“Docket No. 81-2738 SECRETARY OF LABOR, Complainant, v. SCHWARZ-JORDAN, INC., Respondent.OSHRC Docket No. 81-2738DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”).\u00a0 The Commission is an adjudicatory agency, independentof the Department of Labor and the Occupational Safety and Health Administration.\u00a0 Itwas established to resolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions.\u00a0 See section 10(c)of the Act, 29 U.S.C. ? 659(c).Three citation items alleging violations of construction safety standards were issued toSchwarz-Jordan, a drywall subcontractor at a large construction project in Arlington,Texas.\u00a0 Schwarz-Jordan was alleged to have violated 29 C.F.R. ?? 1926.451(e)(10)(unguarded scaffold), 1926.54(d)(lack of laser warning placard) and 1926.401(a)(2)(lack oflabel identifying electric screw gun as double-insulated).\u00a0 The administrative lawjudge held that the employer violated the cited standards.\u00a0 We affirm in part andreverse in part.Citation 1, Unguarded Scaffold–29 C.F.R. ? 1926.451(e)(10)Citation 1 alleges that Schwarz-Jordan violated section 1926.451(e)(10)[[1]] by failing toinstall guardrails on the open side of a scaffold.\u00a0 At the hearing the complianceofficer who inspected the worksite testified that he observed an employee kneeling on amobile scaffold near the edge of a floor.\u00a0 The floor on which the scaffold waslocated was estimated to be ten feet six inches above the ground.\u00a0 The scaffold wasfive feet eight inches in height and was placed near a window opening approximately fourfeet high and eight wide.\u00a0 The scaffold was positioned in such a way that if theemployee had been standing, the top of the window opening would bisect the trunk of hisbody.\u00a0 A vertical pipe crossed the opening and a horizontal mullion was locatedapproximately four feet above the scaffold, slightly higher than the top rail on astandard guardrail.\u00a0 While kneeling on the scaffold, the employee’s hand rested onthe mullion.At the hearing, the Secretary argued that the scaffold was required to have a guardrailbecause the total fall distance from the unguarded scaffold platform was greater than tenfeet.\u00a0 Relying on Julius Nasso Concrete Corp., 77 OSAHRC 45\/C6, 5 BNA OSHC 1235,1977-78 CCH OSHD ? 21,720 (No. 7542, 1977), the administrative law judge held that thescaffold was more than 10 feet above \”the ground or floor\” because the falldistance was greater than ten feet.On review, Schwarz-Jordan argues that Commission precedents havemisinterpreted the standard.\u00a0 In the employer’s view, guardrails were not requiredbecause the scaffold itself was less than ten feet in height.\u00a0 The employer contendsthat the judge’s interpretation departs from the plain language of the standard andrenders the standard unenforceably vague.\u00a0 The Secretary argues that the Commission’s\”authoritative\” interpretations of the standard have eliminated any possiblevagueness problems.The question for decision is whether a standing scaffold that is less than 10 feet inheight may be \”more than 10 feet above the ground or floor\” within the meaningof section 1926.451(e)(10).\u00a0 Julius Nasso, on which the judge relied, involved adifferent standard, section 1926.451(o)(7), which regulates horse scaffolds.\u00a0 TheCommission’s interpretation of subsection (o)(7) in that case turned entirely on itsinterrelation with another provision, subsection (o)(1), which has no analogue insubsection (e).\u00a0 The Commission reasoned in Julius Nasso that reading the phrase\”10 feet above the ground or floor\” in subsection (o)(7) as the distance from ahorse scaffold to its supporting base would render \”meaningless\” the separaterequirement in subsection (o)(1) that horse scaffolds not be constructed more than twotiers or 10 feet in height.\u00a0 It therefore concluded that these two provisions couldbe reconciled only by construing the phrase \”10 feet above the ground or floor\”as the potential fall distance, \”regardless of the height of the scaffold above itssupporting base.\”\u00a0 5 BNA OSHC at 1236, 1977-78 CCH OSHD at p. 26,102.When the Commission did address the standard before us in Automatic SprinklerCorp., 79 OSAHRC, 102\/B2, 7 BNA OSHC 1957, 1979 CCH OSHD ? 24,077 (No. 76-5271, 1979),this distinction was overlooked.\u00a0 The Commission cited Julius Nasso for the broadproposition that the standard protects employees from any falls of 10 feet or more withoutconsidering that there was no analogue in subsection (e) to subsection (o)(1), which wasthe basis for the majority interpretation in Julius Nasso.