“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 Commissionunder 29 U.S.C. ? 661(i), 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. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).Respondent, Granite City Terminals Corp., operates a marine terminal onthe upper Mississippi River in Granite City, Illinois. For certainoperations and under certain river conditions, Granite City uses a clamshell bucket attached to a crane to transport its employees from itsdock to barges alongside the dock. The Secretary issued a citationwhich, in one item, alleged that Granite City’s use of the clam shellbucket violated the standard at 29 C.F.R. ? 1918.23(b). That standardprovides:?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, asubstantial straight ladder, extending at least 36 inches above theupper landing surface and adequately secured against shifting orslipping shall be provided. When conditions are such that neither awalkway nor a straight ladder can be used, a Jacob’s ladder meeting therequirements of ? 1918.22 may be used: Provided, however, That whenthese requirements cannot reasonably be met, by reason of localconditions, in respect to barges operating on the Mississippi RiverSystem, other safe means of access shall be provided.Following the finding of a violation by Administrative Law Judge JamesA. Cronin, Jr., Chairman Buckley directed the judge’s decision forreview on the following issue: Whether the Secretary carried his burdenof proving that \”other safe means of access\” were not provided as arequired by the standard at 29 C.F.R.? 1918.23(b). For the reasons thatfollow, we reverse and vacate citation item.[[1]]I.Granite City’s marine terminal has a dock 400 feet long which canaccommodate two barges for loading and unloading operations. At thisterminal the level of the Mississippi Rive r may fluctuate anywhere from30 to 35 feet during the year. It is undisputed that due to waterfluctuations the employees can not always step off the dock onto thebarges. However, when the river level is low, Granite City uses a clamshell bucket since it does not consider the specific means listed in thecited standard (ramps, walkways, straight ladders and Jacob’s ladders)to be reasonable means of providing access to barges. Granite City’svice-president and general manager Hilmes testified that the design ofits facility prevented the use of ramps when the river level is low.Hilmes also testified that straight ladders are not practical or safewhen the water is low. Ladders more than 20 feet long must be used andthey are heavy and difficult to lower over the side of the dock. The useof such long ladders is also unsafe because of the constant motion ofthe barge on the water. For these reasons, Granit City has a companypolicy that employees are not to climb ladders over 20 feet long. Hilmesalso testified that at one time Granite City had tried to use a Jacob’sladder but the employees were not secure when climbing it, even when itwas equipped with stiffeners or outriggers. Therefore, Hilmes believedGranite City’s transport of its employees by clam shell buckets provideda safer means of access to its barges.The clam shell buckets attached to Granite City’s cranes are usedprimarily for loading and unloading bulk materials such as grains andores. There was no evidence, however, that employees rode the clam shellbuckets while the buckets were carrying those materials. Complianceofficer Taylor stated that the hazard presented by Granite City’s use ofthe clam shell bucket was that an employee could slip from the bucketand fall to the barge below suffering severe injuries. In his view, thepossibility of an employee falling into the river presented a lesserhazard, since employees continually wear life vests for protectionagainst drowning.Hilmes, who had worked at Granie City’s marine terminals for over 25years, testified that throughout the length of his employment GraniteCity had transported employees to and from barges on clam shell buckets.In not one instance had an employee been injured from this practice atthe cited facility or at Granite City’s other marine terminals inMemphis and St. Louis. Hilmes further indicated that experts hadreviewed this practice and concluded there was no practical method ofaccess to barges that was safer than the use of the clam shell bucket.One of these experts was Castranova, who originally was an inspector forthe Department of Labor under the Longshoreman’s and Harbor Worker’sCompensation Act and later became an OSHA area director. According tonotes taken by an OSHA supervisor during the informal conference,Granite City’s employees stated that Castranova had told them that useof the calm shell bucket was \”okay,\” until safer means were available.Rather than using the clam shell bucket, compliance officer Taylorsuggested that Granie City should use a \”lifting cage\” attached to thecrane’s boom to transport employees to barges.