                  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: September 26, 2013
                               Filed: May 9, 2014
                                  ____________

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.

       The Secretary of the Department of Labor petitions for review of an order of
the Occupational Safety & Health Review Commission. In the order, the
Commission approved without comment an underlying Administrative Law Judge's
decision that addressed competing interpretations of a Department of Labor safety
regulation, 29 C.F.R. § 1910.212(a)(1). The ALJ rejected the Secretary's
interpretation of the regulation, found the regulation inapplicable to the present facts,
and declined to address several other issues raised in an administrative hearing.
Because we conclude the Secretary's interpretation of the regulation is reasonable,
and because controlling Supreme Court precedent requires deference to the Secretary
when the Secretary and the Commission adopt competing reasonable interpretations,
we grant the petition for review.

                                   I. Background

       Loren Cook Company ("Loren Cook") is a manufacturer of air circulating
equipment. In the manufacturing process, Loren Cook uses lathes to shape metal
discs—workpieces—into parts. The lathes each hold a workpiece that is heavily
lubricated and rotates rapidly as a worker applies tools to bend and shape the spinning
workpiece. Lathes of different sizes are used to form workpieces of different sizes.
Large lathes employ barrier guards to protect workers from ejected objects. In the
past, small lathes also had employed such guards. By May 2009, however, the guards
had been removed from the small lathes. At that time, a twelve-pound workpiece
being tooled in a small lathe broke loose, shot out, and struck a lathe operator 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 prior to the incident
that killed the worker, a workpiece had been ejected from a small lathe, narrowly
missing a worker twenty feet away.1



      1
       After the May 2009 accident that killed a worker, 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."

                                         -2-
      After the fatal accident, the Secretary performed an investigation and charged
Loren Cook with violations of multiple regulations. The Secretary eventually
dropped some charges, but found seven violations of 29 C.F.R. § 1910.212(a)(1).
The Secretary determined that the regulation requires lathes such as those used by
Loren Cook to have guards to protect workers from ejected workpieces. The
Secretary assessed a fine of $70,000 per violation, resulting in a total fine of
$490,000.

        Loren Cook sought review, and the ALJ held a twenty-day hearing that resulted
in an extensive record. The ALJ concluded that § 1910.212(a)(1) did not apply in the
context of the present case. According to the ALJ, the regulation at issue only
required guards on the 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, 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." 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. The Secretary petitions our court for review of the Commission's
final order pursuant to 29 U.S.C. § 660(b).

                                    II. Discussion

                               A. Standard of Review

      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

                                          -3-
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. We address in detail below why we believe that the Secretary's
interpretation of the regulation in this matter is reasonable and well supported by the
plain meaning of the regulation's text. Further, we assume for the purpose of our
analysis that the Commission's interpretation also is reasonable. In this situation,
where the Secretary and the Commission advocate competing reasonable
interpretations of the same regulation, the question we must address is whether to
accord deference to the Secretary or the Commission.

       Pursuant to Martin v. Occupational Safety & Health Review Commission, 499
U.S. 144 (1991), which involved this exact question, we must defer to the Secretary.
See 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. at 152, 154. 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

                                         -4-
      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 Rev. 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 division
of authority likely will vary from agency to agency and statute to statute.



                                         -5-
       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.

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

      The regulation at issue in this case 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).

       The ALJ held 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 ALJ also stated that the regulation
applied only to machines in the normal course of operation and that ejection of an
actual workpiece could only occur in the event of a malfunction such that the
regulation should not apply. The Secretary argues this same language, in particular,
the language "hazards such as those created by . . . rotating parts," 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 these conflicting interpretations of the regulation, we are mindful
that "[a]ny interpretation of [an OSHA regulation] generally should conform to the

                                          -6-
accepted rules of grammar." Solis, 558 F.3d at 823–24. As such, we believe that the
Secretary's argument is well supported. 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
uses the term "created by," it is wholly reasonable to interpret the list as items or
conditions that cause the hazards, rather than treating the list as a narrow and limited
enumeration of actual hazards. When meaning is accorded to the phrase "created by,"
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.

