SECRETARY OF LABOR,
Complainant,

v.

GRANITE CITY TERMINALS CORPORATION,
Respondent.

OSHRC Docket No. 83-0882-S

_DECISION_

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 651-678 ("the Act"). The Commission is
an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration. It was established to
resolve disputes arising out of enforcement actions brought by the
Secretary of Labor under the Act and has no regulatory functions. See
section 10(c) of the Act, 29 U.S.C. § 659(c).

Respondent, Granite City Terminals Corp., operates a marine terminal on
the upper Mississippi River in Granite City, Illinois. For certain
operations and under certain river conditions, Granite City uses a clam
shell bucket attached to a crane to transport its employees from its
dock to barges alongside the dock. The Secretary issued a citation
which, in one item, alleged that Granite City's use of the clam shell
bucket violated the standard at 29 C.F.R. § 1918.23(b). That standard
provides:

§1918.23 Access to barges and river towboats.

(b)Unless employees can step safely to or from the wharf, float, barge,
or river towboat, either a ramp meeting the requirements of paragraph
(a) of this section or a safe walkway meeting the requirements of §
1918.21(d) shall be provided. When a walkway is impracticable, a
substantial straight ladder, extending at least 36 inches above the
upper landing surface and adequately secured against shifting or
slipping shall be provided. When conditions are such that neither a
walkway nor a straight ladder can be used, a Jacob's ladder meeting the
requirements of § 1918.22 may be used: Provided, however, That when
these requirements cannot reasonably be met, by reason of local
conditions, in respect to barges operating on the Mississippi River
System, other safe means of access shall be provided.

Following the finding of a violation by Administrative Law Judge James
A. Cronin, Jr., Chairman Buckley directed the judge's decision for
review on the following issue: Whether the Secretary carried his burden
of proving that "other safe means of access" were not provided as a
required by the standard at 29 C.F.R.§ 1918.23(b). For the reasons that
follow, we reverse and vacate citation item.[[1]]

I.

Granite City's marine terminal has a dock 400 feet long which can
accommodate two barges for loading and unloading operations. At this
terminal the level of the Mississippi Rive r may fluctuate anywhere from
30 to 35 feet during the year. It is undisputed that due to water
fluctuations the employees can not always step off the dock onto the
barges. However, when the river level is low, Granite City uses a clam
shell bucket since it does not consider the specific means listed in the
cited standard (ramps, walkways, straight ladders and Jacob's ladders)
to be reasonable means of providing access to barges. Granite City's
vice-president and general manager Hilmes testified that the design of
its facility prevented the use of ramps when the river level is low.
Hilmes also testified that straight ladders are not practical or safe
when the water is low. Ladders more than 20 feet long must be used and
they are heavy and difficult to lower over the side of the dock. The use
of such long ladders is also unsafe because of the constant motion of
the barge on the water. For these reasons, Granit City has a company
policy that employees are not to climb ladders over 20 feet long. Hilmes
also testified that at one time Granite City had tried to use a Jacob's
ladder but the employees were not secure when climbing it, even when it
was equipped with stiffeners or outriggers. Therefore, Hilmes believed
Granite City's transport of its employees by clam shell buckets provided
a safer means of access to its barges.

The clam shell buckets attached to Granite City's cranes are used
primarily for loading and unloading bulk materials such as grains and
ores. There was no evidence, however, that employees rode the clam shell
buckets while the buckets were carrying those materials. Compliance
officer Taylor stated that the hazard presented by Granite City's use of
the clam shell bucket was that an employee could slip from the bucket
and fall to the barge below suffering severe injuries. In his view, the
possibility of an employee falling into the river presented a lesser
hazard, since employees continually wear life vests for protection
against drowning.

Hilmes, who had worked at Granie City's marine terminals for over 25
years, testified that throughout the length of his employment Granite
City had transported employees to and from barges on clam shell buckets.
In not one instance had an employee been injured from this practice at
the cited facility or at Granite City's other marine terminals in
Memphis and St. Louis. Hilmes further indicated that experts had
reviewed this practice and concluded there was no practical method of
access to barges that was safer than the use of the clam shell bucket.
One of these experts was Castranova, who originally was an inspector for
the Department of Labor under the Longshoreman's and Harbor Worker's
Compensation Act and later became an OSHA area director. According to
notes taken by an OSHA supervisor during the informal conference,
Granite City's employees stated that Castranova had told them that use
of the calm shell bucket was "okay," until safer means were available.