[[2]] During certainoperations, such as when its employees load and unload steel, GraniteCity does use a lifting cage. However, Hilmes testified that it waseconomically infeasible to use the lifting cage during its bulkcommodities operations, which amounted to about 70% of the company’sbusiness. He explained that employees would have to be transferred fromthe wharf to the barge and back at several different times of the day.If a \”lifting cage\” were required for each transfer of employees, theprocess of removing the clam shell bucket from the crane’s boom,replacing it with a \”lifting cage,\” transporting the employees to thebarge, waiting for them to complete work on the barge, transporting themback to the wharf, and putting the clam shell bucket back on the crane’sboom would take 45 minutes to one hour for each transfer.[[3]] Hetestified that the process would be so inefficient that it would putGranite City out of the business of handling bulk commodities.Subsequent to the inspection, Granite City equipped its clam shellbuckets with safety belts which were tied off to U-bolts welded on thearm of the bucket. Granite City required its employees to wear thesafety belts when they were transported to barges. Hilmes considered theuse of the bucket equipped with safety belts to be \”another safe meansof access.\” He testified, however, that OSHA officials told him that theuse of the bucket even when equipped with safety belts did not complywith the cited standard.II.Judge Cronin concluded that Granite City judicially admitted that it hadcommitted a violation of section 1918.23(b).[[4]] In reaching thatconclusion, the judge relied upon the fact that at the hearing GraniceCity’s pro se representative Hilmes agreed that the \”main issue\” in thecase was the means of abating the violation. However, it is axiomaticthat the statement of a party’s legal representative at a hearing is notbinding as a judicial admission, unless it is a formal statement in opencourt and there is no doubt or ambiguity regarding the representative’sintent. American Bechtel, Inc., 77 OSAHRC 214\/A2, 6 BNA OSHC 1246,1977-78 CCH OSHD ? 22,466 (No. 11340, 1977). In this case, the statementby Granite City’s representative falls short of the conclusivenessnecessary to constitute a binding judicial admission. Indeed, Mr. Hilmesstoutly maintained throughout the hearing that the use of the clam shellbucket was safe and was in compliance with ? 1918.23(b).[[5]] Underthese circumstances, the fact that Granite City’s pro se representativeagreed that abatement was the \”main issue\” in the case does not amountto a concession that Granite City should be held in violation of thecited standard.III.The first part of section 1918.23(b) lists the specific methods anemployer may use to provide access to barges when employees are unableto step safely to and from the wharf. These means of access are: (1) aramp or safe walkway; (2) a substantial straight ladder, when a walkwayis impractical; and (3) a Jacob’s ladder, when neither a walkway or astraight ladder can be used. However, as reflected in the standard’slanguage, the drafters of section 1918.23(b) recognized that, \”by reasonof local conditions, in respect to barges operating on the MississippiRiver System,\” compliance with the specific requirements in the standardmight not reasonably be possible. The standard therefore contains anexception that applies to an employer’s operation of barges on theMississippi River System under such conditions.[[6]] An employer failingunder this exception is not required to use the specified means ofaccess, but may comply with the standard by providing \”other safe meansof access.\”In this case, the evidence establishes that Granite City falls under theexception set forth in section 1918.23(b). It is undisputed that GraniteCity operates barges on the Mississippi River System. We are persuadedby the testimony of Granite City’s vice-president and general managerHilmes that when the water level of the Mississippi River was low at itsmarine terminal, the specific means of access listed in the first partof ? 1918.23(b) could not reasonably be used.[[7]]Since the exception contained within 1918.23(b) applies to the citedcondition, the pivotal issue is whether Granite City’s method ofproviding access to barges is an \”other safe means of access.\” TheSecretary argues that the burden of proof on that issue should be placedon the employer. We disagree. Under Commission precedent, the Secretarymust prove by a preponderance of the evidence that there was a failureto 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). Seealso Commission Rule 73, 29 C.F.R. ? 