“SECRETARY OF LABOR,Complainant,v.A.H. BECK FOUNDATION COMPANY, INC.,Respondent.OSHRC Docket No. 83-0928_DECISION_Before: BUCKLEY, Chairman, and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).OSHA issued a citation alleging that A.H. Beck Foundation Companyviolated the crane safety standard at 29 C.F.R. ? 1926.550(a)(9). Thestandard requires that \”[a]cessible areas within the swing radius of therear of the rotating superstructure of the crane . . . shall bebarricaded in such a manner as to prevent an employee from being struckor crushed by the crane.\” There is no dispute that the swing radius ofa machine operated by Beck was unguarded. Beck argues, however, thatthe standard does not apply because the machine is not a crane.I.Beck specializes in the drilling of piers for the foundations of largebuildings. On August 18, 1983, it was operating at a construction sitein San Antonio, Texas, when a compliance officer (\”CO\”) of theOccupational Safety and Health Administration inspected the worksite. The CO observed a machine owned and operated by Beck. The machine had acab mounted on crawler tracks, with a boom attached to the front of thecab. It was a Northwest Model 41, manufactured by the NorthwestEngineering Company of Green Bay, Wisconsin. The basic model can beused with any of several different attachments as a crane, a dragline, ashovel, or a backhoe. The CO saw the machine lifting reinforcing rods(\”rebars\”) and placing them into the pier holes before the concrete waspoured. He testified that the machine also was used to lift steelcasing or linings into the holes. The CO thought that the machine was acrane. Although the machine had an attachment for drilling, the COstated that the basic structure of the machine was that of a crawler crane.Beck’s president testified that the machine was not a crane but afoundation drilling rig. He had originally purchased the NorthwestModel 41 with dragline attachments and had had the manufacturer makeseveral modifications to permit the machine to operate as a drillingrig. The modifications that were made to the machine diminished itsability to do precision lifting or lowering, so that it cannot set aload down gently. Mr. Beck testified that the boom on the machine isnot the \”basic\” boom, but the boom designed for dragline work. Mr. Beckfurther testified that he himself had designed the drilling table forthe machine, had bought most of the components for the drillingattachment, and had built parts of it himself.Administrative Law Judge Dee C. Blythe held that the machine was a\”crane.\” He concluded that under the Commission precedent at the time,the determining factor in whether the standard applies is the use of themachine. Because Beck’s machine was used to lift rebars and casings andto lower them into the pier holes, the judge concluded that it was acrane within the meaning of the standard. He also noted that themachine had the configuration of a crawler crane, with a boom, a cab,and tracks.On review, Beck asks us to reverse the judge’s decision because themachine’s primary function was drilling pier holes, and any lifting thatit did was merely incidental to that function. Beck relies on the viewof Commissioner Barnako in _Concrete Construction_ _Co_., 80 OSAHRC7\/E4, 9 BNA OSHC 1278, 1280 n.4, 1981 CCH OSHD ? 25,156, p. 31,054 n.4(No. 77-2480, 1981), that a machine is not a crane if its primary use isnot as a lifting device.The Secretary argues that the \”primary function\” test urged by Beck isinappropriate. The test should not be whether lifting is \”primary\” or\”incidental\” because one machine might be covered by the standard whilean identical machine doing a different job would not be. The Secretaryargues that this result is anomalous, since both machines present thesame hazard. The Secretary argues also that the lifting Beck’s machineperformed was not incidental to the actual drilling operation but was aseparate lifting operation performed after the hole had been drilled. The Secretary also asserts that, despite its modification for use indrilling, Beck’s machine retained the fundamental characteristics of acrane. The Secretary argues that a machine should not be consideredoutside the coverage of the standard simply because it is rigged to dothings besides lift, such as drill.II.After Judge Blythe’s decision was issued, we re-examined the test fordetermining what a \”crane\” is within the meaning of section 1926.550. In _Lisbon Contractors, Inc_., 84 OSAHRC 19\/A2, 11 BNA OSHC 1971,1984-85 CCH OSHD ? 