exercise
restraint and defer to the evolving views of the Secretary in this matter. The majority
appears to at least partially share the view that the Secretary possesses "expertise in
workplace safety matters and . . . need[s] flexibility in construing ambiguous
regulations." The majority, however, goes to great lengths in an attempt to make the
Secretary’s clear and textually supported interpretation of the regulation appear
unreasonable in order to justify a refusal to extend deference. In doing so, the
majority relies heavily on materials outside the regulation—materials which may be
evidence of inconsistent interpretations but which do not disprove the simple fact that
the Secretary’s interpretation is a straightforward and clear reading of the regulation.

       Ultimately, I disagree with the majority’s conclusion that its interpretation,
rather than the Secretary’s interpretation, is more reasonable. I also believe that,
because the Secretary’s interpretation enjoys substantial textual support, we should
grant the agency the substantial deference it is owed in interpreting its own regulation.
See Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding that the Secretary’s

                                          -14-
interpretation of its “own regulations . . . is . . . controlling unless ‘plainly erroneous
or inconsistent with the regulation’”) (quoting Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945)) (additional citation omitted). Any notice concerns should
be dealt with in terms of the penalty, if any, to be imposed and not a wholesale
rejection of the Secretary’s interpretation.

                                    II. Background

       I add upon the facts presented by the majority because I find additional facts to
be material and because the ALJ failed to make certain findings that would have been
material to the reasonableness of the Secretary’s interpretation. Loren Cook uses
lathes of different sizes to form workpieces of different sizes. Large lathes employ
barrier guards to protect workers from ejected objects. In the past, small lathes also
employed such guards. By May 2009, however, Loren Cook had removed guards
from the small lathes. At that time, the twelve-pound workpiece at issue broke loose,
shot out, and struck a worker in the head, killing him. Although the parties dispute
the frequency with which similar ejections of workpieces occurred in the past, it is
undisputed that prior workpiece ejections had occurred. For example, approximately
two weeks before the incident that killed the worker, a workpiece from a small lathe
shot out and narrowly missed a worker twenty feet away.4

      When Loren Cook sought review of the Secretary’s charge, the ALJ held a
twenty-day hearing that resulted in an extensive record. The ALJ concluded that 29
C.F.R. § 1910.212(a)(1) did not apply in the context of the present case. According


       4
        After the May 2009 fatality, at least one lathe operator reattached a guard to
his small lathe. A Loren Cook supervisor questioned the operator about the guard and
later removed it. This guard, and other guards that previously had been used on small
lathes, were purportedly removed for inspection. The guards, however, could not be
located when demanded by the Secretary in this matter. The Secretary moved for
sanctions alleging spoliation of evidence. The ALJ denied the motion, but stated he
was “troubled by the disappearance of the guards.”

                                           -15-
to the ALJ, the regulation only required guards on lathes to prevent debris or waste
material from being ejected; it did not apply to guard against the ejection of the actual
item being worked on, i.e., the ejection of the actual workpiece. As a result of this
threshold determination, and notwithstanding the substantial record, the ALJ elected
not to reach several other elements of the charge and defenses to the charge, stating,
“it is not necessary to address several of the issues raised at the hearing, including the
feasibility of abatement, fair notice, credibility of experts, willful classification, and
collateral estoppel.” (Emphasis added). Finally, the ALJ denied any pending motions
not previously ruled on, presumably as moot, in light of the ALJ’s holding. The
Commission declined further review, and the ALJ’s decision became a final order of
the Commission. It is clear to me that, had the ALJ found the regulation to be
applicable, the twenty-day hearing and the resulting record made the case fully ripe
for the ALJ to rule on the issue of whether guards on small lathes would be feasible
and whether fair notice concerns otherwise would have precluded the imposition of
a fine. The ALJ simply chose not to address those issues.

       Notwithstanding the ALJ’s failure to address the issue of feasibility, the facts
strongly suggest the use of barrier guards on small lathes is feasible: they were used
in the past; after the fatality at least one lathe operator unilaterally reinstalled such a
guard; and such guards are still in use on the larger lathes. I view these facts as
militating strongly against an assumption that use of the guards might be infeasible
or ineffectual.5




      5
       The majority, supra at 9, states, “These guarding devices would do little to
prevent the hazard for which the Secretary cited Loren Cook: the high speed ejection
of a workpiece nearly 3 feet in diameter and weighing 12 pounds.” This conclusion
appears to ignore the fact that such guards on large lathes protect against the ejection
of even larger workpieces. At a minimum, the majority’s commentary on feasibility
addresses an issue not reached by the ALJ.