\u00a0 The extent of theCommission’s reasoning in Automatic Sprinkler was as follows:\u00a0 \”The obviouspurpose of the standard is to protect employees exposed to the hazard of falling more than10 feet from a scaffold platform.\u00a0 It would be inconsistent with this purpose to holdthe relevant distance to be that from the scaffold platform to the surface on which thescaffold stands if a person falling from the scaffold would fall a greaterdistance.\”\u00a0 7 BNA OSHC at 1958-59, 1979 CCH OSHD at p. 29,244 (citationomitted.)\u00a0 Because the Commission decision in Automatic Sprinkler does not adequatelyaddress questions about the proper interpretation of section 1926.451(e)(10) within thecontext of the entire standard, we must reexamine that holding.The phrase to be construed in section 1926.451(e)(10) is \”above the ground orfloor.\”\u00a0 A manually propelled mobile scaffold has its base on the ground orfloor, so the natural interpretation of \”above the ground or floor\” would be thedistance between the scaffold platform and the base of the scaffold.\u00a0 Ourinterpretation of this phrase is supported by section 1926.451’s general guardrailprovision, subsection (a)(4), which also requires guardrails on scaffolds \”more than10 feet above the ground or floor\” and goes on to require guardrails on narrowscaffolds 4 to 10 feet \”in height.\” \u00a0 This provision clearly uses the terms\”above the ground or floor\” and \”in height\” as equivalentexpressions.[[2]]\u00a0 Section 1926.451 repeatedly uses the word \”height\” torefer not to the elevation of a scaffold but to the distance above its base.[[3]]In other instances where the Secretary has meant to refer to \”fall distance\” hehas done so explicitly.\u00a0 E.g., 29 C.F.R. ? 1926.750(b)(1)(ii).\u00a0 Where theSecretary intended in section 1926.451 standards to predicate the guardrail requirement onfall distance, the qualifying phrase \”more than 10 feet above the ground orfloor\” was omitted.\u00a0 See 29 C.F.R. ?1926.451(t)(3)(window jack scaffolds, forworking at window openings, shall have guardrails unless the employee is provided with asafety belt).\u00a0 An employer who attempted to familiarize himself with his duties undersection 1926.451 would readily conclude that when the standards refer to a verticaldistance, they refer to the distance above the scaffold’s base, rather than itselevation.\u00a0 To construe the standards otherwise would deprive employers of the fairnotice that due process requires.\u00a0 Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5thCir. 1976).Our construction is also supported by the legislative history of the standard.\u00a0Although the basis and purpose statement for section 1926.451 is unilluminating, see 36F.R. 7340 (1971), the standard does have some legislative history.\u00a0 Section 1926.451is very similar to 29 C.F.R. ? 1910.28, the general industry counterpart standard forscaffolds.\u00a0 Section 1910.28 is directly derived from ANSI A10.8-1969, SafetyRequirements for Scaffolding.\u00a0 29 C.F.R. ? 1910.31.\u00a0 Because section 1926.451is also quite similar to the ANSI standard, it is reasonable to conclude that when theSecretary drafted 1926.451, he used the ANSI standard as a model. Section 3.3 of the ANSIstandard corresponds to subsection 1926.451(a)(4) and reads in part as follows:Guardrails and toeboards should be installed on all open sides and ends of platforms morethan ten feet above the ground or floor (except: 1) scaffolding wholly within the interiorof a building and covering the entire floor area of any room therein and not having anyside exposed to a hoistway, elevator shaft, stairwell, or other floor openings . . . .(Emphasis added.)\u00a0 That the italicized language was omitted from the final OSHAstandard demonstrates a regulative determination by the Secretary that the criticaldistance in determining whether guardrails are necessary is not the fall distance.\u00a0On the contrary, we view the fact that the OSHA drafter omitted from section 1926.451 theitalicized language in section 3.3 as strong evidence that section 1926.451 was notintended to be read as the Secretary urges.The regulations set forth in section 1926.451 describe in detail a wide rangeof scaffold types and provide for the type of fall protection to be used.\u00a0 Thisscheme of regulation takes into account both the physical make-up of the scaffold and thereality of the work situations in which it is used.