“SECRETARY OF LABOR,Complainant,v.SKYLINE CRANE SERVICE, INC.,Respondent.OSHRC Docket No. 80-6032_ORDER VACATING DIRECTION FOR REVIEW_Before: BUCKLEY, Chairman; WALL, Commissioner.BY THE COMMISSION:On August 23, 1982, Administrative Law Judge Benjamin G. Usher affirmeda multiple item citation that alleged that Skyline Crane Service failedto provide adequate fall protection for its employees engaged instructural steel erection on a project in Fairfax, Virginia.The central issue on review is whether, at the time of the inspection in1980, Skyline had fair notice that it was obligated to provide perimeternets under the general construction industry standard at 29 C.F.R. ?1926.105. Skyline contends that it lacked such notice because theconstruction standards specifically applicable to steel erection underSubpart R of Part 1926 do not require such protection, and because theSecretary generally was not issuing citations to steel erectionemployers for lack of perimeter nets.The Fourth Circuit, where this case arose, has held that Subpart R doesnot preempt the general standard requiring personal protective equipmentto guard against hazards which are not covered by that subpart. _Bristol Steel & Iron Works, Inc. v. OSHRC_, 601 F.2d 717 (4th Cir.1979). _Bristol_ did not, however, address whether the fall protectionrequirements in the steel erection standards preempt any obligation ofsteel erectors to provide perimeter nets under section 1926.105. Afterthe issuance of the citation here, there have been several decisions inother circuits that have elaborated upon the reasoning in _Bristol_ andspecifically concluded that steel erection standards do not preempt anyrequirement in section 1926.105 to use perimeter nets in circumstancessimilar to those here.[[1]] The Secretary has also issued aninstruction explicitly stating that during structural steel erection,perimeter fall protection, including perimeter nets, is required undersection 1926.105. The document directs OSHA field personnel to issuecitations accordingly. OSHA Instruction STD 3-3.1 (July 18, 1983),_reprinted in_ 1 BNA OSH Rep. Ref. File ? 21: 9118 _and in_ 1982-83 CCHEmploy. S. & H. Guide New Developments ? 12,855.In view of these developments in the case law and in the Secretary’senforcement policy, the issue of whether a steel erect on employer inthe Fourth Circuit has fair notice of an obligation to provide perimeternets for fall protection is in a completely different posture now thanit was in 1980. A decision on whether Skyline had notice of such arequirement when this case arose would not establish whether Skyline, orother steel erection employers, have notice of a need for perimeter netsunder the current state of the law. Since Skyline’s constructionproject has been completed, abatement of the alleged fall hazards is notin controversy. Under these circumstances, we conclude that review isno longer provident. _See_ _Paschen\/Morrison-Knudsen\/Kenny_, _a JointVenture_, 86 OSAHRC _____, 12 BNA OSHC 1827, 1986 CCH OSHD ? 27,571 (No.80-6448, 1986); _P & Z Co_., 82 OSAHRC 8\/C8, 10 BNA OSHC 1427, 1982 CCHOSHD ? 25,937 (No. 76-431, 1982); _A. C. & S., Inc_., 76 OSAHRC 93\/A2, 4BNA OSHC 1529, 1976-77 CCH OSHD ? 20,955 (No. 2229, 1976).Accordingly, the direction for review is vacated; the judge’s decisionis the final order of the Commission.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 16 1987———————————————————————— SECRETARY OF LABORComplainantv.SKYLINE CRANE SERVICE, INC.,RespondentOSHRC DOCKET NO. 80-6032_DECISION AND ORDER_Appearances:Michael S. Berger, Esq.Office of the Regional SolicitorU. S. Department of LaborPhiladelphia, Pennsylvaniafor the ComplainantJames Brent Clarke, Jr., Esq.Washington, D. C.andDavid R. Clarke, Esq.Fairfax, Virginiafor the RespondentUsher, Judge:These proceedings were initiated by the Secretary of Labor, UnitedStates Department of Labor, pursuant to Section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651, _et_ _seq_.(\”the Act\”). The Secretary seeks affirmance of two Citations chargingseveral \”serious\” and \”other than serious\” violations of Section 5(a)(2)of the Act and seeks further the assessment of a $780 penalty.