                                           -16-
                                   III. Discussion

                                     A. Martin

       Normally, our review of a petition from a Commission order would be standard
deferential review pursuant to the Administrative Procedures Act. See Omaha Paper
Stock Co. v. Sec’y of Labor, 304 F.3d 779, 782 (8th Cir. 2002) (“We will uphold the
Commission’s legal conclusions unless they are ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’” (quoting 5 U.S.C.
§ 706(2)(A))). Here, however, the Secretary appeals as to a question of regulatory
interpretation upon which the Secretary and the Commission have adopted competing
positions. Assuming the competing interpretations are reasonable, we must defer to
the Secretary. See Martin v. Occ. Safety & Health Review Comm’n, 499 U.S. 144,
152–53 (1991) (resolving the relative authority of the Secretary and Commission);
Solis v. Summit Contractors, Inc., 558 F.3d 815, 823–25 (8th Cir. 2009) (applying
Martin).

       In Martin, the Court resolved a circuit split and held that “a reviewing court
may not prefer the reasonable interpretations of the Commission to the reasonable
interpretations of the Secretary.” 499 U.S. at 158. In reaching this conclusion, the
Court addressed Congressional intent in depth and examined the specific statutory
division of adjudicatory and policymaking authority between the Commission and the
Secretary. Id. at 151–54. The Court emphasized that the Occupational Safety and
Health Act (“OSHA”) did not create a typical unitary administrative agency, but that
the Commission and Secretary represented a separation of neutral, adjudicatory
functions, on the one hand, from enforcement and policymaking functions, on the
other. Id. The Court concluded unequivocally that deference in the interpretation of
regulations was owed to the Secretary rather than the Commission, stating:

      [T]he Commission is authorized to review the Secretary’s interpretations
      only for consistency with the regulatory language and for

                                        -17-
      reasonableness. In addition, . . . Congress expressly charged the
      Commission with making authoritative findings of fact and with
      applying the Secretary’s standards to those facts in making a decision.
      See 29 U.S.C. § 660(a) (Commission’s factual findings “shall be
      conclusive” so long as “supported by substantial evidence”). The
      Commission need be viewed as possessing no more power than this in
      order to perform its statutory role as “neutral arbiter.”

Id. at 154–55.

       Martin remains good law, although several courts have recognized the limited
scope of Martin’s holding. For example, courts have refused to apply Martin in cases
involving different agencies. See, e.g., Hinson v. Nat’l Transp. Safety Bd., 57 F.3d
1144, 1148 n.2 (D.C. Cir. 1995) (recognizing the narrow applicability of Martin and
refusing to apply Martin in a case involving competing interpretations from the
Federal Aviation Administration and the National Transportation Safety Board). And
courts have determined that Martin was not controlling as to questions of statutory
interpretation. See, e.g., Chao v. Occ. Safety & Health Review Comm’n, 540 F.3d
519, 525 (6th Cir. 2008) (“Left undecided by Martin, however, is to whom does a
reviewing court defer when the Secretary and Commission offer conflicting
interpretations of a provision of [OSHA].”). These refusals by other courts to expand
Martin do not undercut Martin’s holding because the Supreme Court in Martin defined
the issue narrowly and did not purport to issue a broad ruling that might apply in other
contexts or to other agencies. Martin, 499 U.S. at 157 (“We emphasize the
narrowness of our holding. We deal in this case only with the division of powers
between the Secretary and the Commission under the OSH Act.”). In fact, the nature
of the issue raised in Martin was such that courts would not expect Martin to find
application except in this very specific context: Martin rested on the careful division
of authority Congress set out for the Secretary and the Commission, and that type of
division of authority likely will vary from agency to agency and statute to statute.




