“SECRETARY OF LABOR,Complainant,v.HOCKING VALLEY STEELERECTORS, INC.Respondent.OSHRC DOCKET No. 80-1463_DECISION_Before: Rowland, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:Administrative Law Judge James D. Burroughs denied an application forattorney fees filed by Hocking Valley Steel Erectors, Inc., under theEqual Access to Justice Act, Pub. L. No. 96-481, 94 Stat. 2325 (1980). Hocking Valley sought review of the judge’s decision denying theapplication and Chairman Rowland directed review under 29 U.S.C. ?661(i) and 5 U.S.C. ? 504. See 29 C.F.R. ? 2204.309. We affirm thejudge’s decision.I.A.Hocking Valley Steel Erector, Inc. (\”Hocking Valley\”), a steel erectionsubcontractor, was engaged in construction of an \”open-bay\” typemanufacturing building at the Schuler-Leuhart Manufacturing Company inColumbus, Ohio, when the worksite was inspected by a compliance officerand a compliance officer trainee from the Occupational Safety and HealthAdministration (\”OSHA\”). Following the inspection, Hocking Valleyreceived a citation alleging a serious violation of the constructionsafety standard at 29 C.F.R. ? 1926.28(a).[[1]] A penalty of $490 wasproposed for the violation. Hocking Valley contested the citation, but,after a hearing, the citation was affirmed and a penalty of $100 imposedby Administrative Law Judge Joe D. Sparks. Hocking Valley petitionedthe Commission for review, and review was granted by CommissionerCottine on one issue raised by Hocking Valley. After Hocking Valleyfiled its brief on review to the Commission, the Secretary moved tovacate the judge’s decision and dismiss the citation on the statedground that the case was an \”inappropriate vehicle for furtherlitigation.\” The Commission granted the Secretary’s motion.Hocking Valley then filed an application under the Equal Access toJustice Act (\”EAJA\”) for attorney fees and expenses incurred inlitigating the case. The amount sought by Hocking Valley in itsinitial and two subsequent applications totaled $14,187.[[2]] UnderEAJA, a private party that prevails against the federal government in anadministrative adjudication, has a net worth of no more than 5 milliondollars and employs no more than 500 employees [[3]] is entitled to anaward of attorney fees and other expenses unless the position of thegovernment agency as a party to the proceeding was substantiallyjustified or special circumstances make an award unjust. 5 U.S.C. ??504(a)(1) & 504(b) (1)(B). That Hocking Valley was the prevailing partyand met the limits for net worth and number of employees was notdisputed. However, Judge James D. Burroughs, who was assigned to ruleon the application after Judge Sparks granted a recusal motion filed byHocking Valley, denied Hocking Valley’s application on the basis thatthe Secretary’s position in the case was substantially justified. Hocking Valley’s petition for review followed.B.As amended at the outset of the hearing, the citation against HockingValley stated:29 C.F.R. 1926.28(a). Employee(s) were not protected against falls ofmore than 25 feet by the use of safety lines, safety belts, or otherappropriate personal protective equipment:(a) The Schuler Leuhart steel structured building extension. Employeeswalking at elevated levels above 25′ were not protected from hazard offalling to ground level.The compliance officer testified that he observed two Hocking Valleyemployees walk across the structural steel of the 30-foot-high roof ofthe building under construction. The employees were wearing safetybelts and lanyards that were not tied off. In the compliance officer’sview the employees were subjected to a fall hazard. Two photos of theemployees were taken by the trainee. The compliance officer was unableto identify by name the men walking on the steel. He testified that hedetermined they were employees of Hocking Valley through discussion withRiddle, Dell, and Mayo, who were Hocking Valley employees. He alsotestified that he believed Dell and Mayo mentioned that they wereworking on the roof of the building. He added that Hocking Valley’sforeman told him that Hocking Valley was the only contractor who wasworking on the roof. The compliance officer named the other contractorsat the site and described the work they were doing. He said that theywere mainly working on the ground level and none was working on the rooflevel. This also led him to conclude that the employees walking on thesteel were employed by Hocking Valley.The compliance officer testified that the fall hazard could be abated byattaching the employees’ safety belt lanyards to lifelines strungbetween metal stanchions. The stanchions would have to be welded orclamped to the structural steel. The Secretary put in evidence abooklet showing fall protection devices, and the compliance officermarked the two pages that depicted a lifeline system similar to the onehe proposed. The compliance officer said he discussed abatement withtwo Hocking Valley officers, Paul Fox and Robert