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<pre>                  UNITED STATES COURT OF APPEALS <br>                      FOR THE FIRST CIRCUIT <br>                       ____________________ <br> <br>No. 97-1392 <br> <br>                      EMPIRE COMPANY, INC., <br>                           Petitioner, <br> <br>                                v. <br> <br>         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION <br>                   AND THE SECRETARY OF LABOR, <br>                           Respondents. <br> <br>                       ____________________ <br> <br>            ON PETITION FOR REVIEW OF A FINAL ORDER OF <br>       THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                      Boudin, Circuit Judge, <br> <br>and Woodlock, District Judge. <br> <br>                      _____________________ <br> <br>    Jay A. Garca-Gregory, with whom Luis A. Oliver-Fraticelli and <br>Fiddler, Gonzlez & Rodrguez were on brief for petitioner. <br>    Terri Parker DeLeon, Attorney, U.S. Department of Labor, <br>Office of the Solicitor-Occupational Safety and Health, with whom <br>J. Davitt McAteer, Acting Solicitor of Labor, Joseph M. Woodward, <br>Associate Solicitor for Occupational Safety and Health, and <br>Bruce F. Justh, Assistant Counsel for Appellate Litigation were on <br>brief for respondents. <br> <br> <br> <br>                       ____________________ <br> <br>                         March 16, 1998 <br>                      ____________________

         WOODLOCK, District Judge.  In this appeal, petitioner <br>Empire Co. ("Empire") challenges a decision of the Occupational <br>Safety and Health Review Commission (the "Commission") affirming  <br>citations issued by the Secretary of Labor (the "Secretary") for <br>violations of the Occupational Safety and Health Act of 1970, 19 <br>U.S.C.  651-678 (the "Act").  Empire maintains that its worksite <br>in Ponce, Puerto Rico is outside the enforcement jurisdiction of <br>the Occupational Safety and Health Administration of the United <br>States Department of Labor ("OSHA") because the area does not fall <br>within the scope of OSHA's marine terminal standard, 29 C.F.R. Part <br>1917.  We find that the Commission could properly find the worksite <br>within that standard and accordingly affirm. <br>                      I.  Standard of Review <br>         At the outset, it is important to delineate the standards <br>which govern our evaluation.  We review the Commission's legal <br>conclusions to determine whether they are arbitrary, capricious, an <br>abuse of discretion, or otherwise not in accordance with law.  See <br>P. Gioioso & Sons, Inc. v. Occupational Safety & Health Review <br>Comm'n, 115 F.3d 100, 107-08 (1st Cir. 1997) (citing 5 U.S.C.  706 <br>(2)(A)); Reich v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 2 (1st <br>Cir. 1993).  "In making these determinations we must be mindful <br>that an agency's construction of its own regulations is entitled to <br>substantial deference."  Reich, 3 F.3d at 2; see P. Gioioso, 115 <br>F.3d at 107.  Thus, the agency's interpretation must be given <br>effect if it is reasonable--that is to say, if it sensibly conforms <br>to the purpose and wording of the regulation.  See P. Gioioso, 115 <br>F.3d at 107; Reich, 3 F.3d at 2.  Where the Secretary and the <br>Commission advance reasonable but differing interpretations of an <br>ambiguous regulation, the Secretary's interpretation is to be given <br>effect.  See Martin v. Occupational Safety & Health Review Comm'n, <br>499 U.S. 144 (1991). <br>         We review the Commission's factual findings to determine <br>whether they are supported by substantial evidence in the record <br>considered as a whole.  See P. Gioioso, 115 F.3d at 108 (citing 29 <br>U.S.C.  660(a)); Reich, 3 F.3d at 2.  "[T]he standard applies with <br>undiminished force where, as here, an administrative body, like the <br>commission, does not itself hear witnesses but instead adopts an <br>ALJ's findings of fact."  P. Gioioso, 115 F.3d at 108 (citing Truck <br>Drivers & Helpers Union, Local No. 170 v. NLRB, 993 F.2d 990, 998- <br>99 (1st Cir. 1993)). <br>                     II.  Factual Background <br>         The findings of fact made by the administrative law <br>judge, upheld by the Commission on review and supported by <br>substantial evidence in the record as a whole established as <br>follows.  Empire operates a worksite in Ponce, Puerto Rico, where <br>it engages in the maintenance, repair, and rental of equipment such <br>as marine shipping containers, lifts to move heavy loads and <br>chassis upon which containers are placed for ground transportation.  <br>Clients in the maritime industry provide approximately eighty <br>percent of Empire's rental business and approximately eighty-five <br>percent of its maintenance and repair business.  