                                         -18-
       The analysis in Martin itself also makes clear that the Secretary’s understanding
of the effect of an interpretation may develop over time given the Secretary’s
involvement with many more enforcement actions than the Commission.6 The Court
identified this fact as one of the Secretary’s “structural advantages” over the
Commission in the interpretation of regulations. Id. at 152. Because the Court
expressly anticipated that the Secretary may adjust its interpretation of a regulation
over time, we should guard against championing the need for consistency at the
expense of the Secretary’s flexibility. Like the Supreme Court, I believe a general
review for reasonableness and for adherence to regulatory language is strong
protection against surprising, biased, or abusive interpretations. See id. at 156
(“Congress also intended to protect regulated parties from biased interpretations of the
Secretary’s regulations. But this objective is achieved when the Commission, and
ultimately the court of appeals, review the Secretary’s interpretation to assure that it
is consistent with the regulatory language and is otherwise reasonable.”).

       Our review in this matter therefore requires that we address the Secretary’s
interpretation of § 1910.212(a)(1) to determine whether it is a reasonable and textually
supported interpretation that merits deference pursuant to Martin in the face of a
competing and inconsistent interpretation by the Commission.




      6
       The Court in Martin stated:

      [B]y virtue of the Secretary’s statutory role as enforcer, the Secretary
      comes into contact with a much greater number of regulatory problems
      than does the Commission, which encounters only those regulatory
      episodes resulting in contested citations. Consequently, the Secretary is
      more likely to develop the expertise relevant to assessing the effect of a
      particular regulatory interpretation.

499 U.S. at 152–53 (emphasis added) (internal citation omitted).

                                         -19-
                  B. Interpretation of 29 C.F.R. § 1910.212(a)(1)

      The regulation at issue provides:

      Types of guarding. One or more methods of machine guarding shall be
      provided to protect the operator and other employees in the machine area
      from hazards such as those created by point of operation, ingoing nip
      points, rotating parts, flying chips and sparks. Examples of guarding
      methods are—barrier guards, two-hand tripping devices, electronic
      safety devices, etc.

29 C.F.R. § 1910.212(a)(1).

       Like the ALJ, the majority concludes that “hazards such as those created by
point of operation, ingoing nip points, rotating parts, flying chips and sparks” applied
only to hazards in the form of ejected debris and not ejected workpieces. The majority
also concludes the regulation applies only to machines in the normal course of
operation, ejection of an actual workpiece could occur only in the event of a
malfunction, and therefore, the regulation should not apply. The Secretary argues this
same language contains no inherent limitation to protections only against ejected
debris rather than workpieces and no inherent limitation to situations involving normal
machine operation rather than machine malfunctions.

        In reviewing the interpretation of a regulation, meaning should be accorded to
all terms, and “[a]ny interpretation of [an OSHA regulation] generally should conform
to the accepted rules of grammar.” Solis, 558 F.3d at 823–24. As an initial matter,
the list “point of operation, ingoing nip points, rotating parts, flying chips and sparks”
is preceded by the phrase “hazards such as those created by.” Because the phrase
preceding the list employs the term “created by,” the list necessarily refers to items or
conditions that cause the hazards, rather than merely and narrowly setting forth an
enumeration of actual hazards. When meaning is accorded to the phrase “created by,”

                                          -20-
it becomes apparent that the potential class of hazards covered by the regulation
necessarily is larger than the enumerated causes. Each cause for a hazard could give
rise to several different actual hazards. In conducting its analysis, the majority fails
to fully account for this broad language. Supra at 7 (referring to the list as “five
examples of hazards”).

       Second, because the phrase preceding the list uses the term “such as,” the list
is exemplary and not exhaustive. Orion Fin. Corp. of S.D. v. Am. Foods Grp., Inc.,
281 F.3d 733, 739 (8th Cir. 2002) (“An objective reader would interpret the phrase
‘such as’ to mean ‘for example.’”); Donovan v. Anheuser-Busch, Inc., 666 F.2d 315,
327 (8th Cir. 1981) (“The phrase ‘such as’ is not a phrase of strict limitation, but is a
phrase of general similitude indicating that there are includable other matters of the
same kind which are not specifically enumerated by the standard.”). This fact alone
suggests it may be inappropriate to engage in a hypertechnical analysis as done by the
majority when citing materials outside the regulation to limit the meanings of express
terms and arrive at a narrow construction (and not merely to illustrate an inconsistent
interpretation). See Donovan, 666 F.2d at 327 (concluding that use of the phrase
“such as” required the court to interpret an OSHA standard as reaching beyond the
enumerated items to cover other, similar items “of the kind specified”).

