author: PER CURIAM: JONES, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee v. Dennis BARSON, Jr.; Dario Juarez, Defendants-Appellants
    No. 15-20416
    United States Court of Appeals, Fifth Circuit.
    Filed December 28, 2016
    Revised December 29, 2016

      Francesco Valentini, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Philip Harlan Hilder, Paul L. Creech, Sunida L. Mejia, James Gregory Rytting, Quentin Tate Williams, Hilder & Associates, P.C., Houston, TX, for Defendant-Appellant Dennis Barson, Jr.
    Mark Russell Yanis, Costa Mesa, CA, for Defendant-Appellant Dario Juarez.
    Before REAVLEY, DAVIS, and JONES, Circuit Judges.
   PER CURIAM:

Defendants appeal their convictions for conspiracy to commit health care fraud and several substantive counts of health care fraud. Defendants primarily challenge the sufficiency of the evidence, the court’s deliberate ignorance jury instruction, a number of evidentiary rulings, and the enhancements applied to their sentences. We AFFIRM.

I.

Defendants Dennis Barson, Jr. and Dario Juarez were charged with one count of conspiracy to commit health care fraud under 18 U.S.C. § 1349 (Count 1) and nineteen counts of health care fraud under 18 U.S.C. § 1347 (Counts 2 through 20). After a jury trial, both Defendants were convicted on all 20 counts. The district court sentenced Barson and Juarez to 120 and 130 months of imprisonment, respectively, followed by three years of supervised release. The court also ordered forfeiture and restitution.

Defendant-Appellant Barson was recruited by Edgar Shakbazyan to serve as the medical director for a diagnostic clinic under Shakbazyan’s control in Houston, Texas. Shakbazyan was the manager of the clinic and handled the financial affairs of the clinic. He was indicted in a multi-count indictment in this case and was convicted pursuant to his plea of guilty.

At Shakbazyan’s request, Barson signed a blank form so the clinic could apply for and obtain a Medicare number to be used to bill Medicare for its services. Barson opened a bank account in his name where Medicare reimbursements could be deposited. Barson also signed a number of blank checks and gave them to Shakbazyan so he could draw on the account.

The clinic opened on June 8, 2009. For $7,000 per month, Barson traveled from Austin to Houston every other Saturday to review patient files. The clinic was set up to perform EKGs, ultrasounds, electrocardiograms, spirometer tests, and physical exams performed by a physician’s assistant. Medicare was billed for 9,339 procedures for tests performed on 429 beneficiaries using Barson’s Medicare number. Hundreds of the claims were for rectal sensation testing and electromyography studies of the anal or urethral sphincter, which the clinic could not and did not perform. At trial, several of the clinic’s patients testified they went to the clinic because they were paid to do so and some never received any medical services. Bar-son testified he never reviewed bank statements, Medicare remittances, or concern himself with any of the financial affairs of the clinic.

Defendant-Appellant Juarez worked at the clinic and claimed to be a physician’s assistant working under Barson’s supervision. Juarez, who had no formal medical training, held himself out to patients as a physician and was the medical staff member at the clinic.

Barson closed the clinic on July 30,2009, after he suspected that the clinic was not above board; however he notified no one of his suspicions.

Several suspicious circumstances eame to Barson’s attention. In the weeks leading up to closing the clinic, Barson made a number of unsuccessful attempts to reach the California doctor who reviewed ultrasounds for the clinic. Barson also learned in July that Shakbazyan was lying about his true identity. On August 4, a Medicare contractor in charge of waste, fraud, and abuse, opened an investigation into the clinic and tried unsuccessfully to contact Barson by phone. On August 11, Barson closed the clinic bank account set up to receive Medicare reimbursements. Upon receiving his 1099 tax form in February 2010, Barson learned that the clinic’s bank account in his name received approximately $1.2 million in Medicare reimbursements. In his testimony, he claimed this was his first notice that this large sum had been deposited in his account during the approximately two months the clinic had been open.

II.

Sufficiency of the evidence challenges are reviewed de novo. In doing so, this Court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” The Court should accept “all credibility choices and reasonable inferences made by the trier, of fact which tend to support the verdict.”

III.

Sufficiency of the Evidence

Defendants’ primary challenge on appeal is to the sufficiency of the evidence to establish both the conspiracy count and the substantive counts for health care fraud.

To establish a conspiracy to commit health care fraud, the government must show “the existence of an agreement between two or more people to pursue the offense of fraud; the defendant knew of the agreement; and the defendant voluntarily participated in the conspiracy.” The agreement may be silent and informal between the conspirators. Further, “voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances.” The defendants need not have personally submitted the necessary forms requesting reimbursement from Medicare to be guilty of health care fraud or conspiracy to commit health care fraud. The government may use direct or circumstantial evidence to prove each element.

At trial, both Barson and Juarez argued they had no knowledge of the fraudulent activity, let alone an agreement to commit fraud.

Barson based his argument that he had no knowledge of fraudulent activity on his lack of experience. Before taking the job as the medical director for the clinic, Bar-son was a physician in the Navy and worked a short time in private practice. When he was hired by Shakbazyan to work for the clinic, Barson was working as a neurology resident in Austin, Texas. On a resident’s salary, he argued, he needed the extra money the job at the clinic would provide. Barson had no prior experience with Medicare or medical billing practices in any of his prior positions. Barson argued that he had no way of knowing about the fraudulent scheme because he never saw any patient files that included many of the tests the clinic billed Medicare for. Barson testified that the patient files he reviewed included services that the clinic was set up to provide: EKGs, ultrasounds, electrocardiograms, spirometer tests, and physical exams performed by a physician’s assistant. Because he was hired in this limited role to review patient files set aside for him twice a month, Barson maintained that he had no way of knowing that the clinic was engaged in fraudulently billing Medicare.

Similarly, Juarez argued that even though he was impersonating a physician’s assistant, he had no knowledge of or access to any of the facility’s billing systems.

The government presented ample circumstantial evidence to establish both Defendants’ knowledge of the ongoing health care fraud. Barson signed documents in blank allowing the clinic to bill under his Medicare identification number and opened a bank account in his name to receive Medicare reimbursements. He signed a number of blank checks to permit Shakbazyan to draw on the account. He allowed the bank statements to be sent to the clinic and never reviewed them. Bar-son received a significant sum, $7,000 per month, for reviewing patients’ charts every other Saturday. Barson admitted to an FBI investigator that despite his suspicions and bad feelings about the clinic, he reported his suspicions to no one. He quietly closed the clinic on July 30. Barson did not monitor the bank account in his name or review any Medicare remittances that went to the clinic. Upon receiving his 1099 tax form showing that the clinic bank account received nearly $1.2 million, Bar-son again failed to contact Medicare to report his concerns.

The government also established that Juarez was aware he was participating in a scheme to commit Medicare fraud. Juarez held himself out as a “doctor” at the clinic and falsely claimed to Barson that he was a physician’s assistant, the clinic’s on-site medical staff member. Juarez saw almost all of the patients and turned a blind eye to the fact that most of the so-called patients had no need for medical care and that many received no medical care. He saw large numbers of patients lining up outside the clinic daily after being delivered to the clinic by the same white van. Juarez had access to the clinic’s mail including the bank statements and Medicare remittances. Juarez was paid $20,000 for his work, a large sum for an unlicensed individual to pose as a physician’s assistant. He lied to investigators about the payments he received. Juarez also gave conflicting testimony to an FBI investigator about an alleged break in at the clinic and missing patient flies.

Barson also argues that the evidence was insufficient to establish an “agreement” to commit health care fraud. His arguments closely track his arguments on the knowledge element and fails for similar reasons.