Eaton, and they agreedto erect cables for lifelines from horizontal supports in the existingstructure. The cables would be at the level of the steel rather thanabove it. Eaton, Hocking Valley’s vice president for operations, acknowledged thathe agreed to establish a cable system but was under the impression thatthe system need not be installed until the building was \”detailed,\”i.e., welding completed and bolts tightened, to the extent that it couldwithstand a 5,400 pound dead load test. The compliance officerbelieved that the building had been \”detailed\” at the time of theinspection. He stated that foreman Swisher had told him that thestructural steel work had been completed on the Monday before theinspection. Swisher testified that on the day of the inspection thesteel erection was 90 percent complete. The compliance officer presumedthat the building members were of sufficient integrity to permitstanchions and cables to be connected, since he believed the buildinghad been detailed.Eaton, an expert witness, had a B.S. degree in civil engineering, was ajourneyman ironworker, and had been in the steel erection business forfourteen years. He testified that, when inspected, the building wasstill in the erecting and detailing stage. The trusses and columns wereup, some of the joists had been welded but others merely landed betweentrusses, and the bolts may not have been tightened; there was morewelding and checking of bolts to do. Thus, the building was not yetstructurally sound. He testified that he has never seen a cable orstatic line used on a building such as this one \”during the process oferection in commencement of the detailing.\”Eaton further testified that it would not be possible to stringlifelines from stanchions attached to the structural steel at this stageof construction because the structure was not stable enough. Thestanchions would put additional stress on the structure, and resonanceand harmonics \”might tend\” to build up as a person attached to thelifeline walked around. When resonance and harmonics built up, it wouldmake walking along the structure impossible, and, \”[Y]ou would probablyend up falling in the hole.\” A person who fell would almost be assuredof knocking off some of the joists that had not been welded, and hewould be cut in half if the joists landed on him. The falling joistswould also be hazardous for anyone working below. Eaton also statedthat the lifeline system could not comply with the requirements of 29C.F.R. ? 1926.104 (b) & (d) in several respects: It could not besecured above the point of operation because there was no higher part ofthe structure to which to fasten it; the lanyards would have to be morethan six feet long or additional cables would have to be put up, whichthe building could not support; and, the cable system could not hold5,400 pounds. [[4]] He added that erection of a cable system on thebeam line would create a tripping hazard. He also stated that, otherthan safety belts and lanyards, there were no alternative means of fallprotection for ironworkers on this type of building. Safety nets wouldnot work because \”some of the pieces had to come up through the interiorof the building.\”CIn its post-hearing brief, Hocking Valley advanced the followingarguments: (1) the compliance officer’s testimony was not credible; (2)the Secretary failed to prove that the men walking on the steel wereemployees of Hocking Valley; (3) the Secretary failed to prove that thealleged employees were working or were performing an operation, asrequired for 29 C.F.R. ? 1926.28(a) to be applicable; (4) the Secretaryfailed to prove a feasible means of abatement; (5) Hocking Valleyestablished the defenses of impossibility and greater hazard; (6) theSecretary failed to prove that a reasonable person familiar withrespondent’s industry would have protected against the hazard by themeans specified; (7) section 1926.28(a) was invalidly promulgated and isunenforceably vague. The Secretary declined to file a brief.Judge Sparks affirmed the citation. He found that the two men walkingon the steel were employees of Hocking Valley. He based this finding onevidence that the other contractors on the site were working in areasother than the roof, that Dell, Swisher, and Mayo mentioned that some ofHocking Valley’s employees were working on the roof, and that Eatonstated that more work on the steel needed to be done at the time of theinspection. The judge also found that the two men were walking frompoint to point in the course of their duties for Hocking Valley and thuswere performing \”operations\” within the meaning of section 1926.28(a). The judge concluded that the Secretary had established a prima facieviolation of section 1926.28(a) under the tests set out in S & H Riggers& Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ?23,480 (No. 15855, 1979). He held that the employees were exposed to anobvious 30-foot fall hazard requiring the use of personal protectiveequipment and