“SECRETARY OF LABORComplainant,v.SIMPSON, GUMPERTZ & HEGER, INC, Respondent.Docket No. 89-1300*DECISION *BEFORE: FOULKE Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:In this case we are asked to decide whether an engineering companyhaving a contract to provide design and consulting services for thearchitect at a building site is subject to the standards set forth in 29C.F.R. Part 1926, which is entitled \”Safety and Health Regulations forConstruction.\” For the reasons that follow, we reject the Secretary’spremise that Respondent. Simpson, Gumpertz & Heger, Inc. (\”SGH\”), isengaged in construction work within reach of Part 1926, and we affirmthe order of Administrative Law Judge Richard DeBenedetto grantingsummary judgment in favor of SGH.*I. INTRODUCTION*This case arose following an accident during the construction of theFuller Laboratories building for Worcester Polytechnic Institute inWorcester, Massachusetts. On December 13, 1988 a portion of the metaldecking which served as formwork to support the concrete flooringcollapsed as the concrete was being poured. The area which collapsed wasan area where the contract specifications called for two layers ofconcrete with a layer of styrofoam insulation in between. SGH was citedfor serious violations of the Occupational Safety and Health Act of1970, 29 U.S.C.? 651-678 (\”the OSH Act\” or \”the Act\”) for failing tocomply with two standards set forth in Subpart Q of Part 1926, \”Concreteand Masonry Construction.\” The Secretary alleged that the decking wasnot capable of supporting the double pour of concrete and the insulationlayer, contrary to 29 C.F.R. ? 1926.703(a)(1), and that SGH had failedto make available at the jobsite drawings or plans for providingsufficient shoring to support the decking, contrary to 29 C.F.R. ?1926.703(a)(2).[[1]] SGH contended that these standards are inapplicablebecause it does not perform construction work. Amici curiae briefs werealso received from the American Consulting Engineers Council, theNational Society of Professional Engineers, and the American Instituteof Architects, who argued in support of SGH’s position.Before the judge, the Secretary argued that SGH is subject to theconstruction standards in the particular circumstances presented herebecause it gave advice and instruction to the general contractor,Francis Harvey & Sons, regarding the provision of shoring and theperformance of the concrete pour. As a result, SGH, in the Secretary’sview, created or was otherwise responsible for the resulting hazardousconditions. The Secretary renews this argument before us on review butalso contends that design engineers such as SGH are engaged inconstruction work as a matter of course because the activities theycontract to perform are inseparable from construction operations. Wewill first address the question of whether the activities whichengineers such as SGH usually undertake at a construction job constituteconstruction work. [[2]]*II. CUSTOMARY DUTIES OF A DESIGN OR CONSULTING ENGINEER*SGH’s contract is illustrative of the kinds of duties performed bydesign or consulting engineers at construction projects. SGH contractedwith the building architect. Payette Associates, using a form publishedby the American Institute of Architects. AIA Document C141, StandardForm of Agreement Between Architect and Engineer.[[3]] With theexception of a few provisions added by the two parties, their contractconsists entirely of the standard form language set forth document.Essentially, SGH agreed to provide \”professional services which[Payette] is required to provide to the Owner\” under Payette’s separateagreement with the building owner. These services can be divided intotwo major categories. First, SGH was required to prepare necessarycontract drawings and specifications in accordance with local codes andregulations\” and subject to the approval of the architect and owner. Thecontract provided that SGH would work with the architect from theinception of the building design, preparing the initial \”schematicdesign studies,\” followed by \”drawings and other documents to fix anddescribe … the Project, including materials, equipment, componentsystems and types of construction as may be appropriate,\” and finally,drawings and specifications \”setting forth in detail the requirementsfor the construction.\” These detailed documents for the actualconstruction were required to \”be adequate for the construction and …provide a facility which is fit for the purpose intended and meets thefunctional requirements described in the Owners’ program.\” The contractalso provided that f the architect so required, SGH would aid thearchitect and the owner in obtaining and evaluating bids for the projectand in preparing and awarding the actual construction contractthemselves. Articles 1, 17.5.Second, SGH was to undertake certain measures to ensure that the workperformed by the made contractors conformed to both the requirements ofthe construction contracts themselves and \”applicable local codes andregulations\” regarding the \”structural adequacy\” of the masonry andother components of the completed building. Specific duties imposed onSGH during this \”Construction Phase\” of the project include the duty tomake on-site inspections; to certify what amounts are due to the generalcontractor for the completion of work; and to assist in resolvingdisputes between the owner and contractor, determining whether the workis acceptable, and preparing changes in the work plan. Article 1.2.[[4]]The contract also contained a general stipulation that SGH would not beresponsible for the Acts or omissions of the Architect, the Architect’sother consultants, the Contractor, any Subcontractors, any of theiragents or employees, or any other persons performing any of the Work\”This disclaimer cross-referenced other clauses stating that SGH\”shall…review the program furnished by the Owner and\/or the Architectand shall confirm the understanding of these requirements and otherdesign parameters with the Owner and Architect\” and that SGH \”shallreview his work with the Owner and Architect for compliance with theOwner’s program and\/or the Architect’s program directions.\” Articles1.1.7, 17.2-3. That portion of the contract dealing with theconstruction phase set forth additional limitations on the scope ofSGH’s responsibilities:1.2.13 The Engineer shall not have control or charge of, and shall notbe responsible for, construction means, methods, techniques, sequencesor procedures, for safety precautions and programs in connection withthe Work, for the Acts or omissions of the Contractor, Subcontractors orany other persons performing any of the Work, or for the failure of anyof them to carry out the Work in accordance with the Contract Documents.1.2.20 The Engineer shall review and approve, or take other appropriateaction upon, and furnish to the Architect for final disposition theContractor’s submittals such as Shop Drawings, Product Data and Sampleswith respect to this Part of the Project; but only for conformance withthe design concept of the Work and with the information given in theContract Documents.The relationship between the architect and the owner is described inAmerican Institute of Architects, AIA Document A201, General Conditionsof the Contract for Construction. This agreement does not state anyresponsibilities of the engineer but provides for the followingresponsibilities of the \”Contractor,\” i.e., the general contractor:4.3 SUPERVISION AND CONSTRUCTION PROCEDURES4.3.1 The Contractor shall supervise and direct the Work, using his bestskill and attention. He shall be solely responsible for all constructionmeans, methods, techniques, sequences and procedures and forcoordinating all portraits of the Work under the Contract.4.3.2 The Contractor shall be responsible to the Owner for the acts andomissions of his employees. Subcontractors and their agents andemployees, and other persons performing any of the Work under a contractwith the Contractor.\”The Work\” is defined as \”the completed construction required by theContract Documents and includes all labor necessary to produce suchconstruction, and all materials and equipment incorporated or to beincorporated in such construction.\” Article 1.1.3.lll. FACTORS PERTAINING TO THE DEFINITION OF \”CONSTRUCTION WORK\”A. GeneralJudge DeBenedetto concluded that this case is controlled by the existingCommission precedent of Skidmore, Owings & Merrill, 5 BNA OSHC1762,1977-78 CCH OSHD ?22,101 (No. 2165, 1977) (\”SOM\”). In SOM, theCommission held that an architectural and engineering firm retained bySears, Roebuck to inspect the construction work for the Sears Towerproject in Chicago and to ensure that it complied with Sears’ designspecifications was not engaged in construction work under Part 1926. TheCommission reasoned that considering \”the realities of the constructionindustry,\” the Part 1926 standards apply only to an employer who\”perform[s] actual construction work or exercise[s] substantialsupervision over actual construction.\” Id at 1764, 1977-78 CCH OSHD atp. 26,627. For the reasons that follow, we adhere to the \”substantialsupervision\” test we articulated in SOM, and we agree with the judgethat SGH did not exercise substantial supervision over construction workwithin the meaning of SOM.In arguing that professionals such as SGH are deemed to be engaged inconstruction work, the Secretary essentially asks us to reach the sameresult in this case as the Commission did in two cases which proceededSOM, Bechtel Pwr Corp., 4 BNA OSHC 1005,1975-76 CCH OSHD 20,503 (No.5064, 1976). aff’d per curiam, 548 F.2d 248 (8th Cir.1977) (\”Bechtel\”)and Bertrand Goldberg Assocs., 4 BNA OSHC 1587, 1976-77 CCH OSHD ?20,995(No.11645, 1976) (\”Bertrand Goldberg\”). Those cases involvedconstruction managers, that is, companies hired by the building orproject owner to administer and coordinate the construction work.Although construction managers perform no actual construction tasks,they have considerable authority over the performance of the work andthe safety measures implemented by the subcontractors. See SOM, 5 BNAOSHC at 1764, 1977-78 CCH OSHD at p. 26,626 (construction managers actin a capacity similar to that of a general contractor) In concludingthat construction managers are covered by the construction standards inPart 1926, the Commission reasoned that their administrative andsupervisory functions are \”inextricably intertwined with the actualphysical labor\” and that consequently their activities on the jobsiteare \”so directly and vitally related to the Construction beingperformed\” that they are engaged in construction work within the meaningof the construction standards. Bechtel, 4 BNA OSHC at 1006, 1975-76 CCHOSHD at p. 24,499; Bertrand Goldberg, 4 BNA OSHC at 1589,1976-77 CCHOSHD at 25,220. In SOM, however, the Commission distinguished thefunctions performed by the architectural and engineering firm involvedin that case from the duties of a construction manager, concluding that\”while SOM exercises some supervision over construction we would notcharacterize it as substantial in the sense that supervision by aconstruction manager is substantial.\” 5 BNA OSHC at 1764, 1977-78 CCHOSHD at p. 26,627. See Cauldwell-Wingate Corp., 6 BNA OSHC 1619, 1621,1978 CCH OSHD ?22,729, p. 27,436 (No. 14260, 1978) (applying test of\”substantial supervision over actual construction\” in determiningwhether a construction manager is subject to the construction standards).The Secretary contends that design or consulting engineers such as SGHare engaged in construction work because the functions they perform area necessary part of the construction project in question. In theSecretary’s view, SOM was wrongly decided to the extent it holds thatdesign and engineering professionals are not subject to the constructionstandards unless they substantially supervise the performance of theconstruction work at the jobsite. We reject that argument for severalreasons. At the outset, we conclude that the history of the promulgationof the Part 1926 standards demonstrates that SGH’s activities do notconstitute construction work within the meaning of Part 1926.