The evidence established that Barson and Shakbazyan agreed that (1) Barson would apply for a Medicare number; (2) Barson would allow the clinic to use that number to bill Medicare; and (3) Barson would receive $7,000 per month for reviewing flies every other Saturday. The evidence established that Shakbazyan set up the fraudulent scheme and had intimate knowledge of the details of the fraud.

Juarez agreed with Shakbazyan to work at the clinic as the medical staff member and hold himself out as a physician’s assistant to Barson and as a physician to the patients.

The jury was also entitled to find that the Defendants committed health care fraud on the substantive counts of the indictment. Each substantive count was based on a separate request for Medicare reimbursements that the government established were not for medical services needed or provided. 18 U.S.C. § 1347 sets forth the elements of the offense:

Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services [commits health care fraud].

Here, the jury was entitled to convict Defendants pursuant to the Pinkerton doctrine, which imposes criminal liability on all conspirators for the acts of other co-conspirators when those acts are foreseeable. Because the evidence was sufficient to convict Defendants on the conspiracy count, the jury was entitled to convict them on the substantive counts as well. The Defendants were responsible for the acts of co-conspirator Shakbazyan who actually submitted or caused to be submitted the fraudulent claim forms for Medicare reimbursement.

Deliberate Ignorance Instruction

Defendants argue next that the district court erred in giving the deliberate ignorance instruction. The evidence summarized above raised a legitimate issue of whether Barson and Juarez turned a blind eye to the fact that Medicare was being billed large sums for services not performed. Barson’s acts in signing blank forms to allow Medicare to be billed for procedures under his number, opening a bank account in his name for the reimbursements, and signing blank checks for Shakbazyan to draw on the account was sufficient to permit the jury to infer that Barson took pains to avoid personal knowledge of incriminating facts. Barson’s failure to review any remittances from Medicare or bank statements from his own bank account could have been viewed similarly. Juarez relied on his lack of medical training and his unfamiliarity with the Medicare forms to argue that he suspected no wrongdoing. Our precedent supports submission of “a deliberate ignorance instruction ‘when a defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate indifference.’ ” The record clearly authorized the district court to give the instruction and the court did not abuse its discretion in giving it.

Object of the Conspiracy

Next, Defendants argue that the district court abused its discretion by rejecting their proposed instruction on the object of the conspiracy. Defendants complain that the district court did not instruct the jury that the government was required to prove the object of the conspiracy in the exact language of the indictment. The court instructed the jury that the object of the conspiracy was “health care fraud, in violation of Title 18, United States Code, Section 1347.” At Barson’s request, the court also charged:

Specifically, as to each defendant under consideration, it was an object of the conspiracy that the defendant and others known and unknown to the grand jury unlawfully enrich themselves by falsely and fraudulently representing to Medicare that certain services and procedures were performed for Medicare beneficiaries when, in fact, the defendant well knew the services and procedures were not being performed.

The Defendants contend the court erred in failing to instruct the jury that the government was required to prove these facts. We find no abuse of discretion in the district court’s instruction. The district court instructed the jury on the object of the conspiracy that tracks the Fifth Circuit pattern jury instructions, which we have approved. The above instruction makes it clear that it is describing an object of the conspiracy. The government is not required to prove all facts alleged in the indictment as long as it proves certain facts which satisfy the elements of the offense.

Evidentiary Rulings

Defendants raise a number of evidentia-ry objections in brief including: whether the district court erred in admitting the testimony of the executive director of the Texas Medical Board; whether the cross-examination of the FBI Case Agent was appropriately limited to the Agent’s direct examination testimony; whether the exclusion of the plea colloquy of Shakbazyan was proper; and whether the exclusion of evidence gathered by a police officer in California from an unindicted co-conspirator was proper. We have reviewed Defendants’ arguments and find no abuse of discretion in the evidentiary rulings by the district court.

Sentencing

Barson disputes two enhancements applied to his sentence. Juarez joins Barson in objecting to the first enhancement.

First, Defendants argue that the district court erred in concluding the 429 patients or Medicare beneficiaries for whom the conspirators falsely claimed benefits were “victims” under the guidelines. We agree with the government that Application Note 4(E) of U.S.S.G. § 2B1.1 defines “victim” in a way that encompasses the Medicare beneficiaries because it includes “any individual whose means of identification was used unlawfully or without authority.” The district court did not err in applying this enhancement.

Second, Barson argues that the application of a sentencing enhancement for obstruction of justice under U.S.S.G. § 3C1.1 was inappropriate. During sentencing, the government argued that Bar-son’s testimony was laden with falsehoods designed to mislead the jury including: Barson’s claim that he trusted Shakbazyan so thoroughly he signed forms in blank on the day he met Shakbazyan and failed to ask for information about the Medicare application; Barson opened a bank account to receive reimbursements from Medicare, but did not know where the statements were being sent; and Barson failed to ask Juarez for his credentials or register the supervision of him with the Texas Medical Board. The district court who heard Bar-son’s testimony agreed. Our review of the record satisfies us that the district court, who observed Barson testify, did not abuse its discretion in finding that Barson’s testimony lacked credibility and was untruthful in his testimony.

Prosecutorial Misconduct

Defendants allege that several statements made by prosecutors during trial amounted to prosecutorial misconduct. Some statements were objected to during trial and some objections are raised on appeal. We have reviewed these arguments and statements and find no error by the district court in permitting these arguments.

IV.

The district court committed no reversible error and we therefore affirm the Defendants’ convictions and sentences.

JONES, Circuit Judge,

concurring in part and dissenting in part:

Although I am pleased to concur in the bulk of this Medicare fraud appeal, I differ with the panel majority’s interpretation of the term “victim” for sentencing enhancement purposes. The majority has embraced an unprecedented and grammatically inexplicable use of the term to, in effect, double count the loss attributable to this unsavory fraudulent patient care operation. The government has commendably stepped up its prosecution of flagrant Medicare and Medicaid frauds, but never have I seen this double counting of the “loss” to include not only the United States taxpayers who support Medicare payments but also the “patients,” who paid not a dime, may not have even received treatment, and in a number of cases were co-conspirators paid to lend their names to the treatment center’s fictitious files. Defendants have a right to be sentenced according to the plain meaning of the guidelines, not the government’s here-concocted abuse of terms. I respectfully dissent.

The defendants here received a six-level sentencing enhancement upon the district court’s finding that the 429 Medicare beneficiaries who visited defendants’ fraudulent clinic were “victims” under the United States Sentencing Guidelines. (There was already an enhancement for the loss to the United States Treasury.) The majority’s opinion tersely affirms the enhancement.1 would vacate the defendants’ sentences and remand for resentencing because the Guidelines and relevant Commentary are inapplicable under both the plain meaning of the term “victims” and the purpose of its 2009 definition.

By way of background, “Victim” is not defined in the loss section of the Guidelines, § 2B1.1, but Note 1 (here inapplicable) and Note 4 of the Commentary define the term. Note 4(E) provides in relevant part:

For purposes of subsection (b)(2), in a case involving means of identification “victim” means (i) any victim as defined in Application Note 1; or (ii) any individual whose means of identification was used unlawfully or without authority.

The government argues that since the use of the 429 alleged beneficiaries’ Medicare identification information was part of an unlawful conspiracy, the enhancement was proper. The defendants contend, however, that the beneficiaries were participants in the Clinic’s kickback scheme rather than victims, and that the 2009 iteration of the Sentencing Guidelines was not intended to treat these beneficiaries as victims.

Guidelines Commentary “that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). “Application notes are given controlling weight so long as they are not plainly erroneous or inconsistent with the guidelines.” United States v. Rodriguez-Parra, 581 F.3d 227, 229 n.3 (5th Cir. 2009) (citing United States v. Urias-Escobar, 281 F.3d 165,167 (5th Cir. 2002)).