       Turning to the exemplar list of items set forth as nonexclusive causes for
hazards, the regulation itself defines “point of operation” as “the area on a machine
where work is actually performed upon the material being processed.” 29 C.F.R.
§ 1910.212(a)(3)(i). The lathes at issue have several “rotating parts,” and the
workpiece itself rotates in tandem with those parts when affixed to the machine—such
is the essence of a lathe. The “point of operation” is the workpiece when rotating in
tandem with the lathe. Accordingly, even without reaching the reference to flying
chips and sparks, there exist two grammatically simple and clear routes that support
finding the regulation applicable to the present case: the danger associated with a


                                          -21-
workpiece being ejected from the lathe is a “hazard[] such as [that] created by point
of operation [or] rotating parts.”

       Focusing on the language “rotating parts,” the majority concludes that, because
a clear and undisputed danger of rotating parts is the possibility of a worker being
crushed or pulled when a body part, hair, or clothing is caught on the rotating part, the
term cannot also refer to danger in the form of ejected parts. To support its
interpretation, the majority looks outside the regulation itself at OSHA’s online
interpretative guidance. This source, however, does not purport to identify an
exclusive type of danger associated with rotating parts. Rather, as quoted by the
majority, this source simply stresses that even slowly rotating parts can be dangerous.
The apparent need to stress this fact indicates that the same source implicitly
recognizes—or assumes the clarity of—risk associated with rapidly rotating parts. In
any event, the ejection of a workpiece is merely the consequence of inadequate
connections and the centrifugal force associated with rapid rotation. Under the
simplest and most straightforward interpretation of the regulation itself, and without
resort to sources outside the regulation, the phrase “hazards . . . created by . . . rotating
parts” can refer to items ejected from a rapidly rotating lathe. Nothing about the
agency’s online guidance and a reference to additional risks from slowly rotating parts
suggests exclusivity. And, the Secretary’s broad interpretation recognizes the
regulation’s broadening language “such as” and “created by.”

       Finally, use of the expansive language “such as” to indicate an exemplary rather
than an exhaustive list comports with the undisputed purpose of the regulation: “to
‘assure so far as possible every working man and woman in the Nation safe and
healthful working conditions.’” Donovan, 666 F.2d at 327 (quoting 29 U.S.C.
§ 651(b)); Arkansas-Best Freight Sys., Inc. v. Occ. Safety & Health Review Comm’n,
529 F.2d 649, 653 (8th Cir. 1976) (“The legislative decision has been made to protect
the health of employees even though increased production costs may result.”). The
court in Donovan concluded that a “restrictive” interpretation of a term in an OSHA

                                            -22-
regulation would not be consistent with the broad and protective statutory purpose but
that the regulatory interpretation “should extend to those [situations] which in the
reasonable judgment of the Secretary need protection from injury by guardrails.”
Donovan, 666 F.2d at 327. While this broad statement of purpose is by no means
conclusive, the consistency between this broad purpose and the plain text as urged by
the Secretary further demonstrates the reasonableness of the Secretary’s interpretation.

        To reach the opposite conclusion, the majority appears to employ three tools.
First, the majority identifies an unwritten distinction within the exemplar list of items
that would separate the regulation’s list into distinct and mutually exclusive groups.
Second, the majority identifies an unwritten distinction between protections required
in common, everyday situations and protections required to guard against less
common hazards. And third, the majority relies upon the Second Circuit’s opinion
interpreting the regulation, Carlyle Compressor Company v. Occupational Safety &
Health Review Commission, 683 F.2d 673 (2d Cir. 1982).

       The majority’s subdivision of the regulation’s list suffers from a lack of express
textual support and fails to accord meaning to the regulation’s use of exemplar
language. The majority concludes, “These five hazards create two distinct categories:
sources or causes of the hazards (point of operation, ingoing nip points, and rotating
parts) and by-products from routine operation of the machinery (flying chips and
sparks).” Supra, at 7. It appears the majority concludes that the express listing of
“flying chips and sparks” impliedly excludes from the list any other form of ejected
material even if that other ejected material is a “hazard[] . . . created by” the “point of
operation, ingoing nip points, [or] rotating parts.”

