“Docket No. 83-0882-S SECRETARY OF LABOR, Complainant, v. GRANITE CITY TERMINALS CORPORATION, Respondent.OSHRC Docket No. 83-0882-SDECISIONBefore: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ? 651-678 (\”the Act\”). The Commission is an adjudicatory agency,independent of the Department of Labor and the Occupational Safety and HealthAdministration. It was established to resolve disputes arising out of enforcement actionsbrought by the Secretary 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 on the upperMississippi River in Granite City, Illinois. For certain operations and under certainriver conditions, Granite City uses a clam shell bucket attached to a crane to transportits employees from its dock to barges alongside the dock. The Secretary issued a citationwhich, in one item, alleged that Granite City’s use of the clam shell bucket violated thestandard 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 walkwaymeeting the requirements of ? 1918.21(d) shall be provided. When a walkway isimpracticable, a substantial straight ladder, extending at least 36 inches above the upperlanding 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, aJacob’s ladder meeting the requirements of ? 1918.22 may be used: Provided, however, Thatwhen these requirements cannot reasonably be met, by reason of local conditions, inrespect to barges operating on the Mississippi River System, other safe means of accessshall 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: Whetherthe 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 reasonsthat follow, we reverse and vacate citation item.[[1]]I.Granite City’s marine terminal has a dock 400 feet long which can accommodate two bargesfor loading and unloading operations. At this terminal the level of the Mississippi Rive rmay fluctuate anywhere from 30 to 35 feet during the year. It is undisputed that due towater 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 doesnot consider the specific means listed in the cited standard (ramps, walkways, straightladders and Jacob’s ladders) to be reasonable means of providing access to barges. GraniteCity’s vice-president and general manager Hilmes testified that the design of its facilityprevented the use of ramps when the river level is low. Hilmes also testified thatstraight ladders are not practical or safe when the water is low. Ladders more than 20feet long must be used and they are heavy and difficult to lower over the side of thedock. The use of such long ladders is also unsafe because of the constant motion of thebarge on the water. For these reasons, Granit City has a company policy that employees arenot to climb ladders over 20 feet long. Hilmes also testified that at one time GraniteCity 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 believedGranite City’s transport of its employees by clam shell buckets provided a safer means ofaccess to its barges.The clam shell buckets attached to Granite City’s cranes are used primarily for loadingand unloading bulk materials such as grains and ores. There was no evidence, however, thatemployees 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 theclam shell bucket was that an employee could slip from the bucket and fall to the bargebelow suffering severe injuries. In his view, the possibility of an employee falling intothe river presented a lesser hazard, since employees continually wear life vests forprotection against drowning.Hilmes, who had worked at Granie City’s marine terminals for over 25 years, testifiedthat throughout the length of his employment Granite City had transported employees to andfrom barges on clam shell buckets. In not one instance had an employee been injured fromthis practice at the cited facility or at Granite City’s other marine terminals in Memphisand St. Louis. Hilmes further indicated that experts had reviewed this practice andconcluded there was no practical method of access to barges that was safer than the use ofthe clam shell bucket. One of these experts was Castranova, who originally was aninspector for the Department of Labor under the Longshoreman’s and Harbor Worker’sCompensation Act and later became an OSHA area director. According to notes taken by anOSHA supervisor during the informal conference, Granite City’s employees stated thatCastranova had told them that use of the calm shell bucket was \”okay,\” untilsafer means were available.Rather than using the clam shell bucket, compliance officer Taylor suggested thatGranie City should use a \”lifting cage\” attached to the crane’s boom totransport employees to barges.[[2]] During certain operations, such as when its employeesload and unload steel, Granite City does use a lifting cage. However, Hilmes testifiedthat it was economically infeasible to use the lifting cage during its bulk commoditiesoperations, which amounted to about 70% of the company’s business. He explained thatemployees would have to be transferred from the wharf to the barge and back at severaldifferent times of the day. If a \”lifting cage\” were required for each transferof 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, andputting the clam shell bucket back on the crane’s boom would take 45 minutes to one hourfor each transfer.