In my view, the government’s reading of the Guidelines is plainly erroneous for two reasons. First, that interpretation is inconsistent with the plain meaning of the term “victim.” A victim is a “person who suffers from a destructive or injurious action or agency.” “Victim,” The Random House Dictionary of the English Language (1966). See also “Victim,” Merriam-Webster’s Dictionary of the English Language, http://www.merriam-webster.com/ dictionary/victim, accessed Oct. 26, 2016 (“a person who has been attacked, injured, robbed, or killed by someone else”). The government, which bore the burden of proof for sentencing purposes, did not establish that any of the 429 purported patients were victims in this definitional sense. On the contrary, as the majority opinion states, “At trial, several of the clinic’s patients testified they went to the clinic because they were paid to do so and some never received any medical services.” Consequently, at least some of the 429 alleged beneficiaries could have been considered co-conspirators. Applying the application of the term “victims” here verges on the Orwellian.

Second, the majority’s interpretation is inconsistent with the purpose of the Guideline’s definition of victims. The Guidelines were updated as part of Amendment 726 to the Identity Theft Enforcement and Restitution Act of 2008. The Sentencing Commission explained its reasoning for proposing the amendment that was adopted to create Application Note 4(E): to address more fully the actual harm done by identity theft. Several circuits’ interpretation of the pre-2009 Guidelines had broadened the definition of victims to those “individuals who suffered considerably more than a small out-of-pocket loss and were not immediately reimbursed by any third party,” even if they were later reimbursed. Other circuit precedent held that victims were only those who suffered pecuniary loss from identity theft but were not reimbursed at all. Amendment 726 was intended to resolve this circuit split. Under the 2009 Guidelines, while a victim of identity theft may be reimbursed by a third-party or bank, the Commission explained that “such an individual [victim], even if fully reimbursed, must often spend significant time resolving credit problems and related issues, and such lost time may not be adequately accounted for in the loss calculations under the guidelines.” According to the Commission, this hassle and lost time justified considering as a victim for sentencing purposes anyone whose identity was stolen. Therefore, the purpose for the definition of victims under Note 4(E) is to capture by an enhancement harms otherwise difficult to measure. This purpose is entirely consistent with the plain meaning of “victim” in the English language.

This purpose is not fulfilled by applying the definition of victims in this case. The government has not established that the 429 Medicare claimants had to spend “significant time,” or any time at all, resolving credit or related issues. Even real Medicare beneficiaries are not normally victims of Medicare fraud because Medicare, not the patient, pays the billing provider directly. The real victim is the U.S. taxpayer, through Medicare, and that has been accounted for by the guidelines in this case. There is no proof at all that the purported beneficiaries in this case suffered any harm, pecuniary or otherwise; they cannot be considered victims under Note 4(E).

I respectfully dissent from this portion of the majority opinion.

      . United States v. Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014) (citing United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012)).

      . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Umawa Oke Imo, 739 F,3d at 235 (quoting United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011)).

      . Umawa Oke Imo, 739 F.3d at 235.

      . United States v. Delgado, 668 F.3d 219, 226 (5th Cir. 2012).

      . United States v. Grant, 683 F.3d 639, 643 (5th Cir. 2012) (citing United States v. Williams-Hendricks, 805 F.2d 496, 502 (5th Cir. 1986)).

      , United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009).

      . Umawa Oke Imo, 739 F.3d at 235.

      . Id. (citing Delgado, 668 F,3d at 226).

      . 18 U.S.C. § 1347(a).

      . Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

      . The district court instructed the jury,
      The word "knowingly,” as that term has been used from time to time in these instructions, means that the act was done voluntarily and intentionally, not because of mistake or accident, You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact. However, if you find that the defendant actually believed the Medicare claims being filed were not fraudulent, then you must acquit the defendant.

        See Fifth Circuit Pattern Jury Instructions (Criminal Cases) 1.37A.

      . United States v. Vasquez, 677 F.3d 685, 696 (5th Cir. 2012) (quoting United States v. Threadgill, 172 F.3d 357, 368 (5th Cir. 1999)).

      . The district court instructed the jury on the following elements of health care fraud:
      For you to find one or both defendants guilty of this crime, you must be convinced that the government has proved for the defendant then under consideration each of the following beyond a reasonable doubt: First, that two or more persons made an agreement to commit the crime of health care fraud as charged in the indictment. Second: That Dennis B. Barson, Jr. and Dario Juarez knew of the unlawful purpose of the agreement and joined in it willfully, that is, with the intent to further the unlawful purpose.

        .United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009) (“It is well-settled that a district court does not err by giving a charge that tracks this Circuit’s pattern jury instructions and that is a correct statement of the law.”) (citing United States v. Turner, 960 F.2d 461, 464 (5th Cir. 1992)).

      . See U.S.S.G. § 2Bl.l(b)(2)C) (2009).

      . U.S.S.G. § 2B1.1 cmt. n.4(E), The Application Notes were amended in 2009 to include this additional definition of "victim.” The amended Note reads, "For purposes of subsection (b)(2), in a case involving means of identification ‘victim’ means (i) any victim as defined in Application Note 1; or (ii) any individual whose means of identification was used unlawfully or without authority.” Id. Application Note 1 defined victim as "(A) any person who sustained any part of the actual loss ...; or (B) any individual who sustained bodily injury as a result of the offense.” U.S.S.G. § 2B1.1 cmt. n.l (2008). Shakbaz-yan, who pleaded guilty on the first day of trial, challenged this application of the six-level sentencing enhancement under the Ex Post Facto Clause because the definition of "victim” was amended to include the unauthorized use of individuals’ information. This same panel determined that Shakbazyan’s argument was foreclosed by Fifth Circuit precedent and affirmed the district court’s sentence. United States v. Shakbazyan, No. 15-20426, at 4-7, 9.

      .The guideline states,
      If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.
      U.S.S.G. § 3C1.1.

      . The district court stated during sentencing, “Well, of course, I was here and listened to [Barson’s] testimony. I agree with [the government] that much of it was not credible; and because he testified not credibly or untruthfully, that does — that is an obstruction of justice.”

      . The full treatment of the issue in the per curiam opinion is as follows: "Defendants argue that the district court erred in concluding the 429 patients or Medicare beneficiaries for whom the conspirators falsely claimed benefits were ‘victims’ under the guidelines. We agree with the government that Application Note 4(E) of U.S.S.G. § 2B1.1 defines 'victim' in a way that encompasses the Medicare beneficiaries because it includes ‘any individual whose means of identification was used unlawfully or without authority.' The district court did not err in applying this enhancement.”

      . U.S.S.G. § 2B.1.1(b)(2)(C), Note 4(E) Cases Involving Means of Identification.

      . U.S.S.G. App’x C, Vol. Ill, Am. 726, p. 308

      . Office of General Counsel, Victim Primer (§ 2B1.1(b)(2))!, U.S. Sentencing Commission (2013), at 6.

        .United States v. Lee, 427 F.3d 881, 895 (11th Cir. 2005) (internal quotation marks omitted). See also United States v. Stepanian, 570 F.3d 51 (1st Cir. 2009); United States v. Abiodun, 536 F.3d 162 (2d Cir, 2008); United States v. Panice, 598 F.3d 426 (7th Cir. 2010); United States v. Pham, 545 F.3d 712 (9th Cir. 2008).

        .United States v. Yagar, 404 F.3d 967 (6th Cir. 2005). See also United States v. Kennedy, 554 F.3d 415 (3d Cir. 2009); United States v. Conner, 537 F.3d 480 (5th Cir. 2008); and United States v. Icaza, 492 F.3d 967 (8th Cir. 2007).

      . Victim Primer (§ 2B1.1(b)(2)) at 8.