Empire also <br>supplies diesel fuel to Luis Ayala Coln Successors Inc. ("LAC"), <br>a stevedoring company, and to the Ponce Port Authority, which <br>operates a wharf and berth facility for the handling of maritime <br>cargo. <br>         Empire's worksite, as illustrated in two hand-drawn maps <br>made a part of the administrative record and attached as Appendices <br>A and B to this opinion, lies approximately one-half mile north of <br>the Port Authority's wharves.  A public road, P.R. 10, runs roughly <br>east and west along the wharf.  The road is fenced on both sides, <br>and access to the wharf is provided through a gate.  Railroad <br>tracks run roughly north from the shore, intersecting P.R. 10 then <br>veering westward before reaching Empire's worksite.  A railroad <br>loading facility, operated by CHEMEX Corp., lies between Empire's <br>worksite and the shore.  To the east of the CHEMEX facility are <br>unrelated structures, including a boat yard, a warehouse, a gas <br>storage facility, and a tuna factory.  To the west are offices of <br>the Port Authority, and an area in which shipping containers were <br>being stored at the time of the OSHA inspection. <br>                     III.  Procedural History <br>         On June 12, 1993, the Secretary issued two citations to <br>Empire for violations of the Act.  Empire contested the citations, <br>claiming that its worksite does not fall within the scope of OSHA's <br>marine terminal standard, 29 C.F.R. Part 1917.  The Act permits <br>states to enforce occupational safety and health standards under <br>plans approved by the Secretary.  See 29 U.S.C.  667.  Puerto Rico <br>operates generally under such an approved plan.  See 29 C.F.R. <br> 1952.383(s); 47 Fed. Reg. 39,164-66 (1982).  As a result, OSHA <br>has enforcement jurisdiction in Puerto Rico only over marine <br>terminals, 29 C.F.R. Part 1917, and in other narrow areas not <br>relevant here. <br>See 29 C.F.R.  1952.382. <br>         The marine terminal standard applies to <br>           employment within a marine terminal as <br>           defined in  1917.2(u), including the <br>           loading, unloading, movement or other <br>           handling of cargo, ship's stores or gear <br>           within the terminal or into or out of any <br>           land carrier, holding or consolidation <br>           area, or any other activity within and <br>           associated with the overall operation and <br>           functions of the terminal, such as the use <br>           and routine maintenance of facilities and <br>           equipment. <br> <br>29 C.F.R.  1917.1(a). <br> <br>         "Marine terminal" means <br> <br>           wharves, bulkheads, quays, piers, docks <br>           and other berthing locations and adjacent <br>           storage or contiguous areas and structures <br>           associated with the primary movements of <br>           cargo or materials from vessel to shore or <br>           shore to vessel including structures which <br>           are devoted to receiving, handling, <br>           holding, consolidation and loading or <br>           delivery of waterborne shipments or <br>           passengers, including areas devoted to the <br>           maintenance of the terminal or equipment.  <br>           The term does not include production or <br>           manufacturing areas having their own <br>           docking facilities and located at a marine <br>           terminal nor does the term include storage <br>           facilities directly associated with those <br>           production or manufacturing areas. <br> <br>Id.  1917.2(u). <br> <br>         After a hearing, an administrative law judge (the "ALJ") <br>held that Empire's worksite was within the scope of Part 1917 and <br>therefore was within OSHA's enforcement jurisdiction.  The ALJ <br>viewed part 1917 as imposing both a functional test and a <br>geographic test for determining whether the marine terminal <br>standard applies to a given worksite. <br>         The ALJ found the functional test satisfied because <br>Empire engaged in "the . . . maintenance of . . . equipment" used <br>in maritime cargo handling, and because Empire's sales of diesel <br>fuel to the Ponce Port authority and LAC were activities <br>"associated with the overall operation and functions of the <br>terminal." <br>         The ALJ found the geographic test satisfied because <br>Empire's operations took place in "contiguous areas . . . devoted <br>to the maintenance of the terminal or equipment."  He saw no need <br>to look beyond what he characterized by reference to Webster's <br>Third New International Dictionary as the plain meaning of <br>"contiguous," which he interpreted as "nearby" or "close" and not <br>limited to immediately or directly adjoining locations.  