[[1\/]]The Citations, resulting from an inspection of Respondent’s worksite atFairfax, Virginia, on July 31 through August 14, 1980, were issued onSeptember 11, 1980. Respondent filed a timely Notice of Contest; aComplaint and Answer were filed in accordance with the Commission’sRules of Procedure; and the issues were tried before me at Washington,D. C., on March 17 and 18 and April 27 and 28, 1981. No employee oremployee representative sought party status pursuant to Rule 20(a) ofthe Commission’s Rules of Procedure (29 CFR 2200.20(a)).The parties have fully briefed their positions._The Issues_.The pleadings, evidence adduced by the parties, arguments of counsel,and their post-trial briefs have served to raise the following issues: 1) whether the safety standards cited by Complainant in Citation No. 1,_viz_., 29 CFR 1926.28(a), 29 CFR 1926.105(a) and 29 CFR 1926.105(c)(1),are applicable to Respondent, his business endeavors, and the activitiesof his employees at the time of the inspection; 2) whether Respondentwas \”selectively\” cited for the violations alleged in Citation No. 1; 3) whether the aforementioned safety standards referred to in CitationNo. 1 are unacceptably ambiguous and thus unenforceable; 4) if thesesafety standards are enforceable and applicable to Respondent, whetherRespondent violated Section 5(a)(2) of the Act as charged in CitationNo. 1 and the Complaint; 5) whether Respondent violated Section 5(a)(2)of the Act because of its failure to comply with the provisions of thesafety standard codified at 29 CFR 1926.752(j), as also charged inCitation No. 1; 6) whether Respondent violated Section 5(a)(2) of theAct as charged in Citation No. 2; 7) if violative conduct onRespondent’s part was proved, whether the violations set forth inCitation No. 1 are properly characterized as \”serious\” as defined inSection 17(k) of the Act; and 8) if violations were proved, whatpenalties, if any, are appropriate.[[2\/]]The Citations issued by Complainant on September 11, 1980, read, infull, as follows:(Citation No. 1 – \”Serious\”):The violations described in this citation are alleged to have occurredon or about the day the inspection was made unless otherwise indicatedwithin the description given below.la29 CFR 1926.28(a) and 1926.105(a): Employee(s) were not protectedagainst falls of more than 25 feet by the use of safety nets, ladders,scaffolds, catch platforms, temporary floors, safety lines, safetybelts, or other appropriate personal protective equipment:(a) Fifth Floor, North End – Employees walking and working at edge,welding and carrying materials and were not protected from fallingapproximately sixty feet to the ground, on 7\/31\/80.(b) Fifth Floor, South End, on 8\/5\/80.1b29 CFR 1926.105(c)(1): Nets did not extend 8-feet beyond the edge ofthe work surface where employees were exposed:(a) Fifth Floor – Employees walking and working at the edge, welding andcarrying material, on 7\/31\/80.229 CFR 1926.752(j): All unused openings in floors, temporary orpermanent, were not completely planked over or guarded by standardrailings or equivalent:(a) Second Floor – openings on East Side, 13-feet six-inches by threeand a half feet and six feet by eight and a half feet; South Side,seventy five-feet by nineteen-feet and eight inches, exposing employeesto a fall of approximately twenty five-feet, on 7\/31\/80.(Citation No. 2 – \”Other Than Serious\”):29 CFR 1926.352(d): Suitable fire extinguishing equipment was notimmediately available in the work area(s) where welding, cutting, orheating was being performed:(a) First Floor, Wouth [sic] Side, – Employee using Lincoln Arc Welder,on 8\/6\/80.Abatement of the conditions described in the Citations was ordered\”immediately;\” and penalties of $420 (for item 1a of Citation No. 1) and$360 (for item 2 of Citation No. 1) were proposed by Complainant.The safety standards referred to in the Citations provide, in pertinentpart:29 CFR 1926.28 – Personal Protective Equipment(a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.29 CFR 1926.105 – Safety Nets(a) Safety nets shall be provided when workplaces are more than 25 feetabove the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, orsafety belts is impractical.(b) . . .(c)(1) Nets shall extend 8 feet beyond the edge of the work surfacewhere employees are exposed and shall be installed as close under thework as practical but in no case more than 25 feet below such worksurface. Nets shall be hung with sufficient clearance to prevent user’scontact with the surfaces or structures below. Such clearances shall bedetermined by impact load testing.