      . USSG § 2B1.1, comment, (n.4); USSG App. C, amend. 726 (eff. Nov. 1, 2009).


source: Caselaw Access Project

author: JENNIFER WALKER ELROD, Circuit Judge:

license: Public Domain

text:
    DELEK REFINING, LIMITED, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; Thomas E. Perez, Secretary, Department of Labor, Respondents.
    No. 15-60443
    United States Court of Appeals, Fifth Circuit.
    FILED December 29, 2016

      Mark S. Dreux, Sr., Arent Fox, L.L.P., Washington, DC, for Petitioner.
    M. Patricia Smith, Scott Glabman, Esq., U.S. Department of Labor, Office of the Solicitor, Washington, DC, for Respondents.
    Jonathan Lee Snare, Alana F. Gender-son, Morgan, Lewis & Bockius, L.L.P., Washington, DC, for Amici Curiae.
    Before DENNIS, ELROD, and GRAVES, Circuit Judges.
   JENNIFER WALKER ELROD, Circuit Judge:

Delek Refining, Limited purchased an oil refinery in Tyler, Texas from Crown Central. After the transfer in ownership, the Occupational Safety and Health Administration conducted an inspection and issued a citation for violations of its process safety management rules, which govern an employer’s responsibility to inspect, and to develop inspection and recording regimes for, machinery that handles large volumes of hazardous chemicals. Because we conclude that the citations for Items 4 and 12 are barred by the six-month statute of limitations in 29 U.S.C. § 658(c), we VACATE the citations for those items. Because we also conclude that the regulations relevant to the citation for Item 8 are ambiguous and the Secretary’s interpretation is reasonable, we AFFIRM the citation for Item 8.

I.

Delek purchased an oil refinery located in Tyler, Texas from Crown Central and took possession on April 29, 2005. Beginning in February 2008, the Occupational Safety and Health Administration conducted a four-month inspection of the refinery and issued a citation on August 18, 2008, finding violations of 29 C.F.R. § 1910.119 — an OSHA regulation governing “Process Safety Management of Highly Hazardous Chemicals” — and other regulations that are not at issue here. Section 1910.119 imposes a series of requirements on employers which are intended, according to that section’s purpose statement, to “prevent[ ] or minimiz[e] the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals ... [that] may result in toxic, fire or explosion hazards.” Id.

Delek petitions for review of citation Items 4, 8, and 12. Item 4 alleges a failure to resolve open findings and recommendations identified during process hazard analyses that occurred in 1994, 1998, 1999, 2004, and 2005 — prior to Delek purchasing and taking possession of the refinery. Item 8 alleges an inadequate monitoring and inspection regime for certain equipment involved in process safety management. Specifically, the Secretary alleges that Delek failed to inspect a positive pressurization unit, which pressurizes the control room for the fluid catalytic cracking unit and detects the presence of hazardous vapors. Item 12 alleges that Delek failed to determine and document a response to the findings of a 2005 compliance audit in a timely manner. As with Item 4, the audit at issue in Item 12 was conducted before Delek took possession of the refinery.

The Secretary of Labor brought an enforcement action against Delek for these and other violations. The administrative law judge affirmed seven of the violations ■with penalties totaling $32,850. Secretary of Labor v. Delek, 2011 WL 12709990 (OSHA Apr. 27, 2011) (Delek 1). Delek appealed six of the seven violations to the Occupational Safety and Health' Review Commission (OSHRC or Commission). The Commission unanimously vacated two violations and upheld a third. Secretary of Labor v. Delek, 2015 WL 1957889 (OSHRC Apr. 23, 2015) (Delek II). In a 2-1 split decision, the Commission also upheld the three remaining violations; Commissioner MacDougall dissented from the Commission’s decision affirming these three violations. Id. at *16-27. The final three violations, each carrying a penalty of $6,300, are the subject of this appeal.

II.

We review the Commission’s factual findings to determine whether they are supported by substantial evidence in the record considered as a whole. MICA Corp. v. OSHRC, 295 F.3d 447, 449 (5th Cir. 2002). We review the Commission’s legal conclusions to determine whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Trinity Marine Nashville, Inc. v. OSHRC, 275 F.3d 423, 427 (5th Cir. 2001); 5 U.S.C. § 706(2)(A).

We will defer to the agency’s interpretation of its own organic statute only if the text is ambiguous and the agency’s interpretation is reasonable. Chevron, USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Lari v. Holder, 697 F.3d 273, 278 (6th Cir. 2012). We will consider all the “traditional tools of statutory construction” before concluding that a statute is ambiguous. Contender Farms, LLP v. U.S. Dep't of Agric., 779 F.3d 258, 269 (5th Cir. 2015). If we determine that the text is clear, we owe no deference to the agency’s interpretation. City of Arlington v. FCC, — U.S. —, 133 S.Ct. 1863, 1874, 185 L.Ed.2d 941 (2013) (‘Where Congress has established a clear line, the agency cannot go beyond it[.]”); Lari, 697 F.3d at 278. If, however, we determine that the text is ambiguous, we -will defer -to the agency’s reasonable interpretation. Lari, 697 F.3d at 278. Likewise, we will defer to an agency’s reasonable interpretation of its own regulations when the text of the regulation is ambiguous. Christensen v. Harris Cty., 529 U.S. 576, 588,120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). “In situations in which the meaning of regulatory language is not free from doubt, the reviewing court should give effect to the agency’s interpretation so long as it is reasonable,” and it “sensibly conforms to the purpose and wording of the regulations.” Martin, 499 U.S. at 150-51, 111 S.Ct. 1171 (alterations omitted). If the regulation is clear, we will not defer. Christensen, 529 U.S. at 588, 120 S.Ct. 1655; see also Moore v. Hannon Food Serv., Inc., 317 F.3d 489, 495-96 (5th Cir. 2003).

III.

A.

We first consider Delek’s challenge to the citations for Items 4 and 12. Items 4 and 12 relate to the process hazard analysis (PHA) and compliance audits required by Section 1910.119. That provision requires an employer to update and revali-date a PHA every five years. 29 C.F.R. § 1910.119(e)(6). A PHA. requires the full-time labor of five to twelve skilled engineers and managers and generally takes four to six weeks. A PHA must “identify, evaluate, and control the hazards involved in the process.” 29 C.F.R. § 1910.119(e)(1). After a PHA is completed, the employer must, inter alia, “establish a system to promptly address” its findings, assure their timely resolution, and document the manner in which they were resolved. Id. § 1910.119(e)(5). Similarly, Section 1910.119 requires an employer to complete a compliance audit at least every three years. Id. § 1910.119(o)(l). The compliance audit “verifies] that the procedures and practices developed under the standard are adequate and are being followed.” Id. A compliance audit requires the efforts of eight to ten skilled employees and can take up to a week to perform. An employer must create a report after the audit and “promptly determine and document an appropriate response to each of the findings of the compliance audit, and document that deficiencies have been corrected.” Id. § 1910.119(o)(3), (4). The employer must retain the records from its two most recent compliance audits. Id. § 1910.119(o)(5).

Delek argues that the citations for Items 4 and 12 are barred by the statute of limitations in 29 U.S.C. § 658(c). That section provides that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c). According to Delek, because the PHAs and the audit at the root of Items 4 and 12 took place in 1994, 1998, 1999, 2004, and 2005, the Secretary’s 2008 citations are outside the six-month statute of limitations.