       Second, because the phrase preceding the list uses the term "such as" we
conclude it is reasonable to construe the list as 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."). In contrast, we find little in the way of
textual support for the ALJ's position that "hazards . . . created by . . . rotating parts"
are only covered if the hazards at issue take the form of the specifically enumerated
categories of "flying chips" and "sparks." Rather, it is reasonable to believe that the
phrase "hazards . . . created by . . . rotating parts" refers to one category of covered
hazard and that the phrase "hazards . . . created by . . . flying chips and sparks" refers
to additional categories of covered hazards. Further, use of the phrase "such as" to
set forth a non-exhaustive, exemplary list means it is reasonable to interpret the
regulation as also encompassing additional categories of hazards created by other
similar, but non-enumerated, types of causes. See Donovan, 666 F.2d at 327
(concluding that use of the phrase "such as" required the court to interpret an OSHA



                                           -7-
standard as reaching beyond the enumerated items to cover other, similar items "of
the kind specified").

         Third, 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. Accordingly, under two grammatically
simple and clear routes, the danger associated with a workpiece being ejected from
the lathe is a "hazard[] such as [that] created by point of operation [or] rotating parts
. . . ."

       Finally, the use of the expansive language "such as" to indicate an exemplary
rather than an exhaustive list comports with the undisputed purpose of the regulation:
"[T]o '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 Rev. Comm'n,
529 F.2d 649, 653–54 (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 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 ALJ relied upon a Second Circuit opinion
interpreting the regulation, Carlyle Compressor Co. v. Occupational Safety & Health

                                          -8-
Review Commission, 683 F.2d 673 (2d Cir. 1982). Loren Cook urges our court to
follow Carlyle Compressor. In Carlyle, the Second Circuit addressed a similar
situation involving a machine that held and rapidly rotated a shaft so that the shaft
could be subjected to grinding. Id. 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 ("[T]he 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)). For the
reasons already stated, we do not believe this narrow interpretation is justified by the
regulation's text. Further, to the extent Carlyle rested upon a distinction between
normal operations and machine malfunctions, that distinction similarly enjoys no
support in the regulatory text.

       Even if we were to find the Carlyle analysis compelling, we note that the
Second Circuit went on to find a violation of a more general duty to provide a safe
working environment. Id. at 677–78. Accordingly, even though the Second Circuit
interpreted § 1910.212(a)(1) in the manner adopted by the Commission in the present
case, the Second Circuit ultimately found a duty to guard against thrown workpieces.
As such, it may be inappropriate to rely too heavily on the Second Circuit's
interpretation of § 1910.212(a)(1) in light of the fact that the court in that case
actually agreed with the Secretary that the employer had, in fact, violated a duty to
protect workers from thrown rotating shafts or workpieces. Id.

       In further support of its position, Loren Cook offers a fair amount of briefing
directed towards the absence of prior rulings specifically advancing the Secretary's
current position. According to Loren Cook, the Secretary has acquiesced in the
Carlyle interpretation for decades such that any other interpretation must be deemed
per se unreasonable or must be promulgated through a rulemaking process rather

                                           -9-
through an enforcement action. In fact, in Martin, 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. The Court also
stated, however, that, "the Secretary's interpretation is not undeserving of deference
merely because the Secretary advances it for the first time in an administrative
adjudication[, 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."
Id. at 158.

       If the Secretary's purportedly new interpretation in this case were somehow
extra-textual or strained, we might agree with Loren Cook and the Commission. As
set forth at length above, however, it is not. 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. Therefore, we take the Supreme Court at its word and
view consistency as "a factor" rather than—as Loren Cook advocates—a controlling
factor or the only factor in assessing the reasonableness of an interpretation. In other
words, even assuming Loren Cook had convincingly demonstrated the Secretary's
long-term acquiescence in the Carlyle interpretation, 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.

      The analysis in Martin itself 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.2 The Court

      2
          The Court in Martin stated:

      by 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

                                         -10-
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
anticipated that the Secretary may adjust its interpretation of a regulation over time,
we cannot use the need for consistency to deny the Secretary this flexibility. Rather,
like the Court, we believe that a general review for reasonableness and for adherence
to regulatory language is sufficient to ensure that parties are not subjected to biased
or abusive interpretations. 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.").

      In conclusion, we 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, we must defer to the
Secretary rather than the Commission.

                        C. Issues Not Addressed by the ALJ

       To extent Loren Cook uses these same arguments to characterize the
Secretary's imposition of a fine in this case as unfair due to an absence of adequate
notice regarding a "new" interpretation, we are not unsympathetic to Loren Cook's
view. For the purpose of the present appeal, however, we believe Loren Cook misses
the point. The majority of the issues raised below and addressed through twenty days
of testimony before the ALJ have yet to be decided. The ALJ found the regulation


      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 (internal citation omitted) (emphasis added).