[[3]] He testified that the process would be so inefficient that itwould put Granite City out of the business of handling bulk commodities.Subsequent to the inspection, Granite City equipped its clam shell buckets with safetybelts which were tied off to U-bolts welded on the arm of the bucket. Granite Cityrequired 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 \”anothersafe means of access.\” He testified, however, that OSHA officials told him that theuse of the bucket even when equipped with safety belts did not comply with the citedstandard.II.Judge Cronin concluded that Granite City judicially admitted that it had committed aviolation of section 1918.23(b).[[4]] In reaching that conclusion, the judge relied uponthe 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 isaxiomatic that the statement of a party’s legal representative at a hearing is not bindingas a judicial admission, unless it is a formal statement in open court and there is nodoubt or ambiguity regarding the representative’s intent. American Bechtel, Inc., 77OSAHRC 214\/A2, 6 BNA OSHC 1246, 1977-78 CCH OSHD ? 22,466 (No. 11340, 1977). In thiscase, the statement by Granite City’s representative falls short of the conclusivenessnecessary to constitute a binding judicial admission. Indeed, Mr. Hilmes stoutlymaintained throughout the hearing that the use of the clam shell bucket was safe and wasin compliance with ? 1918.23(b).[[5]] Under these circumstances, the fact that GraniteCity’s pro se representative agreed that abatement was the \”main issue\” in thecase does not amount to 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 an employer may use toprovide 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 astraight ladder can be used. However, as reflected in the standard’s language, thedrafters of section 1918.23(b) recognized that, \”by reason of local conditions, inrespect to barges operating on the Mississippi River System,\” compliance with thespecific requirements in the standard might not reasonably be possible. The standardtherefore contains an exception that applies to an employer’s operation of barges on theMississippi River System under such conditions.[[6]] An employer failing under thisexception is not required to use the specified means of access, but may comply with thestandard by providing \”other safe means of access.\”In this case, the evidence establishes that Granite City falls under the exception setforth in section 1918.23(b). It is undisputed that Granite City operates barges on theMississippi River System. We are persuaded by the testimony of Granite City’svice-president and general manager Hilmes that when the water level of the MississippiRiver was low at its marine terminal, the specific means of access listed in the firstpart of ? 1918.23(b) could not reasonably be used.[[7]]Since the exception contained within 1918.23(b) applies to the cited condition, thepivotal 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 onthat issue should be placed on the employer. We disagree. Under Commission precedent, theSecretary must prove by a preponderance of the evidence that there was a failure to complywith the cited standard. Astra Pharmaceutical Products, Inc., 81 OSAHRC 79\/D9, 9 BNA OSHC2126, 1981 CCH OSHD ? 25,577 (No. 78-6247, 1981), aff’d in part, rev’d in part, 681 F.2d69 (1st Cir. 1982). See also Commission Rule 73, 29 C.F.R. ? 2200.75(a) (in allproceedings commenced by filing a notice of contest, the burden of proof shall rest withthe Secretary). We see no reason, in applying this rule concerning the burden of proof, todifferentiate between an alleged failure to comply with a generally applicable requirementof a standard, and an alleged failure to comply with a requirement contained within astandard’s exception. [[8]] Section 1918.23(b) allows an employer who falls within thestandard’s exception to comply by providing \”other safe means of access.\”Accordingly, we hold that, once the applicability of the standard’s exception has beenestablished, the Secretary shall have the burden of proving that the cited method ofaccess 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, anemployer falling under the exception to the standard is faced with the very general dutyof providing an \”other safe means of access.\” The exception to the standard doesnot contain any guidelines that would aid an employer in determining what is a safe meansof access, nor does it identify any methods of compliance. With respect to other standardsthat also state the employer’s duty in very general terms, such as the personal protectiveequipment standard at 29 C.F.R. ? 1910.132(a), the Commission has applied a reasonableperson 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 CCHOSHD ? 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 reasonableperson familiar with the circumstances of the industry would recognize a hazard warrantingthe use of personal protective equipment). [[9]] In addition, several circuits of theUnited States Courts of Appeals have held that in order to satisfy due process theSecretary must prove that there is a feasible method of complying with the standard, ifthe standard does not specify a means of compliance.