*B. History and Application of part 1926 Ad*As the secretary notes, she originally promulgated the standards in Part1926 under the authority of the Contract Work Hours and Safety StandardsAct 40 U.S.C. ? 327-333, popularly known as the Construction Safety Act(\”CSA\”). Bechtel, 4 BNA OSHC at 1007, 1975-76 CCH OSHD at 24,499. Thepertinent section of the CSA. section 107 (a), 40 U.S.C. ? 333(a) statesas follows.It shall be a condition of [Federal or Federally-funded contracts] forconstruction, alteration and\/or repair, including painting anddecorating, that no contractor or subcontractor contracting for anyportion of the contract work shall require any laborer or mechanicemployed in the performance of the contract to work in surroundings orunder working conditions which are unsanitary, hazardous, or dangerousto his health or safety, as determined by construction safety and healthstandards promulgated by the Secretary…The standards originally promulgated under the CSA were then adopted asstandards under the OSH Act by section 1910.12,[[5]] which provides:? 1910.12 Construction work.(a) Standards. The standards prescribed in Part 1926 of this chapter areadopted as occupational safety and health standards under section 6 ofthe Act and shall apply, according to the provisions thereof, to everyemployment and place of employment of every employee engaged inconstruction work. Each employer shall protect the employment and placesof employment of each of his employees engaged in construction work bycomplying with the appropriate standards prescribed in this paragraph.(b) Definition. For purposes of this section, Construction work meanswork for construction, alteration, and\/or repair, including painting anddecorating. See the discussion of these terms In ? 1926.13 of this title.The referenced section, 29 C.F.R. ? 1926.13, is entitled \”Interpretationof statutory terms.\” Section 1926.13(a) explains that \”contractor\” and\”subcontractor,\” which appear in section 107 of the CSA and\”construction,\” \”alteration,\” and \”repair,\” which are used in section1910.12(b) as well in the CSA are common terms customarily found instatutes dealing with Federal or Federally funded construction contracts:The terms \”construction,\” \”alteration,\” and \”repair\” used in section 107of the Act are also used in section 1 of the Davis-Bacon Act (40 U.S.C276a), providing minimum wage protection on Federal constructioncontracts, and section 1 of the Miller Act (40 U.S.C 270a), providingperformance and payment bond protection on Federal constructioncontracts. Similarly, the terms \”contractor\” and \”subcontractor\” areused in those statutes, as well as in the Copeland (Anti-Kickback) Act(40 U.S.C. 276c) and the [CSA] itself, which apply concurrently with theMiller Act and the Davis-Bacon Act on Federal construction contracts andalso apply to most federally assisted construction contracts. The use ofthe same or identical terms in these statutes which apply concurrentlywith section 107 of the [CSA] have considerable precedential value inascertaining the coverage of section 107.Section 1926.13(c) defines \”subcontractor\” as \”a person who agrees toperform any part of the labor or material requirements of a contract forconstruction, alteration or repair.\” In addition, the terms \”employee\”and \”employer\”, which also are used in the CSA, are defined in section1926.32, which in turn refers to the Davis-Bacon Act, 40 U.S.C. ? 276a,the statute dealing with wage rates for \”Iaborers and mechanics\” onFederal construction contracts. It is clear from the definition sectionsof the CSA and definitions under the referenced Davis-Bacon Act that thestandards enacted under the CSA are directed to the performance of theactual physical craft labor at a construction site and do not apply tothose whose functions are administrative or professional in nature.[[6]]In her reply brief before us, the Secretary acknowledged that when shepromulgated section 1910.12 adopting the CSA standard under the OSH Act,she alluded to the definitions set forth in the CSA standard at section1926.13. The Secretary further that when originally adopted under theCSA, the standards were limited to the argument, however counsel for theSecretary contended that because OSH Act applies generally to allemployees of all employers, the CSA standards were adopted under the OSHAct, they were no longer subject to that may have existed under the CSA.In the Secretary’s view, the provisions of Part 1976 and regulationspromulgated under other statutes referred to in Part 1926, including thedefinition of \”laborer\” and \”mechanic\”,cannot be used to limit the scopeof the OSH Act or the standards enforced through it.It is beyond question that the CSA was enacted under the limitedcontracting power of the Federal government whereas the OSH Act is basedon the broad authority of the Commerce Clause to regulate all employerswhose business affects interstate commerce. Sections 2(b) and 3(5) ofthe Act, 29 U.S.C. ?? 651(b) and 652(5). As the Secretary correctlystated in section 1910.11 (a), \”[t]he provisions of this subpart …adopt[,] and extend the applicability of, established Federal standards… with respect to every employer, employee, and employment covered bythe Act.\” Clearly, language restricting the CSA to contractors andsubcontractors and to laborers and mechanics has no bearing indetermining whether a particular employer is subject to the enforcementof standards under the OSH Act See Brock v. Cardinal Indus., 828 F.2d373,377 n.7 (6th Cir. 1987). That, however, is not the issue before ushere. The question in this case is a much narrower ones whether theparticular work activities in which SGH is engaged constituteconstruction work within the meaning of section 1910.12 so as to comewithin the scope of the Part 1926 standards. See Id. at 378 n.8.In deciding an issue analogous to that presented here, the Sixth Circuitin Cardinal Industries relied on the definition and scope provisions ofPart 1926 and the Davis-Bacon Act regulations in holding that anemployer who manufactures modular housing units at a facility having nophysical connection with a construction site is not governed by theconstruction standards. The court emphasized the stipulation in section1926.13 that the use of common terminology in statutes dealing withFederal or Federally-funded construction projects has \”considerableprecedential value\” in determining the scope of the CSA. Noting theSecretary’s own cross-reference in section 1910.12(b) to section1926.13, the court reasoned that the interpretation of the terms\”construction, alteration, and repair\” conveyed by those statutes shouldconcomitantly be considered precedent for defining \”construction work\”under section 1910.12. Id. at 377.[[7]]Cardinal Industries, furthermore, is consistent with the generalprincipal that standards containing broad or undefined terms may begiven meaning by reference to other standards Vanco Constr., Inc.11 BNAOSHC 1058, 1061, 1983-84 CCH OSHD ?26,372, p. 33,454 (No. 79-4945, 1982)aff’d, 723 F.2d 410 (5th Cir. 1984). The purported definition set forthin 1910.12 (b). \”Construction work means work for construction,alteration, and\/or repair\” in fact does not explain what is meant by\”construction work.\” See Nationwide Mut. Ins. Co. v Darden, 112 S. Ct1344, 1346, (1992) (\”nominal\” definition of \”employee\” in the ERISA law,29 U.S.C ? 1002(6), as \”any individual employed by an employer,\” setsforth no actual definition because it is \”completely circular\”).Accordingly, resort to other regulatory provisions is appropriate togive meaning to a term that would otherwise be vague. Gold-Kist, Inc. 7BNA OSHC 1855, 1859-60, 1980 CCH OSHD ?24,205, p. 29,433 (No. 76-2049,1979). See Darden, 112 S. Ct.at 1848 (other statutory provisions maygive guidance on the meaning of an otherwise undefined term or suggestprinciples by which the term can be construed); cf. Hughes Bros., 6 BNAOSHC 1830, 1833, 1978 CCH OSHD ?22,909, p. 27,717 (No. 12523, 1978)(regulatory provisions are to be read as a coherent whole).As the amici correctly observe in their brief before us, the Secretaryherself agrued to the Sixth Circuit in Cardinal Industries thatregulations under the CSA and Davis-Bacon Act should be accepted as\”controlling precedent\” in defining what constitutes \”construction work\”under the Part 1926 standards. Secretary’s brief at 13, 15, CardinalIndustries (attachment \”B\” to the amici brief). As the Secretary therestated, \”whether the Part 1926 standards apply depends on theinterpretation of the Construction Safety Act, which in turn dependslargely on whether the work at issue is considered construction workunder the Davis-Bacon Act\” Id at 18. Similarly, in her petition forrehearing of the decision in Cleveland Elec. Illuminating Co., 910 F.2d1333 (6th Cir. 1990), the Secretary also relied on a regulation definingthe term defining the term \”site of the work\” used in the Davis-BaconAct and decisions of the Wage Appeals Board, which reviews wagedeterminations issued under the Davis-Bacon Act, to support her argumentthat an employer’s program for training its construction employees wascovered by Part 1926 even though the training did not take place at theactual site of the construction activities. Secretary’s petition forreh’g at 6-9, Cleveland Electric (attachment \”D\” to the amici brief).See National Engg. & Contract Co. v. OSHRC, 838 F.2d 815. 817-18 (6thCir. 1987) (Secretary cites regulations under the Davis-Bacon Act tosupport contention that installation of a valve as part of a project toupgrade and expand a waste treatment plant is construction work).Indeed, in other cases the Secretary has contended that the definitionprovisions of the CSA standards should be applied in determining thescope of the substantive standards in Part 1926. For instance, in EdTaylor Constr. Co., 15 BNA OSHC 1711, 1714-16, 1992 CCH OSHD ?29,764,pp. 40,479-81 (No. 88-2463, 1992), the Secretary asserted, and theCommission agreed, that the definition of \”competent person\” set forthin section 1926.32(f) should be read into section 1926.20(b)(2), whichrequires that the employer institute safety programs that provide forinspections to be conducted by \”competent persons designated by theemployers.\” See also Capform, Inc.,13 BNA OSHC 2219, 1987-90 CCH OSHD?28,503 (No. 84-556, 1989) (definition of \”competent person\” in1926.32(f) applied in determining whether the Secretary satisfied herburden of proof under a standard requiring inspection of excavations bya \”competent person\”). Although we recognize that these cases deal withthe definition of terms in the substantive standards with whichemployers must comply under the Act, we see no conceptual differencebetween applying the definition and interpretative provisions of Part1926 to elucidate the requirements of the substantive safety and healthstandards within that Part and using those same provisions to ascertainthe general scope and applicability of Part 1926. In the first instance,the definitional and interpretive provisions define the employer’sobligations under a specific standard, in the latter instance, theydetermine more generally the employer’s duty to comply with the entiretyof Part 1926.We also note that although the Secretary generally provided in section1910.11(b) that \”interpretative rules\” set forth in Part 1926 are notincorporated by reference in section 1910.12, see supra note 7, sheexpressly incorporated the definition of Part 1926 when she amendedSubpart Q, containing the concrete and masonry standards at issue here.As part of an extensive revision of these standards, the Secretarymodified the original provision containing definitions of terms used inSubpart Q. 53 Fed. Reg. 22,612, 22,643 (1988). \”In addition to the definitions set forth in ? 1926.32, the following definitions apply tothis subpart.\” (Emphasis added.) The terms \”employer\” and \”employee\” areamong those used in Subpart Q which are defined in section 1926.32.[[8]]We view section 1926.700(b) as indicating that the Secretary herselfperceives that while the scope of the CSA itself may not be an issueunder the OSH Act, the definition and interpretation provisions of Part1926 are relevant to the extent they define the meaning andapplicability of the safety and health requirements set forth in Part 1926.