that the Secretary proposed the use of lifelines anchoredon the steel by stanchions, to which safety belts and lanyards could beattached, as the appropriate means of protection. The judge noted thatS & H Rigger’s use of a reasonable person test gives employersreasonable notice of what safety precautions are required and satisfiesdue process requirements. The judge concluded that Hocking Valleyshowed that the use of lifelines on the same level as the beams on whichthe employees worked presented a greater hazard than use of no fallprotection at all. However, he concluded that the greater hazarddefense was not established because Hocking Valley did not present anyevidence that alternative means of protection were unavailable or that avariance application was inappropriate. The judge also rejected HockingValley’s impossibility defense, concluding (1) the fact that a lifelinecannot support 5,400 pounds is not a defense to a section 1926.28(a)violation, and (2) Hocking Valley did not prove that alternative meansof protection were unavailable.Hocking Valley petitioned for review of the judge’s decision, raisingessentially the same arguments as it made before the judge. CommissionerCottine granted the petition in part, limiting review to the issue ofwhether the judge erred in affirming the citation in light of HockingValley’s defense that personal protective equipment was inappropriateunder the cited conditions. After Hocking Valley filed its brief onreview, the Secretary moved to vacate the judge’s decision and dismissthe citation because \”the Secretary upon additional consideration hasdetermined that this case is an inappropriate vehicle for furtherlitigation.\” The Commission granted his motion.II.A.Hocking Valley’s subsequent fee application was assigned to JudgeBurroughs after Judge Sparks granted a recusal motion filed by HockingValley. After the parties declined to request further proceedings,Judge Burroughs decided the case on the basis of the written record. Heconcluded that the Secretary’s motion to dismiss the citation could notbe deemed an admission that his position was not substantiallyjustified. The judge noted that a ruling on the merits in favor ofHocking Valley would not result in an automatic award of fees becauseEAJA does not mandate a fee award whenever the government loses a case. He also noted that the determination of whether the Secretary’s positionwas substantially justified must be based on whether the facts, asdeveloped in the record, support his position as being reasonable in lawand fact. The judge then reviewed the evidence and concluded that theSecretary’s determination that the persons on the steel framework wereHocking Valley employees and were engaged in performing their job wasreasonable, fair, did not involve any overreaching, and was supported bysubstantial evidence. He added that, in finding a violation of section1926.28(a), Judge Sparks applied Commission precedent, and his findingsand inferences were sufficient to justify a reasonable person inconcluding that there was a section 1926.28(a) violation. He alsoagreed with Judge Sparks that the evidence was not sufficient toestablish the greater hazard or impossibility defenses.On review of the denial of the fee application, Hocking Valley arguesthat this is a \”classic\” example of a case in which the governmentshould be required to pay attorney fees because it involved unreasonablegovernment prosecution calculated to force a small business to \”knuckleunder\” to unreasonable demands. Hocking Valley contends that theSecretary failed to prove that the persons observed by the complianceofficer walking on the steel were employees of Hocking Valley, and,knowing that the compliance officer could not identify these persons,the Secretary should not have pursued the case. Hocking Valley alsomaintains that (1) the Secretary’s complaint failed to allege all theelements of a section 1926.28(a) violation, (2) the evidence failed toestablish that the persons observed walking on the steel were engaged inan \”operation\” within the meaning of section 1926.28(a), (3) theSecretary failed to introduce any evidence of a feasible means ofabatement relevant to this construction project, and (4) Hocking Valleyestablished the greater hazard and impossibility defenses. HockingValley asserts that once the Secretary learned of the evidencesupporting its defenses, he should have withdrawn the citation. Finally, Hocking Valley contends that Judge Burroughs improperly placedon the employer the burden of proof concerning \”substantialjustification\” in that the judge did not rule that, by failing toexplain why he sought to dismiss the citation, the Secretary failed toprove that his position was substantially justified.The Secretary argues that in affirming the citation Judge Sparksfollowed Commission precedent, and that the rulings of both Judge Sparksand Judge Burroughs convincingly demonstrate that the Secretary’sposition was substantially