Delek relies heavily on a decision by one of our sister circuits — AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012) — to support its statute of limitations argument. That case involved a set of citations issued by OSHA for violations of rules created under 29 U.S.C. § 657(c). Id. at 755. Those rules required employers to “make, keep, and preserve” records of workplace injuries within a designated timeframe. 29 U.S.C. § 657(c)(1). Volks was cited in November 2006 for its failure to create and maintain such records between 2002 and early 2006. Volks, 675 F.3d at 753. The company argued that Section 658(c)’s six-month limitations period began to run when the violation occurred (ie., when the prescribed deadline for creating the records had run) and that the citations were issued more than six months after this time. Id. at 753. The Secretary, by contrast, argued that Volks’ failure to create the required records was a continuing violation of the regulations, such that the six-month period began anew each day until the close of the five-year period for which employers are required to keep records. Id. at 755.

The D.C. Circuit rejected the Secretary’s continuing violations theory. Id. at 755-59. In particular, the court concluded that such a theory was inconsistent with the text of Section 658(c), which identifies an “occurrence” as the trigger for the statute of limitations. Id. at 755-56. According to the court, an “occurrence” “clearly refers to a discrete antecedent event — something that ‘happened’ or ‘came to pass’ ‘in the past.’ ” Id. at 755 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-10 & n.5, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). The Secretary’s continuing violations argument was inconsistent with this understanding of an “occurrence” because the nature of a continuing violation is that it is ongoing — not a discrete, past event. Id.

Though we are not bound by the Volks decision, we find its reasoning persuasive. Section 1910.119 requires an employer to “establish a system to promptly address the [PHA] team’s findings and recommendations,” to “assure that the recommendations are resolved in a timely manner,” and to “promptly determine and document an appropriate response to each of the findings of the compliance audit....” 29 C.F.R. § 1910.119(e)(5), (o)(4). Just as a single violation “occurred]” in Volks when the company failed to create the records within the prescribed time-period, so too a violation of subsections (e)(5) and (o)(4) “occur[s]” within the meaning of Section 658(c) when an employer does not “promptly” or “timely” do as Section 1910.119 directs.

The Secretary reasserts here the “continuing violations” theory made in Volks, arguing that Delek’s failure to address the findings or recommendations at issue in Items 4 and 12 is a “continuing violation” and so Section 658(c)’s statute of limitations never began to run on those citations because they were never abated. We cannot accept this argument. To begin with, we note that applying a continuing violations theory in this case would conflict with the basic purposes of a statutory limitations period. “The general working presumption in federal civil and criminal cases is that a federal civil cause of action or criminal offense must have some statute of limitations and must not allow suits to be brought forever and ever after the acts in question.” PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 50 (D.C. Cir. 2016); id. (“As Chief Justice Marshall stated, allowing parties to sue ‘at any distance of time’ would be ‘utterly repugnant to the genius of our laws. In a country where not even treason can be prosecuted after a lapse of three years, it could scarcely be supposed that an individual would remain forever liable to a pecuniary forfeiture.’ ” (quoting Adams v. Woods, 6 U.S. 336, 342, 2 Cranch 336, 2 L.Ed. 297 (1805))). The purpose of a statute of limitations is to “provide ‘security and stability to human affairs,’ ” Gabelli v. SEC, — U.S. —, 133 S.Ct. 1216, 1221, 185 L.Ed.2d 297 (2013) (quoting Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879)), by promoting the “elimination of stale claims, and [promoting] certainty about a plaintiffs opportunity for recovery and a defendant’s potential liabilities.” Gabelli, 133 S.Ct. at 1221 (quoting Rotella v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000)).

The Secretary’s proposed reading of Section 658(c) is, at best, in tension with these policies. Under the Secretary’s theory, OSHA would have authority to penalize an employer for failing to “promptly” or “timely” address PHA or audit recommendations or findings that arose twenty or more years prior — which is exactly what would occur in this case were we to accept the Secretaxy’s position. And as the Secretary has candidly acknowledged, his interpretation would authorize citations for unaddressed PHA or audit recommendations ad infinitum.

At the same time, the Secretary’s reading of Section 658(c) — one that allows for citations decades after the “occurrence” of a violation — is at odds with the six-month limitations period in Section 658(c)’s text. Accepting the Secretary’s reading would effectively nullify the six-month limitations period that Congress deliberately wrote into Section 658(c) and thereby render that language meaningless in many cases. Our precedents, however, have repeatedly cautioned against interpreting statutes in such a manner if at all possible. See, e.g., United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972) (“[W]ords in statutes should not be discarded as ‘meaningless’ and ‘sur-plusage’ when Congress specifically and expressly included them.... ”); accord Volks, 675 F.3d at 756 (“[W]e must be ‘hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.’ ” (quoting United States v. Jicarilla Apache Nation, 564 U.S. 162, 185, 131 S.Ct. 2313,180 L.Ed.2d 187 (2011))).

It is true that Volks left open the possibility that Section 658(c)’s statute of limitations “could be extended by the continuing violations concept” and identified safety violations as a possible candidate for the continuing violations theory. Volks, 675 F.3d at 758 (“Of course, where, for example a company continues to subject its employees to unsafe machines, or continues to send its employees into dangerous situations without appropriate training, OSHA may be able to toll the statute of limitations on a continuing violations theory since the dangers created by the violations persist.” (internal citations omitted)). The Secretary argues strenuously that the continuing violations theory applies to the directives in subsections (e)(5) and (o)(4).

We, like the Volks court, do not decide whether OSHA may be able to use the continuing violations theory to toll Section 658(c)’s statute of limitations in cases involving continuing, unlawful risks to employee health and safety. Here, neither Section 1910.119(e)(5) nor (o)(4) mandates that the employer actually remedy the issues addressed in a PHA or audit recommendation. See 29 C.F.R. § 1910.119(e)(5), (o)(4). Subsection (e)(5) directs the employer to “address” the findings from a PHA and to “resolve[ ]” them in a timely manner. Likewise, subsection (o)(4) directs employers to “determine and document an appropriate response” to the audit compliance findings. As the Secretary acknowledges in his brief, “[a] PHA finding or recommendation is ‘resolved’ when the employer has adopted the item or has justifiably declined to do so.” Secretary Br. at 5 n.2 (emphasis added); see also id. at 34 (“Delek might have evaluated the findings and determined that they were not valid.... ”); id. at 41-42 (“OSHA compliance guidance provides that an employer may justifiably decline to adopt a PHA finding or recommendation. Similarly, the cited audit report provision, 29 C.F.R. § 1910.119(d)(4), says that the employer may determine an appropriate response to each audit finding. Thus, employers have discretion to reject items that they consider unmerited.” (citation omitted) (second emphasis in original)). And at oral argument, the Secretary acknowledged that “under the cited standards, the employer has the option of deciding that no resolution is necessary.” Oral Argument at 20:52-60, Delek Refining Ltd. v. OSHRC, No. 15-60443 (emphasis added); id. at 35:27-38 (“The provision gives the employer the option of deciding once ... audit or PHA findings and recommendations are made of saying, ‘Well, we don’t have to do anything further.’ ”).

In other words, while a PHA or audit might result in a recommendation — even a safety-related recommendation — an employer is under no obligation to actually implement that recommendation. This structure is quite unlike a safety regulation which commands the employer to actually remedy a safety hazard and maintain a workplace free of such hazards, and it distinguishes subsections (e)(5) and (o)(4) from the type of safety-related regulation for which a continuing violations theory might be appropriate. Accordingly, we cannot agree with the Secretary that the continuing violations theory applies here.

We' conclude, as did the D.C. Circuit, that Section 658(c) is clear, and so we do not defer to the Secretary’s interpretation. See Volks, 675 F.3d at 755, 759. Accordingly, we hold that Section 658(e)’s six-month statute of limitations bars the citations for Items 4 and 12. We therefore vacate those citations.

B.