(2) . . .29 CFR 1926.752 – Bolting, Riveting, Fitting-Up, and Plumbing-Up* * *(j) All unused openings in floors, temporary or permanent, shall becompletely planked over or guarded in accordance with Subpart M of thispart.29 CFR 1926.352 – Fire Prevention***(d) Suitable fire extinguishing equipment shall be immediately availablein the work area and shall be maintained in a state of readiness forinstant use.The safety standards codified at 29 CFR 1926.28(a) and 29 CFR1926.105(a) and (c)(1) are included in Subparts C and E of theregulations and are commonly referred to as the \”general constructionstandards.\” Subpart R of the regulations (codified at 29 CFR 1926.750through 1926.752) is specifically entitled \”Steel Erection.\” Subpart M(referred to in the standard codified at 29 CFR 1926.752(j)) is a\”general construction\” standard which requires guardrails, handrails andthe covering of floor openings, stairways, etc. All of Part 1926(subparts A through Z) is entitled \”Construction Industry Standards andInterpretations.\”[[3\/]]_Applicability of the Standards_Respondent’s counsel has argued at great length that the \”generalconstruction\” standards codified at 29 CFR 1926.28(a) and 1926.105(a)and (c)(1) are not applicable in this instance — do not apply to thisRespondent, engaged in steel erection because \”Respondent was not givenfair notice that the perimeter net requirements [and personal protectiverequirements] apply to the steel erection of tiered structures.\” Headduced evidence to support that contention, specifically the testimonyof a State of Maryland Occupational Safety and Health (\”OSHA\”) inspectorand a former District of Columbia OSHA official who now consults foremployers. Their opinion testimony was not persuasive. He citesfurther the opinions of two administrative law judges of this Commissionwho agree with him. See _Secretary of Labor_ v. _L. R. Wilson and SonsIncorporated_, OSHRC Docket No. 80-5866, CCH OSHD ? 25,842 (November 16,1981) and _Secretary of Labor_ v. _Williams Enterprises, Inc_., OSHRCDocket No. 81-0381, CCH OSHD ? 25,930 (January 20, 1982); _but_, _see__Secretary of Labor_ v. _L. R. Wilson and Sons, Inc._, OSHRC Docket No.80-2760, 9 BNA OSHC 1936. I disagree.This Respondent is admittedly engaged in steel erection, and itsemployees were performing steel erection at the time the OSHA ComplianceOfficer (\”CO\”) observed them. The employees were working approximatelysixty feet above ground level and were not protected by any means (attimes) from falls from the perimeter that would have resulted in seriousinjury or, perhaps, death (see evaluation of the evidence, _infra_.).From the record it clearly appears that the OSHA and its counsel (theOffice of the Solicitor) are in a quandry about how to — or, ratherwhether to — require the protection of steel erection workers frominjury or death. See Transcript, pages 569 to 725 (and the exhibitsmentioned therein). I am not.Fairfax, Virginia, the site of the alleged violative conduct, is withinthe jurisdiction of the United States Fourth Circuit Court of Appeals,and the ruling of that court in _Bristol Steel and Iron Works, Inc._, v._OSHRC_, _et_ _al_., 601 F.2d 717, 721, is the controlling law. Thelogic of _Bristol_ is clear:The declared purpose of the Act is ‘to assure so far as possible everyworking man and woman in the Nation safe and healthful workingconditions and to preserve our human resources * * *.’ 29 U.S.C. ?651(b). Being remedial and preventative in nature, the Act must ‘beconstrued liberally in favor of the workers whom it was designed toprotect * * *.’ While the Act substantially contemplates specificsafety standards promulgated by the secretary, * * *, its purposes arealso effectuated by the general safety standards and the general dutyclause which are designed to fill those interstices necessarilyremaining after the promulgation of specific safety standards.* * *Infinite hypotheticals can be envisioned in which employees engaged insteel erection would be exposed to an unnecessary hazard not covered bya Subpart R specific safety standard. The general safety standarddealing with personal protective equipment found in 29 C.F.R. ?1926.28(a) complements the Subpart R specific standards dealing withsteel erection by requiring ‘the wearing of appropriate personalprotective equipment [where there is a need] for using such equipment toreduce the hazards to the employees.’