“SECRETARY OF LABOR,Complainant,v.C F & I STEEL CORPORATION,Respondent.UNITED STEELWORKERS OF AMERICAAFL-CIO, LOCAL 2102.Authorized Employee Representative.OSHRC Docket No. 79-4786REMAND ORDERBefore: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSIONThe case is before us as at the direction of the United States Court ofAppeals for the Tenth Circuit. Martin v. OSHRC (CF & I Steel Corp.),941 F.2d 1051 (10th Cir. 1991). The case was before the Tenth Circuiton remand from the United States Supreme Court. Martin v. OSHRC (CF&ISteel Corp.), 111 S.Ct. 1171 (1991). In the case, the Supreme Courtheld that a reviewing court must give precedence to the Secretary ofLabor’s reasonable interpretation of an ambiguous regulation over theReview Commission’s reasonable interpretation.. Id. at 1175, 1179-80. The Supreme Court directed the Tenth Circuit to consider thereasonableness of the Secretary’s interpretation of 29 C.F.R.?1910.1029(g)(3) requiring an employer’s respiratory protection programto assure that each employee is properly fitted with a respiratoryprotection program to assure that each employee is properly fitted witha respirator and to take corrective action when atmospheric testing ofrespirators reveals excessive leakage. Id. at 1053-1054 The Tenth Circuit determined that the Secretary’s interpretation wasreasonable because it furthered the remedial purpose of the Act’sremedial scheme for minimizing worker exposure to coke oven emissions.Id. at 1057. Based on that interpretation and the facts of the case, theCourt found that the Secretary had established a violation of section1910.1029(g)(3).Noting the subsequent proceedings in this case, the controverted natureof the willful determination, and the discretion vested in theCommission with respect to the amount of any penalty assessment, theTenth Circuit remanded the case to the Commission to determine whetherthe violation was willful and what penalty should be assessed. Id. at1059. In remanding, the Tenth Circuit recognized \”the basic rule…thatthe regulated business must ‘follow the law even if it has a good faithbelief that its own policy is wiser.\” Id at 1059 n.10 [citationsomitted]. The court also observed that an \”employer may not simplysubstitute its judgment for that of OSHA; the employer must follow whatit knows to be the law despite its subjective belief that an agencyinterpretation is invalid.\” Id. [citation omitted].Accordingly, we remand to Chief Administrative Law Judge for assignmentto a judge[[1]] to determine–consistent with the Tenth Circuit’s morerecent opinion- whether the violation is willful and what penalty amountis appropriate. Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontayaCommissionerDated: November 20, 1991″