[[4]]\u00a0 It cannot be controvertedthat the Secretary, in the exercise of rulemaking authority, may tailor remedies to fitactual workplace hazards.\u00a0 That some situations may not be covered to thesatisfaction of all parties is inevitable.\u00a0 This Commission, as an adjudicatory body,cannot weigh the merits of these policy decisions nor can we substitute personal choicesfor that embodied in the standard.\u00a0 Lisbon Contractors, 84 OSAHRC, 11 BNA 1971, 1974,1984 CCH OSHD ? 26,924, p. 35,400 (No. 80-97, 1984). \u00a0 We are required to giveeffect to what the standards were intended to say when read within the context of otherrelevant standards, not what the standards could have said. \u00a0 See, e.g., DiamondRoofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976).We therefore overrule Automatic Sprinkler and hold that the phrase \”above the groundor floor\” refers to the distance between a scaffold platform and the floor or groundon which a standing scaffold rests. \u00a0We therefore vacate citation 1.Citation 2, Item 2, Laser Warning Placard–29 C.F.R. ? 1926.54(d) Item 2 of citation 2 alleges that Schwarz-Jordan violated section 1926.54(d) by notposting a standard laser warning placard in an area where a laser was being used.[[5]]\u00a0 Schwarz-Jordan was using a laser to determine the height of interior walls.\u00a0The laser was situated between eight-and-a-half and nine feet off the floor. \u00a0Workers standing on 32\” high stilts were in the area installing sheetrock.\u00a0 Nowarning placard was posted.\u00a0 The employer’s job superintendent testified that theworkers in the area of the beam were \”below the laser light, usually about twoinches.\u00a0 The beam will be hitting you in the top of the head . . . . you don’t haveto look into the laser, itself, to see it.\”\u00a0 The witness also testified thatthere was \”no way\” that the beam would shine \”directly\” into theemployees’ eyes.The employer argues that there was no hazard due to the placement of the laser andtherefore the standard was not violated.\u00a0 The judge found that \”[a]s it wasbeing used,\” the laser posed no \”substantial\” hazard to employees in thearea.\u00a0 However, he concluded that the standard presumes the existence of a hazard andheld that the standard was violated.We conclude that the standard was violated. \u00a0 Unlike some standards, section1926.54(d) does not require that there be a \”hazard\” to trigger the employer’sduty.\u00a0 Unlike other laser safety provisions in section 1926.54, subsection (d) is notpredicated on the laser’s power output.\u00a0 Compare sections 1926.54(c), (j)(1)-(3), and(1).\u00a0 We therefore agree with the judge that the Secretary satisfied his burden ofproving that the standard was violated when he showed a standard laser warning placard wasnot posted in an area in which a laser was used.[[6]]However, Schwarz-Jordan’s argument that there was no hazard because of thelaser’s location in effect raises the question of whether the violation was de minimis,i.e., that the hazard involved bears such a negligible relationship to employee safety orhealth as to render inappropriate the imposition of a penalty and the entry of anabatement order.\u00a0 Bethlehem Steel Corp., 81 OSAHRC 86\/A2, 9 BNA OSHC 2177, 1981 CCHOSHD ? 25,645 (No. 77-617, 1981).\u00a0 The testimony of Schwarz-Jordan’s jobsuperintendent reveals that at best the laser beam was inches from striking the eyes ofthese workers, an extremely narrow margin on which to rest the safety and health ofemployees.\u00a0 In any event, there is no evidence that these workers could not be harmedby incidental observation of the laser or by diffused reflected light.\u00a0 See 29 C.F.R.? 1926.54(j)(2) & (3) and n.6, supra. We cannot conclude that the violation was deminimis and therefore affirm this item.Citation 2, Item 3, Unmarked Screw Gun—29 C.F.R. ? 1926.401(a)(2)[[7]]Item 3 of citation 2 alleges that the employer violated section 1926.401 (a)(2)’srequirement that double-insulated tools be \”distinctively marked.\”\u00a0 At theworksite, the compliance officer observed an employee using a double-insulated electricscrew gun that was not marked to indicate that it was double-insulated.\u00a0 A witnessfor the employer testified that the screw gun had previously been marked, but the stickerhad peeled off after a few days of use. Before the judge, Schwarz-Jordan argued that there was no hazard because the tool wasdouble-insulated.