*C. General Nature of Activities on a Construction Site*Our conclusion that professionals such as SGH cannot be held subject tothe construction standards based solely on the fact that they have arelationship to the overall construction project, without regard to thespecific kinds of work activities in which they engage, finds supportalso in the policy considerations that arise in an analogous contextdealing with the allocation of responsibility among various employers onmulti-employer construction worksites. As a general proposition, the Actreflects the understanding of Congress that its objectives are besteffectuated by placing the responsibility for complying with standardsand abating hazardous conditions on the employers or the exposedemployees on the premise that the employer has the primary control overthe work environment. Anning-Johnson Co., v. OSHRC, 516 F.2d 1081, 1088(7th Cir. 1975). At the same time, however, subcontractors atconstruction worksites normally are limited to the particular tradecrafts for which they have been hired and, as a result, they may not asa practical matter be in a position to correct the hazardous conditionsto which their employees are exposed. ld.Accordingly, to Commission and the courts hold that a subcontractor whodoes not have the requisite power and authority over the conditions inquestion will be excused from responsibility for those conditions if ittakes alternative measures to protect its employees, such as asking theresponsible contractor to correct the conditions or bringing them to theattention of the general contractor. New England Tel. &Tel. Co. v.Secretary of Labor, 589 F.2d 81 (1st Cir. 1978) (per curiam);Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD ?20,690 (No. 3694,1976) (consolidated); Grossman Steel & Aluminum Corp, 4 BNA OSHC 1185,1975-76 CCH OSHD ?20,691 (No. 12775, 1976). See Zemon Concrete Corp. v.OSHRC, 683 F.2d 176 (7th Cir. 1982). See also Central of GeorgiaRailroad Co. v. OSHRC, 576 F.2d 620, 623 (5th Cir. 1978) (discussion of\”intricacies\” of multi-employer construction worksites as opposed toworksites in general industry where more than one employer may beinvolved). Thus, responsibility for the correction of hazardousconditions is predicated on either one of two factors. The first iscreation of or control over the working conditions in question, which inturn depends on the physical craft or trade represented by the variouscontractors. See Union Boiler Co., 11 BNA OSHC 1241, 1246, 1983 84 CCHOSHD ?26,453, p. 33,607 (No. 79-232, 1983), aff’d without publishedopinion, 732 F.2d 151(4th Cir. 1984) (\”[c]ontrol is established when itis shown that an employer possessed the expertise and personnel to abatea hazard\”). The second is the customary supervisory authority exercisedby the general contractor or other employer having overall control overcondition at the site. Lewis and Lambert Metal Contrac., Inc., 12 BNA1984-85 CCH OSHD ?27,073, p. 34,899 (No 80 5295 S, 1984).We find no basis for creating an exception to the long-standingprinciples governing construction work sites by holding that design orengineering firms may be held responsible supply been use theiractivities are related to the overall construction project, to theextent to which they actually perform or supervise the construction workitself. No authority to suggest such a holding has been cited to us, andindeed the ease law suggests the contrary. There is a long standing bodyof case law which has consistently held that \”construction work\” withinthe meaning of ? 1910.12 refers \”only to actual construction or torelated activities that are an integral and necessary part ofconstruction work.\” Royal Logging Co. 7 BNA OSHC 1744, 1747 & n. 7,1749-50, 1979 CCH OSHD ?23,914, pp. 28,993 & n. 7, 28,996 (No 15169,1979) aff’d, 645 F.2d 822 (9th Cir. 1981), and cases cited therein. Itis clear however, that under the established precedent, activitiessufficiently \”related\” to construction work to come within theconstruction standards are those which involve the performance ofphysical labor.For example, National Engg involved the question of whether the generalcontractor at a project to upgrade and expand a waste treatment plantwas engaged in construction work when it installed a valve and performedassociated cleanup work. The court reasoned that \”[r]eplacement of thecheck valves in this case cannot be isolated and seen as accomplishing anon-construction purpose when respondent’s primary purpose at theworksite was to perform construction work\” 838 F.2d at 818 (quoting 86OSAHRC 56\/A12 (No. 85-1151,1986) (ALJ)). In A.A. Will Sand & GravelCorp.,4 BNA OSHC 1442, 1443, 1976-77 CCH OSHD ?20,864, p. 25,045 (No.5139, 1976), the Commission held that delivery of material to aconstruction site constitutes construction work where the deliveryemployee assisted an employee it he site In bringing. the material tothe specific work area since the delivery became \”an integral partof…the construction activities.\” In that decision the Commission citedWest Allis Lime & Cement Co., 2 BNA OSHC 1453, 75 CCH OSHD ?19,155 (No.1324, 1974), aff’g 74 OSAHRC 90\/E12 (ALJ, 1973) (although mere deliveryis not construction work, Part 1926 applies to a concrete supplier whosedriver positioned his truck several hundred feet into the job site at amaterial hoist into which he poured the concrete) In the same vein, thecommission ruled in United Tel. Co. of the Carolinas, 1 BNA OSHC 1644,1645, 1976-77 CCH, OSHD ?21,043. p. 25,323 (No. 4210, 1976) thatemployees of a telephone company assigned to move telephone poles tomake room for a highway being constructed are subject to theconstruction standards because erecting and removing telephone poles andtransferring lines constitutes \”alteration\” within the meaning ofsection 1910.12(b)and also because it is incidental to subsequentconstruction and part of the total work to be performed.\” See also HeedeIntl., Inc, 75 OSAHRC 26\/C11 (ALJ, 1973) aff’d, 2 BNA OSHC 1466, 1974-75CCH OSHD ?19,182) (No. 1889, 1975) that had been used on a constructionsite constitutes construction work).*D.Other Considerations*The Secretary’s statements when she adopted amendments to the concreteand masonry standards in Subpart: Q further demonstrate thatresponsibility for hazardous working conditions on multi-employerworksites rests with the trade contractors who have direct control overthose conditions or with those who directly supervise those contractors.The Secretary issued a notice of proposed rulemaking on September 16,1985, identifying \”the collapse or failure of the entire structure orits forms and shoring\” as one of the hazards associated with concreteand masonry structures. 50 Fed. Reg. 37,543 (1985). One issue theSecretary dealt with was whether requiring a structural engineer todesign and inspect the \”layout\” for shoring in certain circumstanceswould help prevent improper erection of such shoring. Also in questionwas the requirement in the existing standard that engineerspecifications\” be followed in determining the length of time shoringshould remain in place following concrete placement, which the Secretaryproposed to delete. In light of these concerns, the Secretary requestedcomments on the current industry practice for determining when forms mayhe removed and on whether imposing a mandatory requirement thatengineers inspect concrete construction operations for conformity withplans and specifications would improve worker safety. Id. at 37,549-50.Revisions to Subpart Q were promulgated on June 16,1988. 53 Fed. Reg.22,612 The Secretary modified her proposal to amend section 1926.701(a), which addresses the point at which leads may be placed on aconcrete structure, by deleting a proposed implementation that holds be\”approved by the engineer or architect\” in favor of a requirement thatthe contract make the determination \”based on information received froma person in structural design.\” Id. at 22,616. The Secretary explained,OSHA proposed to revise the existing rule by deleting that portion ofthe provision which required that construction loads be \”considered inthe design,\” leaving only the requirement that the engineer\/architectapprove the placement of loads on partially completed structures. OSHAproposed this revision because engineers-architects are not always awareof all construction loads that will ultimately be placed on thestructure, and thus, they would not be able to properly consider allsuch construction loads in the design stage. However, OSHA believes thatthe employer, as the person who has the ability to take correctiveaction and as the person with ultimate responsibility for the safety andhealth of the workers, also has the responsibility for making such decisions….After carefully considering all the comments and testimony received,OSHA has decided to delete the requirement for the specifiedengineering- architect services. This decision is based on the commentsand testimony received which indicates that engineer-architectsfrequently do not consider construction loads in the design, nor do theyapprove their placement on partially completed structures….Therefore,OSHA is requiring that the employer make the determination that thestructure or portion of the structure is capable of supporting theconstruction loads. The employer must make this determination on thebasis of information received from a person qualified in structuraldesign. This revision also places responsibility for employee safetywith the person directly responsible for the construction operations.Id.at 22,616-17 (emphasis added).The Secretary also declined to adopt a suggestion by the Building andConstruction Trades Department, AFL-CIO, that section 1926.703 (a) (1),which deals with \”cast-in-place\” concrete and is one of the standardsSGH is alleged to have violated, be revised to require that formwork bedesigned by a structural engineer. OSHA reasoned that such a mandatoryrequirement would be unnecessary in part because the trade contractorhas the responsibility to decide how to satisfy the objective of thestandard that the formwork be capable of supporting the load. Id. at22,625. Although OSHA did adopt a requirement that with respect to oneparticular type of shoring, single post shores, a \”qualified designer\”prepare the shoring design, OSHA again emphasized that theresponsibility for ensuring safe working conditions ultimately belongsto the trade contractors and not the design or consulting professionals.Thus, OSHA provided that \”the employer have an engineer who is qualifiedin structural design\” inspect the shoring after it is erected. Id. at22,629 (emphasis added); section 1926.703(a)(8)(i).The Secretary conducted a separate rulemaking for standards governinglift-slab operations, which are defined at section 1926.700(b)(3) as \”amethod of concrete construction in which floor, and roof slabs are caston or at ground level and, using jacks, lifted into position.\”[[9]] Theexisting section 1926.705 governing this type of operation incorporatedan industry safety code which required that lift-slab operations \”bedesigned and planned by a qualified professional engineer or architect.\”ANSI 10.9-1970, Safety Requirements for Concrete Construction andMasonry Work, section 11.2 (1970). The Secretary had proposed changingthis requirement to conform to the language of the 1983 version of theANSI standard, which provided that these tasks be performed by a\”qualified designer.\” The Advisory Committee on Construction Safety andHealth, however, recommended instead the term \”professional engineer orarchitect registered in the state where the work is being done.\” Theadvisory committee also recommended that the engineer or architect berequired to \”supervise\” lift-slab operations. Accordingly, the Secretaryrequested comments on whether employee safety would be enhanced byrequiring an engineer or architect to do this work and, if so, what typeof engineer would be appropriate. 