Ralph Taynton, d/b/a Service Specialty Company
Secretary withdraws all citations
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
OSHA cited Service Specialty Company, a marine-construction contractor, for eighteen alleged serious violations and one other-than-serious posting violation, with $32,700 in proposed penalties. The ALJ found that the company's business affected interstate commerce but that OSHA had not proved it employed anyone at the worksite when inspected. He therefore vacated all citations, while warning that the evidence otherwise supported the alleged safety violations. During Commission review, the parties settled and the Secretary withdrew every citation in this case. The Commission incorporated the agreement into its final order and set aside the ALJ decision to the extent inconsistent with the settlement.
Decision snapshot
- Cited standard(s): The release does not identify the individual standards underlying the nineteen items.
- Outcome: The Secretary withdrew all citations, leaving no penalties in this case.
- Key point: OSHA must prove an employment relationship and employee exposure, but a settlement may resolve review by withdrawing the citations rather than adopting the ALJ's reasoning.
Full text (OSHRC public release)
OCCUPATIONAL sAF~~~~~E~~~~~c~~“,EW COMMISSION
One Lafayette Centre
1 I 20 20th Street, N.W. - 9th Floor
+
!/ Washington, DC 20036-3419
. .
SECRETARY OF LABOR, .. zti (202) 606-5050
Frs (202) 606-!50!50
Complainant,
v. .. Docket No. 914709
RALPH TAYNTON, d/b/a SERVICE
SPECIALTY COMPANY,
.
Respondent. ..
ORDER
This’ matter is before the Commission on a direction for review entered by
Commissioner Donald G. Wiseman on August 27, 1992 . The parties have now filed a
stipulation and settlement agreement.
Having reviewed the record, and based upon the representations appearing in the
stipulation and settlement agreement, we conclude that this case raises no matters
warranting further review by the Commission. The terms of the stipulation and settlement
agreement do not appear to be contrary to the Occupational Safety and Health Act and are *
in compliance with the Commission’s Rules of Procedure.
Accordingly, we incorporate the terms of the stipulation and settlement agreement
into this order, and we set aside the Administrative Law Judge’s decision and order to the
extent that it is inconsistent with the stipulation and settlement agreement. This is the final
order of the Commission in this case. See 29 U.S.C. $5 659(c), 660(a), and (b).
Chairman
Velma Montoya
Commissioner
Date& . May 7 9 1993
NOTICE OF ORDER
The attached Order by the Occupational Safety and Health Review Commission
was issued and served on the following on May 7, 1993.
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
Washington, D.C. 20210
Don McCoy, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Room 407B, Federal Building
299 East Broward Boulevard
Ft. Lauderdale, FL 33301
Peter J. Hurtgen, Esquire
Morgan, Lewis & Bockius
5300 Southeast Financial Center
200 South Biscayne Blvd.
Miami, FL 33131-23339
James D. Burroughs
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3119
FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K Street N.W.
4th Floor
Washington, D.C. 20006-1246
l
l
ROBERT B. REICH, SECRETARY OF LABOR, l
l
l
l
Complainant, l
l OSHRC CASE NO. 91-1709
l
l
v. :
l
l
RALPH TAYNTON, d/b/a SERVICE l
l
l
SPECIALTY COMPANY, l
l
l
.Respondent. l
l
l
. l
STIPULATION AND 8ETTLEMENT AGREEMENT
In settlement and disposition of the issues in this
proceeding, it is hereby stipulated and agreed by and between the
Complainant, Secretary of Labor, and the Respondent, Ralph
Taynton, d/b/a Service Specialty Company, that:
1 l This case is before the Commission upon the
granting of the Secretary's Petition for Discretionary Review
seeking review of the administrative law judge's decision and
order dated June 30, 1992.
2 l The Secretary hereby withdraws the citations in
the above-captioned case only. The other case between the
parties currently pending before an administrative law judge
(Docket NOe 92+498) remains pending.
3 l Respondent is unable to post a copy of this
Stipulation and Settlement Agreement because respondent is out of
32486.1
CASE NO. 91-1709
business and no longer maintains an office or other place of
business.
40 Complainant and respondent will bear their own
litigation costs and expenses.
5 l There are no authorized employee representatives.