***We agree with the First and Ninth Circuits that the reasonable man testshould not be limited to the custom and practice of the industry. Whilethe custom and practice of most industries will adequately protectemployees from hazardous conditions, the inquiry must be broad enough toprevent an industry, which fails to take sufficient precautionarymeasures against hazardous conditions, from subverting the underlyingpurposes of the Act. In determining whether Bristol violated ?1926.28(a), the appropriate inquiry is whether under the circumstances areasonably prudent employer familiar with steel erection would haveprotected against the hazard of falling by the means specified in thecitation. (Footnotes and citations omitted.)Thus, the \”general construction\” standards are applicable in thisinstance \”to assure . . . safe and healthful working conditions [forsteel erectors] and to preserve our human resources.\” Thus, Respondentdid have \”fair notice that the perimeter net requirement of 29 CFR1926.105 applied to the steel erection of tiered structures.\” The Courtof Appeals gave such notice on June 25, 1979._Selectivity for Prosecution_.Respondent’s contention that the application by Complainant’s agents ofthe \”general\” safety standards to the steel erection industry is notNation-wide may have some validity in fact, but its argument that suchconduct by Complainant invalidates the Citations issued here has nobasis in the law. Respondent has shown no impermissible motive inComplainant’s selection of offending steel erectors, _e.g_., thisRespondent. Government agencies need not cite, apprehend or prosecuteevery violation of a law in order to validate their prosecution of aparticular defendant or respondent.[[4\/]]_Vagueness of Standards_.Respondent contends that the cited safety standards which require fallprotection (personal protective equipment and safety nets) are\”unenforceably vague,\” and its counsel has successfully argued thatcontention before two different administrative law judges in recentmonths. I disagree. The requirements of the three safety standards setforth in Citation No. 1 appear clear enough to apprise an employer –whose employees are exposed to falling hazards — what he is obliged todo to eliminate the hazards, or at least to reduce the risk. TheCommission and several courts of appeals have likewise not been confusedregarding the requirements of the standards in question. See, forexample: _Secretary of Labor_ v. _Vicon Corporation_, CCH OSHD ? 25,749(1981); _Secretary of_ _Labor_ v. _Bristol Steel and Iron Works Inc_.,_et_ _al_., 667 F.2d 1025 (6th Cir. 1981); _Cleveland Consolidated,Inc_. v. _OSHRC_, _et_ _al_., 649 F.2d 1160 (5th Cir. 1981); _Secretaryof Labor_ v. _Bethlehem Steel Corporation_, OSHRC Docket No. 16067, 10BNA OSHC 1264 (1980)._Summary of the Evidence._The OSHA CO, Josephine Hopkins, visited the site of Respondent’sconstruction activities at 8401 Arlington Boulevard, Fairfax, Virginia,on several days during the period from July to August 14, 1980. Shevisually observed the employees’ activities and spoke with them; shemeasured and photographed what she saw; consulted with Respondent’ssupervisory personnel; and at the conclusion of the investigation, sherecommended the issuance of Citations which are contested here.The CO observed Respondent’s employees putting steel beams and plates inplace and connecting, bolting and welding them. The employees worked atthe edges (\”perimeter\”) of the building some 60 feet above theground.[[5\/]] No perimeter safety nets were installed to prevent theemployees’ falling to the ground from their workplaces atop the fifthfloor of the building, and the employees were not always tied off tosafety lines attached to safety belts.Respondent had erected safety cables around the perimeter of thebuilding, and the steelworkers wore safety belts with lanyards attached. Pat Goodwin, Respondent’s foreman, testified that he reminded hisemployees to tie off to the lanyard when they worked at or near the edgeof the building. However, there is considerable doubt that it wasalways possible to do so, and the CO’s testimony certainly supports theconclusion that the employees were not always protected from falls asthey performed certain of the tasks on the roof top. That testimony wasconfirmed by employee Michael Russell,[[6\/]] foreman Goodwin, andRespondent’s president. Referring