2200.75(a) (in all proceedingscommenced by filing a notice of contest, the burden of proof shall restwith the Secretary). We see no reason, in applying this rule concerningthe burden of proof, to differentiate between an alleged failure tocomply with a generally applicable requirement of a standard, and analleged failure to comply with a requirement contained within astandard’s exception. [[8]] Section 1918.23(b) allows an employer whofalls within the standard’s exception to comply by providing \”other safemeans of access.\” Accordingly, we hold that, once the applicability ofthe standard’s exception has been established, the Secretary shall havethe burden of proving that the cited method of access was not an \”othersafe means of access.\”While the first part of section 1918.23(b) is specific in that it listsramps, walkways, straight ladders, and Jacob’s ladders as the requiredmeans of compliance, an employer falling under the exception to thestandard is faced with the very general duty of providing an \”other safemeans of access.\” The exception to the standard does not contain anyguidelines that would aid an employer in determining what is a safemeans of access, nor does it identify any methods of compliance. Withrespect to other standards that also state the employer’s duty in verygeneral terms, such as the personal protective equipment standard at 29C.F.R. ? 1910.132(a), the Commission has applied a reasonable persontest in order to prevent the standard from being held impermissiblyvague. 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 section1910.132(a), the Secretary must prove that a reasonable person familiarwith the circumstances of the industry would recognize a hazardwarranting the use of personal protective equipment). [[9]] In addition,several circuits of the United States Courts of Appeals have held thatin order to satisfy due process the Secretary must prove that there is afeasible method of complying with the standard, if the standard does notspecify a means of compliance.[[10]] For the reasons given in thosecases, we conclude that a similar burden of proof should be placed onthe Secretary with respect to section 1918.23(b). We therefore hold thatif an employer falls under the standard’s exception, the Secretary mustestablish both that: (1) a reasonable person familiar with thecircumstances of the industry would recognize that the method of accessto barges is not safe, and (2) there exists a feasible means of accesswhich the employer could have used to comply with the standard.[[11]]Based on this record, we conclude that the Secretary has failed to provethat a reasonable person familiar with the circumstances of the industrywould find that Granite City’s use of the shell bucket was unsafe. TheSecretary did not present any evidence with respect to industry practiceconcerning access to barges on the Mississippi River System.[[12]] Thecompliance officer’s very general testimony as to why he felt that theclam shell bucket was hazardous is insufficient to carry the Secretary’sburden of proof.Our conclusion that the Secretary did not establish that Granite City’suse of the clam shell bucket was unsafe is also supported by Hilmes’undisputed testimony that there had been no injuries at any of thecompany’s marine terminals since Granite City first started using theclam shell bucket to transport employees to barges over 25 years ago.Although a lack of injuries does not relieve an employer of the duty tocomply with the Act’s requirements, a company’s history of a lack ofinjuries is relevant to whether a reasonable person would recognize thatthe cited work practice is unsafe or hazardous. See General MotorsCorp., supra (low incidence of foot injuries at cited facility indicatesthat a reasonable person would not have recognized a hazard warrantingthe use of safety shoes). This is particularly so where, as here, theemployer is required to comply with a generally worded standard.The evidence concerning the inability of experts to recommendalternative measures that were both practical and safer than the clamshell bucket further supports our finding that the use of the clam shellbucket was not shown to be unsafe under a \”reasonable person\” test. Asnoted above, several experts, including OSHA employees, had been toGranite City’s marine terminals, but they had been unable to recommend apractical method of providing access that was safer than its use of theclam shell bucket. One of these experts, who later became an OSHA areadirector, reportedly informed the company that use of the clam shellbucket was \”okay\” until a safer means was made available. The recorddoes not show the Granite City had ever been informed by OSHA that safermeans of access had become available.On review, the Secretary contends that, as a matter of law, the clamshell bucket transportation method is not a \”safe means of access\” undersection 1918.23(b), because other OSHA standards prohibit transportingemployees on the load of a crane. Specifically, the Secretary arguesthat the crawler crane standard at 29 C.F.R. ? 1910.180(h)(3)(v), whichprohibits employees from riding on the load of a crane, applies to thecited condition here.