26,924 (No. 80-97, 1984), we observed that thecrucial term \”crane\” is not defined anywhere in section 1926.550. Toshed light on the proper construction of section 1926.550, we looked toAmerican National Standards Institute (ANSI) B30.5-1968, _Crawler,Locomotive_ _and Truck Cranes_, which section 1926.550 four timesincorporates by reference. We concluded from the ANSI standard that amachine is not a crane just because it is sometimes used to liftthings. In concluding that a machine must have the configuration andcharacteristics of a crane, as well as be used to perform the functionsof a crane, we relied heavily on the provisions of ANSI B30.5-1968. Wedo so again.Section I of the introduction to ANSI B30.5-1968 provides:This Code applies to the construction, installation, inspection,maintenance, and operation of jacks; power-operated cranes; cranerunways; power-operated and manually operated derricks and hoists;power-operated overhead hoists and their runways; and slings.This Code does not apply to any crane, derrick, or hoist having amaximum rated capacity of one ton or less, or to railway or automobilewrecking cranes, skip hoists, hoist-like units used for horizontalpulling only, mine hoists, conveyors, or to shovels, _draglineexcavators_ of back hoes, or to equipment within the scope of USAStandards Committee A92 Mobile Scaffords, Towers, and Platforms. Withinthe above limitations this Code also shall be applied to cranes,derricks, and hoists used on construction work. [Emphasis added.]Thus, if Beck’s machine were still a dragline, it would not be a \”crane\”within the purview of the standard. Because Beck’s machine had beenextensively modified, however, we must determine whether a preponderanceof the evidence shows that these modifications converted it into acrane. If the preponderance of the evidence does not so show, then thecitation must be vacated, for the burden of proving the applicability ofa standard is on the Secretary. _See Howard Barthelmass Painting Co_.,81 OSAHRC 84\/E1, 9 BNA OSHC 2160, 2162, 1981 CCH OSHD ? 25,636, pp.31,978-79 (No. 78-5450, 1981). For the following reasons, we are notconvinced that Beck’s machine is a crane.Section 5-0.2.1.1 of the ANSI standard defines a crawler crane as \”[a]crane consisting of a rotating superstructure with power plant,operating machinery, and boom, [and] mounted on a base. . . . itsfunction is to hoist and swing loads at various radii.\” Beck’s machineclearly meets two of these criteria. It has a rotating superstructurewith a power plant and is mounted on a base. It also has operatingmachinery but the record does not show that Beck’s machine used or wasmodified to use operating machinery that cranes are typically equippedwith–brakes, load or hoist blocks, hooks, slings, shackles, etc. Seesections 5-0.2.2.25 and 5-1.1.1.b.5 of ANSI B30.5-1968. On thecontrary, the record shows only that Beck’s machine had been modified touse, and did use, a drilling rig as its operating machinery. Beck’sother modifications merely facilitated the use of that rig.The Secretary relies heavily on the fact that Beck’s machine has theconfiguration of a crane because it has a boom. He points to _LisbonContractors_, where the absence of a boom was one factor in ourdetermination that the machine cited was not a crane. The NorthwestModel 41 is a multi-purpose power plant that is adaptable for use as acrane or for use as machines that are specifically excluded from ANSIB30.5-1968. It is therefore not surprising that Beck’s machine hasseveral of the features of a crane, such as a boom. But while theabsence of a boom is dispositive in determining that a machine is not acrane, the presence of a boom does not, by itself, establish that amachine is a crane. Some machines explicitly excluded from coveragehave booms, for example, draglines. Indeed, Beck’s machine still has adragline boom. Nor does the Secretary’s argument find support in thelanguage of section 5.0-1 of the ANSI standard, which provides that thestandard applies to crawler cranes \”and any variations thereof whichretain the same fundamental characteristics.\” As we understand the word\”retain,\” it means that a machine that starts as a crane and ismodified, but keeps the basic characteristics of a crane, remainscovered by the standard. Since Beck’s machine started out not as acrane but as a dragline, however, it could not \”retain\” thecharacteristics of a crane.The Secretary argues that the use of the machine for lifting brings itwithin the purview of the standard, emphasizing that the lifting done byBeck’s machine was performed separately, after the drilling of the holehad been completed.