Rather than using the clam shell bucket, compliance officer Taylor
suggested that Granie City should use a "lifting cage" attached to the
crane's boom to transport employees to barges.[[2]] During certain
operations, such as when its employees load and unload steel, Granite
City does use a lifting cage. However, Hilmes testified that it was
economically infeasible to use the lifting cage during its bulk
commodities operations, which amounted to about 70% of the company's
business. He explained that employees would have to be transferred from
the wharf to the barge and back at several different times of the day.
If a "lifting cage" were required for each transfer of employees, the
process of removing the clam shell bucket from the crane's boom,
replacing it with a "lifting cage," transporting the employees to the
barge, waiting for them to complete work on the barge, transporting them
back to the wharf, and putting the clam shell bucket back on the crane's
boom would take 45 minutes to one hour for each transfer.[[3]] He
testified that the process would be so inefficient that it would put
Granite City out of the business of handling bulk commodities.

Subsequent to the inspection, Granite City equipped its clam shell
buckets with safety belts which were tied off to U-bolts welded on the
arm of the bucket. Granite City required its employees to wear the
safety belts when they were transported to barges. Hilmes considered the
use of the bucket equipped with safety belts to be "another safe means
of access." He testified, however, that OSHA officials told him that the
use of the bucket even when equipped with safety belts did not comply
with the cited standard.

II.

Judge Cronin concluded that Granite City judicially admitted that it had
committed a violation of section 1918.23(b).[[4]] In reaching that
conclusion, the judge relied upon the fact that at the hearing Granice
City's pro se representative Hilmes agreed that the "main issue" in the
case was the means of abating the violation. However, it is axiomatic
that the statement of a party's legal representative at a hearing is not
binding as a judicial admission, unless it is a formal statement in open
court and there is no doubt or ambiguity regarding the representative's
intent. American Bechtel, Inc., 77 OSAHRC 214/A2, 6 BNA OSHC 1246,
1977-78 CCH OSHD ¶ 22,466 (No. 11340, 1977). In this case, the statement
by Granite City's representative falls short of the conclusiveness
necessary to constitute a binding judicial admission. Indeed, Mr. Hilmes
stoutly maintained throughout the hearing that the use of the clam shell
bucket was safe and was in compliance with § 1918.23(b).[[5]] Under
these circumstances, the fact that Granite City's pro se representative
agreed that abatement was the "main issue" in the case does not amount
to a concession that Granite City should be held in violation of the
cited standard.

III.

The first part of section 1918.23(b) lists the specific methods an
employer may use to provide access to barges when employees are unable
to step safely to and from the wharf. These means of access are: (1) a
ramp or safe walkway; (2) a substantial straight ladder, when a walkway
is impractical; and (3) a Jacob's ladder, when neither a walkway or a
straight ladder can be used. However, as reflected in the standard's
language, the drafters of section 1918.23(b) recognized that, "by reason
of local conditions, in respect to barges operating on the Mississippi
River System," compliance with the specific requirements in the standard
might not reasonably be possible. The standard therefore contains an
exception that applies to an employer's operation of barges on the
Mississippi River System under such conditions.[[6]] An employer failing
under this exception is not required to use the specified means of
access, but may comply with the standard by providing "other safe means
of access."

In this case, the evidence establishes that Granite City falls under the
exception set forth in section 1918.23(b). It is undisputed that Granite
City operates barges on the Mississippi River System. We are persuaded
by the testimony of Granite City's vice-president and general manager
Hilmes that when the water level of the Mississippi River was low at its
marine terminal, the specific means of access listed in the first part
of § 1918.23(b) could not reasonably be used.[[7]]

Since the exception contained within 1918.23(b) applies to the cited
condition, the pivotal issue is whether Granite City's method of
providing access to barges is an "other safe means of access." The
Secretary argues that the burden of proof on that issue should be placed
on the employer. We disagree. Under Commission precedent, the Secretary
must prove by a preponderance of the evidence that there was a failure
to comply with the cited standard. Astra Pharmaceutical Products, Inc.,
81 OSAHRC 79/D9, 9 BNA OSHC 2126, 1981 CCH OSHD ¶ 25,577 (No. 78-6247,
1981), aff'd in part, rev'd in part, 681 F.2d 69 (1st Cir. 1982). See
also Commission Rule 73, 29 C.F.R. § 2200.75(a) (in all proceedings
commenced by filing a notice of contest, the burden of proof shall rest
with the Secretary). We see no reason, in applying this rule concerning
the burden of proof, to differentiate between an alleged failure to
comply with a generally applicable requirement of a standard, and an
alleged failure to comply with a requirement contained within a
standard's exception. [[8]] Section 1918.23(b) allows an employer who
falls within the standard's exception to comply by providing "other safe
means of access." Accordingly, we hold that, once the applicability of
the standard's exception has been established, the Secretary shall have
the burden of proving that the cited method of access was not an "other
safe means of access."