The Secretary also cited Delek under Item 8 for failing to inspect a piece of equipment known as the positive pressurization unit (PPU). Delek contends that this citation is unlawful because the PPU is not encompassed by the relevant regulations. Because this dispute involves the interpretation of a binding regulation promulgated by the agency, we defer to the agency’s interpretation if the text is ambiguous and the agency’s interpretation is reasonable. Christensen, 529 U.S. at 588, 120 S.Ct. 1655. Because we conclude that the relevant portions of Section 1910.119 are ambiguous and the Secretary’s interpretation is reasonable, we AFFIRM the citation for Item 8.

Delek’s refinery contains a fluid catalytic cracking unit (FCCU). The process of fluid catalytic cracking involves “converting crude oil into usable fuels, such as gasoline, by a process that could release hazardous vapors.” Delek II, 2015 WL 1957889, at *7. This process is managed by Delek employees from the FCCU control room. Id. The PPU is located in the FCCU control room, and “consists of an intake stack that draws in outside air and a fan that pulls the air into the control room.” Delek I, 2011 WL 12709990, at *10. In so doing, the PPU maintains “positive pressure” inside the FCCU control room, thereby “keeping] harmful or hazardous vapors from entering the control room.” Id. at *9, *10 (quotation marks omitted). Without the PPU, hazardous vapors could enter the FCCU control room and harm Delek employees managing the fluid catalytic cracking process or react with wiring in the control room to cause a catastrophic explosion. Delek II, 2015 WL 1957889, at *7; Delek I, 2011 WL 12709990, at *15. The PPU also contains two sensors. One detects whether the FCCU control room is pressurized and triggers an alarm that indicates when it is not. Delek I, 2011 WL 12709990, at *10; Delek II, 2015 WL 1957889, at *7. The other detects the presence of combustible gas and will shut down the intake stack to prevent the gas from entering the control room if such gas is detected. Id.

The parties do not dispute where the PPU is located, what it consists of, or what it does. They instead dispute whether the PPU is subject to the inspection requirements of 29 C.F.R. § 1910.119(j). Section 1910.119 applies to “a process which involves a Category 1 flammable gas” and further defines “process” as “any activity involving a highly hazardous chemical including any use, storage, manufacturing, handling, or the on-site movement of such chemicals, or combination of these activities.” 29 C.F.R. § 1910.119(a)(l)(ii), (b). Section 1910.119(j) requires employers to “establish and implement written procedures to maintain the on-going integrity of process equipment” and to perform “[i]n-spections and tests ... on process equipment.” Id. § 1910.119(j)(2), (4)(i). Section 1910.119(j), in turn, defines “process equipment” as “the following”: “(i) Pressure vessels and storage tanks; (ii) Piping systems (including piping components such as valves); (iii) Relief and vent systems and devices; (iv) Emergency shutdown systems; (v) Controls (including monitoring devices and sensors, alarms, and interlocks) and, (vi) Pumps.” Id. § 1910.119(j)(l)(i)-(vi).

The Secretary argues that the PPU is subject to Section 1910.119(j)’s inspection regime because: (1) the PPU is an integral part of the FCCU, which is a “process” under Section 1910.119(b); and (2) the PPU is “process equipment” under Section 1910.119(j). We will address these issues in turn.

1.

The Commission concluded that the PPU fits within Section 1910.119(b)’s definition of “process” because “the PPU is an integral part of the overall [FCCU] ‘process.’ ” Delek II, 2015 WL 1957889, at *7. On appeal, the Secretary urges us to accept this determination. While both parties agree that the FCCU is a “process” within the meaning of Section 1910.119(b), they dispute whether the PPU is a part of the FCCU process.

We conclude, based on the undisputed facts as to the PPU’s function, that the Commission reasonably determined that the PPU is part of the overall FCCU “process” and is therefore covered by Section 1910.119(b). As the Commission indicated, the PPU serves an important function vis-a-vis the fluid catalytic cracking process by ensuring maintenance of positive air pressure within the FCCU control room and thereby preventing the flow of hazardous chemicals or vapors into the control room. In so doing, the PPU protects the Delek employees within the FCCU control room who are managing the fluid catalytic cracking process, and, in turn, plays a role in protecting the integrity of that process. Further, by preventing the flow of hazardous chemicals into the FCCU, the PPU prevents hazardous vapors from interacting with the wiring in the FCCU and potentially causing an explosion. In short, the PPU does far more than serve as a mere ventilation system; it plays an important part in ensuring the integrity of the fluid catalytic cracking process itself.

Delek argues, however, that the PPU cannot be part of a “process” because it does not fit within the definition of “process” in 29 C.F.R. § 1910.119(b). Specifically, Delek contends in its briefing that the activities listed in the definition of process — “use, storage, manufacturing, handling, or [] on-site movement” — show that a “process” is limited to the “containment of the highly hazardous chemical and the actual manufacturing of a product.” As Delek correctly notes, the PPU does not contain any highly hazardous chemicals, nor does it use, store, manufacture or handle such chemicals — at least not in the ordinary sense of those terms. Cf. 29 C.F.R. § 1910.119(b).

However, the Commission did not conclude — and the Secretary does not argue on appeal — that the PPU itself is a “process.” As noted, the Commission concluded that “the PPU is an integral part of the overall FCC unit ‘process’ ” Delek II, 2015 WL 1957889, at *7 (emphasis added). As a result, the PPU need not independently constitute a “process” under Section 1910.119(b). But in any event, to the extent Section 1910.119(b)’s definition is pertinent to defining the parameters of a covered “process,” we do not agree that Section 1910.119(b)’s definition necessarily excludes the PPU. Section 1910.119(b) defines “process” broadly to encompass “any activity involving a highly hazardous chemical including any use, storage, manufacturing, handling, or the on-site movement of such chemicals_” 29 C.F.R. §' 1910.119(b) (emphasis added). It is undisputed that the PPU operates to detect the presence of highly hazardous chemicals and gases and to prevent them from entering the FCCU. In performing this “activity,” the PPU undoubtedly “involvfes]” the very chemicals and gases that it detects and prevents from entering the FCCU control room.

Delek argues, however, that the PPU does not fit within any of the specific activities listed in the definition of “process”— “use, storage, manufacturing, handling, or ... on-site movement” of such chemicals. 29 C.F.R. § 1910.119(b). But the use of the term “including” within Section 1910.119(b)’s definition indicates that these forms of “involv[ement]” with highly hazardous chemicals are not an exhaustive listing. See Antonin Soalia & BRYan A. GaRneR, Reading Law: The Interpretation op Legal Texts 132 (Thomas/West 2012) (“[T]he word include does not ordinarily introduce an exhaustive list — ”). Thus, even assuming that the PPU’s involvement with highly hazardous chemicals does not fit within one of the examples listed in Section 1910.119(b), that fact would not clearly exclude the PPU from the definition of “process” in Section 1910.119(b).

Delek further argues that the PPU “is simply too far removed from the [FCCU] to be considered part of the PSM-covered ‘process’ — ” For this argument, Delek relies on two interpretive letters from OSHA, one from January 2008 and the other from February 1997. See OSHA Std. Interp. 1910.119 (D.O.L.), 2008 WL 2565070 (Jan. 31, 2008) (2008 OSHA Letter); OSHA Std. Interp. 1910.119 (D.O.L.), 1997 WL 33798325 (Feb. 28, 1997) (1997 OSHA Letter). According to Delek, these letters indicate that equipment is part of a “process” only “if that system has a ‘direct involvement in the overall functioning of the process’ and ‘can affect or cause a release.’ ”

The 2008 OSHA Letter, however, makes it clear that utility systems (the type of equipment at issue in that letter) are within the “scope ... of the PSM standard” if they are “use[d] ... to control/prevent and mitigate catastrophic releases of [highly hazardous chemicals].” 2008 OSHA Letter, 2008 WL 2565070, at *3 (emphasis added). As indicated, the PPU plays a role in mitigating the release of highly hazardous chemicals by preventing their movement into the FCCU control room. Likewise, the 1997 OSHA Letter indicates that a “process” encompasses equipment, even though that equipment does not contain highly hazardous chemicals, if it “could ... interfere with mitigating the consequences of such a release.” See 1997 OSHA Letter, 1997 WL 33798325, at *1. This statement, however, is broader than Delek’s claim that equipment may be part of a “process” only if it has “a ‘direct involvement in the overall functioning of the process’ and ‘can affect or cause a release.’” Thus, we do not believe either of the prior OSHA Letters limited the scope of a “process” in the manner that Delek asserts, or necessarily forecloses the Secretary’s interpretation here.