                                         -11-
inapplicable and stopped the analysis. Loren Cook may well be correct that the
Secretary's current interpretation, although textually supported, represents a change
of position for the Secretary sufficient in scope to have deprived Loren Cook of the
notice necessary to justify a fine of $490,000. Even if Loren Cook is correct that the
Secretary's current interpretation reflects this type of change of position, however,
and even if Loren Cook ultimately shows that a fine based on that change may be
unfair, Loren Cook is wrong to suggest that a change of regulatory interpretation by
the Secretary must be viewed as per se unreasonable. A steep fine for behavior
consistent with an arguably longstanding interpretation from the Secretary may well
be untenable. That does not mean, however, that the Secretary is barred from issuing
a reasonable interpretation of a regulation to protect workers in the future.
Martin, 499 U.S. at 157.

       Finally, to the extent the parties direct their arguments to additional fact-
intensive issues such as the technical feasibility of guards and specific past
enforcement practices, none of this fact-intensive briefing matters for resolution of
the narrow issues presented in this appeal.



                                   III. Conclusion

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

SHEPHERD, Circuit Judge, dissenting.

       The Secretary’s current interpretation of 29 C.F.R. § 1910.212(a)(1) does not
deserve deference, and when the regulation is viewed using the traditional tools of
interpretation, the regulation does not apply to the conduct for which Loren Cook was
cited. In affording the Secretary maximum interpretive flexibility, the majority relies

                                         -12-
on an outdated and simplified notion of deference to accept a strained interpretation
of section 1910.212(a)(1) that is contrary to decades of established practice and, in
the process, marginalizes the importance of consistency and notice. Because I would
deny the petition for review and affirm the order of the Commission, I respectfully
dissent.

                                           I.
       Applying Seminole Rock deference, we generally give the Secretary of Labor’s
interpretation of his own ambiguous regulations substantial deference. See Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Martin v. Occupational Safety
& Health Review Comm’n, 499 U.S. 144, 150-51 (1991); see also Decker v. Nw.
Envtl. Def. Ctr., 133 S. Ct. 1326, 1339 (2013) (Scalia, J., concurring in part and
dissenting in part) (noting that Seminole Rock deference is alternatively referred to
as Auer deference). Though the Secretary’s interpretation of an ambiguous regulation
embodied in a citation typically deserves deference, Martin instructs that deference
is only appropriate when the interpretation and the manner in which the interpretation
is announced are reasonable. Martin, 499 U.S. at 157-58. The Martin Court
explicitly noted that the Secretary’s “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.” Id. at 158 (emphasis added) (internal
quotation marks omitted). As the majority concedes, these factors, among others,
may render the Secretary’s position unreasonable and, therefore, undeserving of
deference.

      Over time, the Supreme Court has identified circumstances in which a court
should not give deference to an agency’s interpretation of its own regulations. For
instance, deference is not appropriate when the agency’s interpretation is “‘plainly
erroneous or inconsistent with the regulation.’” Auer v. Robbins, 519 U.S. 452, 461

                                          -13-
(1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359
(1989)). Deference should also be withheld “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), which may occur when the
agency’s current position conflicts with prior interpretations, appears to be nothing
more than a litigating position, or is a post hoc rationalization of prior action. Id. at
2166-67. Our circuit has developed similar guideposts; “‘[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 v. Summit
Contractors, Inc., 558 F.3d 815, 823 (8th Cir. 2009) (quoting Advanta USA, Inc. v.
Chao, 350 F.3d 726, 728 (8th Cir. 2003)); Advanta USA, Inc., 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.”).

       Deference is also inappropriate when an agency’s new interpretation of a
regulation results in unfair surprise. See Christopher, 132 S. Ct. at 2167-68. In
Christopher, the Court refused to give deference to the Department of Labor’s
interpretation of one of its ambiguous regulations because doing so would “impose
[a] potentially massive liability on [the regulated entity] for conduct that occurred
well before that interpretation was announced.” Id. at 2167 & n.15.3 The Court
reasoned that deference in such circumstances would result in “unfair surprise,”
because the agency failed to provide fair warning of the conduct that it prohibited.

      3
       In Christopher, all of the Justices agreed that deference was inappropriate. See
Christopher, 132 S. Ct. at 2175 (“I also agree that we should not give the Solicitor
General’s current interpretive view any especially favorable weight.”) (Breyer, J.,
dissenting).