He <br>determined "that the presence of a road, fences, and gate along the <br>wharf is not sufficient to separate out the premises to the north <br>and prevent them from being considered part of a marine terminal."  <br>The ALJ also found that neither the Port Authority offices to the <br>west nor the unrelated structures to the east "intrude into or <br>occupy any part of the area to the south between Empire's facility <br>and the wharf itself."  Consequently, the Empire worksite was <br>determined to  be contiguous with the wharf: "Since there are no <br>intervening work operations or structures unrelated to marine <br>terminal activities, the evidence supports a finding that Empire's <br>property is part of a single, overall facility which comes within <br>the definition of a marine terminal." <br>         Empire filed a petition for review of this decision, and <br>the Commission affirmed but used a different interpretation.  <br>Specifically, with respect to the functional test, the Commission <br>found reasonable an administrative interpretation under which "a <br>contiguous area is considered a marine terminal without regard to <br>whether it is associated with the primary movement of cargo or <br>materials from vessel to shore or shore to vessel."  With respect <br>to the geographic test, the Commission agreed with the ALJ that <br>"contiguous," as used in  1917.2(u), can mean "nearby."  The <br>Commission found that, under this definition, Empire's facility <br>qualifies as a contiguous area because it is located approximately <br>one-half mile from the wharf and because "[a]ll of the property <br>between Empire and the wharf is devoted to maritime activities." <br>         Pursuant to 29 U.S.C.  660, Empire petitioned this Court <br>for review. <br>                 IV.  Defining "Marine Terminal" <br>         Empire challenges (A) the Commission's interpretation of <br>the functional test, (B) the Commission's interpretation of the <br>geographic test, and (C) the Commission's application of the <br>geographic test to Empire's worksite. <br>         A.  The Functional Dimension of "Marine Terminal": <br>             Maintenance Associated with Cargo Movement  <br> <br>         By holding that a contiguous area is considered a marine <br>terminal without regard to whether it is associated with the <br>primary movement of cargo or materials from vessel to shore or <br>shore to vessel, the Commission all but did away with a function <br>dimension to the term "marine terminal."  Adopting that <br>interpretation, the Commission considered only whether Empire's <br>worksite is contiguous to the Ponce wharf. <br>         We find this aspect of the interpretation articulated by <br>the Commission contrary to the plain language of the regulation.  <br>Section 1917.2(u) deals with two basic categories of sites.  First <br>are those sites that are per se elements of a marine terminal: <br>"wharves, bulkheads, quays, piers, docks and other berthing <br>locations and adjacent storage . . . ."  The second category, <br>introduced in  1917.2(u) by the disjunctive "or," are those <br>"contiguous areas and structures" serving functions "associated <br>with the primary movement of cargo or materials from vessel to <br>shore or shore to vessel . . . including areas devoted to the <br>maintenance of the terminal or equipment."  The Commission could <br>have reached its interpretation only by finding that the <br>"associated with" language modifies "structures" but not <br>"contiguous areas."  Under the open-textured interpretation adopted <br>by the Commission, any contiguous area would qualify as part of a <br>marine terminal without apparent regard for its function.  If this <br>interpretation were correct, however, it would be supererogatory <br>for the regulation to provide that a marine terminal "includ[es] <br>areas [not limited to structures] devoted to the maintenance of the <br>terminal or equipment."  This offends a basic canon of statutory <br>construction requiring every portion of the regulatory language to <br>have meaning.  See Connecticut Nat'l Bank v. Germain, 503 U.S. 249, <br>253 (1992).  Furthermore, by making Part 1917 applicable to <br>contiguous areas without regard to the activities performed <br>therein, the Commission's interpretation cuts the marine terminal <br>standard loose from certain articulated purposes identified by the <br>agency in promulgating its standard.  "This proposed rule is a <br>vertical standard, i.e., one which applies to this industry <br>exclusively and is designed specifically to address the hazards <br>associated with marine cargo-handling shore."  46 Fed. Reg. 4182, <br>4182 (1981). <br>         We interpret  1917.2(u) with emphasis on its functional <br>purpose.  