[[1]] The Secretary’s reliance on these facts ismisplaced, however, since other machinery that is specifically excludedfrom the coverage of the ANSI standard performs a lifting function. _See_ ANSI B30.5-1968, Introduction, Section 1, quoted above. As weheld in _Lisbon_, the use of a machine for lifting does not make it a\”crane\” if it does not have configuration of a crane.The Secretary has argued that we should focus on the hazard posed by amachine rather than operations it is rigged to perform. The Secretary’sargument would be more persuasive if the ANSI standard, which isincorporated by reference into the OSHA standard, did not explicitlyexclude draglines, backhoes, and power shovels, which all create thesame hazard of swinging superstructure as cranes. The creation of asimilar hazard therefore does not determine whether the standard applies.The Secretary’s brief states in a lengthy footnote that he \”does notagree that _Lisbon Contractors_ was correctly decided.\” In implicitlyinviting us to re-examine that decision, the Secretary argues in partthat \”the Commission need not guess at OSHA’s intent and underlyingpolicy decisions [in section 1926.550] since the Secretary hasrepeatedly stated what that intent is.\”The Secretary’s arguments against _Lisbon_, however, ignore the onlyreliable evidence of what the drafters of the standard intended, andfail to present any countervailing contemporaneous interpretation. TheSecretary relies solely on legal arguments urged by the Solicitor ofLabor in this and prior briefs. See _Investment Company Institute v.Camp_, 401 U.S. 617, 626-628 (1971) (counsel’s efforts in litigation are\”hardly tantamount to an administrative interpretation\” of a statute);_New England Telephone & Telegraph_ _Co. v. Public UtilitiesCommission_, 742 F.2d 1, 11 (1st Cir. 1984)(\”[The FCC’s]) views here donot reflect agency policy reached after debate among staff orcommissioners. Rather, as far as we can tell, they simply representthe General Counsel’s interpretation of the statute; they are containedonly in his brief.\”)[[2]]Furthermore, the interpretation of the standard advanced in the brief onbehalf of the Secretary fails to provide employers with fair notice oftheir obligations under the standard. We may not construe a standard ina way that denies employers fair notice. _See_ _Diamond Roofing Co. v.OSAHRC_, 528 F.2d 645, 649 ( 5th Cir. 1976).This case was tried before _Lisbon Contractors_ was issued. When thereis an intervening change in precedent, we normally afford the losingparty the opportunity for a remand. In this case, however, theSecretary extensively argued the application of _Lisbon_ in his briefbut did not seek a remand to present additional evidence. We thereforesee no need to delay a final disposition of this case.Accordingly, item 1 of citation 1 is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JAN 20 1987————————————————————————SECRETARY OF LABOR,Complainant,v.A. H. BECK FOUNDATION CO., INC.,Respondent.OSHRC DOCKET NO. 83-0928_DECISION AND ORDER_Appearances:Sandra D. White, Esq., of Dallas, Texas,for the Complainant.William W. Sommers, Esq., of San Antonio,Texas, for the Respondent.PROCEDURAL HISTORYBLYTHE, Judge:Respondent, A. H. Beck Foundation Co., Inc., is charged with a seriousviolation of ? 5(a)(2) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”) and the safety standard at 29 CFR1926.550(a)(9) for failure to barricade accessible areas within theswing radius of the counter-weight of a crawler crane with drillingattachment. A single citation was issued to respondent August 29, 1983,as the result of an inspection conducted August 18-19, 1983, by a safetycompliance officer of the Occupational Safety and Health Administration(\”OSHA\”) of a workplace at Travis and St. Mary Streets in San Antonio,Texas, where respondent was drilling piers to support two buildings tobe constructed there. Respondent timely filed notice of contestSeptember 9, 1983, thus initiating this proceeding before theOccupational Safety and Health Review Commission (\”the Commission\”)under ?10(c) of the Act. Thereafter the Secretary of Labor (\”theSecretary\”) filed a formal complaint, and respondent filed an answerthereto. Respondent’s answer denied all allegations of the complaintexcept Paragraph I, which asserts the jurisdiction of the Commissionover the proceeding, and that part of Paragraph II which states thelocation and type of respondent’s business. It pleaded affirmativelythat its safety standards are in conformity with those of its industryand are in substantial compliance with the Act; and that the citedstandard is unenforceably vague and does not apprise it of the action,if any, it must take to comply therewith. However, the central issue,as litigated at the hearing and argued in the posthearing briefs, iswhether the machine in question is a \”crane\” subject to the barricadingrequirements of ? 