,/
/
I - ./ /
-id L p/w/y j ,~~+- //yjg,$~> $d+;~
/
4 - -- 1-
Mark J.:&erner /(Date) Pet& Ji Hu .cg/en J (date)
Attorney for the Secretary . Counsel fo2
of Labor Ralph TaGnton, d/b/a Service
Specialty Company
32486.1
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON D.C. 20006-l 246
FAX:
COM (202) 634-4008
F-E 634-4008
SECRETARY OF LABOR
Complainant, .
v. OSHRC DOCKET
NO. 91-1709
SERVICE SPECIALTY COMPANY
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE IAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on August 5, 1992. The decision of the Judge .
will become a final order of the Commission on September 4, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received .b the Executive Secretary on or before -
August 25, 1992 in order to ermit suf Jicient time for its review. See
Commission Rule 91, 29 C. I?.R. 2200.91. r
*r
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH,
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havrng questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
4
Date: August 5, 1992
DOCKET NO. 91-1709
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH,
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Don McCoy, Es .
Assoc. Re onal 9selicitor
Office of t8’e Solicitor, U.S. DOL
Federal Building, Rm. 407B
299 East Broward Boulevard
Ft. Lauderdale, FL 33301
Mr. Ral h Taynton
Service !i ecialty Company
- Over Pook Drive
Stuart, FL 34994 , -
James D. Burroughs
Administrative Law Jud e
Occupational Safety an (f:Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00106111743:04
UNITED STATES OF AMERlCA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SU!TE 240
ATLANTA, GEORGIA 30309-31 I Y
FAX:
PHONE: COM (404) 347-0113
COM (404) 347-4197 FTS 257-0113
FE 257-4086
..
SECRETARY OF LABOR, ..
Complainant,
v. OSHRC Docket No. 914709
RALPH TAYNTON, d/b/a SERVICE
SPECIALTY COMPANY,
..
Respondent. ..
APPEARANCES:
Stephen Alan Clark, Esquire Mr. Ralph Taynton
Office of the Solicitor Service Specialty Company
U. S. Department of Labor Stuart, Florida
Fort Lauderdale, Florida For Respondent
For Complainant
Before: Administrative Law Judge James D. Burroughs
DECISION AND ORDER
Ralph Taynton, d/b/a Service Specialty Company (Service), is a general contracting
firm specializing in marine construction. In April of 1991, Service was engaged in the
building of a sea wall off of Avery Road in Palm Beach Gardens, Florida (Tr. 11). The
Occupational Safety and Health Administration (OSHA) received a formal complaint from
Scott Schmidt, a former employee of Service, in mid-April. Schmidt alleged that Service was
using an unsafe crane. Corey Neale, a compliance officer for OSHA, was dispatched to the
Aver-y Road worksite to investigate the akgation. As a result of Neale’s inspection, the
Secretary issued two citations to Service on May 30, 1991.
The first citation contains allegations of serious violations of eighteen separate
standards of the Occupational Safety and Health Act of 1970 (Act). Item 1 alleges a failure
to initiate or maintain a safety program. Items 2, 3 and 4 allege violations relating to the
use of hazardous chemicals. Items 5 through 13 allege violations of standards covering
cranes. Items 14 through 18 allege violations involving marine operations and equipment.
The Secretary proposed penalties for the eighteen items contained in Citation No. 1 totaling
$32,400. Citation No. 2 alleges an “other” violation for failure to post the required OSHA
notice and proposes a penalty of $300 for this violation.
Service contests all items and penalties contained in the two citations. Ralph
Taynton, acting pro se for Service, defends thecompany on a number of grounds including
the following: the items are duplicative, the allegations are unsubstantiated, the cited
standards are inapplicable to the cited conditions, the Secretary did not prove that any
accidents occurred as a result of the alleged hazardous conditions, the complaint to OSHA
was lodged by a disgruntled ex-employee, and the company is financially unable to pay the
penalties.
These defenses are without merit. The items address separate violations and are not
duplicative, no proof of an accident is necessary to establish a violation of a standard, the .
initial complaint made to OSHA was valid, and the employer’s financial condition is not
determinative of the penalties assessed. Despite Service’s claim that the allegations are
unsubstantiated, the company did not seriously contest the Secretary’s evidence of the
numerous violations at the hearing. The gravity of the crane’s hazardous conditions was
attested to by Corey Neale, a veteran of approximately 1,000 crane inspections, who stated,
“I’ve never seen a crane in any worse condition” (Tr. 60, 197).
Service raises two other defenses. The first, that it was not engaged in a business
affecting interstate commerce, thus taking it out of the Review Commission’s jurisdiction, is
without merit. The second, that Service had no employees at the time of the inspection and,
therefore, could not be liable for any exposure, is more substantive.