\u00a0 The judge affirmed the citation item, reasoning that whether thisparticular tool actually presented a hazard was irrelevant.\u00a0 On review, the employerrenews its argument that the citation item should be vacated because the screw gun wasdouble-insulated and presented no hazard. \u00a0 The Secretary argues that the standarddoes not require proof of a hazard and that the judge’s decision should be affirmed.We agree with the administrative law judge and the Secretary that the standard wasviolated, but we conclude that the violation was de minimis.\u00a0 A violation of astandard is properly characterized as de minimis when the hazard involved bears such anegligible relationship to employee safety as to render inappropriate the imposition of apenalty and the entry of an abatement order.\u00a0 It is undisputed that this particularscrew gun was double-insulated and therefore presented no hazard to the employee usingit.\u00a0 The hazard addressed by the standard is electrocution from ungrounded,single-insulated tools that employees do not know are single-insulated.\u00a0 In thiscase, that hazard did not exist.\u00a0 Schwarz-Jordan’s screw guns were alldouble-insulated.\u00a0 The screw gun at issue here was owned by the employee using it andit is unrealistic to believe that he would not know that it was double-insulated. Therecord furnishes no basis for finding that single-insulated tools were used on theworksite.\u00a0 Under these particular circumstances, the lack of an identifying stickerwas a de minimis violation.Accordingly, the judge’s decision is reversed in part and modified in part.\u00a0 Citation1 is vacated, item 2 of citation 2 is affirmed, and item 3 of citation 2 is modified to ade minimis notice and affirmed as so modified.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED:\u00a0 July 20, 1984CLEARY, Commissioner, dissenting in part:I dissent from the majority’s decision to vacate the scaffold citation and from thecharacterization of the screw gun item as de minimis.The ScaffoldAs this Commission stated in Automatic Sprinkler, interpreting section 1926.451(e) (10)’sguardrail requirement according to the distance of the scaffold from its base, rather thanits greater distance from the ground or floor, is inconsistent with the regulatorypurpose.\u00a0 The obvious purpose of the standard is to protect employees exposed to thehazard of falling more than ten feet from a scaffold.\u00a0 Yet, under the majority’s newconstruction of the standard, a guardrail would be required on the open edge of aneleven-foot-high scaffold, but no protection would be required on the open side of anine-foot-tall scaffold pushed flush against the edge of a building 100 feet above theground.Inasmuch as this result makes no sense, one must wonder what policy choices of thestandard’s drafters the majority believes itself to be vindicating.\u00a0 We were recentlytold in Lisbon Contractors, Inc., 11 BNA OSHC 1971, 1973-74, 1984 CCH OSHD ? 26,924, p.34,500 (No. 80-97, 1984), that the Secretary’s standards \”set policy [and] strike abalance between the protection of employees and the imposition of burdens onemployers,\” and that the Commission may not \”upset that balance and substitute anew one.\”\u00a0 In seeking that balance here, the majority considers the words of thestandard but goes no further.\u00a0 It does not consider how or if its constructionsquares with the protective purpose of the standard–to keep employees from falling offscaffolds–or the drafter’s purpose in choosing ten feet as a trigger for the impositionof a burden on employers.\u00a0 The majority does not consider, let alone explain, why thedangers to employees are materially different depending on whether they are exposed to a100-foot fall from a 100-foot tall scaffold or from a 10-foot high scaffold located 90feet above the ground.\u00a0 The majority does not provide, and I cannot conceive of, anyreason why the provision of guardrails on scaffolds becomes more burdensome when thescaffold platform is less than 10 feet above the base.I recognize that adjudicatory bodies must follow even the most questionable constructionof a statute or regulation if that construction was intended by the drafter.\u00a0 SeeGriffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982), and cases cited.\u00a0 Whatevidence is there that the majority’s construction reflects the drafters’ intent?Like the majority, I begin with the words of the standard.\u00a0 The critical phrase is\”scaffolds more than 10 feet above the ground or floor.