1926.550(a)(9). The matter came on regularly forhearing February 24, 1984, in San Antonio. Both parties have filedposthearing briefs, and respondent submitted proposed findings of factand conclusions of law. The matter is now ripe for decision.DISCUSSION AND OPINIONI. _The coverage issue_Although it does not argue the issue in its brief, respondent’s answerdenies the allegations of Paragraph II of the complaint that it isengaged in a business affecting commerce, within the meaning of ? 3(5)of the Act, which provides:The term \”employer\” means a person engaged in a business affectingcommerce who has employees…\”Commerce,\” according to ? 3(3) of the Act,. . .means trade, traffic, commerce, transportation, or communicationamong the several states, or between a State and any place outsidethereof, or within the District of Columbia, or a possession of theUnited States (other than the Trust Territory of the Pacific Islands),or between points in the same State but through a point outside thereof.In enacting this legislation, the Congress utilized to the maximumextent the power conferred on it by the commerce clause of theConstitution. It is not necessary for an employer to be engageddirectly in interstate commerce to affect it. He may be \”engaged in abusiness affecting commerce\” if he uses materials or equipmentmanufactured outside the state or even if he uses the United Statesmails or interstate telephone lines. _Avalotis Painting Co_., 81 OSAHRC7\/B1, 9 BNA OSHC 1226, 1981 CCH OSHD ? 25,157 (No. 76-4774, 1981);_Brennan v. OSHRC (John J. Gordon Co._), 492 F.2d 1027 (2nd Cir. 1974).The machine involved in the present citation was manufactured inWisconsin (Tr. 47); this alone is enough to \”affect commerce\” under_Avalotis_ and _John J. Gordon Co_., _supra_. In addition, theCommission has held that the construction business, _per_ _se_, affectscommerce sufficiently to satisfy the requirements of ? 3(5). _ClarenceM. Jones d\/b\/a C. Jones Co_., 83 OSAHRC ___, 11 BNA OSHC 1529, 1983 CCHOSHD ? 26,516 (No. 77-3676, 1983).II. _The alleged serious violation of 29 CFR 1926.550(a)(9)_Respondent is charged with a serious violation of 29 CFR 1926.550(a)(9)in that:Accessible area(s) within the swing radius of the rear of the rotatingsuperstructure of crane(s) were not barricaded in such a manner as toprevent employees from being struck or crushed by the crane:(a) Crawler crane with drilling attachment had no means to prevent entryinto the swing radius of the counterweight. Located approximatelycenter of excavation.The cited standard provides:? 1926.550–CRANES AND DERRICKS(a) _General requirements_(9) Accessible areas within the swing radius of the rear of the rotatingsuperstructure of the crane, either permanently or temporarily mounted,shall be barricaded in such a manner as to prevent an employee frombeing struck or crushed by the crane.\”Crane\” is not defined in the standards, so the Commission has beencalled upon several times to decide whether machines which performedlifting functions, but were not typical cranes, were required to meetthe requirements for cranes.Most of the cases have involved backhoes which were used primarily forexcavating purposes but performed some lifting functions such aslowering pipe into a ditch. Two early cases hold that such backhoeswere not cranes within the ambit of ? 1926.550. _Felton ConstructionCo_., 76 OSAHRC 136\/C14; 4 BNA OSHC 1817, 1976-77 CCH OSHD ? 21,258 (No.6759, 1976); _Warner_ _Brothers, Inc_., 76 OSAHRC 138\/D7, 4 BNA OSHC1841, 1976-77 CCH OSHD ? 21,257 (No. 8841, 1976). _Felton_ and _Warner_were reversed, however, by _Gil Haugan d\/b\/a Haugan Construction Co_.,79 OSAHRC 105\/A2, 7 BNA OSHC 2004, 1979 CCH OSHD ? 24,105 (Nos. 76-1512and 76-1513, 1979), where the Commission majority held that ?1926.550(a)(1) applied to a farm tractor equipped with a front-endloader to which a shop-made boom had been attached to lift bar joists,stating:We hold that 29 C.F.R. ? 