We see that purpose to be furthered by finding that <br>Empire's worksite is part of a marine terminal precisely because, <br>as a marine equipment maintenance area, it is associated with the <br>primary movement of cargo or materials.  In this connection, Empire <br>contends that the marine terminal standard was not intended to <br>apply to worksites where employees are "merely" engaged in the <br>maintenance and repair of equipment.  This argument strains to <br>avoid a practical recognition of just what happens at a marine <br>terminal.  The Supreme Court has observed--albeit in the context of <br>the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. <br> 901-950--that "maintaining or repairing equipment essential to <br>the loading or unloading process" is not only associated with <br>primary marine activity, but "is an integral part of and essential <br>to those overall processes."  Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 47 (1989).  Furthermore, Empire's suggested <br>definition of a marine terminal permits disregard of one of the <br>important specific goals of the regulation: to prevent injuries <br>suffered during "hot  work" (e.g., welding, cutting, heating), <br>which "is used in the marine terminal principally to perform <br>routine maintenance and repair tasks, such as rebuilding a damaged <br>intermodal container or repairing a chassis that is no longer <br>properly aligned." 46 Fed. Reg. 4182, 4221 (1981).  This is <br>activity the ALJ found to be present at Empire's worksite.  Most <br>importantly, the regulation itself plainly states that areas <br>covered by virtue of function include those "devoted to the <br>maintenance of the terminal or equipment." <br>         The ALJ found, and Empire does not dispute, that <br>"Empire's business at the location in question is maintenance and <br>repair of equipment used in marine terminal operations."  Although <br>the Commission's expansive interpretation avoided any need to <br>review that determination, it is clear to us that this finding of <br>fact is the only one supported by the administrative record.  As a <br>result, remand to the Commission would serve no purpose and is <br>therefore inappropriate.  See, e.g., Brock v. L. R. Willson & Sons, <br>Inc., 773 F.2d 1377, 1389 n.12 (D.C. Cir. 1985); Marshall v. Western Elec., Inc., 565 F.2d 240, 246 (2d Cir. 1977), overruled on <br>other grounds, Martin v. Occupational Safety & Health Review <br>Comm'n, 499 U.S. 144 (1991). <br>         In sum, while we find the Commission's interpretation of <br>the functional test to be erroneous, we nevertheless conclude that <br>Empire's worksite indisputably satisfies the appropriately tailored <br>functional test applied by the ALJ. <br>         B.  The Geographic Dimension: "Contiguous" Areas <br>         Empire challenges the interpretation of "contiguous" as <br>including areas "nearby" but not necessarily "touching."  The <br>dictionary definition relied upon by the ALJ and the Commission <br>lists "touching along boundaries" as the primary definition and <br>"nearby" as the tertiary--and therefore less commonly used-- <br>meaning.  As the Supreme Court has emphasized in an analogous <br>context, an agency's interpretation need not comport with the most <br>common usage: <br>             To be sure, "terminate" may also bear <br>           the meaning proposed by respondent.  <br>           Indeed, it may bear that meaning more <br>           naturally or more frequently in common <br>           usage.  But it is axiomatic that the <br>           EEOC's interpretation of Title VII, for <br>           which it has primary enforcement <br>           responsibility, need not be the best one <br>           by grammatical or any other standards.  <br>           Rather, the EEOC's interpretation of <br>           ambiguous language need only be reasonable <br>           to be entitled to deference. <br> <br>EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 115 (1988).  <br>The language of  1917.2(u) does not clearly preclude "nearby," and <br>we therefore consider whether the definition adopted by the <br>Commission and the ALJ, regardless of its rank in the dictionaries, <br>is a reasonable interpretation of the term "contiguous" as used in <br>Part 1917. <br>         In promulgating Part 1917, OSHA explained why regulations <br>were needed in certain geographic areas: "The work environment at <br>a marine terminal exposes maritime employees to a greater risk of <br>injury than is true for workers in most other industries."  46 Fed. <br>Reg. 4182, 4183 (1981).  Of course, many of the hazards covered by <br>Part 1917 are plainly greatest at the wharves and piers themselves.  <br> It is undisputed, however, that Part 1917 applies to some areas <br>distinct from the docks, so long as related activities are carried <br>out therein.  