55 Fed. Reg. 42,309-310 (1990).Noting that the various comments included, among other things, asuggestion that these duties be performed by the \”Engineer of Record,\”who under the laws of every state must approve building plans and mustbe licensed in the state where the work is being done, OSHA concluded,as it had in the previous amendments to Subpart Q, that the employeessafety is the province of the specific construction made contractor:[T]here is no clear discussion of the benefits to worker safety to begained by requiring a qualified designer instead of a registeredprofessional engineer or vice versa…It is the Agency’s intent that thelift-slab contractor be responsible for the lift slab operations at theconstruction site. OSHA observes that the general contractor (whoprobably is not the lift-slab contractor) is generally responsible forthe entire structure and the engineer of Record is a representative ofthe owner or of the general contractor, not the lifting contractor.Therefore, it would appear that the recommendations that OSHA placeresponsibility for work safety matters on the EOR, when it is known thatthe EOR will not be in the employ of the lifting contractor, would notprovide adequate protection. OSHA observes that the Agency’sjurisdiction is based on the employer\/employee relationship.[W]hile many commenters noted support for the term \”qualified designer,\”they also supported requiring the engineer of record to have someresponsibility for reviewing the work of the qualified designer. OSHAdoes not believe worker safety and could inadvertently placeresponsibilities on persons who are not in a position to controlemployee exposures to hazards….Id’. at 42,311-12 (emphasis added).Indeed, the policy considerations the Secretary addressed when shepromulgated these standards are reflected in her enforcement actions inthis very case. In addition to SGH, the Secretary issued citationsrelating to the accident to three of the contractors at the site:Francis Harvey and Sons, the general contractor; Worcester SteelErectors, the metal decking subcontractor; and D & M Concrete FloorCompany, the concrete subcontractor. Worcester Steel and D & M Concretewere cited for violations of the same standard SGH alleged to haveviolated, and the citation issued to D & M Concrete is worded almostidentically to SGH’s citation.[[10]] Although the issuance of citationsto the general contractor and specific trade contractors for the sameconditions is not conclusive on the question before us, it does suggestthat the Secretary recognizes that construction contract as themselvesare responsible for the safety of the working conditions at this siteand that SGH itself is not in a position to effectuate abatement orcorrection of the hazardous conditions questioned.IV. ACCEPTANCE OF THE SECRETARY’S INTERPRETATIONThe Secretary, nevertheless,contends that under Martin v. OSHRC (CF&ISteel Corp).111 S.Ct 1171, 1991,we must defer to her interpretation thatdesign and engineering professionals are engaged in \”construction work\”within the meaning of section 1910.12(b). We conclude that the holdingof for two reasons. First, in our view, we need not reach the deferenceissue addressed in CF&I because the Secretary’s interpretation isinvalid under the Administrative Procedure Act (\”APA\”) for not havingbeen promulgated through notice and comment rulemaking. Second, evenassuming CF&I is applicable, it does not require deference in thecircumstances presented here because the Secretary’s interpretation doesnot meet the prevailing criteria for ableness reasonableness.*A. Requirement for Notice and Comment*The APA. 5 U.S.C. ? 551(4), broadly defines a \”rule\” to include \”anagency statement of general or particular applicability and futureeffect designed to implement, interpret, or prescribe law or policy……\” Under section 553, notice and an opportunity for comment isrequired for the promulgation of a rule except for \”interpretativerules, general statements of policy or rules of agency organization,procedure, or practice.\” 5 U.S.C. ? 553(b)(A). Although the variouscategories of rules referred to in this section are not clearly defined,a rule for which notice and comment is required is generally understoodto be a rule issued pursuant to specific statutory authority to regulatethe matter in issue and which constitutes the law which both the agencyAnd reviewing authorities must enforce. Phoenix Forging Co., 12 BNA,OSHC 1317,1323 n.14, 1984-85 CCH OSHD ?27,256, p. 35,215 n.14 (No.82-398, 1985): 2 Davis, Administrative Law Treatise ? 7:11 at 53-54 (2ded. 1979).There is no question that section 6 of the Act gives the Secretaryauthority to issue binding rules through the promulgation ofoccupational safety and health standards.Northwest Airlines, Inc., 8 BNA OSHC 1982, 1989 CCH OSHD ?24,751, p30,488 (No. 13649, 1980). An agency empowered to enact legislativerules, however, may also elect to issue non-legislative statements.Unlike legislative rules,which have binding legal effect and can be setaside by the courts only if they are arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law a reviewingauthority has greater latitude to depart from nonbinding actions orstatements or give them less weight. Batterton v. Marshall, 648 F.2d694, 701-02 (D.C. Cir. 1980); Cerro Metal Prods., Dive of Mannon GroupInc v. Marshall, 620 F.2d 964, 981-82(3d Cir. 1980). Thus, in CF&I, theCourt held that while interpretations issued by the secretary \”are notentitled to the same deference as norms that derive from the secretary’sdelegated lawmaking powers,\” they are to be given deference so long asthey are reasonable. 111 S. Ct. at 1179. See Erie Coke Corp., 15 BNAOSHC 1561, 1563, 1992 CCH OSHD ?29,653, p. 40,148 (No 88-611, 1992)petition for review filed, No. 92-3297 (3d Cir. June 8,1992).In this case, the Secretary’s position that the term \”construction work\”used in section 1910.12 necessarily includes the work performed bydesign and engineering professionals such as SGH is not a legislativerule promulgated through the rulemaking procedures of section 6 of theAct, and the Secretary does not contend that it must be given bindinglegal effect as a substantive rule of law. See APWU v. USPS, 707 F.2d548, 558 (D.C. Cir. 1983), cert. denied, 465 U.S. 1100 (1984) (a rule islegislative only if Congress has delegated legislative power to theagency and if the agency intended to use that power in promulgating therule at issue). Rather, the Secretary contends that as aninterpretation, for which notice and an opportunity to be heard is notrequired under 5 U.S.C. ? 553(b)(A), her position is entitled todeference because it is a reasonable interpretation of ambiguousregulatory terminology.In evaluating arguments of this nature, there are essentially twodivergent lines of authority. As the court in Cerro explained,[one] approach, which has substantial support in the case law, [is] todistinguish between interpretative and legislative rules and then tostrike down the latter if found to be masquerading as the former. Underthis method, the function of the court is to decide what a rule \”really\”does and then require a rule substantially affecting a legal right to bepromulgated by notice-and-comment rulemaking or else be he held invalid.Conversely, \”[t]he alternative approach . . . is to take the agency atits word: If an agency that has the statutorily delegated power to issuelegislative rules chooses instead to issue an interpretive rule, thecourt accepts that characterization of the rule\” but then decides whatweight to assign to it. 620 F.2d at 981 (citing Daughters of MiriamCenter for the Aged v. Mathews, 590 F.2d 1250,1255 n.9, 1258-59 (3d Cir.1978)) (footnotes omitted). Compare Columbia Broadcasting Sys Inc. v.United States, 316 U.S. 407, 416 (1942) and Lewis Mota v. Secretary ofLabor, 469 F.2d 478, 481-82 (2d Cir. 1972) (the actual effect of theagency action rather than the label the agency places on it isconclusive) with American Hosp. Assn. v. Bowen, 834 F.2d 1037 (D.C.Cir.1978) (in deciding whether notice and comment procedures apply to agencyaction. the court will consider the agency’s own characterization of itsaction). In addressing this question under the OSH Act, the ThirdCircuit in Cerro ruled that it would accept the Secretary’s view thatthe rule in question was interpretative but would not defer to it,whereas the District of Columbia Circuit has held that the label theSecretary assigns to her rulemaking action is not dispositive. Chamberof Commerce of the United States v. OSHA, 636 F.2d 464, 468 (D.C. Cir.1980). See APWU, 707 F.2d at 560 (holding that even an interpretativerule may have a significant impact on the rights of individualsrequiring that it be supported by a rulemaking record based on noticeand an opportunity to be heard).In our view, the Secretary’s position that design and engineeringprofessionals on construction project are subject to the standards inPart 1926 is an agency action requiring notice and comment rulemaking.Although the Secretary does not contend that her interpretation of theterm \”construction work\” is necessarily binding on a reviewingauthority, the practical effect of her position that design andengineering professionals are engaged in construction work is to subjectthem to compliance with the Part 1926 standards by exposing them toenforcement action for violation of the Act. Thus, under theinterpretation advanced here, the Part 1926 standards become norms forthe conduct of design and engineering professionals. In thesecircumstances, we conclude that those who come within the scope of theinterpretation should have the opportunity to be heard with respect to it.Community Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987). SeeAnthony, Interpretive Rules, Policy Statements, Guidances, Manuals, andthe Like–Should Agencies Use Them to Bind the Public?, 1992 Admin.Conf. U.S. 12-15 (discussion of agency intent to bind affected partiesor practical binding effect as a basis for requiring notice andcomment). In addition, under the principle advanced by the Secretaryhere, design and engineering professionals must assume theresponsibility for the abatement of hazardous conditions at constructionsites regardless of the fact that their contractual responsibilities arelimited to matters of design and conformance with the building plan andthat their presence on the site itself may be occasional and irregular.See Batterton, 648 F.2d at 709 n.83 (referring \”to fundamental fairnessand to the advantages from informing the agency as justifications forthe ‘substantial impact’ test for notice and comment procedure\”); AirTransp. Assn. of America v. DOT, 900 F.2d 369 (D.C. Cir. 1990)(exemption under 5 U.S.C. ? 553(b)(A) does not apply to agency actionthat substantially affects the rights or interests of persons subject toagency regulation); National Motor Freight Traffic Assn. v. UnitedStates, 268 F. Supp. 90 (D.D.C 1967), aff’d per curiam, 393 U.S. 18(1968) (3-Judge court) (importance to industry warrants opportunity fornotice and comment). As the court stated in Texaco, Inc. v. FPC, 417.F.2d 740, 743 (3d Cir. 1969), \”Section 553 . . . enables the agencypromulgating the rule to educate itself before establishing rules andprocedures which have a substantial impact on those regulated.\”We also conclude that notice and an opportunity to be heard is warrantedin view of the unique characteristics of multi-employer constructionworksites, under which responsibility for hazardous conditions dependsnot only on exposure of an employer’s own employees but also on anemployer’s ability to eliminate or prevent hazardous conditions to whichemployees of other employers have exposed. Generally speaking, employerssubject to the construction standards are required under Section1926.20(b)(2) to conduct inspections of jobsites to ascertain anypossible safety or health hazards[[11]] and under section 1926.21(b)(2)to \”instruct each employee in the recognition and avoidance of unsafeconditions.