[[10]] For the reasons given in thosecases, we conclude that a similar burden of proof should be placed on the Secretary withrespect to section 1918.23(b). We therefore hold that if an employer falls under thestandard’s exception, the Secretary must establish both that: (1) a reasonable personfamiliar with the circumstances of the industry would recognize that the method of accessto barges is not safe, and (2) there exists a feasible means of access which the employercould have used to comply with the standard.[[11]]Based on this record, we conclude that the Secretary has failed to prove that a reasonableperson familiar with the circumstances of the industry would find that Granite City’s useof the shell bucket was unsafe. The Secretary did not present any evidence with respect toindustry practice concerning access to barges on the Mississippi River System.[[12]] Thecompliance officer’s very general testimony as to why he felt that the clam shell bucketwas 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 clamshell bucket was unsafe is also supported by Hilmes’ undisputed testimony that there hadbeen no injuries at any of the company’s marine terminals since Granite City first startedusing the clam shell bucket to transport employees to barges over 25 years ago. Although alack of injuries does not relieve an employer of the duty to comply with the Act’srequirements, a company’s history of a lack of injuries is relevant to whether areasonable person would recognize that the cited work practice is unsafe or hazardous. SeeGeneral Motors Corp., supra (low incidence of foot injuries at cited facility indicatesthat a reasonable person would not have recognized a hazard warranting the use of safetyshoes). This is particularly so where, as here, the employer is required to comply with agenerally worded standard.The evidence concerning the inability of experts to recommend alternative measures thatwere both practical and safer than the clam shell bucket further supports our finding thatthe use of the clam shell bucket was not shown to be unsafe under a \”reasonableperson\” test. As noted above, several experts, including OSHA employees, had been toGranite City’s marine terminals, but they had been unable to recommend a practical methodof providing access that was safer than its use of the clam shell bucket. One of theseexperts, who later became an OSHA area director, reportedly informed the company that useof the clam shell bucket was \”okay\” until a safer means was made available. Therecord does not show the Granite City had ever been informed by OSHA that safer means ofaccess had become available.On review, the Secretary contends that, as a matter of law, the clam shell buckettransportation 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, appliesto the cited condition here.[[13]] The Secretary also argues that the new marine terminalstandard at 29 C.F.R. ? 1917.45(j),[[14]] which was published in the Federal Registerabout one month before the inspection but which was not in effect until about two monthsafter the inspection, also provided notice to Granite City that its method of access wasunsafe. The Secretary did not cite Granite City under either of these standards, butraised them for the first time in his brief on review. Granite City asserts it was notsufficiently placed on notice of the possible relevance of these other standards, andtherefore it objects to the Secretary’s raising those issues now.We agree with Granite City. Since the Secretary did not raise the possible relevance ofsection 1910.180(h)(3)(v) or section 1917.45(j) until proceedings on review, we believethat Granite City has been denied the opportunity to present evidence related to thesestandards. In the first place, as an employer in the longshoring industry Granite City hadno notice that it should look to the general industry standards (1910.180(h)(3)(v)) or toa 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 theseother standards somehow do apply, the fact remains that they were not timely raised by theSecretary, and Granite City had no opportunity to present evidence as to whether itviolated those standards. [[15]] We therefore agree with Granite City that it would beprejudiced if we relied upon the requirements of section 1910.180(h)(3)(v) or section1917.45(j) to interpret its duty under section 1918.23(b). Accordingly, we will notconsider the Secretary’s arguments concerning the applicability of these sections to thecited condition. [[16]] We further note that Section 1917.45(j) was not in effect at thetime of the inspection and for this additional reason deny the Secretary’s request toconsider the applicability of this standard.[[17]]The Secretary also argues that Granite City’s installation of safety belt protection onits clam shell buckets after the inspection constitutes an admission that it did notprovide an \”other safe means of access\” at the time of the inspection. TheSecretary refers to Hilmes’ testimony that \”with this securing of the safety belt onthere, that does make it safe,\” and to the judge’s finding that Granite City’ssubsequent use of safety belts \”represents an acknowledgment by Granite that ridingon a clam shell bucket without safety belt protection is unsafe.