Service’s Business Affects
Interstate Commerce
The Act covers employers, and under section 3(5) of the Act, “[tlhe term ‘employer’
means a person employed in a business affecting commerce who has employees . . . .” The
statutory phrase “affecting commerce” signals a broad sweep of jurisdiction, as opposed to
the phrase “in commerce,” which requires that “a fairly specific showing must be made of
a connection between the particular employer regulated and interstate commerce.”
U&y v. Lacy, 628 F.2d 1226, 1228 (9th Cir. 1980). In E.E.O.C. v. Ratliff, 906 F.2d 1314 (9th
Cir. 1990), the court discussed the sweep of the “affecting commerce” (Id. at 1316):
The Supreme Court has interpreted the term “industry affecting commerce”
as indicating Congress’ intent to exercise its regulatory power to “the fullest
jurisdictional breadth constitutionally . .permissible under the Commerce
Clause.” NLRB v. Reliance Fuel Oil Cop., 371 U.S. 224, 226, 83 S. Ct. 312,
313, 9 L. Ed. 26 279 (1963).
The Commission has not adhered to stringent requirements establishing that a
business affects interstate commerce. See Poughkeepsie Yacht Club, Inc., 7 BNA OSHC
1725, 1979 CCH OSHD II 23,888 (No. 76-4026, 1979); Avaloti Painting Co., 9 BNA OSHC
1226, 1227, 1981 CCH OSHD ll 25,157 (No. 76-4774, 1981). (“An employer’s use of goods
produced out of state has been held to ‘affect’ interstate commerce under the Act.“) That
is not to say, however, that no burden of proof exists for the Secretary on the issue of
jurisdiction. It is not enough for the Secretary merely to allege that the employer’s business
affects interstate commerce; she must have some facts to back up her allegations. In Austin
Road Co. v. OSHRC, 683 F.2d 905 (5th Cir. 1982), the court reversed the administrative law
judge’s finding of jurisdiction. Where the Texas employer was engaged in building
residential streets, drains, sanitary sewers and water transmission lines, the court found that
the Secretary’s allegations regarding Austin’s effect on interstate commerce were
“speculative and conclusionary.” 683 F.2d at 908. Despite the court’s statement that the
Secretary’s “burden is, in the usual case, modest, if indeed not light,” (683 F.2d at 907), the
Secretary failed to meet even that minimal standard.
3
In Yak-Pak; Inc., 11 BNA OSHC 2094, 1984 CCH OSHD lI 26,974 (No. 79-1569,
1984), the Commission reversed an administrative law judge’s finding of jurisdiction over a
Florida employer who manufactured water filtration equipment for swimming pools. The
Commission held that “the Secretary did not establish ‘that Vak-Pak purchased goods from
out of state or that it purchased goods from within the state that were manufactured outside
the state.” 11 BNA OSHC at 2095. However, in C&ence M Jones d/b/a C. Jones Company,
11 BNA OSHC 1529, 1983-84 CCH OSHD ll 26,516 (No. 77-3676, 1983), the Commission
affirmed the administrative law judge’s finding of jurisdiction over an employer who had
undertaken the exterior renovation of a residential apartment building that it owned and
leased. The Commission held that the nature of the employer’s work was a major factor in
the finding that the employer affected interstate commerce (11 BNA OSHC at 1531)
(citations omitted):
Although Jones was engaged in a small construction project and his activities
and purchases may have been purely local, his construction activity
nevertheless affected interstate commerce. There is an interstate market in .
construction materials and services and therefore construction work affects
interstate commerce . . . . Thus, even if Jones’ contribution to this stream of
commerce was small and his activity and purchases were purely local, they
necessarily had an effect on interstate commerce when aggregated with the
similar activities of others.
Service is engaged in marine construction. It was building a sea wall behind a house
on a private lot. According to Neale, the house had “a canal behind it, which is -- most
canals are thoroughfares” (Tr. 64). In her brief, the Secretary transforms this statement into
the assertion that Service “was repairing the seawall on a canal which was a thoroughfare
(Secretary’s Brief, pg. 3). If the canal was, in fact, a thoroughfare, then the Secretary has
a basis for claiming Service was in a business affecting commerce. “[A] place of employment
upon a navigable waterway of the United States affected commerce within the meaning of
the Act.” Poughkeepsie Yacht Club, 7 BNA OSHC at 1727, citing Cable CarAdvertisers,Inc.,
1 BNA OSHC 1446, 1973-74 CCH OSHD ll 17,019 (No. 354, 1973).
The Secretary did not, however, establish by a preponderance of the evidence that
the canal was a thoroughfare. Peale qualified his statement by saying “most canals are
thoroughfares,” and did not specify that the canal in question was included in that majority.