justified. Additionally, theCommissioner’s direction for review was limited to the issue of theappropriateness of personal protective equipment, lending support to theSecretary’s claim that his position was substantially justified. TheSecretary maintains that his motion to dismiss the citation on reviewdoes not show that his position was not substantially justified. Hecontends that a decision to seek dismissal may be based on any ofseveral factors, and he is not required to reveal his litigationstrategy. He adds that a determination of whether his position wassubstantially justified must be based on the facts developed in therecord, and Judge Burroughs did not place an improper burden on HockingValley. Finally, the Secretary rejects as erroneous Hocking Valley’sargument that the Secretary was required to show that the employees wereworking in order to establish a violation of section 1926.28(a).B.The statutory criterion when reviewing EAJA applications is whether theposition of the government as a party to the proceeding wassubstantially justified. Before making this determination in this case,it is appropriate to consider what Congress intended in establishing the\”substantial justification\” standard. Identical explanations appear inthe House and Senate Judiciary Committee reports on EAJA, as follows:The test of whether or not a Government action is substantiallyjustified is essentially one of reasonableness. Where the Governmentcan show that its case had a reasonable basis both in law and fact, noaward will be made.Certain types of case dispositions may indicate that the Governmentaction was not substantially justified. A court should look closely atcases, for example, where there has been a judgment on the pleadings orwhere there is a directed verdict or where a prior suit on the sameclaim had been dismissed. Such cases clearly raise the possibility thatthe Government was unreasonable in pursuing the litigation.The standard, however, should not be read to raise a presumption thatthe Government position was not substantially justified, simply becauseit lost the case. Nor, in fact, does the standard require theGovernment to establish that its decision to litigate was based on asubstantial probability of prevailing.S. Rep. No. 96-253, 96th Cong., 1st Sess. 6-7 (1979), reprinted in Awardof Attorney’s Fees Against the Federal Government: Hearings Before theSubcom. on Courts, Civil Liberties & the Administration of Justice, 96thCong., 2d Sess. 242-43 [hereinafter cited as Hearings]; H.R. Rep. No.96-1418, 96th Cong. 2d Sess. 10-11 (1980), reprinted in Hearings 341-42and in [1980] U.S. Code Cong. & Ad. News 4989-90. The House JudiciaryCommittee report also includes the following elaboration:The standard and burden of proof adopted in [EAJA] represents anacceptable middle ground between an automatic award of fees and therestrictive standard proposed by the Department of Justice [that wouldpermit fees to be awarded only where the government action wasarbitrary, frivolous, unreasonable, or groundless]. It presses theagency to address the problem of abusive and harassing regulatorypractices. It is intended to caution agencies to carefully evaluatetheir case and not to pursue those which are weak or tenuous. At thesame time, the language of the section protects the government when itscase, though not prevailing, has a reasonable basis in law and fact. H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. at 13-14, reprinted inHearings 344-45, and in [1980] U.S. Code Cong. & Ad. News 4992-93. Thus, the \”substantial justification\” standard is intended to be amiddle ground between automatically awarding attorney fees against thegovernment whenever it loses a case and awarding attorney fees againstthe government only when its action was arbitrary or frivolous. TylerBusiness Services, Inc. v. NLRB, 695 F.2d 73 (4th Cir. 1982).Based on this understanding of the statutory standard of review, weconclude that the position of the Secretary as a party to the proceedingbefore us was substantially justified. This case is in an unusualposture for analysis of this question. In the only decision on themerits in this case, Judge Sparks ruled in favor of the government’sposition. Hocking Valley is the prevailing party only because on reviewthe Secretary chose to terminate the case. However, even if theSecretary had not prevailed before the judge, Hocking Valley would nothave been entitled to an automatic fee award. The substantialjustification standard, \”should not be read to raise a presumption thatthe Government position was not substantially justified, simply becauseit lost the case.\” S. Rep. No. 96-253, 96th Cong, 1st Sess. 7 (1979),reprinted in Hearing at 243; accord, Broad Avenue Laundry & Tailoring v.United States, 693 F.2d 1387, 1391 (Fed. Cir. 1982) (\”The mere fact thatthe United States lost the case does not show that its position indefending the case was not substantially justified.