1926.550 applies to machines used to performlifting functions usually performed by cranes or derricks, whether themachines were originally designed for that purpose or not. In makingthis determination, we look to the purposes of the Act and of thestandard. The stated purpose of Congress in enacting the OccupationalSafety and Health Act, was \”to assure so far as possible every workingman and woman in the Nation safe and healthful working conditions…\” 29U.S.C. ? 651(b), so the Act and standards enacted pursuant to it must beliberally interpreted in light of the Act’s remedial purpose. See_Southern Railway Co_. _v. OSHRC_, 539 F.2d 335, 338 (4th Cir. 1976).1979 CCH OSHD at p. 29,291._Gil Haugan_ was followed in _Tri-City Construction Co_., 80 OSAHRC9\/F12, 7 BNA OSHC 2189, 1980 CCH OSHD ? 24,267 (No. 76-4094, 1980) (235Crawler Caterpillar with rotating superstructure–also described as abackhoe–used to lower pipe into a ditch); and _Suffolk CountyContractors, Inc_., 80 OSAHRC 52\/F13, 8 BNA OSHC 1506, 1980 CCH OSHD ?24,494 (No. 78-4479, 1980) (backhoe used for unspecified lifting purposes).In _Concrete Construction Co_., 81 OSAHRC 7\/D7 9 BNA OSHC 1278, 1981 CCHOSHD ? 25,156 (No. 77-2840, 1981), the Commission declined to apply ?1926.550(a)(9) to a dragline used for dredging, although it pileddredged material, sometimes moved the piles of material, and, withsubstantial alterations, could be used to lift light loads. TheCommission distinguished this case on its facts from _Gil Haugan_ and_Tri-City_, pointing out at that the dragline was not performing workusually performed by cranes and that the modifications that would enableit to lift light loads would take up to an entire day. CommissionerBarneko also pointed out in a concurring footnote that even when somodified the dragline could not deposit loads gently and that there wasno evidence the respondent had any intention of using the machine inthat mode. Respondent relies heavily on this footnote.The machine here involved was specially built for drilling holes forpiers to support buildings under construction, but it was constructed ona multi-purpose chassis known as \”Northwest 41\” by Northwest EngineeringCo., Green Bay, Wisconsin. The manufacturer’s brochure, Exhibit C-1,illustrates configurations of the Northwest 41 as a crawler crane, abackhoe, and a dragline. Respondent’s machine has a rotary drillingtable and auger suspended from a boom. The hydraulically-driven augerdrills into the earth as far as 100 feet and is removed periodically todislodge the dirt from it. It has a hoisting line and performs otherlifting functions, _i_._e_., placing large steel casings weighing up toseveral thousand pounds in the hole to prevent caving and, after thehole is completed, lowering an assembly of reinforcing steel into itpreparatory to the pouring of cement (Tr. 52, 53). After the concreteis poured, the hoisting cable is used again to pull the casing (Tr. 54).To Compliance Officer Bert C. Lindquist the machine was a crawler cranewith a drilling attachment (Tr. 27), while Respondent’s owner, A. H.Beck, III, insisted it was not a crane but a machine designed solely orprimarily to drill piers (Tr. 36, 38, 41). Both are well qualified togive an opinion on this subject. Lindquist, in his 12 years as an OSHAcompliance officer, had conducted approximately 800 inspections,including 500 involving cranes (Tr. 27). His position at the time ofthe hearing was with OSHA’s Maritime Compliance Assistance Program inWashington, D.C., dealing mostly with cranes and their certification(Tr. 28). He had two years of college training in mechanicalengineering (Tr. 5), worked as a superintendent for stevedoringcompanies loading and unloading vessels and rail cars, and had the usualOSHA training (Tr. 6). Beck has a degree in civil engineering and hasbeen in the pier drilling business since 1977 (Tr. 41, 42). He designedthe machine in question (Tr. 56). And testified that, unlike a truecrane, it could not use the resistance of its engine to permit it tolower heavy loads gently but had only its brakes to prevent a\”free-fall\” (Tr. 39).Beck further testified that it would take two weeks to convert hismachine into a true crane and that even then it would not be successfulas a lifting machine because the Northwest 41 is not well adapted tothat purpose (Tr. 58, 60). However, the lifting jobs it regularlyperformed did not require alteration. The drilling table was detachable(Tr. 48), but it was not detached before performing the liftingfunctions