The Secretary has simply determined that, under the <br>regulations, the degree of danger--and thus the need for coverage-- <br>in such a distinct area with such defined activities depends upon <br>its proximity to the wharf rather than upon whether the two areas <br>share a common border. <br>         If we were not according substantial deference to the <br>agency interpretation, we might be tempted to read Part 1917 to <br>apply only to those areas immediately adjacent to the wharf itself, <br>because the hazards of direct cargo handling are most likely to be <br>experienced in such areas and because that is a more rigorous <br>definition of "contiguous."  Cf. Bryan A. Garner, A Dictionary of <br>Modern Legal Usage 213 (2d ed. 1995) ("contiguous means, not merely <br>'close to' or 'near,' but 'adjacent'").  The farther activities are <br>from adjacent areas of direct cargo handling, the more remote are <br>the unique dangers of marine terminals.  Presumably at some point <br>beyond adjacent areas employees may appropriately be protected by <br>the ordinary safety standards of a given locality.  But these <br>generalizations are speculative, and by contrast we note the ALJ's <br>finding that the actual working activities at Empire's worksite <br>involve the types of hazards addressed by the marine terminal <br>standard--e.g., welding, electrical safety, hazard communications, <br>fall protection, and machine guarding.  In any event, the parties <br>have failed to describe the practical significance of the choice <br>between the OSHA and the Puerto Rico safety regimes.  In light of <br>the regulation's general protective purposes--and in the absence of <br>some demonstration that an expansive reading presents a practical <br>anomaly--we do not find it unreasonable to interpret Part 1917 as <br>applying to areas "nearby"-- and not just to those "touching"--the <br>wharf. Cf. Texports Stevedore Co. v. Winchester, 632 F.2d 504, 514 <br>(5th Cir. 1980) (holding that areas "adjoining" navigable waters, <br>which are covered by the Longshoremen's and Harbor Workers' <br>Compensation Act, include areas "close to or in the vicinity of <br>navigable waters"). <br>         C.  Application of the Geographic Test  <br>         The Commission's determination of contiguity was based in <br>part upon findings that Empire's worksite and the wharf are <br>separated by an area, about one-half mile long, entirely devoted to <br>maritime activity.  This factual predicate was supported by <br>substantial evidence in the record as a whole.  Although Empire <br>contends that an "empty lot" lay to the south, directly adjacent to <br>the CHEMEX facility, two OSHA officers testified at the hearing <br>before the ALJ that they had personally observed chassis and <br>containers in this area.  Similarly, the maps introduced by both <br>parties in the administrative proceeding, see supra note 1 and <br>accompanying text, together with the related testimony, <br>demonstrated, as the ALJ found, that neither the unrelated <br>structures to the east nor the Port Authority offices to the west <br>"intrude into or occupy any part of the area to the south between <br>Empire's facility and the wharf itself." <br>         We also agree with the ALJ that "the presence of a road, <br>fences, and gate along the wharf is not sufficient to separate out <br>the premises to the north and prevent them from being considered <br>part of a marine terminal."  Empire makes much of an OSHA guideline <br>emphasizing that federal enforcement jurisdiction ends at "the gate <br>of the terminal."  OSHA Instruction STP 2-1.112 (Sept. 9, 1983).  <br>However, this phrase appears merely to be a figurative reference to <br>the geographic limits on the scope of Part 1917, and in any event <br>it does not answer the question of where the terminal begins or <br>ends.  The marine terminal standard undoubtedly applies to areas <br>distinct from the wharf itself.  The existence of intervening <br>roads, fences, and gates between such areas is entirely <br>unremarkable, and such appurtenances do not necessarily reduce the <br>dangers to which the marine terminal standard is addressed. <br>                          V.  Conclusion <br>         We conclude Part 1917 can properly be interpreted to <br>cover maintenance areas "nearby" a wharf, associated with the <br>primary movement of cargo.  We further conclude the Commission's <br>finding that Empire's worksite is covered by Part 1917 is in <br>accordance with that interpretation and is supported by substantial <br>evidence in the record as a whole.  Accordingly we will not disturb <br>the Commission's ultimate conclusion that Empire's worksite is a <br>"marine terminal" subject to 29 C.F.R. Part 1917. <br>         Affirmed. <br></pre>

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