\” E.g. R & R Builders, Inc., 15 BNA OSHC 1383, 1991 CCH OSHD?29,531 (No. 88-282, 1991). The secretary’s position that design andengineering professionals are engaged in construction work merelybecause they are associated with the overall construction project islikely to alter substantially the existing relationships between variouscontractors on the site. Because professionals such as SGH do not havespecifically limited, discrete work areas, holding them subject to theconstruction standards could conceivably require them to take sufficientmeasures to inform themselves or hazardous conditions occurring at alllocations at the worksite, to bring all hazardous conditions directly tothe attention of the construction trade contractors who created thehazards or the general contractor, and to insist that the conditions becorrected. By the same token, trade contractors whose employees areexposed to hazards they did not create or control could discharge theirresponsibilities under the construction standards by making theirconcerns known to the design engineer rather than to the creating andcontrolling subcontractor or to the general contractor. Not only wouldthese consequences introduce an additional layer of authority andresponsibility onto the worksite, but ultimately they would result inthe design or engineering professional duplicating the safety programand overall supervisory functions of the general contractor. Because ofthe obvious importance of such concerns to the construction industry, webelieve that the Secretary should solicit the views of affectedemployers as to whether the construction standards can properly beapplied to professionals who are not construction trade contractors. SeeBatterton, Pharmaceutical Mfrs. Assn. v. Finch, 307 F. Supp. 858, 863(D. Del. 1970); and National Motor Freight, 268 F. Supp at 96 (noticeand comment required in view of universal importance of regulatoryaction to the affected industry). Indeed, modern administrative lawembodies the policy that agencies should make greater rather than lessuse of notice and comment rulemaking authority. Pacific Coast EuropeanConference v. FPC, 376 F2d 785, 789 (D.C. Cir. 1967).In this regard, we think it instructive that SOM, in which theCommission ruled that the construction standards did not apply to adesign engineer, was the only Commission proceeding other than this casein which the Secretary sought to apply the construction standards toemployers such as SGH. So far as the record before us indicates, theSecretary’s interpretation here marks a substantial change in theenforcement practices she has applied since the Commission issued itsdecision in SOM in 1977. [[12]] This factor is an additional ground forholding that notice and comment rulemaking is required in thecircumstances here. W.C. v. Bowen, 807 F.2d 1502, 1504 (9th Cir. 1987);Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir. 1983); DetroitEdison Co. v. EPA, 496 F.2d 244 (6th Cir. 1974); Lewis Mota, 469 F.2d at481-82; Phoenix Forging, 12 BNA OSHC at 1323, 1984-85 CCH OSHD at p. 35,215.Furthermore, the court in Cardinal Industries held that to disregard thedefinition provisions set forth in Part 1926 and in the regulationspromulgated under the other statutes referred to in those standards\”effectively [rewrites] section 1910.12(b) deleting the …. referenceto section 1926.11\” 828 F.2d at 379. Although we do not decide the casesolely on the ground that the Secretary’s position here results in asubstantive alteration of section 1910.121 [[13]] it is a generallyaccepted proposition that an agency may not substantively amendregulations through an interpretation. Bonessa v. United States SteelCorp., 884 F.2d 726,732,(3d Cir. 1989) and cases cited therein: FluorConstructors v. OSHRC, 861 F.2d 936,942 (6th Cir.1989) American CyanamidCo., 15 BNA OSHC 1497, 1504-05, 1992 CCH OSHD ?29,508, p.40,068(No.86-681, 1992), petition for review filed, No. 93-3321 (6th Cir. Apr.7,1992). As the Court noted generally noted in NLRB v. Wyman-Gordon Co.,394 U.S. 759, APA’s rulemaking provisions \”were designed to assurefairness and mature consideration of rules of general application\” (leadopinion), and agencies are to follow those procedures when announcing anew rule of law to govern parties in the future.\” Id. at 771 concurringopinion).*B. Deference*Assuming, however, that the Secretary’s interpretative position here isnot invalid under the APA for having been adopted without notice andopportunity to be heard, we conclude that it is not entitled todeference. In our view, the interpretation the Secretary advances heredoes not meet the Court’s criteria for determining reasonableness.CF&I dealt with a situation analogous to that here–an interpretationembodied in the form of a citation issued to an employer following aninspection and subsequently explicated or presented during anadjudicatory proceeding resulting from that citation. The Court did notnecessarily consider issuance of a citation alone to be conclusive onthe question of reasonableness. As the Court stated, \”the decision touse a citation as the initial means for announcing a particularinterpretation may bear on the adequacy of notice to regulated parties.\”111 S. Ct. at 1180 (emphasis added). See Miami Indus., Inc., 15 BNA OSHC1258, 1267 n.8, 1991 CCH OSHD ?29,465, p. 39,745 n.8 (No. 88-671, 1991),petition for review filed, No. 91-4045 (6th Cir. Nov. 7, 1991). Sincethis case presents the first occasion since issuance of our decision inSOM that the Secretary has sought to apply the construction standards todesign and consulting professionals as opposed to those havingmanagerial authority over the actual performance of construction work,CF&I does not necessarily mandate that deference be paid to theSecretary’s interpretation. Furthermore, the Court in CF&I generallyheld that \”other factors relevant to the reasonableness\” of a rulemakingaction should be taken into consideration as well, including \”whetherthe Secretary has consistently applied the interpretation embodied inthe citation.\” 111 S. Ct. at 1179-80 (emphasis added). That holdingconforms to long-standing Court precedent that the weight to be given tointerpretative agency statements depends on the entirety of thecircumstances: \”‘The weight of such [an interpretation] in a particularcase will depend upon the thoroughness evident in its consideration, thevalidity of its reasoning, its consistency with earlier and laterpronouncements, and all those factors which give it power to persuade,if lacking power to control.’\” General Electric Co. v. Gilbert, 429 U.S.125, 142 (1976) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140(1944)). In our view, taking all the circumstances into account compelsthe conclusion that deference is not due to the Secretary’sinterpretation here.In the first place, the Secretary’s position disregards the definitionsand other interpretative provisions stated or referenced in Part 1926,under which the performance of physical trade labor is the criterion forcoverage. See Knappton Corp v. Secretary of Labor, 15 BNA OSHC 1657 (9thCir. May 29, 1992) (unpublished) (deference not due to an interpretationwhich is at variance with both the history and wording of theSecretary’s regulation). Additionally, the Secretary’s issuance of acitation to SGH alleging violations of standards in Part 1926 cannot bereconciled with the Secretary’s other enforcement actions actionsarising out of the same inspection as that at issue here. In addition tociting the general contractor and trade subcontractors, the Secretaryalso issued a citation alleging deficiencies in the metal decking toBriggs Associates, a second consulting engineering company having aseparate contract directly with the building owner to perform inspectionand testing services at the site. Significantly, however, the Secretarydid not allege that Briggs failed to comply with the constructionstandards in Subpart Q but rather alleged that Briggs violated section5(a)(1) of the Act, the so-called \”general duty clause,\” which requiresthat an employer \”furnish to each of his employees employment and aplace of employment which are free from recognized hazards that arecausing or are likely to cause death or serious physical harm to hisemployees.\” The fact that the Secretary cited SGH under the constructionstandards in Part 1926 but did not rely on those standards when citinganother engineering firm performing essentially similar duties supportsthe conclusion that the Secretary lacks a coherent theory for theallocation of responsibility for the hazardous working conditions atthis site.[[14]]As discussed previously, the interpretation the Secretary advances herealso is not consistent with, and indeed is contrary to, her position inother rulemaking actions, specifically her adoption in Subpart Q ofsection 1926.32, a definition provision under the CSA standards, and hercomments in finding a limited role for design and architecturalprofessionals when she promulgated her amendments to that Subpart.Furthermore, whereas the Secretary now contends that the definitionprovisions set forth or incorporated in the Part 1926 standards are notrelevant in determining the scope of the substantive constructionstandards under the Act, she made precisely the opposite argument in hersubmissions to both the Sixth Circuit and the Commission in other cases.While we do not mean to suggest that an agency is not free to change itsenforcement practices or policies, it cannot do so without providing anexplanation for the modification with a \”sufficient clarity of analysis\”Public Interest Research Group v. FCC, 522 F.2d 1060, 1065-66 (1st Cir.1975), cert. denied, 424 U.S. 965 (1976). As we stated in AmericanCyanamid,15 BNA OSHC at 1504, 1992 CCH OSHD at p. 40,067 (quotingGreater Boston Television Corp. v. FCC. 444 F.2d 841, 352 (D.C. Cir.1970), cert. denied, 403 U.S. 923 (1971)), the Secretary must present \”areasoned analysis indicating that prior policies and standards are beingdeliberately changed, not casually ignored.\” In American Cyanamid, inaddressing a situation similar to that here, we rejected as not entitledto deference an interpretation advanced by the Secretary that wasinconsistent with a position the Secretary had previously taken. Indeed,the Secretary’s contention that the definition provisions of Part 1926do not limit the application of the construction standards is preciselythe same position that the court explicitly rejected in CardinalIndustries and subsequently in Cleveland Electric. 910 F.2d at 1336. Weare not compelled to defer to an interpretation which is directlycontrary to a dispositive judicial precedent on the point in questionwhere the agency fails to offer any explanation for the inconsistency.\”[[15]] See Chamber of Commerce, 636 F.2d at 468-69. We note that in ananalogous situation dealing with the construction of statutory languageto form a coherent and consistent whole, Justice Scalia recently spokein favor of \”a neutral and rational interpretive methodology … so thatthe symbol of [the adjudicative] profession may remain the scales, notthe see-saw.\” Patterson v. Schumate, 112 S. Ct. 2242, 2251 (1992)(concurring opinion). We find the Justice’s comment equally apt here.