above described (Tr. 27).Under _Gil Haugen_, _supra_, whether a machine must be treated as acrane depends not on what it is called but on how it is used, and arotating-superstructure machine used for lifting functions normallyperformed by a crane must have its swing radius barricaded under ?1926.550(a)(9). Both Beck and Lindquist testified that the machine wasused to lift casings and re-bars, and Beck testified that these loadscould weigh several thousand pounds (Tr. 52, 53). I find that this isthe normal work of a crane and that this machine is subject to ?1926.550(a)(9).The machine has a rotating superstructure, and Lindquist testifiedwithout contradiction it formed \”scissor points\” with the machine’stracks, that a person could get caught therein, and that the resultprobably would be death (Tr. 15, 29). He also testified that there wasno barricade guarding the swing radius of the superstructure, that hewould have accepted a rope barrier or a human guard, and that respondentpromised to use a \”human barrier\” but did not (Tr. 14).Respondent contends that ? 1926.550(a)(9), as applied to its machine, isunenforceably vague. More specifically, it contends that \”barricade\” isnot defined, hence it has no way of knowing how to comply. Thisargument was rejected by the Commission in _Concrete Construction Co._,_supra_. There the Commission pointed out that ? 1926.203(a) defines abarricade or \”an obstruction to deter the passage of persons orvehicles\” and that ? 1926.203 adopted by reference ANSI D6.1-1971,Manual for Uniform Traffic Devices for Streets and Highways, whichdepicts only physical devices such as cones, drums, saw-horses andtripod-mounted barriers.Therefore, the Commission held that ? 1926.550(a)(9) was notunenforceably vague and, further, that a signalman would not suffice. Therefore, Lindquist would not have been justified if he had accepted a\”human barrier,\” as he said he would have.The operator could not see to the rear, and neither could a \”spotter\”positioned in front (Tr. 12).Respondent’s superintendent admitted to Lindquist that he knew of afatality resulting from a similar situation (Tr. 15). This knowledgeis imputable to respondent.The next question is whether employees were exposed to the hazard. Since respondent created the hazard, it is responsible for exposure ofemployees of other contractors on this multi-employer worksite as wellas its own. _Anning-Johnson Co_., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193,1975-76 CCH OSHD ? 20,690 (Nos. 3694 and 4409, 1976). Actually, thereis proof both ways.Beck testified that three of his employees (a superintendent, an oilerand a stem man or front-end man) \”stay real close to the machine all daylong\” and are \”around and about the machine constantly\” (Tr. 54,55).Lindquist, from a distance, saw one man jump atop a pile of lumber toescape the rear of the machine when it backed up, but he did not learnthe man’s identity or employer (Tr. 9). The machine was in the middleof an excavation measuring about 300 x 500 feet which was crowded withmen and equipment (about 60 men, 5 concrete trucks, a bulldozer, and abackhoe), and other subcontractors’ employees were criss-crossing thearea (Tr. 13, 17). These employees at least had access to the hazard,and that is sufficient. _Gilles & Cotting, Inc_., 76 OSAHRC 30\/D9, 3BNA OSHC 2009, 1975-76 CCH OSHD ? 20,448 (No. 504, 1976); _WilliamsEnterprises, Inc_., 79 OSAHRC 4\/B5, 7 BNA OSHC 1015, 1979 CCH OSHD ?23,279 (No. 14748, 1979).III. _The appropriate penalty_.Section 17(j) of tie Act requires the Commission, in assessingpenalties, to consider the gravity of the violation and the employer’ssize, good faith and history of previous violations. These factors neednot be accorded equal weight, but the gravity is usually of greatersignificance than the others. _Colonial Craft Reproductions_, 72 OSAHRC11\/B10, 1 BNA OSHC 1063, 1971-73 CCH OSHD ? 15,277 (No. 881, 1972). Elements to be considered in determining gravity include the number ofemployees exposed to the risk of injury, duration of the exposure,precautions taken against injury, and the degree of probability ofoccurrence of an injury. _National Realty & Construction Co., Inc_., 72OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ? 