\”\u00a0 On the one hand,one could read this phrase as indicating that guardrails are required when the falldistance exceeds ten feet as measured from either the floor on which it rests or anyadjacent ground level.\u00a0 This construction would protect employees and not increaseburdens on employers.\u00a0 On the other hand, one may read the phrase as the majoritydoes–as reflecting the simple fact that a scaffold is erected on or suspended over a\”ground\” or a \”floor.\”\u00a0 As I have said, however, thisconstruction serves no discernible purpose.The majority finds great significance, however, not in the critical words \”above theground or floor\” in section 1926.451(e)(10), but in the word \”height\” insection 1926.451(a)(4) and other provisions in section 1926.451.\u00a0 In section1926.451(a)(4), the terms \”above the ground or floor\” and \”height\” aresaid to have been used as equivalent expressions.\u00a0 The majority notes that many otherprovisions in section 1926.451 use the term \”height\” to mean the distancebetween a scaffold’s platform and base. \u00a0Therefore, the majority reasons, \”abovethe ground or floor\” must also mean the distance between a scaffold’s platform andbase.What this syllogism overlooks is that the word \”height\” is usedthroughout this standard in the same fashion as ordinary speakers and writers of theEnglish language use it–in different senses depending upon the intent of the speaker orwriter.\u00a0 In subsection (a)(4), the word \”height\” was used in the sense ofelevation.\u00a0 In the provisions cited by the majority, it was used in the differentsense of the distance from the top to the bottom of something.\u00a0 The difference inmeaning can be attributed to the fact that in subsection (a)(4), the drafters wereconcerned with fall distance, and had no reason to be concerned with how tall the scaffoldis.\u00a0 In the other provisions cited by the majority, however, the drafters wereconcerned with the structural stability of scaffolds, and were therefore vitally concernedwith the distance from the base to the platform. \u00a0 It is well-accepted that the sameword may be used and construed to mean different things in the same statute or regulationdepending on the purpose of the drafter.\u00a0 Pennsylvania v. I.C.C., 535 F.2d 91, 94(D.C. Cir. 1976), and cases cited.This view is confirmed by the standard’s legislative history.\u00a0 As the majority notes,section 1926.451 is very similar to section 1910.28, which was directly derived from ANSIA10.8–1969, Safety Requirements for Scaffolding.\u00a0 29 C.F.R. ? 1910.31.\u00a0Section 3.3, the \”general requirements\” provision of the ANSI standard,corresponds to subsection 1926.451(a)(4) and reads in part as follows: Guardrails and toeboards should be installed on all open sides and ends of platforms morethan ten feet above the ground or floor (except: 1) scaffolding wholly within the interiorof a building and covering the entire floor area of any room therein and not having anyside exposed to a hoistway, elevator shaft, stairwell, or other floor openings . . . . (Emphasis added.)\u00a0 The italicized language clearly demonstrates that theintent of the drafters of the ANSI standard that the critical distance in determiningwhether guardrails are necessary is the fall distance, not the distance from a scaffold’sbase to its platform. To claim as the majority does that the deletion of the italicizedlanguage from the final OSHA standard reveals that the Secretary was no longer chieflyconcerned with fall distance is simply to overlook the entire purpose of the standard.The majority suggests that its construction is necessary to provide constitutionallyadequate notice of an employer’s duty under the standard.\u00a0 The test forconstitutionally adequate notice is whether a reasonable employer familiar with thecircumstances would recognize that it is under a duty.\u00a0 A \”reasonable\”employer, however, is concerned with the safety and health of his employees.\u00a0 RayEvers Welding Co. v. OSHRC, 625 F.2d 726, 731 (6th Cir. 1980).\u00a0 I have no doubt thatsuch an employer would recognize that this standard is concerned with fall distance, thatits purpose is to save lives, and that putting an unguarded scaffold flush against theunguarded edge of a building defeats that purpose. \u00a0 See Automatic Sprinkler Corp., 7BNA OSHC at 1959, 1979 CCH OSHD at p. 29,244.The Screw Gun.I also dissent from the de minimis characterization of the screw gun item. \u00a0 I do notbelieve that the hazard was negligible.\u00a0 The lack of a marking could have killed orseriously injured an employee.