Accordingly, we conclude that the Secretary reasonably interpreted Section 1910.119(b) in determining that the PPU is part of a “process.”

2.

The Secretary further contends that the PPU is “process equipment” subject to Section 1910.119(j)’s inspection regime. As noted, Section 1910.119(j) supplies an exhaustive list of categories that constitute “process equipment”: “(i) Pressure vessels and storage tanks; (ii) Piping systems (including piping components such as valves); (iii) Relief and vent systems and devices; (iv) Emergency shutdown systems; (v) Controls (including monitoring devices and sensors, alarms, and interlocks) and, (vi) Pumps.” 29 C.F.R. § 1910.119(j)(l)(i)-(vi). The Secretary argues — as the Commission determined— that the PPU is a “control” because it contains “sensors” and “alarms.”

We agree. To begin with, we do not believe the term “control” in Section 1910.119(j) clearly excludes the PPU. That term is not elsewhere defined in Section 1910.119, and the regulation provides a non-exhaustive list of items that qualify as controls. See 29 C.F.R. § 1910.119(j)(l)(v) (“Controls (including monitoring devices and sensors, alarms, and interlocks”) (emphasis added)); see Scalia & Garner, supra, at 132 (“[T]he word include does not ordinarily introduce an exhaustive list....”). We therefore find that there is sufficient ambiguity in the text of Section 1910.119(j) to accord deference to the Secretary’s interpretation of “control” if it is reasonable.

We conclude that it is. Section 1910.119(j) lists “sensors” and “alarms” as examples of “controls.” See 29 C.F.R. § 1910.119(j)(l)(v). As noted, the PPU contains two sensors. The first sensor measures whether the FCCU control room has positive pressure, and this sensor is connected to, and triggers, an alarm when the control room is not fully pressurized. The second sensor detects the presence of combustible gas and shuts down the PPU intake stack when combustible gas is detected. Delek II, 2015 WL 1957889, at *7; Delek I, 2011 WL 12709990, at *10. Thus, because the PPU contains multiple sensors and an alarm that are critical to its function of ensuring that combustible vapors do not enter the FCCU control room, we conclude that the Secretary reasonably concluded that the PPU is a “control” within the meaning of Section 1910.119(j).

Delek raises several objections in its briefs to reading “control” to encompass the PPU. First, Delek argues that the PPU cannot constitute a “control” because Section 1910.119 is concerned with “containment of chemicals before release,” while the PPU “merely interrupts the spread of [hazardous] chemicals from one room to the next after the release has already occurred.” Delek’s description of the Process Safety Management Standard, however, is inconsistent with the “Purpose” statement at the beginning of Section 1910.119 itself, which indicates that these standards are designed to “prevent[ ] or minimiz[e] the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals.” See 29 C.F.R. § 1910.119 (Purpose). Preventing the flow of hazardous chemicals into the FCCU control room after their release is undoubtedly a means of “minimizing the consequences” of such a release. Id.

Second, Delek notes that the Preamble to the Process Safety Management Standard indicates that “process equipment” must have “‘a significant impact on the safety of a process that is covered by [the PSM Standard].’ ” According to Delek, because the FCCU’s process activities could continue even if the PPU failed, it cannot be considered “process equipment.” Again, we do not find this argument persuasive. The PPU does serve a safety function by preventing the flow of released hazardous chemicals into the FCCU control room. In so doing, the PPU not only protects the Delek employees within that control room, but also protects the integrity of the FCCU process itself, which is managed by those employees.

Finally, Delek and the amici argue that interpreting “control” in Section 1910.119(j) to encompass the PPU would lead to absurd results because a door, window, wall, or anything else that “ ‘interrupts the circulation of already-released hazardous chemicals’ ” would constitute “process equipment.” This slippery slope argument, however, ignores the fact that the PPU’s purpose is to prevent the flow of hazardous chemicals into the FCCU control room. While a door, window, or wall may have this effect incidentally, they are not designed for this purpose as is the PPU, nor are they equipped with sensors and alarms to detect the presence of hazardous gases and to measure whether the FCCU control room is properly pressurized. Thus, we disagree with Delek and the amici that upholding the Secretary’s interpretation of Section 1910.119(b) and (j) sweeps equipment only tangentially related to a covered process into the definitions of “process” and “process equipment,” or that it brings «07í-equipment, such as a door or window, into the ambit of those subsections.

We therefore hold that the relevant provisions of Section 1910.119 do not clearly exclude the PPU from being a part of a “process” or “process equipment.” Because the Secretary’s interpretation is reasonable, we defer to that interpretation.

IV.

We hold that the citations for Items 4 and 12 are barred by Section 658(c)’s six-month statute of limitations. We also hold that the Secretary reasonably determined that the PPU is covered by 29 C.F.R. § 1910.119. Accordingly, we VACATE the citations for Items 4 and 12 and AFFIRM the citation for Item 8, which amounts to $6,300.

      . The regulations underlying the citation for Item 4 provide:
      (5)The employer shall establish a system to promptly address the team’s findings and recommendations; assure that the recommendations are resolved in a timely manner and that the resolution is documented; document what actions are to be taken; complete actions as soon as possible; develop a written schedule of when these actions are to be completed; communicate the actions to operating, maintenance and other employees whose work assignments are in the process and who may be affected by the recommendations or actions.
      (6) At least every five (5) years after the completion of the initial process hazard analysis, the process hazard analysis shall be updated and revalidated by a team meeting the requirements in paragraph (e)(4) of this section, to assure that the process hazard analysis is consistent with the current process.
      (7) Employers shall retain process hazards analyses and updates or revalidations for each process covered by this section, as well as the documented resolution of recommendations described in paragraph (e)(5) of this section for the life of the process.
      29 C.F.R. § 1910.119(e)(5)-(7).

        . The regulations underlying the citation for Item 8 provide:
      (1)Application. Paragraphs (j)(2) through (j)(6) of this section apply to the following process equipment: (i) Pressure vessels and storage tanks; (ii) Piping systems (including piping components such as valves); (iii) Relief and vent systems and devices; (iv) Emergency shutdown systems; (v) Controls (including monitoring devices and sensors, alarms, and interlocks) and, (vi) Pumps.... (4) Inspection and testing, (i) Inspections and tests shall be performed on process equipment.
      29 C.F.R. § 1910.119QX1), (4).

      . The regulations underlying the citation for Item 12 provide:
      (1) Employers shall certify that they have evaluated compliance with the provisions of this section at least every three years to verify that the procedures and practices developed under the standard are adequate and are being followed.
      (2) The compliance audit shall be conducted by at least one person knowledgeable in the process.
      (3) A report of the findings of the audit shall be developed.
      (4) The employer shall promptly determine and document an appropriate response to each of the findings of the compliance audit, and document that deficiencies have been corrected.
      (5) Employers shall retain the two (2) most recent compliance audit reports.
      29C.F.R. § 1910.119(d).

      . Though the ALJ affirmed the citation for Item 4, it did so only after deleting the allegations related "to the PHA team's findings and recommendations from 1998 and 2005.” De-lek I, 2011 WL 12709990, at *33.