While the first part of section 1918.23(b) is specific in that it lists
ramps, walkways, straight ladders, and Jacob's ladders as the required
means of compliance, an employer falling under the exception to the
standard is faced with the very general duty of providing an "other safe
means of access." The exception to the standard does not contain any
guidelines that would aid an employer in determining what is a safe
means of access, nor does it identify any methods of compliance. With
respect to other standards that also state the employer's duty in very
general terms, such as the personal protective equipment standard at 29
C.F.R. § 1910.132(a), the Commission has applied a reasonable person
test in order to prevent the standard from being held impermissibly
vague. See, e.g., General Motors Corp., C.M Parts Div., 84 OSAHRC 22/F5,
11 BNA OSHC 2062, 1984 CCH OSHD ¶ 26,961 (No. 78-1443 & 79-4478, 1984),
aff'd, 764 F.2d 32 (1st Cir. 1985) (holding that, under section
1910.132(a), the Secretary must prove that a reasonable person familiar
with the circumstances of the industry would recognize a hazard
warranting the use of personal protective equipment). [[9]] In addition,
several circuits of the United States Courts of Appeals have held that
in order to satisfy due process the Secretary must prove that there is a
feasible method of complying with the standard, if the standard does not
specify a means of compliance.[[10]] For the reasons given in those
cases, we conclude that a similar burden of proof should be placed on
the Secretary with respect to section 1918.23(b). We therefore hold that
if an employer falls under the standard's exception, the Secretary must
establish both that: (1) a reasonable person familiar with the
circumstances of the industry would recognize that the method of access
to barges is not safe, and (2) there exists a feasible means of access
which the employer could have used to comply with the standard.[[11]]

Based on this record, we conclude that the Secretary has failed to prove
that a reasonable person familiar with the circumstances of the industry
would find that Granite City's use of the shell bucket was unsafe. The
Secretary did not present any evidence with respect to industry practice
concerning access to barges on the Mississippi River System.[[12]] The
compliance officer's very general testimony as to why he felt that the
clam shell bucket was hazardous is insufficient to carry the Secretary's
burden of proof.

Our conclusion that the Secretary did not establish that Granite City's
use of the clam shell bucket was unsafe is also supported by Hilmes'
undisputed testimony that there had been no injuries at any of the
company's marine terminals since Granite City first started using the
clam shell bucket to transport employees to barges over 25 years ago.
Although a lack of injuries does not relieve an employer of the duty to
comply with the Act's requirements, a company's history of a lack of
injuries is relevant to whether a reasonable person would recognize that
the cited work practice is unsafe or hazardous. See General Motors
Corp., supra (low incidence of foot injuries at cited facility indicates
that a reasonable person would not have recognized a hazard warranting
the use of safety shoes). This is particularly so where, as here, the
employer is required to comply with a generally worded standard.

The evidence concerning the inability of experts to recommend
alternative measures that were both practical and safer than the clam
shell bucket further supports our finding that the use of the clam shell
bucket was not shown to be unsafe under a "reasonable person" test. As
noted above, several experts, including OSHA employees, had been to
Granite City's marine terminals, but they had been unable to recommend a
practical method of providing access that was safer than its use of the
clam shell bucket. One of these experts, who later became an OSHA area
director, reportedly informed the company that use of the clam shell
bucket was "okay" until a safer means was made available. The record
does not show the Granite City had ever been informed by OSHA that safer
means of access had become available.

On review, the Secretary contends that, as a matter of law, the clam
shell bucket transportation method is not a "safe means of access" under
section 1918.23(b), because other OSHA standards prohibit transporting
employees on the load of a crane. Specifically, the Secretary argues
that the crawler crane standard at 29 C.F.R. § 1910.180(h)(3)(v), which
prohibits employees from riding on the load of a crane, applies to the
cited condition here.[[13]] The Secretary also argues that the new
marine terminal standard at 29 C.F.R. § 1917.45(j),[[14]] which was
published in the Federal Register about one month before the inspection
but which was not in effect until about two months after the inspection,
also provided notice to Granite City that its method of access was
unsafe. The Secretary did not cite Granite City under either of these
standards, but raised them for the first time in his brief on review.
Granite City asserts it was not sufficiently placed on notice of the
possible relevance of these other standards, and therefore it objects to
the Secretary's raising those issues now.