*V. APPLICATION OF THE \”SUBSTANTIAL SUPERVISION\” TEST*Accordingly,for the reasons we have stated, we conclude that theconstruction standards in Part 1926 are applicable to employers whoperform no physical trade labor, such as SGH, only to the extent thatsuch employers have actual and direct responsibility for the specificworking conditions at the jobsite and for any hazards resulting from theactions of any trade contractor. As our discussion indicates, suchresponsibility may be conferred either through the customary overallsupervisory authority normally exercised by construction managers andgeneral contractors or through the creation of or control over aparticular hazardous condition. In this case, there is no contentionthat SGH had overall supervisory authority at the site such as thatexercised by the construction managers at issue in Bechtel and BertrandGoldberg. SGH and the Secretary disagree, however, on whether and, ifso, to what extent SGH created or controlled the hazardous conditions atissue.As previously indicated, this case is before us on Judge De Benedetto’sorder granting SGH’s motion for summary judgement. In support of theirrespective positions on the motion, both parties relied on portions of adeposition of SGH’s supervisor, Paul L. Kelley, taken by the Secretaryand a deposition of Dwight Larry \”Butch\” Mitchell, superintendent forthe general contractor, taken by SGH. In his deposition, Kelleytestified that Mitchell telephoned him on December 13, 1988, the day ofthe accident. At that time, Kelley was in SGH’s office in Arlington,Massachusetts, some distance from the jobsite. [[16]] Mitchell advisedKelley of his plans for the concrete pour. According to Kelley,He said that he was also going to place the insulated slabs in the same day.And I said, why are you going to do that?He said, well, I’ve got everybody here, we can get it over with quick.I was — I didn’t know what was bothering me about it, but –The substance [of the conversation] was that I thought that I might havesome trouble with placing the insulation of the concrete on the wetconcrete of the first pour, and we talked about that.Butch said something about, what about the concrete weight?And I said that if you let the concrete set so you can walk on it, youshould be able to place the insulation and the topping concrete on it.And I think I said, you should have no — if you can wait enough timefor the first concrete to set, you should have no trouble walking on itand setting the insulation and the other concrete.That was the end of the discussion.Mitchell testified in his deposition that he decided to call Kelleyafter he noticed deflection, or bending, in the metal decking followinga concrete pour. He was concerned about what might happen in anotherarea of the structure where a thicker layer of concrete was to bepoured. He stated as follows:I told him [Kelley] that we had noticed some deflection in the deck onlevel two underneath and in the areas that we had noticed it, and heasked how much, and I told him it seemed you know, looking up, it’s veryhard to tell the amount of deflection. You can tell that there isdeflection, but I told him it seemed to me like three eighths, halfinch, and he said that he did some calculations. He said, Wait a minute,and he said that seemed to be normal. He didn’t see a problem with it. Ithen mentioned about the front of the building where it was thicker, thetwo pours, one pour, put the styrofoam in it, and he said, How do youpropose putting this styrofoam in? And I told him we had proposedpouring the first four and three quarters inches, floating that out, andthen I would have the cement finishers going down at column line one andC2 and start and work their way back towards that same area again. Inthe meantime, I would put the three inches of styrofoam in there. Itwould take them approximately two and a half to three hours to get backand put the top cement on, and he thought for a minute and he said, No,I don’t see any problem with it, and that’s the way we proceeded……He told me he saw no problem with it, and I felt assured that it was allsafe to just go ahead as we had planned on doing, proceeded.Mitchell also testified that he kept a daily job log of the project. Athis deposition, he read into the record the following statement from hislog: \”[asked him about the pour on column line 8B being four inches thenthree inches on top of the insulation, if it looked ok to him. He saidthere should be no problem.\” However, Mitchell conceded that \”when [he]had the conversation with Mr. Kelley on the 13th…there [was no]discussion about shoring at the collapsed area.\”After speaking with Kelley, Mitchell instructed the foreman for theconcrete contractor to lay the first 4 3\/4-inch layer, pour concrete inanother area while Mitchell and some other employees installed thestyrofoam, and then return to lay the 3-inch top layer after Mitchellfinished. It was this portion of the structure which then collapsed.Kelley also testified that he prepared the specifications for the metaldecking. These specifications require that the decking contractor submit\”shop drawings,\” [[17]] which among other things must indicate \”the sizeand location of deck supports\” and \”locations where shoring of metaldeck is required.\” Kelley himself did not specify where shoring shouldbe placed, because it was not his responsibility to do so, except thatKelley did make notations on the shop drawings that shoring was neededat the elevator opening. He explained,On the elevator opening, until — elevators vary in size. In general,the way a job will go, the architect knows how many people he’s tryingto handle and at what speed he’s trying to handle them. So there may beseveral different elevator manufacturers that will meet thespecifications for that….Each one of them has small differences in the size of the elevatorshaft. Now, depending upon the size of the elevator shaft, that willdetermine what the span of the piece of deck is in front of the elevatorshaft.At the time we reviewed the drawings, we did not know what the finalsize of the elevator shaft would be. And depending on whether it moved acouple of inches either way, would be either within the shoringtolerances of the drawing or outside of them.So I thought it would be wise to just require shoring there regardless,so in case the dimension changed after our review of the drawings, itwould be covered.****When the drawings came in for review, that’s what I saw as the time tomark it on, because I was not going to see those drawings again.In support of its motion, SGH also presented an affidavit from David M.Berg, an engineer registered in Massachusetts who specializes instructural engineering..[[18]] Berg stated that he had reviewed thedepositions, SGH’s agreement with the architect, the General Conditionsof the Contract for Construction, the shop drawings prepared by thedecking contractor, and notes of meetings regarding the jobprogress.[[19]] In his opinion, because of \”the local condition of lossof continuity of the deck as it was a single span condition,\” it wasnecessary for SGH to mark shoring on the shop drawings at this location.Therefore, SGH did not exceed the scope of its contract in showing thisarea of shoring and did not assume the responsibility of determining allshoring requirements for the decking because shoring is theresponsibility of the general contractor. Furthermore, even if Kelleydid discuss deflection of the decking with Mitchell, Berg opined thatsuch a conversation also would not be inconsistent with SGH’scontractual responsibilities.As Judge DeBenedetto noted in his order granting SGH’s motion, theSecretary conceded that SGH did not have contractual responsibility forformwork. Rather, the Secretary argued before the judge that thetelephone conversation between Kelley and Mitchell and Kelley’s markingof shoring locations on the shop drawings not only exceeded SGH’scontract but also were sufficient to bring it within the scope of theconstruction standards. Relying on Berg’s affidavit, the judge rejectedthe Secretary’s contention that Kelley’s actions went beyond the normaland customary duties performed by design engineers. The judge furtherfound that the single telephone conversation between Kelley and Mitchellregarding the proposed concrete pour did not establish that SGHexercised control over the conditions of the formwork at issue or thatFrancis Harvey, the general contractor, designed and installed theformwork under SGH’s direction.We concur with the judge. The criterion for review of a grant of summaryjudgment is whether there is any issue of fact pertinent to the ruling.Deukmejian v. USPS, 734 F.2d 460, 462 (9th Cir. 1984); Bloomgarden v.Coyer, 479 F.2d 201, 206-07 (D.C. Cir. 1973). Even construing thelimited record before us in the light most favorable to the Secretary,we conclude that SGH was not shown to have created or controlled thehazardous conditions at issue here and that further evidentiaryproceedings therefore are not required.The Secretary contends that SGH was responsible for the hazardsresulting from the concrete pour because Mitchell, having misgivingsabout whether he could complete the double pour in one day, received andrelied on assurances from Kelley that the operation would be safe andthat the amount of deflection was within proper limits. Mitchell’stestimony, however, makes clear that he or his employer, Francis Harvey,the general contractor, devised the procedure for conducting theconcrete pour and that Kelley merely confirmed the sequence and planMitchell or Francis Harvey proposed. It is also apparent from Mitchell’stestimony that Kelley did not instruct Mitchell to start the pour;rather, Mitchell made the decision to commence pouring. Plainly, Kelley,who was riot even on the site, was not in a position to order that thepour start or, for that matter, to stop it once it had started, nor didhe oversee the trade contractors during the pour. Furthermore,acceptance of the Secretary’s argument would require us to conclude thatMitchell would not have commenced the pour if he had not spoken toKelley regarding it. Such a conclusion would be mere speculation on therecord here. Lastly, as the judge found, Berg’s affidavit establishesthat SGH (lid not assume substantial supervisory authority over eitherthe adequacy or the placement of shoring simply because Kelley markedseveral shoring locations around the elevator shaft.*VI. CONCLUSION*Accordingly, we conclude that Judge DeBenedetto acted properly ingranting summary judgement in favor of SGH, and we affirm his rulingvacating the citations issued to SGH.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: August 28, 1992————————————————————————*SECRETARY OF LABORComplainant,v.SIMPSON, GUMPERTZ & HEGER, INC, Respondent.**Docket No. 89-1300**ORDER ENTERED UPON MOTION FOR SUMMARY JUDGMENT*Simpson, Gumpertz & Heger, Inc. (SGH), has moved for summary judgmentunder Rule 56, Fed. R. Civ. P., on the ground that there is no genuineissue of material fact and that it is entitled to judgment as a matterof law.SGH was cited on March 13, 1989, for alleged serious violations of theconstruction safety standards at 29 C.F.R. ?? 1926.703(a)(1) and (a)(2)dealing with the requirements for cast-in-place concrete:(a) General requirements for formwork. (1) Formwork shall be designed,fabricated, erected, supported, braced and maintained so that it will becapable of supporting without failure all vertical and lateral loadsthat may reasonably be anticipated to be applied to the formwork….(2) Drawings or plans, including all revisions, for the jack layout,formwork (including shoring equipment), working decks, and scaffolds,shall be available at the jobsite.The single issue in this case is whether SGH, a structural engineeringfirm, can be held liable under the OSH Act for alleged substandardconditions to which its employees were not exposed, and for which it wasnot responsible under its contractual duties. The conflict in this caseturns on the legal consequences of undisputed facts.In June 1987, SGH entered into an agreement with Payette Associates,Inc., and architectural firm, to perform certain structural engineeringservices in connection with construction of a building at the WorcesterPolytechnic Institute. A portion of the metal decking collapsed inDecember 1988, causing injuries to five employees of a subcontractorwhile they were engaged in pouring concrete on the metal decking.While conceding that SGH was not contractually responsible for thedesign, fabrication, or maintenance of the formwork [[1\/]] on theconstruction project in question, the Secretary contends that SGH’sproject manager, Paul Kelley, exceeded the terns of its contractualobligations by marking up shop drawings indicating shoring was necessaryin one area, and that giving such \”advice on the means and methods ofconstruction on which Francis Harvey, the general contractor, relied. .. makes SGH an employer engaged in construction within the meaning ofthe OSH Act.