                                          -14-
See id.; Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170-71 (2007). The
Court cited Martin for Martin’s recognition that the “‘adequacy of notice to regulated
parties’” was a relevant factor to the reasonableness of an agency’s interpretation.
Christopher, 132 S. Ct. at 2167 (quoting Martin, 499 U.S. at 158). The governing
statutes and regulations at play in Christopher provided little reason for the regulated
entities to suspect that their long-standing industry practice was unlawful. Id. at
2167-68. The possibility for unfair surprise was particularly acute because the
“agency’s announcement of its interpretation [was] preceded by a very lengthy period
of conspicuous inaction.” Id. at 2168; see also E.E.O.C. v. Abercrombie & Fitch
Stores, Inc., 731 F.3d 1106, 1137-40 (10th Cir. 2013). As the Court noted in closing:

      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.

Christopher, 132 S. Ct. at 2168.4

      4
       The majority in Christopher took note of a growing dissatisfaction with
Seminole Rock deference. Concerns have been 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

                                         -15-
       Under Martin’s “reasonableness” framework, assessed through the lens of
Seminole Rock precedent, the Secretary’s current interpretation must be assessed:
(1) for its consistency with prior interpretations; (2) for the possibility that it could
unfairly surprise the regulated entity; and (3) for its fidelity to the text of the
regulation. The question thus becomes whether the Secretary’s interpretation of
section 1910.212(a)(1), announced for the first time in a citation, was reasonable.
The majority says it was. For the reasons stated below, I respectfully disagree.

                                             II.
       Section 1910.212(a)(1) provides that an employer should guard its employees
“in the machine area from hazards such as those created by point of operation,
ingoing nip points, rotating parts, flying chips and sparks.” The Secretary interprets
workpieces being ejected from Loren Cook’s lathes as a hazard “created by . . .
rotating parts”; thus, within the literal scope of section 1910.212(a)(1). The majority
adds a couple of additional possibilities, that the hazard was “created by . . . point of
operation” and, by relying on the phrase “such as,” that flying workpieces nearly
three feet in diameter and weighing 12 pounds could be included in the section as an
unenumerated hazard similar to those enumerated.

       The Secretary’s interpretation is unreasonable for three reasons. First, the
Secretary has failed to show that he has consistently interpreted section
1910.212(a)(1) to apply to large objects being ejected from a lathe. Second, the
Secretary’s decision to announce his unprecedented interpretation in a citation that
imposed a $490,000 fine constituted unfair surprise. Third, the Secretary’s
interpretation of section 1910.212(a)(1) strains a common-sense reading of the
section.

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).

                                          -16-
                                              A.
        The Secretary has failed to show that he has consistently interpreted section
1910.212(a)(1) in the manner now asserted. The Secretary concedes that he has never
issued a citation quite like this one. Secretary’s Reply Br. at 15. As the majority
rightfully notes, this fact does not per se render the Secretary’s position unreasonable.
The Secretary needs flexibility to adapt regulatory language to a variety of situations,
and the decision to issue a citation, which is within the Secretary’s discretion, is
influenced by a variety of factors. See Christopher, 132 S. Ct. at 2168; Atlas Roofing
Co. v. Occupational Safety & Health Review Comm’n, 430 U.S. 442, 445-46 (1977).
One could conceivably see the Secretary piecing together a series of interpretations
that indicate a trend toward the current interpretation. But the Secretary has failed to
produce a citation, publication, or interpretation even remotely similar to the
Secretary’s current position. The standard interpretation letters5 the Secretary cites
merely state that section 1910.212(a)(1) should be construed broadly to address a
variety of hazards. The Secretary argues that the “natural extension” of his broad
interpretation means that the section should guard “against all” hazards. These
interpretation letters, as vague and unhelpful as the regulation itself, only show that
the Secretary has consistently failed to take his current position. With the majority
so freely willing to grant substantial deference to the Secretary’s interpretations
announced for the first time in a citation, one wonders why the Secretary would ever
provide interpretive guidance that could limit his future flexibility 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.”).




      5
        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).

                                          -17-
      OSHA’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,
https://www.osha.gov/SLTC/etools/machineguarding/motions_actions.html (last
visited Mar. 21, 2014); see also Loren Cook’s App. at 1333-35, 1427. This
interpretation, which focuses on a machine’s rotating part’s potential to crush or pin
body parts, is considerably different from the interpretation the Secretary embodied
in Loren Cook’s citation, which asserts that rotating parts could cause large
workpieces to eject from a lathe.