We agree with Granite City. Since the Secretary did not raise the
possible relevance of section 1910.180(h)(3)(v) or section 1917.45(j)
until proceedings on review, we believe that Granite City has been
denied the opportunity to present evidence related to these standards.
In the first place, as an employer in the longshoring industry Granite
City had no notice that it should look to the general industry standards
(1910.180(h)(3)(v)) or to a standard not yet in effect (1917.45(i)) to
interpret what would or would not constitute "other safe means of
access" under Part 1918. But, assuming arguendo that these other
standards somehow do apply, the fact remains that they were not timely
raised by the Secretary, and Granite City had no opportunity to present
evidence as to whether it violated those standards. [[15]] We therefore
agree with Granite City that it would be prejudiced if we relied upon
the requirements of section 1910.180(h)(3)(v) or section 1917.45(j) to
interpret its duty under section 1918.23(b). Accordingly, we will not
consider the Secretary's arguments concerning the applicability of these
sections to the cited condition. [[16]] We further note that Section
1917.45(j) was not in effect at the time of the inspection and for this
additional reason deny the Secretary's request to consider the
applicability of this standard.[[17]]

The Secretary also argues that Granite City's installation of safety
belt protection on its clam shell buckets after the inspection
constitutes an admission that it did not provide an "other safe means of
access" at the time of the inspection. The Secretary refers to Hilmes'
testimony that "with this securing of the safety belt on there, that
does make it safe," and to the judge's finding that Granite City's
subsequent use of safety belts "represents an acknowledgment by Granite
that riding on a clam shell bucket without safety belt protection is
unsafe." The Secretary also considers it significant that, when Granite
City had the choice of using the lifting cage or the clam shell bucket
to transport employees, it used the lifting cage.

We conclude that Granite City's subsequent installation of safety belts
on its clam shell buckets does not by itself establish that the cited
practice was an unsafe means of access. The mere fact that a company
enhanced the safety of a work practice does not prove that it considered
the previous work practice to be unsafe. Although Hilmes indicated that
the company's installation of safety belts had made its transport of
employees safer, his testimony also indicates that the company had a
long history of no accidents with respect to the use of clam shell
buckets without safety belts, and he believed that Granite City's
earlier practice was safe. The Commission and the courts have held that
an employer's own safety precautions, by themselves, do not establish
that such precautions were necessary in order to comply with a
particular standard. See United States Steel Corp., 82 OSAHRC 62/A2, 10
BNA OSHC 2123, 1982 CCH OSHD ¶ 26,297 (No. 77-3378, 1982), and cases
cited therein. These decisions recognize that employers might be
discouraged from making voluntary safety efforts if the finding of
violations under the Act is based upon such efforts.

Finally, we cannot infer that the clam shell bucket unsafe simply
because the company sometimes used the lifting cage to transport its
employees to barges. There is no indication that the company used the
lifting cage because it believed that the clam shell bucket was unsafe.
Indeed, Hilmes testified that based on 25 years experience, the company
did believe it was safe.

For these reasons, we conclude that the Secretary has failed to prove
that Granite Cit's use of the clam shell bucket was not a safe means of
access to barges within the meaning of section 1918.23(b). Because we
vacate the citation on this basis, it is not necessary to determine
whether the Secretary proved that there was a feasible method that
Granite City could have used to provide safe access to barges.

IV.

On review, Granite City requests that the Commission issue a declaratory
order stating that the company's current use of the clam shell bucket
with safety belt protection is in compliance with section 1918.23(b).
Granite City asserts that issuance of a declaratory order is appropriate
in order to remove uncertainty about whether it now is in compliance
with the Act.

At the outset, we note that the Commission is empowered by section 554
of the Administrative Procedure Act, 5 U.S.C. § 554(e), to issue
declaratory orders. That section provides:

_Sec. 554. Adjudications.
_
* * *

(e) The agency, with like effect as in the case of other orders, and in
its sound discretion, may issue a declaratory order to terminate a
controversy or remove uncertainty.