[[13]] The Secretary also argues that the newmarine terminal standard at 29 C.F.R. ? 1917.45(j),[[14]] which waspublished in the Federal Register about one month before the inspectionbut which was not in effect until about two months after the inspection,also provided notice to Granite City that its method of access wasunsafe. The Secretary did not cite Granite City under either of thesestandards, but raised them for the first time in his brief on review.Granite City asserts it was not sufficiently placed on notice of thepossible relevance of these other standards, and therefore it objects tothe Secretary’s raising those issues now.We agree with Granite City. Since the Secretary did not raise thepossible relevance of section 1910.180(h)(3)(v) or section 1917.45(j)until proceedings on review, we believe that Granite City has beendenied the opportunity to present evidence related to these standards.In the first place, as an employer in the longshoring industry GraniteCity 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)) tointerpret what would or would not constitute \”other safe means ofaccess\” under Part 1918. But, assuming arguendo that these otherstandards somehow do apply, the fact remains that they were not timelyraised by the Secretary, and Granite City had no opportunity to presentevidence as to whether it violated those standards. [[15]] We thereforeagree with Granite City that it would be prejudiced if we relied uponthe requirements of section 1910.180(h)(3)(v) or section 1917.45(j) tointerpret its duty under section 1918.23(b). Accordingly, we will notconsider the Secretary’s arguments concerning the applicability of thesesections to the cited condition. [[16]] We further note that Section1917.45(j) was not in effect at the time of the inspection and for thisadditional reason deny the Secretary’s request to consider theapplicability of this standard.[[17]]The Secretary also argues that Granite City’s installation of safetybelt protection on its clam shell buckets after the inspectionconstitutes an admission that it did not provide an \”other safe means ofaccess\” at the time of the inspection. The Secretary refers to Hilmes’testimony that \”with this securing of the safety belt on there, thatdoes make it safe,\” and to the judge’s finding that Granite City’ssubsequent use of safety belts \”represents an acknowledgment by Granitethat riding on a clam shell bucket without safety belt protection isunsafe.\” The Secretary also considers it significant that, when GraniteCity had the choice of using the lifting cage or the clam shell bucketto transport employees, it used the lifting cage.We conclude that Granite City’s subsequent installation of safety beltson its clam shell buckets does not by itself establish that the citedpractice was an unsafe means of access. The mere fact that a companyenhanced the safety of a work practice does not prove that it consideredthe previous work practice to be unsafe. Although Hilmes indicated thatthe company’s installation of safety belts had made its transport ofemployees safer, his testimony also indicates that the company had along history of no accidents with respect to the use of clam shellbuckets without safety belts, and he believed that Granite City’searlier practice was safe. The Commission and the courts have held thatan employer’s own safety precautions, by themselves, do not establishthat such precautions were necessary in order to comply with aparticular standard. See United States Steel Corp., 82 OSAHRC 62\/A2, 10BNA OSHC 2123, 1982 CCH OSHD ? 26,297 (No. 77-3378, 1982), and casescited therein. These decisions recognize that employers might bediscouraged from making voluntary safety efforts if the finding ofviolations under the Act is based upon such efforts.Finally, we cannot infer that the clam shell bucket unsafe simplybecause the company sometimes used the lifting cage to transport itsemployees to barges. There is no indication that the company used thelifting cage because it believed that the clam shell bucket was unsafe.Indeed, Hilmes testified that based on 25 years experience, the companydid believe it was safe.For these reasons, we conclude that the Secretary has failed to provethat Granite Cit’s use of the clam shell bucket was not a safe means ofaccess to barges within the meaning of section 1918.23(b). Because wevacate the citation on this basis, it is not necessary to determinewhether the Secretary proved that there was a feasible method thatGranite City could have used to provide safe access to barges.IV.On review, Granite City requests that the Commission issue a declaratoryorder stating that the company’s current use of the clam shell bucketwith safety belt protection is in compliance with section 1918.23(b).Granite City asserts that issuance of a declaratory order is appropriatein order to remove uncertainty about whether it now is in compliancewith the Act.At the outset, we note that the Commission is empowered by section 554of the Administrative Procedure Act, 5 U.S.C. ? 