      To make matters worse, the Secretary’s unarticulated intent to interpret section
1910.212(a)(1) to cover the hazard here runs counter to the prevailing opinion about
the scope of the section.6 The Second Circuit in Carlyle Compressor Co. v.


      6
        See, e.g., Long Mfg. Co., N.C. v. Occupational Safety & Health Review
Comm’n, 554 F.2d 903, 908 (8th Cir. 1977) (“When the [section 1910.212] 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, *1 (No. 93-373, 1994) (ALJ) (“Section 1910.212(a) . . .
generally protects the operator from dangers associated with the point of operation.

                                          -18-
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 cover large
objects thrown from a spinning machine. Id. at 674-75. Although the Second Circuit
acknowledged its ordinary 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 “stretched” to “cover[] anything flying out of machines.” Id. at 675. Even if the
majority’s criticism of Carlyle were valid, see majority op. at 9, the larger problem
that the majority all but ignores is that the Secretary did nothing to react to the Second
Circuit’s unequivocal rejection of the Secretary’s broad reading of section
1910.212(a)(1). Moreover, the Secretary knew how Loren Cook operated its
production process. In 2004, the Secretary issued a citation to Loren Cook for
violating section 1910.212 for failing to guard its semi-automatic spinning machines,
which operate largely similar to the lathes at issue in this appeal. See Loren Cook
Co., 21 O.S.H. Cas. (BNA) ¶ 1705 (O.S.H.R.C. June 19, 2006). The ALJ noted that
“[t]he only hazard established by the Secretary [in the 2004 citation was] 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 the point
of operation—consistent with its machine guarding guidance, Carlyle, and established
practice—not on ejecting workpieces.

       The Secretary’s failure to produce any history of interpreting section
1910.212(a)(1) in the manner now asserted is aggravated when paired with the
Secretary’s apparent acquiescence to the Second Circuit’s decision in Carlyle. The
concept of acquiescence leads to the second reason why deference is inappropriate
here, unfair surprise.

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.”), aff’d, 17 O.S.H. Cas. (BNA) ¶ 1731
(O.S.H.R.C. Sept. 4, 1996).

                                          -19-
                                            B.
        When an agency acquiesces in an interpretation of an ambiguous regulation for
an extended period of time, then changes its interpretation to sanction conduct that
occurred prior to the new interpretation, “there are strong reasons” for withholding
deference. See Christopher, 132 S. Ct. at 2167-69; Abercrombie & Fitch Stores, Inc.,
731 F.3d at 1139-40; see also Long Island Care at Home, Ltd., 551 U.S. at 170-71
(“[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.” (emphasis added) (citation omitted)). After 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. Compare 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 judicial
decisions). Instead, much like the Department of Labor in Christopher, the Secretary
appeared to agree that section 1910.212(a)(1) did not require guarding for large,
unexpected objects being ejected from a machine. 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. The
Secretary’s conspicuous inaction here is amplified by its history with Loren Cook,
which indicates that the Secretary knew the way in which Loren Cook conducted its
manufacturing operations.

       The majority notes that “even assuming Loren Cook had convincingly
demonstrated the Secretary’s long-term acquiescence in the Carlyle interpretation, the
Secretary’s present advocacy of a different interpretation is not impermissible or per
se unreasonable.” See majority op. at 10. However, according to the Supreme Court
in Christopher, if Loren Cook establishes the Secretary’s acquiescence in a contrary
interpretation, then the Secretary’s current interpretive position does not deserve
deference. See 132 S. Ct. at 2167-68. If the Secretary’s position is not given

                                          -20-
deference, then the Secretary’s position may only prevail if the “traditional tools of
interpretation” support the Secretary’s interpretation. Id. at 2170. As the following
discussion indicates, a plain reading of section 1910.212(a)(1) does not support the
Secretary’s interpretation. In fact, the Secretary’s interpretation is so strained as to
provide an alternative reason for denying deference.

                                           C.
       The basic operative language of section 1910.212(a)(1) provides that “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.” 29 C.F.R. § 1910.212(a)(1).

       The five enumerated examples in section 1910.212(a)(1) can be roughly broken
into two groups. The first group, sources or causes of hazards, covers the first three
examples. The second group, by-products of machine operation, covers the final two
examples. The examples in the first group, point of operation, ingoing nip points, and
rotating parts, all present situations in which the movement and working of the
machine creates a danger at the point of contact as the operator’s body engages with
the machine. The second two examples, flying chips and sparks, are by-products of
the machine’s routine operation, and correspondingly by-products of the first three
examples. It is worth noting that the enumerated list is preceded by “such as,” which
indicates that the list is not exhaustive but is highly relevant to the scope of section
1910.212. See Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 327 (1981).