The Commission also is empowered by section 10(c) of the Occupational
Safety and Health Act, 29 U.S.C. § 559(c), to provide "other appropriate
relief" in proceedings initiated by a notice of contest. That provision
is consistent with the APA's grant of authority to issue declaratory
orders. See Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 447
(10th Cir. 1983) (Federal Mine Safety and Health Review Commission may
issue declaratory orders in its sound discretion).

However, as the APA provides, the issuance of a declaratory order is
discretionary. See Climax Molybdenum Co. v. Secretary of Labor, supra.
See also Attorney General's Manual on the Administrative Procedure Act
59 (U.S. Dept. of Justice, 1947)(quoting Final Report of the Attorney
General's Committee on Administrative Procedure 30 (1941)). In this case
issuance of a declaratory order would serve no useful purpose. Since the
Secretary failed to prove that Granite City's pre-citation method of
transporting employees violated section 1918.23(b), Granite City need
not proceed at its peril with respect to abatement. It is entitled to
rely upon the use of the clam shell bucket without a safety belt as a
means of abatement under section 1918.23(b). Therefore the question of
whether use of the clam shell bucket with a safety belt is in compliance
with the cited standard is moot.

Accordingly, we decline to issue a declaratory order. The citation item
alleging a violation of 29 C.F.R. § 1918.23(b) is vacated.

FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary

DATED: April 8, 1986

------------------------------------------------------------------------

The Administrative Law Judge decision in this matter is unavailable in
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FOOTNOTES:

[[1]] Chairman Buckley also directed for review the judge's finding that
Granite City violated the standard at 29 C.F.R. § 1918.74(d)(a).
However, on review the Secretary submitted a notice to withdraw the
item. The Commission construed the notice as a motion to withdraw, and
granted the motion.

[[2]]Compliance officer Taylor referred to the lifting cage as "a
certain type of platform that can be attached to the crane hook." Taylor
testified that, if other means of access to barges are not acceptable or
present a greater hazard, OSHA will allow the use of the lifting cage
provided that the conditions set forth in OSHA's guidelines for
enforcement are met.

[[3]] Hilmes stated that if the barges are close together and one of
Granite City's two cranes was not being used for lifting bulk
commodities, the lifting cage is used to transport employees. However,
he explained that it often was necessary to attach clam shell buckets to
both of its cranes in order to handle bulk commodities.

[[4]] The hearing in this case was conducted as a simplified proceeding
before Administrative Law Judge Paul E. Dixon. Because of Judge Dixon's
subsequent unavailability due to an extended illness, the case was
reassigned to Judge Cronin, who issued the decision in the case.

[[5]] For example, Hilmes testified as to the company's accident-free
history concerning the use of clam shell buckets, and defended his
decision to use the buckets based upon his conversation with certain
"experts." Therefore, we disagree with the judge's conclusion that at
the hearing Granite City never challenged the Secretary's evidence
concerning the alleged violation, but sought only a determination by the
Commission that its present use of the clam shell bucket with safety
belt protection was in compliance with § 1918.23(b).

[[6]] The history of §1918.23(b) indicates that the exception to the
standard was intended to relieve employers operating barges on the
Mississippi River System from compliance with the enumerated methods of
access, when such compliance would be unreasonable. The standard
originally was promulgated under the longshoremen's and Harbor Workers'
Compensation Act, 33 U.S.C. § 901 et seq., without the exception
pertaining to the Mississippi River System. However,
"in order to provide practical solutions in cases where current
requirements cannot be met, because of local river and bank conditions,"
this predecessor standard was amended to include the exception. 30 Fed.
Reg. 7608 (June 11, 1965) (notice of proposed rulemaking). The amended
Longshoremen's Act standard subsequently was promulgated under the
Occupational Safety and Health Act as an established federal standard
pursuant to 29 U.S.C. § 665(a).

[[7]] While compliance officer Taylor testified in very general terms as
to how a straight ladder or a Jacob's ladder could have been used, he
did not address any of the reasons given by Hilmes as to why, during
certain river conditions, those devices could not reasonably be used at
Granite City's facility. On review, the Secretary offers no argument
that Granite City falls outside of the exception continued within
1918.23(b).

[[8]] The Secretary, pointing to the rule of statutory construction that
the burden of proving the applicability of an exception to a statute
rests upon the one who claims its benefit, contends that the burden of
proof should be placed on the employer. However, the dispute here does
not involve whether the employer is exempted from the requirements of
the standard. Rather, this case concerns whether the employer, having
been exempted from the general requirements of the standard, has failed
to comply with an alternative requirement that is contained within the
standard's exception.