\” Secretary’s opposition memorandum at 3.The Secretary also argues that SGH \”created the hazardous work area\”(and thereby had engaged in construction work) as a consequence of atelephone conversation between the general contractor’s supervisor,Dwight Mitchell, and SGH’s project manager, Paul Kelley, when Mitchellsought the latter’s advise on a particular occasion regarding thepouring of concrete. Deposition of Dwight Mitchell at 71-73:Q. Did you go back down to the trailer to call Paul Kelley?A. Yes.Q. And did you reach him in the office?A. YesQ. And what discussion did you have with Paul Kelley at that time?A. I told him that we had noticed some deflection in the deck on leveltwo underneath and in the areas that we had noticed it, and he asked howmuch, and I told him it seemed–you know, looking up, it’s very hard totell the amount of deflection. You can tell that there is deflection,but I told him it looked to me like three eights, half inch, and he saidthat — he did some calculations. He said, Wait a minute, and he saidthat seemed to be normal. He didn’t see a problem with it. I thenmentioned about the front of the building where it was thicker, the twopours, one pour, put the styrofoam in it, and he said, How do youpropose putting this styrofoam in? And I told him we had proposedpouring the first four and three-quarters inches, floating that out, andthen I would have the cement finishers going down at column line one andC2 and start and work their way back towards that same area again. Inthe meantime, I would put the three inches of styrofoam in there. Itwould take them approximately two and a half to three hours to get backand put the top cement on, and he thought for a minute and he said, No,I don’t see any problem with it, and that’s the way we proceeded.The Secretary relies on the principles expounded in Brennan v. OSHRC(Underhill Construction Corp), 513 F.2d 1032, 1038 (2d Cir. 1975) and inAnning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD ?20,690 (Nos. 3694& 44091, 1976): In multi-employer construction worksite cases, anemployer who either created the hazardous condition or was in control ofan area and responsible for its maintenance may be liable under the OSHAct when it is shown that a hazard has been committed and that the areaof the hazard was accessible to the employees of the cited employer orthose of other employers engaged in a common undertaking.The Secretary’s arguments are flawed in several respects. Theuncontradicted affidavit of David Berg, a structural engineer, disclosesthat the single area of shoring shown on the shop drawing that wasspecified by SGH was due to a local condition of loss of continuity ofthe deck, a specification that was within the scope of the structuralengineering services to be performed by SGH pursuant to its writtenagreement with the architect. Moreover, there is no evidence whatsoeverto suggest that SGH took over the responsibility of the generalcontractor for the formwork on the project. A single telephoneconversation between SGH’s project manager And the general contractor’ssupervisor initiated by the latter in seeking advise under the mostcasual of circumstances, regarding a proposed pouring of concrete doesnot tend to establish that SGH exercised control with regard to theformwork that is the subject of the citation, or that the generalcontractor designed or constructed the formwork, for which it wascontractually responsible, under the direction of SGH.In Skidmore,Owings & Merrill, 5 BNA OSHC 1762, 1764, 1977 CCH OSHD?21,143 (No. 2165, 1977), the Commission held that an architectural andengineering firm which has only limited functions and authority overconstruction work is not subject to the standards prescribed in Part1926. That principle is precisely applicable here. Accordingly, it isORDERED that SGH’s notion for summary judgment is granted, and thetwo-item citation issued on March 13, 1989, is vacated.RICHARD DeBENEDETTO Judge, OSHRCDated: March 19, 1991Boston, Massachusetts*FOOTNOTES: *[[1]] The cited standards require as follows:? 1926.703 Requirements for cast-in-place concrete.(a) General requirements for formwork (1) Formwork shall be designed,fabricated, erected, supported, braced and maintained so that it will becapable of supporting without failure all vertical and horizontal loadsthat may reasonably be anticipated to be applied to the formwork.Formwork which is designed, fabricated, erected, supported, braced andmaintained in conformance with the Appendix to this section [referencingANSI A10.9-1983, Construction and Demolition Operations-Concrete andMasonry Work] will be deemed to meet the requirements of this paragraph.(2) Drawings or plans, including all revisions, for the jack layout.formwork (including shoring equipment), working decks, and scaffoldsshall be available at the jobsite.\”Formwork\” is defined at section 1926.700(b)(2) as \”the total system ofsupport for freshly placed or partially cured concrete. including themold or sheeting (form) that is in contact with the concrete as well asall supporting members including shores, reshores, hardware, braces, andrelated hardware.\” In other words. the standards in section 1926.703 atissue include both the metal decking and any supporting shoring.[[2]] Although at oral argument SGH’s coursed pointed out that theSecretary’s contention that design and professionals are per se engagedin construction work was rot raised before the judge, neither SGH northe amici curiae assert that the Commission not consider the Secretary’sargument.[[3]] As previously indicated, Judge DeBenedetto decided this case onSGH’s motion for summary judgment. There has been no formal admission ofdocuments into the record. The Secretary. however, does not challengethe contracts attached as exhibits to SGH’s memorandum in support of itsmotion.[[4]] Generally speaking, SGH performed these duties as an assistant oradvisor to the architect, Payette, as indicated by the provisions of thecontract dealing with SGH’s approval of the work performed by the tradecontractors:1.2.12 The Engineer shall visit the site at intervals appropriate to thestage of construction…or as otherwise agreed with the Architect inwriting, to become generally familiar with the progress and quality ofthe Work…and to determine in general if such Work is proceeding inaccordance with the Contract Documents. However, the Engineer shall notbe required to make exhaustive or continuous on-site inspections tocheck the quality or quantity of the Work…On the basis of such on-siteobservations as an engineer, the Engineer shall keep the Architectinformed of the progress and quality of the Work…and shall endeavor toguard the Owner against defects and deficiencies in such Work of theContractor.1.2.15 The Engineer, based on observations at the site and onevaluations of the Contractor’s Applications for Payment, shall assistthe Architect in determining the amounts owing to the Contractor…andshall certify such amounts to the Architect…1.2.16 Certification by the Engineer to the Architect of an amount owingto the Contractor shall constitute a representation by the Engineer tothe Architect that, based on the Engineer’s observations at the site asprovided in Subparagraph 1.2.12 and the date comprising the Contractor’sApplication for Payment, the Work…has progressed to the pointindicated; that to the best of the Engineer’s knowledge, information andbelief, the quality of such Work is in accordance with the contractdocuments (subject to an evaluation of such Work for conformance withthe Contract Documents upon Substantial Completion, to the results ofany subsequent tests required by or performed under the ContractDocuments, to minor deviations from the Contract Documents correctableprior to completion, and to any specific qualifications stated by theEngineer); and that the Contractor is entitled to payment in the amountcertified.1.2.22 The Engineer shall assist the Architect in conduction inspections… to determine the dates of Substantial Compliance and finalcompletion and shall review and approve, or take other appropriateaction on, the Contractor’s list of items to be completed or correctedand shall forward the list to the Architect for final disposition. TheEngineer shall assist the Architect in receiving and forwarding to theOwner for the Owner’s review written warranties and related documentsrequired by the Contract Documents and assembled by the Contractor ….If requested, the Engineer shall issue to the Architect a finalcertificate in writing with respect to final payment . . . .[[5]] Section 6(a) of the OSH Act, .29 U.S.C. ? 655(a), authorized theSecretary, within two years from the effective date of the Act topromulgate occupational safety and health standards enforceable underthe Act by adopting \”any established Federal standard.\” The term\”established Federal standard\” is defined as \”any operative occupationalsafety and health standard established by any agency of the unitedStates and presently in effect, or contained in any Act of Congress inforce on the date of enactment of this Act \”Section 3(10), 29 U.S.C ?652(10)The CSA standards, originally codified as 29 C.F.R. part 1518, werepromulgated on April 17, 1971, 36 Fed. Reg 7340(1971), and were adoptedand\/or the OSH Act by 29 CFR ? 1910.12 on May 29,1971 36 Fed. Reg.10,466, 10,469 (1971). They were redesignated as part 1992 on December30, 1971. 36 Fed. Reg. 25,232 (1971)[[6]] The association with construction craft labor originates section1926.32(i), which defines \”employee\” asevery laborer or mechanic under the [CSA] regardless of the contractualrelationship which may be alleged to exist between the laborer andmechanic and the contractor or subcontractor who engaged him. \”Laborerand mechanic\” are not defined in the [CSA], but the identical terms areused in the Davis-Bacon Act …. The use of the same term in a statutewhich often applies concurrently with section 107 of the [CSA] hasconsiderable precedential value in ascertaining the meaning of \”laborerand mechanic\” as used in the [CSA]. \”Laborer\” generally means one whoperforms manual labor or who labors at an occupation requiring physicalstrength, \”mechanic\” generally means a worker skilled with tools.\”\”Employer\” is defined a section 1926,32(j) to mean a \”contractor orsubcontractor\” within the meaning of the [CSA] and of this part\”; thatis, 3 contractor who employs or \”engages\” laborers and mechanics.29 CFR ? 2(m), a regulation implementing the Davis-Bacon Act, statesthat the term \”laborer or mechanic\” \”does not apply to workers whoseduties are primarily administrative, executive, or clerical, rather thanmanual\” and that \”persons employed in a bonafide executive,administrative, or professional capacity as defined in part 541 of thistitle are not declared to be laborers of mechanics\” Section 541.302(a),a regulation promulgated by the Secretary under the Fair Labor StandardsAct of 1938, 29 U.S.C. ?? 201-219, address employees \”employed in abonafide professional capacity\” It defines \”learned professions\” asrequiring knowledge of an advanced type in a field of science oflearning customarily acquired by a prolonged specialized intellectualinstruction and study as distinguished from…training in theperformance of mental, manual, or physical processes.\” Section541.302(c)(1) expressly includes \”engineering\” and is professional whichmeet the requirement for a prolonged coarse of specialized intellectualconstruction and study.\”[[7]] In Bechtel, the Commission noted that the Secretary purported tolimit the extent of incorporation of the CSA standards by section1910.12(c), which provides as follows:(c) Construction Safety Act distinguished. This section adopts asoccupational safety and health standards under section 6 of the Act thestandards which are prescribed in part 1926….Thus, the standards(substantive rules) published in subpart C and the following subparts ofpart 1926…are applied. This section does not incorporate subparts Aand B of part 1926….Subparts A and B have pertinence only to theapplication of section 107 of [the CSA]. For example, the interpretationof the term \”subcontractor\” in paragraph (c) of ? 1926.13 of thischapter is significant in discerning the coverage of [the CSA] and theduties thereunder. However, the term \”subcontractor\” has no significancein the application of the Act, which was enacted under the Commerceclause and which establishes duties for \”employers\” which are notdependent for their application upon any contractual relationship withthe Federal Government or upon any form of Federal financial assistance.The Commission also noted a more general limitation on the incorporationof standards promulgated under other statutes.It bears emphasis that only standards (i.e., substantive rules) relatingto safety or health we adopted by any incorporations by reference ofstandards prescribed elsewhere in this chapter or this title…. [T]heincorporation by reference of part 1926 in ? 