15,188 (No. 85, 1972)_rev’d on other grounds_, 489 F.2d 1257 (D.C. Cir., 1973).The Secretary has proposed a penalty of $160 in this case. Afterconsidering the statutory criteria, I find this penalty appropriate.FINDINGS OF FACTOn the basis of the foregoing Discussion and Opinion and all creditableevidence of record, the following findings of fact are made:1. The respondent is engaged at San Antonio, Texas, in a branch of theconstruction industry known as pier drilling in which it drills holesfor concrete piers to support large buildings. It uses in this work apier drilling machine manufactured in the state of Wisconsin. Respondent is engaged in a business affecting commerce within themeaning of ? 3(5) of the Act.2. On August 18-19, 1983, respondent was drilling piers for twobuildings at Travis and St. Mary Streets in San Antonio when itsworkplace was inspected by an OSHA compliance officer. Its pierdrilling machine was being used in the center of an excavation measuringapproximately 200 x 500 feet which was crowded with other machinery,including 5 concrete trucks, a bulldozer, and a backhoe, and about 60employees of other contractors. Respondent had three employees workingclosely around the machine in addition to the operator.3. Respondent’s pier drilling machine was built on a Northwest 41chassis which is available in several configurations for use as a crane,a backhoe, and a dragline. Respondent’s machine has a boom from whichis suspended a hydraulically-powered auger capable of drilling holes toa depth of over 100 feet and 18 inches to 8 feet in diameter. It has arotating superstructure, or \”house\”, mounted on continuous tracks likethose of a conventional crawler crane.4. Respondent’s pier drilling machine was used to perform liftingfunctions normally performed by a crane, including the placing ofcasings and reinforcing steel in the drilled holes and pulling thecasing after pouring of concrete. This involved lifting of loads of upto several thousand pounds.5. As used by respondent, the swing radius of the machine was notbarricaded in any manner. The rotating superstructure and the tracksprovided scissor points in which an employee could be crushed. Therewas a substantial probability that death or serious physical injurycould be suffered by an employee caught in one of these scissor points.6. Respondent knew or in the exercise of reasonable diligence couldhave known of the existence of the hazard caused by these scissors points.7. A penalty of $160 is appropriate.CONCLUSIONS OF LAWOn the basis of the foregoing findings of fact and the entire record,the following conclusions of law are made:1. The Commission has jurisdiction of the parties and of the subjectmatter of this proceeding.2. On August 18 and 19, 1983, respondent was in serious violation of ?5(a)(2) of the Act and the standard at 29 CFR 1926.550(a)(9)_ORDER_On the basis of the foregoing findings of fact and conclusions of law,it is ORDERED that:1. Item 1 of citation 1, issued to respondent August 29, 1983, forserious violation of ? 5(a)(2) of the Act and the standard at 29 CFR1926.550(a)(9), is AFFIRMED and a penalty of $160 is ASSESSED.2. Respondent’s proposed findings of fact and conclusions of law, tothe extent that they are inconsistent with this Decision and Order, areDENIED.DEE C. BLYTHEAdministrative Law JudgeDated: June 1,1984FOOTNOTES:[[1]] In his brief, the Secretary specifically states that he does notcontend that the drilling operation was a function normally performed bycranes. He is therefore apparently conceding that, at the times themachine was being used to drill, it was not a crane. This concessionalso suggests that Beck’s machine is not a crane.In a footnote to his brief, the Secretary briefly cites section 5-0.1 ofANSI B30.5-1968. That section provides, \”Some basic machine typeswithin this scope are usually convertible for excavating work and otheruses not considered to be lifting service. The requirements of thisvolume are applicable only to machines when used as lifting cranes.\” The provision, however, suggests that the machine must be \”converted\” insome manner between service as a lifting crane and other service. Therecord here does not show that any conversion was performed between thedrilling operation and the use of the machine to lift the rebars. Itwould be anomalous to suggest that this machine was subject to cranestandards during one portion of its work but not during another part ofthe same continuous operation.[[2]] _See_ _also_ _Alaniz v. Office of Personnel Management_, 728 F.2d1460, 1465 (Fed. Cir. 1984); _Pitzak v. Office of Personnel__Management_, 710 F.2d 1476, 1479 n.2 (10th Cir. 1983); _Ames v.Merrill, Lynch, Pierce, Fenner & Smith_, 567 F.2d 1174, 1177 n.3 (2dCir. 1977).”