554(e), to issuedeclaratory orders. That section provides:_Sec. 554. Adjudications._* * *(e) The agency, with like effect as in the case of other orders, and inits sound discretion, may issue a declaratory order to terminate acontroversy or remove uncertainty.The Commission also is empowered by section 10(c) of the OccupationalSafety and Health Act, 29 U.S.C. ? 559(c), to provide \”other appropriaterelief\” in proceedings initiated by a notice of contest. That provisionis consistent with the APA’s grant of authority to issue declaratoryorders. See Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 447(10th Cir. 1983) (Federal Mine Safety and Health Review Commission mayissue declaratory orders in its sound discretion).However, as the APA provides, the issuance of a declaratory order isdiscretionary. See Climax Molybdenum Co. v. Secretary of Labor, supra.See also Attorney General’s Manual on the Administrative Procedure Act59 (U.S. Dept. of Justice, 1947)(quoting Final Report of the AttorneyGeneral’s Committee on Administrative Procedure 30 (1941)). In this caseissuance of a declaratory order would serve no useful purpose. Since theSecretary failed to prove that Granite City’s pre-citation method oftransporting employees violated section 1918.23(b), Granite City neednot proceed at its peril with respect to abatement. It is entitled torely upon the use of the clam shell bucket without a safety belt as ameans of abatement under section 1918.23(b). Therefore the question ofwhether use of the clam shell bucket with a safety belt is in compliancewith the cited standard is moot.Accordingly, we decline to issue a declaratory order. The citation itemalleging a violation of 29 C.F.R. ? 1918.23(b) is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: April 8, 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office By e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Chairman Buckley also directed for review the judge’s finding thatGranite City violated the standard at 29 C.F.R. ? 1918.74(d)(a).However, on review the Secretary submitted a notice to withdraw theitem. The Commission construed the notice as a motion to withdraw, andgranted the motion.[[2]]Compliance officer Taylor referred to the lifting cage as \”acertain type of platform that can be attached to the crane hook.\” Taylortestified that, if other means of access to barges are not acceptable orpresent a greater hazard, OSHA will allow the use of the lifting cageprovided that the conditions set forth in OSHA’s guidelines forenforcement are met.[[3]] Hilmes stated that if the barges are close together and one ofGranite City’s two cranes was not being used for lifting bulkcommodities, the lifting cage is used to transport employees. However,he explained that it often was necessary to attach clam shell buckets toboth of its cranes in order to handle bulk commodities.[[4]] The hearing in this case was conducted as a simplified proceedingbefore Administrative Law Judge Paul E. Dixon. Because of Judge Dixon’ssubsequent unavailability due to an extended illness, the case wasreassigned to Judge Cronin, who issued the decision in the case.[[5]] For example, Hilmes testified as to the company’s accident-freehistory concerning the use of clam shell buckets, and defended hisdecision to use the buckets based upon his conversation with certain\”experts.\” Therefore, we disagree with the judge’s conclusion that atthe hearing Granite City never challenged the Secretary’s evidenceconcerning the alleged violation, but sought only a determination by theCommission that its present use of the clam shell bucket with safetybelt protection was in compliance with ? 1918.23(b).[[6]] The history of ?1918.23(b) indicates that the exception to thestandard was intended to relieve employers operating barges on theMississippi River System from compliance with the enumerated methods ofaccess, when such compliance would be unreasonable. The standardoriginally was promulgated under the longshoremen’s and Harbor Workers’Compensation Act, 33 U.S.C. ? 901 et seq., without the exceptionpertaining to the Mississippi River System. However,\”in order to provide practical solutions in cases where currentrequirements 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 amendedLongshoremen’s Act standard subsequently was promulgated under theOccupational Safety and Health Act as an established federal standardpursuant to 29 U.S.C. ? 665(a).[[7]] While compliance officer Taylor testified in very general terms asto how a straight ladder or a Jacob’s ladder could have been used, hedid not address any of the reasons given by Hilmes as to why, duringcertain river conditions, those devices could not reasonably be used atGranite City’s facility. On review, the Secretary offers no argumentthat Granite City falls outside of the exception continued within1918.23(b).