“Docket No. 79-4786 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 of Appeals for theTenth Circuit.\u00a0 Martin v. OSHRC (CF & I Steel Corp.), 941 F.2d 1051 (10th Cir.1991).\u00a0 The case was before the Tenth Circuit on remand from the United StatesSupreme Court.\u00a0 Martin v. OSHRC (CF&I Steel Corp.), 111 S.Ct. 1171 (1991).\u00a0 In the case, the Supreme Court held that a reviewing court must give precedence tothe Secretary of Labor’s reasonable interpretation of an ambiguous regulation over theReview Commission’s reasonable interpretation..\u00a0 Id. at 1175, 1179-80.\u00a0 TheSupreme Court directed the Tenth Circuit to consider the reasonableness of the Secretary’sinterpretation of 29 C.F.R. ?1910.1029(g)(3) requiring an employer’s respiratoryprotection program to assure that each employee is properly fitted with a respiratoryprotection program to assure that each employee is properly fitted with a respirator andto take corrective action when atmospheric testing of respirators reveals excessiveleakage. Id. at 1053-1054\u00a0 The Tenth Circuit determined that the Secretary’s interpretation was reasonable becauseit furthered the remedial purpose of the Act’s remedial scheme for minimizing workerexposure to coke oven emissions. Id. at 1057. Based on that interpretation and the factsof the case, the Court found that the Secretary had established a violation of section1910.1029(g)(3).Noting the subsequent proceedings in this case, the controverted nature of the willfuldetermination, and the discretion vested in the Commission with respect to the amount ofany penalty assessment, the Tenth Circuit remanded the case to the Commission to determinewhether the violation was willful and what penalty should be assessed. Id. at 1059. Inremanding, the Tenth Circuit recognized \”the basic rule…that the regulated businessmust ‘follow the law even if it has a good faith belief that its own policy iswiser.\” Id at 1059 n.10 [citations omitted]. The court also observed that an\”employer may not simply substitute its judgment for that of OSHA; the employer mustfollow what it 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 assignment to a judge[[1]] todetermine–consistent with the Tenth Circuit’s more recent opinion- whether the violationis willful and what penalty amount is appropriate.\u00a0Edwin G. Foulke, Jr.ChairmanDonald G. Wiseman CommissionerVelma MontayaCommissionerDated: November 20, 1991″