      There are two ways that section 1910.212(a)(1) could cover ejected
workpieces: (1) the ejected workpieces are hazards created by one of enumerated
point of operation sources on the list; or (2) the ejected workpieces are by-product
hazards not enumerated in the section and included by the section’s use of “such as.”




                                         -21-
       The first option fails because a plain reading of the section 1910.212(a)(1)
dictates that the hazards created by “point of operation, ingoing nip points, [and]
rotating parts” all relate to the operator’s physical contact with the machine during
the machine’s operating cycle. This interpretation of the section is supported by the
guarding techniques cited in the section. The Secretary’s interpretation of the section
takes an unduly liberal stance on what qualifies as a “hazard” “created by” the point
of operation or rotating parts and stretches the section’s scope too far.

       Section 1910.212(a)(3)(i) defines the point of operation as “the area on a
machine where work is actually performed upon the material being processed.” As
applied to Loren Cook’s lathes, that would mean where the operator’s shaping tool
makes contact with the workpiece as it spins. The regulation continues that the
anticipated 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 portion of the regulation clarifies that hazards
associated with “point of operation” are hazards that arise when the operator’s body
parts come into close proximity with the machine during the machine’s operating
cycle. Section 1910.212(a)(3)(iv) provides further support for this interpretation of
point of operation by listing several machines, such as shears, power presses, milling
machines, and forming rolls, that require the operator’s body parts to make contact
with the machine’s operating cycle.

       Section 1910.212(a)(1)’s reference to “rotating parts” is inapplicable to the
cited conduct for the same reason; the hazards contemplated are those hazards arising
from the operator’s contact with the machine’s moving parts. The phrase “rotating
parts” should be assessed with 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 created by a lathe’s rotating parts, much like the hazards

                                         -22-
from point of operation and nip points, arise from contact with the lathe, for instance,
the risk that the operator’s clothes, limbs, or hair could be caught in the lathe. This
limited interpretation is consistent with OSHA’s machine guarding interpretative
materials cited above. See Occupational Safety and Health Administration, Machine
Guarding eTools, supra (“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, in which a
hazard can be tied to some movement on a machine. See White Indus., Inc. v. F.A.A.,
692 F.2d 532, 535 (8th Cir. 1982) (rejecting an the F.A.A.’s interpretation of a
regulation as being “unduly technical”). The guarding methods provided in section
1910.212(a)(1), barrier guards, two-hand tripping devices, and electronic safety
devices, anticipate preventing ingress into the danger zone while with lathe is running
and, thus, support Loren Cook’s limited interpretation the section. These guarding
devices would do little to prevent the hazard for which Loren Cook was cited in this
case, the ejection of workpieces nearly three feet in diameter and weighing 12
pounds.

       The second possibility fails as well, because a 12 pound ejected workpiece has
a vastly different nature and quality from the two enumerated by-product hazards.
The workpiece is the product itself, not an incidental by-product discharged from the
lathe. Morever, the workpiece is notably larger and more significant than the two
hazards enumerated (flying chips and sparks). A 12 pound workpiece shooting off
of a spinning lathe creates a catastrophic hazard significantly distinguishable from the
minor hazards enumerated in section 1910.212(a)(1). Because a flying 12 pound
workpiece is far from being “the same kind” of hazard as those enumerated, its
inclusion through the section’s “such as” phrase is improper. See Donovan, 666 F.2d
at 327.




                                         -23-
       I do not doubt the Secretary’s expertise in workplace safety matters or his need
for flexibility to construe ambiguous regulations. But, these justifications for agency
deference are not frustrated by requiring the Secretary to provide some indication of
his evolving view of a regulation’s scope prior to issuing a citation accompanied by
a substantial fine. The Supreme Court in Martin warned that the Secretary’s decision
to use a citation to announce a novel interpretation may be unreasonable and therefore
undeserving of deference. The decision in Christopher illustrates an instance where
Martin’s warning holds true. The Secretary’s interpretation of section 1910.212(a)(1)
embodied in his citation to Loren Cook presents another situation where deference
is inappropriate.

                                         III.
      Finally, as the preceding discussion indicates, when section 1910.212(a)(1) is
assessed without granting the Secretary’s position deference, it does not cover the
conduct for which Loren Cook was cited. Accordingly, I would deny the petition for
review and affirm the order of the Commission.
                        ______________________________




                                         -24-