This evidence is similar to that rejected in Yak-Pak,.when the industrial hygienist qualified
her testimony that the Florida employer used chemicals manufactured in California with the
words “I think.” 11 BNA OSHC at 2095. The Review Commission commented (11 BNA
OSHC at 2095):
This testimony is not definite enough to establish that these purchases affected .
interstate commerce. We note that testimony of this sort is precisely the type
of evidence that the Fifth Circuit found insufficient in Austin Road, supra. In
that case, testimony by the compliance officer that Austin used “a Bucyrus
Erie hydraulic boom crane which he believed was made in Bucyrus, Michigan,”
was held to be inadequate to establish the Secretary’s case.
Neale contended that the aluminum sheet piling that Service was using to build the
seawall “came out of Alabama” (Tr. 84). Under cross-examination, Neale modified this
unequivocal statement (Tr. 159-160):
Q. Do you have knowledge of the sheet piling being produced in
Alabama?
0 0 l .
A. That specific piling, no; but when I called several different
manufacturers of it, they told me the majority of it was. The[y] .
melt it. They don’t make aluminum; they melt the piling from
the raw aluminum. They mine the aluminum products out west.
Q. Were you aware of where that particular -- you say you were
not aware of where that particular piling came from?
A. No, I didn’t know the brand name or I didn’t see any stamp. A
lot of times, they have “U. S. Steel” or something stamped on
it. I didn’t notice any stamps on it.
This testimony does not reflect that Neale was aware of where the aluminum sheet piling
had been obtained by Service. The testimony does not provide a basis for a finding that
Service’s business affects interstate commerce.
5
Neale also stated that Service’s P & H crane was manufactured in Milwaukee,
Wisconsin (Exh. c-2; Tr. 84). This testimony was undisputed by Service at the hearing.
Meager as it is, it is sufficient to establish that Service’s business affects interstate commerce.
All that is required is proof that an employer uses products produced out of state. The
Review Commission has jurisdiction over Service.
Service Had No Employees at the Time
of the Inspection
Service argues the following in its brief (Service’s Brief, pg. 1):
No employee was exposed to any hazard as there were no employees. Even
by the inspector’s [Neale’s] own testimony, he had visited the site on two
separate days prior to the recorded inspection and there was no activity at the
site. On inquiry of neighbors, their response was that there had been no
activity for over a week. The equipment was in storage. I, and a friend were
seeing to its proper and safe storage at the time of the OSHA inspection;
The friend was not an employee. He received no economic or other
consideration.
Neale first visited the Avery Road site on April 15, 1991. No one was at the site (Tr.
63). Neale returned the next day, and again no one was on the site. Neale spoke with a
resident of the neighborhood (Tr. 64-65). The resident told Neale, “I seen somebody come
in for an hour and then leave. I haven’t seen anybody over there working for a week or so”
(Tr. 160). On that day, Neale took a picture of Service’s crane. A bundle of aluminum
sheet piling is also visible in the photograph (Exh. C-5; Tr. 65).
On April 17 Neale visited the Avery Road site for the third time (Tr. 68). Neale
again snapped a photograph of Service’s crane (Exh. C-6). In the photograph, the bundle
of aluminum sheet piling is loose (Tr. 69). A jetting hose is connected to the crane’s cable
(Tr. 70). Neale testified that the crane and a water pump were running (Tr. 68).
Neale observed a man who he took to be an employee at the site. His account of
his conversation with this man is crucial to the determination of whether Service had any
employees at the time of the inspection. He testified (Tr. 75):
I stopped and showed my credentials to this employee [sic] who was there,
and I said, “I have to get the names of different employees to see if you have
any questions on safety and health, and see if I can answer them.
He gave his name, and I said, “Can I have your address?”
He said, “No, I’m living on a sailboat, and I’ll be leaving this week for a six-
month cruise and I won’t be around.”
And, I said, “Do you have an address where your boat is at now?”
And, he said, “No, I don’t have an address where you can reach me.”
I said, “Okay, thank you. Are you just picking up a little spending money?”
And, he said, “Yes.”
Later, Taynton cross-examined Neale about this encounter (Tr. 154456):
Q. You referred to an alleged employee named Jerry Jamesson.
By what means did you substantiate his existence as an
. employee?
A. I asked him.
Q l And?
A. I asked what his name was. I have to get names of employees.
I said, “If you have any complaints on safety or health, or if you
have any questions I can try to answer for you. I need your
name and address.”
He told me, “James.” He didn’t say, “Gerald.” He said, “Jamesson.”