\u00a0 The apparent purpose of the standard is to ensurethat single-insulated tools are identified by their lack of a label and accordinglygrounded.\u00a0 However, if an employer fails to mark double-insulated tools, employeeswould assume that all tools unmarked are double-insulated.\u00a0 Thus, if an unmarked,single-insulated tool came into use, the absence of a label would not alert the workers tothe hidden danger.\u00a0 It is no answer to say that Schwarz-Jordan used onlydouble-insulated screw guns, that the employee who owned and used it was presumablyfamiliar with its double-insulation, that this screw gun was indeed double-insulated, andthat the record is silent on whether single-insulated tools were used.\u00a0 As JudgeBlythe correctly pointed out, these were mere fortuities.\u00a0 \”If one employeecould bring to the job a double-insulated tool, another of the 30 employees on this jobmight bring one that was not.\”I would affirm this citation item and require abatement.The Administrative Law Judge decision in this matter is unavailable in this format.\u00a0To obtain a copy of this document, please request one from our Public Information Officeby e-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), TTY (202-606-5386).FOOTNOTES: [[1]] Section 1926.451(e)(10) provides:? 1926.451 Scaffolding.* * *(e) Manually propelled mobile scaffolds.* * *(10) Guardrails made of lumber, not less than 2×4 inches (or other material providingequivalent protection), approximately 42 inches high, with a midrail, of 1×6 inch lumber(or other material providing equivalent protection), and toeboards, shall be installed atall open sides and ends on all scaffolds more than 10 feet above the ground or floor.\u00a0 Toeboards shall be a minimum of 4 inches in height.\u00a0 Wire mesh shall beinstalled in accordance with paragraph (a)(6) of this section.[[2]] See also section 1926.451(s)(1), where the \”height\” of a ladder jackscaffold is explicitly determined by reference to the distance of the platform \”abovethe ground or floor.\”[[3]] See subsections (b)(4)(securing of wood pole scaffolds greater than 25 feet in\”height\”); (b)(16)(wood pole scaffolds shall be erected in accord with tables orby designed qualified engineer depending on \”height\”); (d)(9)(registeredengineer to design frame scaffolds \”over 125 feet in height above the baseplates\”); (e)(1)(\”height\” of mobile scaffold towers not to exceed fourtimes base); (e)(7)(ii)(no riding unless base is one-half \”height\”);(n)(1)(squares of bricklayers’ square scaffolds not to exceed five feet \”inheight\”); (n)(6)(same scaffolds not to exceed three tiers \”in height\”);(o)(1)(horse scaffolds no more than two tiers \”in height\”); and (y)(4)(ii)(polesof pump jack scaffolds not to exceed 30 feet \”in height\”).\u00a0 Indeed,numerous guardrail provisions in section 1926.451 use the word in connection withtoeboards in this same sense.\u00a0 E.g., section 1926.451(e)(10) (toeboards shall beminimum of 4 inches \”in height\”).[[4]] The dissent describes a hypothetical situation that bears no relation to the factsin this case, assumes that the Secretary’s language and regulatory decisions were notcarefully or deliberately chosen, and then concludes that the Secretary could not haveintended that this hypothetical situation should be unremedied.\u00a0 This analysisignores the comprehensive nature of the Secretary’s regulations.\u00a0 The Secretary haspromulgated a variety of regulations addressing fall hazards that protect against 100 footfalls from the edge of unguarded buildings.\u00a0 Our reading of this particular standardin no way leaves employees unprotected from the hazard described in the dissent.[[5]] The standard provides:? 1926.54 Nonionizing radiation.* * *(d) Areas in which lasers are used shall be posted with standard laser warning placards.[[6]] The employer has apparently abandoned its argument that the laser’s low outputnegated any hazard.\u00a0 We note in any event that the witness who testified for theemployer that the laser was too weak to present a health hazard had no apparentqualifications to testify as to the potential harm a laser beam might cause.[[7]] Section 1926.401(a)(2) states:? 1926.401 Grounding and bonding.(a) Portable and\/or cord and plug-connected equipment.(2) Portable tools and appliances protected by an approved system of double insulation, orits equivalent, need not be grounded. Where such an approved system is employed, theequipment shall be distinctively marked.”