[[9]] A number of circuit court decisions similarly have held that
broadly- worded OSHA standards are only enforceable when their scope is
limited by a "reasonable person" test. See, eg., Donovan v. General
Motors Corp., GM Parts Div., 764 F.2d 32 (1st Cir. 1985); Ray Evers
Welding v. OSHRC, 625 F.2d 726 (6th Cir. 1980), and other cases cited
therein; Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27 (7th Cir. 1976).

[[10]] L.R. Willson & Sons, Inc. v. OSHRC, 698 F.2d 507 (D.C. Cir.
1983); Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105 (7th
Cir. 1982); Voegele Co. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980); Ray
Evers Welding v. OSHRC, 625 F.2d 726 (6th Cir. 1980); Bristol Steel &
Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979); General
Electric Co. v. OSHRC, 540 F.2d 67 (2d. Cir. 1976).

[[11]] In Frank Briscoe Co., Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729,
1976-77 CCH OSHD [[P]] 21,162 (No. 7792, 1976), the Commission held
that, in order to establish noncompliance with § 1926.28(a), the
Secretary is required to set forth the specific measures that an
employer must undertake to avoid citation and establish the feasibility
and likely utility of these measures. The holding was overruled by the
Commission in S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA
OSHC 1260, 1979 CCH OSHD ¶ 23,480 (No. 15855, 1979), rev'd on other
grounds, 659 F.2d 1273 (5th Cir. 1981). In that case the Commission held
that the Secretary was not required to establish the feasibility of the
protective equipment, but only was required to identify the type of
equipment he considered appropriate. However, six circuits have
concluded that, when a standard does not specify a particular method of
compliance, the Secretary must prove that there is a feasible means of
complying with the standard. See cases cited in note 10, supra. We agree
with the holding in those cases that, in order to satisfy due process
for such generally-worded standards, the Secretary must prove
feasibility. To the extent that the Commission's decision in S & H
Riggers holds to the contrary, it is overruled.

[[12]] In this respect we note that the Commission has held that
evidence of industry custom and practice will aid in determining whether
a reasonable person familiar with the circumstances would perceive a
hazard, although such evidence is not determinative. GM Motors Corp.,
supra. The Fifth Circuit has held that industry custom is controlling,
and therefore to prove a violation of a broadly-worded standard, such as
29 C.F.R. § 1926.28(a), the Secretary must show that an employer's
conduct did not conform to that of its industry. S & H Riggers &
Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. 1981). Regardless of
which test is more appropriate, the Secretary has failed to prove a
violation under either test.

[[13]]Section 1910.180(h)(3)(v) provides that "[n]o hoisting, lowering,
swinging or traveling shall be done while anyone is on the load or hook."

[[14]]Section 1917.45(j) provides in part:

(1) No employee shall be hoisted by the load hoisting apparatus of a
crane of derrick except:

(ii) In a boatswain's chair or other device rigged to prevent it from
accidental disengagement from the hook or supporting member; or

[[15]] For instance, Granite City contends that section
1910.180(h)(3)(v) was not violated here because that standard's
prohibition against employees riding on the "load" of the crane does not
apply to employees riding on a clam shell bucket that is not carrying a
load. Granite City also contends that by attaching safety belts to its
clam shell buckets it has complied with section 1917.45(j), since that
provision allows an employee to be hoisted by a crane if he is situated
in a "boatswain's chair or other device rigged to prevent it from
accidental disengagement from the hook or supporting member." Clearly a
factual record would have been important in resolving these issues.

[[16]] We note, however, that section 1918.23(b) does not refer to any
other standard, and the Secretary has presented no evidence nor referred
to any authority indicating that other standards were intended to
provide guidance in interpreting section 1918.23(b).

[[17]] The Secretary also refers to 29 C.F.R. § 1915.116(i), which is a
shipyard employment standard, and to 29 C.F.R. § 1926.550(b), which is a
construction standard. Those standards prohibit employees from riding on
the load or hook of cranes. Because the Secretary did not raise the
possible relevance of those standards until he filed his brief on
review, and Granite City would be prejudiced by our consideration of
these issues, we do not consider the requirements of those standards in
determining whether Granite City violated the cited standard. In any
event, we do not believe that Granite City should be held responsible
for complying with standards which do not govern its industry.