       This reading of the enumerated list as creating mutually exclusive categories
is inconsistent with the balance of text that clearly indicates the list is exemplar and
nonexclusive. This distinction is also curious, not only for its absence from the actual
text, but in its creation of an inherently unworkable and apparently outcome-

                                           -23-
determinative dividing line acknowledged nowhere in the majority’s opinion. There
can be no dispute that the regulation requires protection against hazards such as those
created by “flying chips.” Certainly, then, a dividing line must exist somewhere
between very small flying chips (triggering worker protection under the majority’s
interpretation of the regulation) and larger pieces of flying debris (conclusively
precluding application of the regulation). In either case, the debris is, in fact, a portion
of the blank, i.e., the workpiece. I find no actual support for any method that might
be used to identify this dividing line. I certainly find no support containing sufficient
nuance to define the size limit at which a “chip” no longer invokes the need for a
protective device under the regulation.

       Nevertheless, the majority labels the Secretary’s straightforward interpretation
as strained, unsupported by common sense, and hypertechnical. All of these labels
ring hollow given the majority’s unjustified and extra-textual division of the list into
two discrete and mutually exclusive categories. In fact, I find just the opposite to be
true; the majority’s interpretation which requires the invocation of outside materials
and a discounting of the regulation’s broadening terms appears to be a hypertechnical
and unnatural reading that departs from our general rules of construction.

           C. Carlyle and the Normal Operation/Malfunction Distinction

       Because the majority’s interpretation enjoys little support in the actual text of
the regulation, the result today would appear to rest almost entirely on the history of
agency acquiescence following the Carlyle opinion. This inertial support, however
does not speak in any way to the question of whether the Secretary’s interpretation is
textually sound. Moreover, even if it were appropriate to deny the Secretary
flexibility and force adherence to past inaction, continued reliance on Carlyle is
misplaced for two reasons. First, Carlyle is fundamentally flawed in that it rests upon
an invented distinction between normal and abnormal operations and ignores the need
to guard against harm arising from foreseeable and often-repeated machine

                                           -24-
malfunctions or human errors. Second, Carlyle simply does not apply to the present
case because the record indicates fairly clearly that the ejection of workpieces was a
common occurrence at Loren Cook that cannot truthfully be labeled “abnormal.”

       In Carlyle, the Second Circuit addressed a situation involving a machine that
held and rapidly rotated a shaft so that the shaft could be subjected to grinding. 683
F.2d at 674. There, the court interpreted the language of the regulation narrowly,
found the regulation inapplicable to a thrown workpiece, and recognized a distinction
between “normal projectiles” and “abnormal projectiles.” Id. at 675 (“The ALJ
apparently interpreted ‘flying chips’ to include shafts thrown by the machine. . . . [But
h]ere, the standard is directed at the hazards attendant upon the wastage created by
more normal projectiles such as flying chips and sparks, rather than abnormal
projectiles such as flying workpieces.” (emphasis added)). The Court in Carlyle,
nevertheless, found that the absence of a machine guarding device comprised a
violation of a more general regulatory section regarding unsafe working conditions.
See id. at 676 (“Despite our conclusion that the specific duty clause does not apply,
we hold that the Commission properly determined that Carlyle violated the general
duty clause, 29 U.S.C. § 654(a)(1) (1976), by not eliminating the danger of shafts
expelled from the grinder.”).

       In reaching a narrow and limited interpretation of the regulation, the Carlyle
court rested its analysis upon an invented distinction between normal operations on
the one hand (producing normal projectiles), and abnormal situations or machine
malfunctions, on the other (producing abnormal projectiles). This distinction not only
lacks support in the regulation’s text, it fails to comport with the common sense need
for protection from machine malfunction, unsafe operating practices, operator error,
or inadvertent mistake—often the primary sources of risk in the workplace.
See Signode Corp., 4 BNA OSCH 1078, *2 (No. 3527, 1967) (“One purpose of the
Act is to prevent accidents. . . . Although there is little chance of an injury if the
machines are operated properly, the standard is plainly intended to eliminate danger

                                          -25-
from unsafe operating procedures, poor training, or employee inadvertence.” (internal
citations omitted)); see also Donovan, 666 F.2d at 327–28 (addressing a regulation
requiring railings on “platforms” and rejecting a limiting interpretation that would
have excluded from coverage raised surfaces accessed by workers only on an
intermittent rather than regular basis). If such a distinction were to be recognized
consistently, it would beg the question of why access to confined spaces is carefully
regulated or why workers at heights must wear harnesses. Walls collapse, workers
fall, and workpieces fly from lathes. The purpose of OSHA is thwarted if protections
extend only to workplace situations involving perfectly functioning machines and
error-free workers.