      . The Occupational Safety and Health Act divides administrative actions between the Secretary of Labor and the Occupational Safety and Health Review Commission. The Secretary has the responsibility of promulgating standards through rulemaking and bringing enforcement actions against employers. The Commission adjudicates appeals after an initial hearing before an administrative law judge. Martin v. OSHRC, 499 U.S. 144, 147-48, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991).

      . Delek also argues that the citations for Items 4 and 12 must be vacated because the violations underlying those Items were committed by Crown Central. According to Delek, Section 1910.119 does not authorize successor liability. Delek further argues that, even if Section 1910.119 does impose successor liability, the citations for Items 4 and 12 must still be vacated because the Commission did not undertake a successor liability analysis. By contrast, the Secretary contends that the successor liability doctrine is not implicated because Delek was cited for its own failure to resolve open PHA and audit findings after it purchased the plant from Crown Central. The Secretary also argues that Section 1910.119's mandate is focused on the "process,” rather than a particular employer, and so Section 1910.1 19’s requirements survive a change of ownership. Finally, the Secretary contends that Section 1910.119 is ambiguous and can reasonably be read to authorize successor liability. Because we vacate the citations for Items 4 and 12 based on Section 658(c)’s statute of limitations, we do not reach the successor liability issue.

      . The Secretary argues that Volks only purported to apply to violations of record-making regulations promulgated under 29 C.F.R. Part 1904. This reading is implausible. While Volks certainly involved a violation of a record-making regulation, nothing in the majority opinion purports to limit its reach to Part 1904 record-making regulations.

      . The Secretary has, on at least one occasion, taken the position that a response to PHA and audit recommendations is "timely” when it is done within "one to two years.” See Secretary of Labor v. BP Prods. N. Am., Inc., 2013 WL 9850777, at *37 (OSHRC Aug. 12, 2013). We need not address this issue here, however, because the Secretary has not argued that the citations underlying Items 4 and 12 would be timely under the interpretation of Section 658(c) we now adopt, even if Section 1910.119's references to "timely” or "prompt” action afforded an employer more than one or two years to resolve open PHA or audit recommendations.

      . In the ALJ’s opinion, each of the "open” items related to Item 4 are described as "recommendation[s].” Delek I, 2011 WL 12709990, at *4-5.

      .We emphasize that in rejecting this argument, we, like the D.C. Circuit, “express no opinion on whether some other violations, if any, could, for some other reason, be extended by the continuing violations concept.” Volks, 675 F.3d at 758. We conclude only that, in light of the text of Section 658(c) as applied to the relevant portions of Section 1910.119(e) and (o), the continuing violations theory is not applicable.
      Nor does our decision cast doubt upon the application of the discovery rule to Section 658(c). See, e.g., Austin Indus. Specialty Servs., L.P. v. OSHRC, 765 F.3d 434, 442 (5th Cir. 2014). The rule states that “OSHA may cite a party for an uncorrected violation of applicable regulations within six months from the time that OSHA discovers, or should have discovered, the facts establishing the violation." Id. at 442. The Secretary here did not raise the discovery rule to justify the timing of the citations underlying Items 4 and 12.

      . Delek’s own "Mechanical Integrity Manual” describes the purpose of “control room pressurization” as "keeping harmful or hazardous vapors from entering.”

      . As the ALJ noted, several Delek employees testified that the PPU serves an important safety function. See Delek I, 2011 WL 12709990, at *11, *13.

      . The Commission likewise considered the 2008 OSHA Letter in the context of Delek's argument that equipment can only be part of a "process” if it contains highly hazardous chemicals. See Delek II, 2015 WL 1957889, at *8.

      . Delek also seems to argue that there was no real concern that vapors would enter the FCCU. However, Delek concedes that the PPU exists to detect the presence of combustible gases and to prevent their entrance into the FCCU.

      . The Commission also concluded that the PPU was a "control” because it “is an integral part of the FCC unit control room." Delek II, 2015 WL 1957889, at 8. Because we conclude, based on Section 1910.119(j)’s text, that the Secretary reasonably determined that the PPU is process equipment, we need not reach this other ground.
      The Secretary also argues that the PPU is process equipment because Delek "deemed” it to be so. Again, because we conclude that the PPU is process equipment based on the text of Section 1910.119(j), we do not decide this issue. We note, however, that it is unlikely we would accept this argument if we did consider it. The Secretary relies on a portion of OSHA’s summary and explanation of Section 1910.119(j), which states that "if an employer deems additional equipment to be critical to a particular process, that employer should consider that equipment to be covered by [Section 1910.119(j) ] and treat it accordingly.” OSHA, Process Safety Management of Highly Hazardous Chemicals; Explosives and Blasting Agents, 57 Fed. Reg. 6356-01, 1992 WL 30969, at *6389 (Feb. 24, 1992). But the Secretary does not direct us to any language in the text of Section 1910.119 itself to suggest that OSHA may cite an employer for failing to inspect equipment not covered by subsection (j) just because the employer believed that equipment should be covered by subsection (j). To the contrary, subsection (j)’s text indicates that its list of process equipment is exhaustive. See 29 C.F.R. § 1910.119(j)(l) ("Paragraphs (j)(2) through (j)(6) of this section apply to the following process equipment....” (emphasis added)).

      . Because Section 1910.119(j)’s definition of control explicitly references "alarms” and "sensors” as examples of "controls,” we do not agree with the amici that interpreting Section 1910.119(¡) to encompass the PPU deprives employers of sufficient notice of the potential scope of Section 1910.119(b) and (j).

      . Delek also argues that "the Commission failed to see the distinction between independently possessing controls and being a control for a PSM-covered 'process.' ” According to Delek, "[t]he fact that the PPU has sensors does not bring it within [Section 1910.119(j)(4)(i) ] because the controls have nothing to do with the FCC unit.” For the reasons already given, we have, concluded that the PPU can reasonably be viewed as a part of the FCCU process, and so its operation as a “control” under Section 1910.1190 is for a covered "process.”

      . Delek argues vigorously that the Commission erred by declining to consider testimony of its experts as to whether the PPU was a part of "process” and constituted “process equipment,” while not similarly declining to consider the testimony of the Secretary’s expert on the same subject. See Delek II, 2015 WL 1957889, at *7 n.7. We agree with Delek that the Commission had no justifiable reason for declining to consider Delek’s expert’s testimony while not doing the same for the Secretary’s expert’s testimony. On appeal, the Secretary did not attempt to defend the Commission’s action in this regard.
      However, we conclude that the Commission's error was harmless, and so we do not reverse on this basis. See 5 U.S.C. § 706 ("[D]ue account shall be taken of the rule of prejudicial error.”); United States v. Johnson, 632 F.3d 912, 930 (5th Cir. 2011) (“ ‘In administrative law, as in federal civil and criminal litigation, there is a harmless error rule.’ ” (quoting Nat’l Ass'n of Home Builders v. Defs, of Wildlife, 551 U.S. 644, 659-60, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007))). Upon reviewing the Commission’s decision, it is clear that the Commission based its conclusion on the text of Section 1910.119(b) and (j) and the undisputed facts regarding the PPU’s function. See Delek II, 2015 WL 1957889, at *6-9. The Commission’s decision does not appear to rely in any way on the testimony of the Secretary’s expert in support of its decision to affirm the citation for Item 8, and its decision is consistent with both parties’ factual descriptions of the PPU. As a consequence, we conclude that the Commission’s error " 'clearly had no bearing on the procedure used or the substance of decision reached,' ” and so its error was harmless. Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 444 (5th Cir. 2001) (quoting U.S. Steel Corp. v. EPA, 595 F.2d 207, 215 (5th Cir. 1979)).