1910.12 is not intended toinclude references to interpretative rules having relevance to theapplication of the [CSA], but having no relevance to the application [ofthe OSH Act].Section 1910.11(b). Based on these provisions, the Bechtel decision heldthat [a]ny references to contractors subcontractors, laborers, ormechanics in Part 1926 are interpretative rules not adopted by theSecretary and have no force and effect under OSHA.\” 4 BNA OSHC at 1008,1975-77 CCH OSHD at p. 24,500Section 1910.12(c) and section 1910.11(b), however, provide only thatregulations bearing on the scope of the CSA itself are not incorporatedunder the OSH Act. They are thus consistent with the principle that theOSH Act applies to a larger class of employers than the CSA. As thecourt in Cardinal Industries stated, \”[t]he limitation thus placed bythe Secretary on the incorporation of … Part 1926 does not detract,however, from [the] conclusion that section 1910.12(b) must beinterpreted in accordance with section 1926.13.\” 828 F.2d at 377 n.7.Accordingly, section 1910.12(c) and section 1910.11(b) do not affect ourview that the definition provisions of the CSA standards may be appliedto determine the kinds of work activities that are covered by thesubstantive construction standards, as opposed to the scope of the CSAitself. To the tent Bechtel may suggest the contrary, that decision isoverbroad.[[8]] See supra note 6. In addition to \”employee,\” Subpart Q usesseveral other terms which are defined in section 1926.32, includingshall, \”qualified,\” and in one instance \”ANSI,\” the abbreviation for theAmerican National Standards Institute. \”Employee,\” however, is usedrepeatedly throughout Subpart Q.[[9]] There is no indication that the construction project in this casewas a lift-slab operation. The amendments to the lift-slab regulations,moreover, were promulgated after this case arose. Nevertheless, thecomments the Secretary made with regard to lift-slab operations reflectthe same conclusions regarding the allocation of responsibility for safeworking conditions that the Secretary stated in her previous amendmentof the Subpart Q standards. See Bay State Ref. Co, 15 BNA OSHC 1471,1475 n.5, 1992 CCH OSHD ?29,579, p. 40,024 n.5 (No. 88,1731, 1992)(reliance on rulemaking which postdates the citations when it confirmsearlier pronouncements by the Secretary and therefore establishes aconsistent and repeated policy position).[[10]] Francis Harvey and Worcester Steel filed notices of contest,which were docketed in the Commission as Docket No. 89-1208 and DocketNo. 89-1206 respectively. Francis Harvery and the Secretary agreed to asettlement under which one citation item was withdrawn and the restaffirmed. Worcester Steel is still pending before the Commission. D & MConcrete did not file a notice of contest but entered into an informalagreement with the Secretary under which it waived its right to contestin exchange for a reduction in the penalty.[[11]] This standard reads.? 1926.20 General safety and health provisions.(b) Accident prevention responsibilities. (1) It shall be theresponsibility of the employer to initiate and maintain such programs asmay be necessary to comply with this part(2)Such programs shall provide for frequent and regular inspections ofthe job sites, materials, and equipment to he made by competent personsdesignated by the employers.[[12]]ln its brief before us. SGH avers that the citation issued in thiscase constitutes the Secretary’s \”initial means\” for expressing aposition contrary to our holding in SOM; that is, SGH asserts that untilthe present case, the Secretary had acquiesced in SOM. In her replybrief the Secretary contends that she has consistently maintained that\”design and service professionals\” are engaged in construction workbecause of their basic involvement with a construction project, and shecites Bertrand Goldberg. That case, however, involved a constructionmanager. As previously discussed. the Commission in SOM distinguishedthe functions performed by a construction manager from those of a designor consulting engineer based on the extent of supervisory authority overthe worksite. Accordingly, the issuance of citations to professionalssuch as SGH and not citations to construction managers determines theconsistency of the Secretary’s position with respect to the question inthis case.At oral argument, counsel for the Secretary was asked whether theSecretary had issued citations to other professional engineers orconsulting firms under construction standards after the SOM decision.Counsel replied that she did not have sufficient information to answerthat question. We assume that in view of the significance of thequestion presented here, citations issued to other design or engineerprofessionals would have been contested, and the Commission would have arecord of such a proceeding.[[13]]An interpretative rule under the APA is one \”which merelyclarif[ies] of explain[s] existing law of regulations\”; it is \”what theadministrative officer thinks the statute or regulation means.\” Alcarazv. Block, 746 F.2d 593, 613 (9th Cir. 1984); Gibson Wine Co. v. Snyder,194 F.24 329, 331 (D.C Cir. 1952). Arguably the Secretary’s position canbe construed as a statement of the Secretary’s understandings of themeaning of the term \”construction work\” sufficient to fall within thegenerally accepted definition of an interpretative rule under the APA.rather than a substantive amendment of Pan 1926, It is unnecessary,however, for us to decide precisely how to characterize the Secretary’sapproach in this litigation because we conclude that notice and commentrulemaking is required regardless of the label affixed to theSecretary’s position. See Thompson v. Washington, 497 F.2d 626 (D.C.Cir.1973) (right of tenants to be heard during the process of fixingreats by public housing agencies, while not expressly provided bystatute is implied); Independent Broker-Dealers Trade Assn v. SEC, 442F.2d 132, 144 (D.C. Cir.). cert. denied, 404 U.S. 828 (1971) (a\”reasonable opportunity…for submission of views by those materiallyaffected\” is required to ensure \”elementary fairness); 2 DavisAdministrative Law Treatise ? 7:16-:17 (2d ed. 1979) (addressing theproposition that any rule having a substantial impact must he issuedthrough notice and comment rulemaking even it the rule is propertycharacterized as an interpretation). Set also Phoenix Forging Co., 12BNA OSHC 1317, 1984-85 CCH OSHD ?27,256 (No.82-398,1985) (finding noticeand comment not required for issuance of a directive by the Secretarythat does not have a significant impact on those subject to inspectionunder the Act).We note that in Vermont Yankee Nuclear Power Corp. v. Natural ResourcesDefense Council, Inc., 435 U.S. 519, 549 (1978), the Supreme Court heldthat reviewing courts may not impose on agencies procedural requirementsbeyond those prescribed In 5 U.S.C. ? 553. The Secretary does notcontend that the Court’s decision precludes us from holding that noticeand comment rulemaking is required in the circumstances here; indeed,none of the parties address Vermont Yankee in their briefs or argumentIn any event. Vermont Yankee is promised on agency compliance with theminimal rulemaking procedures set forth in the APA; it does not freeagencies. from obligation to give notice and an opportunity to be heardto those affected by agency action having a substantial impact on them.Air Transp. Assn. of America v. DOT, 900 F.2d 369, 378 n.13 (D.C. Cir.1990): Batterton v. Marshall, 648 F.2d 694, 708-10 & nn.83 & 88 (D.C.Cir. 1980); Davis, ? 7:19. [[14]] Section (5)(a)(1) of the Act by its terms imposes a duty on anemployer to protect only its own employees; under this section, anemployer is not liable for the exposure to hazards of employees of otheremployers. Ponsco Constru., Co., 10 BNA OSHC 1576, 1577, n.3, 1982 CCHOSHD ?26, 023, p. 32, 665 n.3 (No. 79-3153, 1982). Thus, the Secretarycould only have cited Briggs under section 5(a)(1) if Briggs hademployees exposed to the conditions that were subject of its citation.However, the fact that section 5 (a)(1) in general may have beenapplicable to Briggs would not have precluded the Secretary from citingBriggs under the construction standards if she concluded, as she did inthe case of SGH, that design and consulting engineers are subject to thespecific construction standards.[[15]] The Secretary contends in her reply brief that her argumentbefore the Sixth Circuit in Cardinal Industries is not inconsistent withher position here because Cardinal Industries involved a manufacturer ofprefabricated housing units in a facility removed from a constructionsite rather than, as here, an employer having some relationship with aspecific construction project. We recognize that in Cardinal Industriesthe Secretary sought to establish that the construction standards cannotbe applied to work activities lacking a geographical connection with aconstruction site and that such a concern does not arise in this case.Nevertheless, the Secretary plainly took the position before the SixthCircuit that the definition provisions stated or referred to in Part1926 are relevant and indeed dispositive with respect to the kinds ofwork activities covered under Part 1926. In the case before us here theSecretary’s interpretation does not purport to offer any explanation ofthe definitional provisions: rather, she simply ask that we disregardthem entirely. Therefore, we conclude that the Secretary has failed toestablish a consistent enforcement position within the meaning of CF&J.[[16]] Pursuant to SGH’s contractual responsibility, Kelley had visitedthe job site on December 8, 1988, five days prior to the accident. Acopy of his inspection report, submitted in response to the Secretary’sinterrogatories, indicates that he gave some instructions to Mitchell.For example, he directed Mitchell to install additional reinforcing rodsand to replace broken or missing studs and dowels. Kelley testified thaton the day preceding the accident, December 12, he attempted totelephone Mitchell to make sure that Mitchell had corrected the problemshe had noted on his visit of December 8. He was unable to reachMitchell, but Mitchell returned his call on December 13.The Secretary does not contend that Kelley’s instructions to Mitchellfollowing his on-site visits constitute supervision over the performanceof actual construction work as opposed to ensuring compliance withdesign specifications. We conclude that such instructions arecharacteristic of lack of supervision over construction work inasmuch asit appears that Kelley simply advised Mitchell of what work needed to beperformed but did not instruct Mitchell how to perform that work.[[17]]\”Shop drawings\” are defined in the standard form constructioncontract as \”drawings, diagrams, schedules and other data speciallyprepared for the Work by the Contractor or any Subcontractor,manufacturer, supplier or distributor to illustrate some portion of thework.\” General Conditions of the Contract for Construction. Article 4 12.1.[[18]] Commission Rule 61 incorporates by reference Fed. R. Civ. P. 56,which governs summary judgment. Under the Federal rule, affidavits maybe used in support of or in opposition to motions for summary judgment.In opposing SGH’s motion for summary judgment, the Secretary introducedan affidavit from H. Berrien Zettler, Deputy Director, Directorate ofCompliance Programs, setting forth circumstances under which a designengineer may be held responsible under the construction standards.Before the judge, SGH argued that Zettler’s affidavit should be strickenbecause it did not comply with the requirements of Federal Rule 56(e)that affidavits should be based on personal knowledge and set forthspecific factual matter. In his decision granting summary judgment infavor of SGH, Judge DeBenedetto did not mention the Zettler affidavit,and the Secretary does not cite to it in her briefs or at oral argumentbefore us.[[19]] The shop drawings themselves are not in the record. It is unclearwhether by \”notes of progress meetings\” Berg was referring to thereports of on-site visits made by Kelley and another representative ofSGH, Gregg Cohen.[[1\/]]\”Formwork\” is defined by 29 C.F.R. ? 1926.702(b) as:The total system of support for freshly placed concrete, including themold or sheathing which contacts the concrete as well as all supportingmembers, hardware, and necessary bracing.”