\” The Secretary alsoconsiders it significant that, when Granite City had the choice of using the lifting cageor 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 clamshell buckets does not by itself establish that the cited practice was an unsafe means ofaccess. The mere fact that a company enhanced the safety of a work practice does not provethat it considered the previous work practice to be unsafe. Although Hilmes indicated thatthe company’s installation of safety belts had made its transport of employees safer, histestimony also indicates that the company had a long history of no accidents with respectto the use of clam shell buckets without safety belts, and he believed that Granite City’searlier practice was safe. The Commission and the courts have held that an employer’s ownsafety precautions, by themselves, do not establish that such precautions were necessaryin order to comply with a particular standard. See United States Steel Corp., 82 OSAHRC62\/A2, 10 BNA OSHC 2123, 1982 CCH OSHD ? 26,297 (No. 77-3378, 1982), and cases citedtherein. These decisions recognize that employers might be discouraged from makingvoluntary safety efforts if the finding of violations under the Act is based upon suchefforts.Finally, we cannot infer that the clam shell bucket unsafe simply because the companysometimes used the lifting cage to transport its employees to barges. There is noindication that the company used the lifting cage because it believed that the clam shellbucket 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 prove that GraniteCit’s use of the clam shell bucket was not a safe means of access to barges within themeaning of section 1918.23(b). Because we vacate the citation on this basis, it is notnecessary to determine whether 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 declaratory order statingthat the company’s current use of the clam shell bucket with safety belt protection is incompliance with section 1918.23(b). Granite City asserts that issuance of a declaratoryorder is appropriate in 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 554 of theAdministrative Procedure Act, 5 U.S.C. ? 554(e), to issue declaratory orders. Thatsection provides:Sec. 554. Adjudications.* * *(e) The agency, with like effect as in the case of other orders, and in its sounddiscretion, may issue a declaratory order to terminate a controversy or removeuncertainty.The Commission also is empowered by section 10(c) of the Occupational Safety and HealthAct, 29 U.S.C. ? 559(c), to provide \”other appropriate relief\” in proceedingsinitiated by a notice of contest. That provision is consistent with the APA’s grant ofauthority 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 issuedeclaratory orders in its sound discretion).However, as the APA provides, the issuance of a declaratory order is discretionary. SeeClimax Molybdenum Co. v. Secretary of Labor, supra. See also Attorney General’s Manual onthe Administrative Procedure Act 59 (U.S. Dept. of Justice, 1947)(quoting Final Report ofthe Attorney General’s Committee on Administrative Procedure 30 (1941)). In this caseissuance of a declaratory order would serve no useful purpose. Since the Secretary failedto prove that Granite City’s pre-citation method of transporting employees violatedsection 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 ameans of abatement under section 1918.23(b). Therefore the question of whether use of theclam 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 aviolation of 29 C.F.R. ? 1918.23(b) is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED: April 8, 1986 The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office Bye-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 that Granite Cityviolated the standard at 29 C.F.R. ? 1918.74(d)(a). However, on review the Secretarysubmitted a notice to withdraw the item. The Commission construed the notice as a motionto withdraw, and granted the motion.[[2]]Compliance officer Taylor referred to the lifting cage as \”a certain type ofplatform that can be attached to the crane hook.\” Taylor testified that, if othermeans of access to barges are not acceptable or present a greater hazard, OSHA will allowthe use of the lifting cage provided that the conditions set forth in OSHA’s guidelinesfor enforcement are met.[[3]] Hilmes stated that if the barges are close together and one of Granite City’s twocranes was not being used for lifting bulk commodities, the lifting cage is used totransport employees. However, he explained that it often was necessary to attach clamshell buckets to both of its cranes in order to handle bulk commodities.[[4]] The hearing in this case was conducted as a simplified proceeding beforeAdministrative Law Judge Paul E. Dixon. Because of Judge Dixon’s subsequent unavailabilitydue to an extended illness, the case was reassigned to Judge Cronin, who issued thedecision in the case.[[5]] For example, Hilmes testified as to the company’s accident-free history concerningthe use of clam shell buckets, and defended his decision to use the buckets based upon hisconversation with certain \”experts.\” Therefore, we disagree with the judge’sconclusion that at the hearing Granite City never challenged the Secretary’s evidenceconcerning the alleged violation, but sought only a determination by the Commission thatits present use of the clam shell bucket with safety belt protection was in compliancewith ? 