\”); Wyandotte SavingsBank v. NLRB, 682 F.2d 119, 120 (6th Cir. 1982) (\”The mere fact that theNLRB was the losing party….does not mean that the Board was notsubstantially justified in seeking enforcement of its order.\”) Thus,in order to conclude that the Secretary’s position in this case was notsubstantially justified, we would have to find that the judge erred inaffirming the citation on the merits and further conclude that theSecretary’s case did not even have a reasonable basis in law and fact. See 29 C.F.R. ? 2204.106(a); Tyler Business Services, Inc. v. NLRB, supra.We are unable to reach such a conclusion. Rather, we conclude that theSecretary’s case was reasonable under Commission precedent and thepositions adopted by the Secretary on the various issues in the casewere at least arguably correct.Even as to the aspects of the case that Hocking Valley attacks mostsharply, the Secretary’s position was substantially justified. On theissue of whether the men walking on the steel roof beams were employeesof Hocking Valley, the compliance officer’s conclusion that the men wereHocking Valley employees is reasonable in view of the fact that HockingValley was the only contractor working on the roof level. In casesbefore the Commission, facts need to be proved by only a preponderanceof the evidence, not by clear and convincing evidence or beyond areasonable doubt. Heath & Stich, Inc., 80 OSAHRC 65\/E12, 8 BNA OSHC1640, 1980 CCH OSHD ? 24,580 (No. 14188, 1980), appeal dismissed, 641F.2d 338 (5th Cir. 1981); Armor Elevator Co., 73 OSAHRC 54\/A2, 1 BNAOSHC 1409, 1973-74 CCH OSHD ? 16,958 (No. 425, 1973). It would havebeen preferable for the compliance officer to have been able to identifythese men by name or specify who told him that the men were HockingValley employees. Nevertheless, under these facts the Secretary wassubstantially justified in taking the position that he had sufficientevidence to show by a preponderance that the men walking on the beamswere employees of Hocking Valley.Hocking Valley also presented considerable evidence of the difficultiesinvolved in using a lifeline system to which employees on the roof levelcould fasten their safety belt lanyards. However, Judge Sparks heldthat under Commission precedent Hocking Valley failed to prove theimpossibility and greater hazard defenses. We conclude that theseissues at least presented close questions and the Secretary’s positionhad substantial justification. Hocking Valley’s vice president Eatontold the compliance officer during the inspection that Hocking Valleywould erect cables from horizontal members of the existing structure toserve as lifelines to which safety belt lanyards could be attached. Thus, prior to the hearing, the Secretary was justified in believingthat implementation of a lifeline system was an appropriate abatementmethod. Eaton then testified at the hearing that stanchions attached tothe structure for the purpose of securing lifelines would put stress onthe structure and resonance and harmonics \”might tend\” to build up,causing vibrations as a person wearing a tied-off safety belt walked onthe structure. Hocking Valley maintains that once this evidence waspresented, the Secretary should have withdrawn the citation.Hocking Valley is correct that facts that become known during the courseof litigation could make a position of the government unreasonable thatwas reasonable at the outset of the litigation. Under EAJA, when thisoccurs the government must act fairly expeditiously to alter itsposition appropriately in light of the new facts. Alspach v. DistrictDirector of Internal Revenue, 527 F.Supp. 225 (D. Md. 1981). However,Hocking Valley is incorrect that Eaton’s testimony on the difficultiesinvolved in using a lifeline system on the roof level made itunreasonable for the Secretary to continue to seek affirmance of thecitation. While Eaton in his testimony pointed out a possible vibrationproblem caused by a system of lifelines supported by stanchions, he wasfar from certain that this type of system actually would causevibrations. He stated only that it \”might tend\” to do so. Indeed,since the steel erection work was 90 percent complete, it seemsimplausible that significant vibrations would have been caused by thislifeline system. Moreover, it appears that this asserted problem couldhave been avoided by attaching the lifelines not to stanchions but tohorizontal members of the existing structure, as Eaton told thecompliance officer would be done. Thus, it was reasonable for theSecretary to continue to seek affirmance of the citation after hearingEaton’s testimony.Hocking Valley’s additional argument that it could not erect a lifelinesystem that would comply with the requirements of 29 C.F.R. ? 1926.104does not constitute a defense to an alleged section 1926.28(a)violation. Martin-Tomlinson Roofing Co., 80 OSAHRC 4\/B12, 7 BNA OSHC2122, 1980 CCH OSHD ? 24,167 (No. 76-2339, 1980); J.W. Conway, Inc., 79OSAHRC 75\/F3, 7 BNA OSHC 1718, 1979 CCH OSHD ? 