       Turning to the record, several employees testified as to the frequency with
which the Loren Cook lathes ejected entire workpieces. While some dispute remains
as to the exact percentage of workpieces ejected7, it is undisputed that the accident
resulting in the fatality was not an isolated or unexpected event. As noted, guards are
still employed on the large lathes, the small lathes for years employed such guards,
and at least one worker re-installed a guard on his small lathe after the fatality (before
a supervisor removed the guard “for inspection” and before all such small-lathe guards
disappeared). And, even Loren Cook’s work instruction manual stated, “The first rule
of manual spinning lathe operations is CAUTION. This is one of the most difficult
operations performed at Loren Cook Company. The very nature of manual spinning
lathe equipment possesses the potential for accidents.” (emphasis in original).




      7
        Police reports of employee interviews after the fatality suggested as many as
20% of workpieces detached from lathes during operation. This number seems
facially suspect given the low number of actual injuries and given that the percentage
would appear to be an economically infeasible amount of waste. In any event, neither
party suggests the accident in this case was an isolated event.

                                          -26-
       The interpretation favored by the majority, then, enjoys historic inertia rooted
in a flawed Second Circuit opinion easily distinguishable from the present case. It
does not enjoy a claim to being the more reasonable interpretation of the regulation.
Further, in this case, the majority employs rhetorical tools to “double down” on the
normal operation/malfunction distinction, repeatedly characterizing ejection of the
workpiece as a “catastrophic failure” in an effort to illustrate a difference between a
rotating part slipping from the lathe and some other piece of material or chip or spark
being ejected from the lathe.8

                                   III. Conclusion

       Because Martin makes clear the Secretary is specifically qualified and
empowered to amend its own interpretations over time, I believe it is important to
guard against an overeagerness to declare a new interpretation unreasonable. In
Martin itself, the Supreme Court acknowledged that consistent application of an
interpretation is “a factor bearing on the reasonableness of the Secretary’s position.”
Martin, 499 U.S. at 157. And, I do not deny that the Secretary’s failure to put forth
the present interpretation earlier or in a different format creates notice concerns. Id.
at 158 (“[T]he Secretary’s interpretation is not undeserving of deference merely
because the Secretary advances it for the first time in an administrative adjudication[,




      8
        The consequences of the ejection of the workpiece in this case were, no doubt,
catastrophic. The majority’s characterization of a workpiece ejection itself as
catastrophic, however, suggests the ejection of a workpiece is somehow an isolated
or highly unusual event that renders the lathe unusable. The facts as referenced above
demonstrate otherwise and suggest appropriate labeling for the different types of
ejected materials might be “commonly ejected materials” and “less commonly ejected
materials.” In any event, the choice of the language “catastrophic” to distinguish the
ejection of a workpiece from the ejection of tooling shavings disregards the record
regarding the potential frequency of workpiece ejections.

                                         -27-
but] the decision to use a citation as the initial means for announcing a particular
interpretation may bear on the adequacy of notice to regulated parties.).

       The question that remains, however, is how we should address the notice
concerns in this case. If the Secretary’s interpretation of the regulation were somehow
extra-textual or strained, I likely would agree with the majority. As set forth at length
above, however, the Secretary’s interpretation is not strained. The Secretary’s
interpretation comports with the plain language of the statute, gives effect to the
language “created by,” and interprets the phrase “such as” according to our normal
construction of language setting forth exemplary lists. It does so without confusing
the process of textual analysis with the process of examining a pattern of prior
interpretations. Therefore, I would take the Supreme Court at its word and view
consistency with past practice and interpretation as “a factor” rather than—as the
majority advocates—the controlling factor or the only factor in assessing the
reasonableness of an interpretation. In other words, the Secretary’s present advocacy
of a different interpretation is not impermissible or per se unreasonable, although it
may “bear on the adequacy of notice to regulated parties.” Id.

        In conclusion, I find nothing about Carlyle or the Secretary’s past enforcement
of the regulation sufficient to demonstrate that the Secretary’s current, plain-language
interpretation is unreasonable. As such, I would defer to the Secretary rather than the
Commission, allow the Secretary’s interpretation to stand, and address notice concerns
on remand.

     I would grant the petition for review, reverse the order of the Commission, and
remand for further proceedings consistent with this opinion.
                       ______________________________




                                          -28-