1918.23(b).[[6]] The history of ?1918.23(b) indicates that the exception to the standard wasintended to relieve employers operating barges on the Mississippi River System fromcompliance with the enumerated methods of access, when such compliance would beunreasonable. The standard originally was promulgated under the longshoremen’s and HarborWorkers’ Compensation Act, 33 U.S.C. ? 901 et seq., without the exception pertaining tothe Mississippi River System. However,\”in order to provide practical solutions in cases where current requirements cannotbe met, because of local river and bank conditions,\” this predecessor standard wasamended to include the exception. 30 Fed. Reg. 7608 (June 11, 1965) (notice of proposedrulemaking). The amended Longshoremen’s Act standard subsequently was promulgated underthe Occupational Safety and Health Act as an established federal standard pursuant to 29U.S.C. ? 665(a).[[7]] While compliance officer Taylor testified in very general terms as to how a straightladder or a Jacob’s ladder could have been used, he did not address any of the reasonsgiven by Hilmes as to why, during certain river conditions, those devices could notreasonably be used at Granite City’s facility. On review, the Secretary offers no argumentthat 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 ofproving the applicability of an exception to a statute rests upon the one who claims itsbenefit, contends that the burden of proof should be placed on the employer. However, thedispute here does not involve whether the employer is exempted from the requirements ofthe standard. Rather, this case concerns whether the employer, having been exempted fromthe general requirements of the standard, has failed to comply with an alternativerequirement that is contained within the standard’s exception.[[9]] A number of circuit court decisions similarly have held that broadly- worded OSHAstandards are only enforceable when their scope is limited by a \”reasonableperson\” 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 casescited 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 DropForge Co. v. Secretary of Labor, 683 F.2d 1105 (7th Cir. 1982); Voegele Co. v. OSHRC, 625F.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); 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 held that, in order to establishnoncompliance with ? 1926.28(a), the Secretary is required to set forth the specificmeasures that an employer must undertake to avoid citation and establish the feasibilityand 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 thatcase the Commission held that the Secretary was not required to establish the feasibilityof the protective equipment, but only was required to identify the type of equipment heconsidered appropriate. However, six circuits have concluded that, when a standard doesnot specify a particular method of compliance, the Secretary must prove that there is afeasible means of complying with the standard. See cases cited in note 10, supra. We agreewith the holding in those cases that, in order to satisfy due process for suchgenerally-worded standards, the Secretary must prove feasibility. To the extent that theCommission’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 industrycustom and practice will aid in determining whether a reasonable person familiar with thecircumstances would perceive a hazard, although such evidence is not determinative. GMMotors Corp., supra. The Fifth Circuit has held that industry custom is controlling, andtherefore 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 ofits 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 aviolation under either test.[[13]]Section 1910.180(h)(3)(v) provides that \”[n]o hoisting, lowering, swinging ortraveling 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 derrickexcept:(ii) In a boatswain’s chair or other device rigged to prevent it from accidentaldisengagement from the hook or supporting member; or[[15]] For instance, Granite City contends that section 1910.180(h)(3)(v) was not violatedhere 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 notcarrying a load. Granite City also contends that by attaching safety belts to its clamshell buckets it has complied with section 1917.45(j), since that provision allows anemployee to be hoisted by a crane if he is situated in a \”boatswain’s chair or otherdevice rigged to prevent it from accidental disengagement from the hook or supportingmember.\” Clearly a factual record would have been important in resolving theseissues.[[16]] We note, however, that section 1918.23(b) does not refer to any other standard, andthe Secretary has presented no evidence nor referred to any authority indicating thatother 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 shipyardemployment 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 theSecretary did not raise the possible relevance of those standards until he filed his briefon review, and Granite City would be prejudiced by our consideration of these issues, wedo not consider the requirements of those standards in determining whether Granite Cityviolated the cited standard. In any event, we do not believe that Granite City should beheld responsible for complying with standards which do not govern its industry.”