Then I said, “What is your address?” And, he said, “I don’t
have one. I’m living on a boat. I’m going to be leaving for a
six-month cruise, so I don’t have one.”
And, that’s when I said, “Oh, picking up a little spending
money?”
And he said, “Yes.”
Q. I would like to ask you further, did you ask him whether he was
an employee?
A Yes. I just stated so.
..
Q. And, his response was that he was or was not an employee?
A He never said. He just said, “Yes.”
I said, “I’m asking you -- I’ve got to get the names of the
employees.” So, I assumed that he was an employee because
he gave his name and address, and he never said, “I’m not an
employee.”
It is the Secretary’s burden to prove that Service was an employer, ie., that it had
employees at the time of the inspection. The only evidence the Secretary adduces on this
point is Neale’s testimony regarding Jamesson. But, as Neale himself stated, he only
assumed that Jamesson was an employee. Neale appears to believe that Jamesson’s
affirmative response to, “Picking up a little spending money?” conclusively establishes that
Jamesson was in Service’s employ. But the exchange between Neale and Jamesson is
ambiguous and open to more than the one interpretation given by Neale. Jamesson could
.-
have taken the inquiry to be general in nature, believing that Neale was wondering why
Jamesson was not yet on the cruise. Neale has demonstrated himself in this and previous
hearings to be a genial, gregarious person. It is possible that Jamesson took Neale’s
substantive question to be small talk. In any event, answering “yes” to “Picking up some
spending money?” is not the equivalent of answering “yes” to “Are you an employee of
Service’s?”
Taynton testified that he had no employees at the Avery Road site (Tr. 209).
Taynton explained that Jamesson was a friend who was visiting him (Tr. 211-212):
[H]e was to the site to satisfy his own curiosity as an ex-Marine contractor
hil;lself and was assisting me in cleaning up the site and putting the worksite
and barge in order to be safe for storage.
I paid Mr. Jamesson nothing for that assistance or for his appearance or for
anything related to that day.
The Secretary argues that the fact that the crane and a water pump were running,
and that the bundle of aluminum sheet piling was untied on the day of the inspection,
indicates that Service’s operations were ongoing that day. Taynton testified that the crane
had to be used to remove the stacks of aluminum piling that were adrift and restack them
on the barge (Tr. 220). Even if Service was operating that day, it is not enough to establish
that Jamesson was an employee of Service. If he agreed to help Taynton without
remuneration, he wasnot an employee. Taynton, the only other person present at the site,
is the owner of the company and, therefore, the employer, not an employee.
The record establishes that there had been no activity at the Avery Road site for
. approximately a week before Neale’s inspection. Taynton stated that he had fired his two
employees a week before the inspection for-habitual tardiness (Tr. 139-140). The Secretary
has done nothing to establish that Service’s employment situation was otherwise. There is
no evidence on which to conclude that an employment relationship existed between Service
and Jamesson. Taynton’s testimony that Jamesson was a friend who assisted him in cleaning
the site for no remuneration was not seriously challenged. Neale’s assumption provides no
relevant facts that make a determination possible under the “economic realities test” or
common law principles utilized by the Commission in resolving such an issue. See Loomis
Cabinet Co., 15 BNA OSHC 1635, CCH OSHD ll (No. 88-2012, May 20, 1992).
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show
by a preponderance of the evidence that (1) the cited standard applies, (2) there was a
failure to comply with the cited standard, (3) employees had access to the violative condition,
and (4) the cited employer either knew or could have known of the condition with the
exercise of reasonable diligence. Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126,
1981 CCH OSHD ll 25,578 at p. 31,899 (No. 78-6247, 1981). The Secretary has failed to
9
prove that Service had employees at the time of Neale’s inspection. On this basis, the two
citations issued to Service are vacated.
A Caveat to Service
The dismissal of the citations in this case should not be taken by Service as a
vindication of it approach, or non-approach, to safety. Had the Secretary established the
existence of one employee, the evidence was more than sufficient to justify the finding of
violations for each of the nineteen items cited. The proposed penalty of $32,400 would most
likely have been imposed. Compliance with the Act for employers is mandatory, whether
or not an employer considers certain standards to be “ridiculous.” If Service intends to
continue as a business with employees, it must take drastic steps to shore up its safety
program.
FINDINGS OF FACT AND
. AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is hereby ORDERED:
That Citation Nos. 1 and 2 are vacated.
/s/ James D. Burroughs
JAMES D. BURROUGHS
Judge
10
Get today's answer for your situation
You just read Commission precedent from 1993. Ezel checks whether it still stands, including any court review since, and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.