[[8]] The Secretary, pointing to the rule of statutory construction thatthe burden of proving the applicability of an exception to a statuterests upon the one who claims its benefit, contends that the burden ofproof should be placed on the employer. However, the dispute here doesnot involve whether the employer is exempted from the requirements ofthe standard. Rather, this case concerns whether the employer, havingbeen exempted from the general requirements of the standard, has failedto comply with an alternative requirement that is contained within thestandard’s exception.[[9]] A number of circuit court decisions similarly have held thatbroadly- worded OSHA standards are only enforceable when their scope islimited by a \”reasonable person\” test. See, eg., Donovan v. GeneralMotors Corp., GM Parts Div., 764 F.2d 32 (1st Cir. 1985); Ray EversWelding v. OSHRC, 625 F.2d 726 (6th Cir. 1980), and other cases citedtherein; 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 (7thCir. 1982); Voegele Co. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980); RayEvers Welding v. OSHRC, 625 F.2d 726 (6th Cir. 1980); Bristol Steel &Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979); GeneralElectric 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 heldthat, in order to establish noncompliance with ? 1926.28(a), theSecretary is required to set forth the specific measures that anemployer must undertake to avoid citation and establish the feasibilityand likely utility of these measures. The holding was overruled by theCommission in S & H Riggers & Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNAOSHC 1260, 1979 CCH OSHD ? 23,480 (No. 15855, 1979), rev’d on othergrounds, 659 F.2d 1273 (5th Cir. 1981). In that case the Commission heldthat the Secretary was not required to establish the feasibility of theprotective equipment, but only was required to identify the type ofequipment he considered appropriate. However, six circuits haveconcluded that, when a standard does not specify a particular method ofcompliance, the Secretary must prove that there is a feasible means ofcomplying with the standard. See cases cited in note 10, supra. We agreewith the holding in those cases that, in order to satisfy due processfor such generally-worded standards, the Secretary must provefeasibility. To the extent that the Commission’s decision in S & HRiggers holds to the contrary, it is overruled.[[12]] In this respect we note that the Commission has held thatevidence of industry custom and practice will aid in determining whethera reasonable person familiar with the circumstances would perceive ahazard, 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 as29 C.F.R. ? 1926.28(a), the Secretary must show that an employer’sconduct did not conform to that of its industry. S & H Riggers &Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. 1981). Regardless ofwhich test is more appropriate, the Secretary has failed to prove aviolation 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 acrane of derrick except:(ii) In a boatswain’s chair or other device rigged to prevent it fromaccidental disengagement from the hook or supporting member; or[[15]] For instance, Granite City contends that section1910.180(h)(3)(v) was not violated here because that standard’sprohibition against employees riding on the \”load\” of the crane does notapply to employees riding on a clam shell bucket that is not carrying aload. Granite City also contends that by attaching safety belts to itsclam shell buckets it has complied with section 1917.45(j), since thatprovision allows an employee to be hoisted by a crane if he is situatedin a \”boatswain’s chair or other device rigged to prevent it fromaccidental disengagement from the hook or supporting member.\” Clearly afactual record would have been important in resolving these issues.[[16]] We note, however, that section 1918.23(b) does not refer to anyother standard, and the Secretary has presented no evidence nor referredto any authority indicating that other standards were intended toprovide guidance in interpreting section 1918.23(b).[[17]] The Secretary also refers to 29 C.F.R. ? 1915.116(i), which is ashipyard employment standard, and to 29 C.F.R. ? 1926.550(b), which is aconstruction standard. Those standards prohibit employees from riding onthe load or hook of cranes. Because the Secretary did not raise thepossible relevance of those standards until he filed his brief onreview, and Granite City would be prejudiced by our consideration ofthese issues, we do not consider the requirements of those standards indetermining whether Granite City violated the cited standard. In anyevent, we do not believe that Granite City should be held responsiblefor complying with standards which do not govern its industry.”