23,869 (No. 15942,1979). We have considered Hocking Valley’s remaining contentions andfind them unpersuasive. As Judge Sparks’ and Judge Burroughs’discussions of these contentions shows, the Secretary’s position as tothese contentions was at least arguably correct and, thus, wassubstantially justified.Our conclusion that the Secretary’s position as a party to theproceeding was substantially justified is not aided by the Secretary’sfailure to explain why he chose on review not to litigate the case butto move that the citation be vacated. His oblique statement that \”theSecretary upon additional consideration has determined that this case isan inappropriate vehicle for further litigation\” provides no insightinto the termination of this case. In fact, one could infer from hisunexplained abandonment of his case that the Secretary believed that theCommission would vacate the citation if it ruled on the case. Whilethis is not tantamount to an admission that his position was notsubstantially justified, it is not supportive of the substantialjustification otherwise found on this record. Moreover, the Secretary’sunexplained termination of the case at this point may well leave HockingValley with the impression that it was put through the expense andinconvenience of contesting and trying a citation that was issued for novalid purpose. The Secretary’s cause would have been better served hadhe candidly explained why he had decided to terminate the case, even ifto do so would have required him to admit that he believed the case wasweak or that the violation was so momentary that it did not warrantlitigation.However, EAJA does not permit an award of fees if the Secretary’sposition as a party to the proceeding was substantially justified. Asexplained above, we have concluded that the Secretary’s position inseeking affirmance of the citation was substantially justified underCommission precedent. Though the Secretary’s withdrawal is not clearlyexplained, the substantial justification of his position on the meritsis not altered by the termination on review when the entire case isconsidered. Indeed, by terminating the case the Secretary didprecisely what Hocking Valley urges the Secretary should have done,albeit not as quickly as Hocking Valley desired. Therefore, JudgeBurroughs’ decision denying Hocking Valley’s fee application isaffirmed. The document designated by Hocking Valley as its thirdapplication for fees and costs also is denied. SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 27 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request onefrom our Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] 29 C.F.R. ? 1926.28(a) states:The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.[[2]] Hocking Valley’s initial application for fees and costs, filed onJanuary 5, 1982, sought an award of $8,752.76. Hocking Valley filed asecond application on March 29, 1982, seeking an additional award of$2,134.23 for fees and costs incurred up to February 15, 1982. JudgeBurroughs’ decision denying both applications was sent to the partieson April 6, 1982. On August 25, 1982, while this case was pending onreview, Hocking Valley filed a third application seeking an additionalaward of $3,300.18 for fees and costs incurred up to August 10, 1982. Hocking Valley’s second and third applications are merely supplements toits initial application, submitted simply to cover fees and expensesincurred in this case after Hocking Valley’s initial application wasfiled. It was therefore erroneous to label them as separate feeapplications, and it would be inappropriate to consider and dispose ofthem independently of each other or of the initial fee request. Rather,such additional submissions should be labeled as supplements to theoriginal fee application and normally should be considered together. Wedispose of both the initial fee application and the two supplementalrequests in this decision. Since the third request merely supplementsthe first two to cover a later time period, it need not be initiallyconsidered by an administrative law judge.[[3]] The net worth limitation does not apply to charitable or othertax-exempt organizations described in ? 501(c)(3) of the InternalRevenue Code, 26 U.S.C. ? 501(c)(3), nor does it apply to cooperativeassociations as defined in ? 15(a) of the Agricultural Marketing Act, 12U.S.C. ? 1141j(a). Additionally, for individuals the net worthlimitation is $1 million and there is no limitation on the number ofemployees. 5 U.S.C. ? 504 (b)(1)(B); 29 C.F.R. ? 2204.105(b).[[4]] 29 C.F.R. ? 1926.104(b) states:Lifelines shall be secured above the point of operation to an anchorageor structural member capable of supporting a minimum dead weight of5,400 pounds.29 C.F.R. ? 1926.104(d) states:Safety belt lanyard shall be a minimum of 1\/2-inch nylon, or equivalentwith a maximum length to provide for a fall of no greater than 6 feet. The rope shall have a nominal breaking strength of 5,400 pounds.”