to the columns to which theemployees’ safety lanyards were to be tied, Russell said:. . . one column here and one column there . . . say 25 or 30-footdistances, you can’t tie off when you’re in the middle because there isno place to put up cables to tie off to [and] you can hardly tie offwith a six foot rope, all the time [when you’re] laying deck, becauseyou’re constantly walking from the pile to the end and back . . . onlyin certain instances are you at the perimeter of the building . . .occasionally you would have to go out there [to the perimeter or edge ofthe roof] and mask the deck to get it in. With a six-foot rope you couldnot reach the spot. (Tr. 519, 520.)More specifically, in answer to Complainant’s counsel’s question: \”. . .there are certain times when you were laying deck that you had to go tothe perimeter . . . and during those certain occasions, on this job, youcould not use your safety rope?\” Russell answered, \”Yes\” (Tr. p. 519,520). He also answered affirmatively the question: \”When you wereworking laying deck, were there times when you were on the perimeter ofthe building exposed to a fall of more than 25 feet?\” (Tr. 512).The Respondent’s president, Richard McSpadden,, likewise testified thatthe employees worked \”at the perimeter\” of the building connectingsteel, bolting steel and laying the steel decking. He admitted thatthey were \”exposed to the perimeter\” and \”exposed at some times to fallsin excess of 25 feet from the perimeter:\” He further admitted that itwas hazardous for employees to weld, bolt and connect steel at or nearthe perimeter of the building’s floors without fall protection (Tr. pp.94-97). Thus, the CO’s testimony that she observed employees working,walking or standing at the very edge of decked floors or on the beams ofundecked floors of the building was confirmed by Respondent’srepresentatives and its employee, Russell. One of the three employeeswhom the CO observed on August 5, 1980, welding at \”the very edge\” ofthe fifth floor, approximately 60 feet above the ground, was identifiedas McSpadden’s son. Not only was he not tied off to a safety line, buthe was not even wearing a safety belt to use to tie off if there was aline. According to the testimony of the CO, she was accompanied by theforeman Goodwin, at the time, and he then instructed employee McSpaddento go to the trailer to obtain a belt and lanyard. The others wereinstructed by Goodwin to use their belts and lanyards (Tr. pp. 240-245).The CO testified that she observed openings in the decked floor whichwere not planked over or guarded by a railing to prevent employees fromfalling through to the floor below.[[7\/]] Respondent’s employees usedthis floor to gain access to higher and lower floors as they worked,according to the testimony, and they were thus exposed to the fallinghazard presented (Tr. pp. 316, _et_ _seq_.). Employee Russell likewisetestified to the existence of the uncovered, unguarded floor openingsand the employee access or exposure to the hazard which they presented(Tr. pp. 497-498, 512).Complainant charged an \”other than serious\” violation of the safetystandard codified at 29 CFR 1926.352(d) because fire extinguishingequipment was not immediately available in an area where welding wasbeing performed by one of Respondent’s employees.[[8\/]] The CO broughtthis fact to the foreman’s attention as they observed that anextinguisher was not provided in the area, according to the CO’stestimony, and the foreman (Goodwin) then went to the floor below tobring a fire extinguisher to the place where it might be needed. The COstated that she characterized the violation as \”other than serious\”because there was in fact no flammable or combustible material in theimmediate area where the cutting, welding or burning was beingperformed, and thus she concluded that a substantial probability ofresulting death or serious physical injury did not exist.The CO testified that Goodwin was with her when she observed the absenceof the fire extinguishing equipment; neither he nor any other witnesscontroverted her testimony concerning that asserted fact._Evaluation of the Evidence_The evidence adduced by Complainant leaves no doubt regarding the factsessential to a finding that Respondent allowed the conditions describedby the CO to exist at the worksite it maintained at Fairfax, Virginia,on July 31 through August 14, 1980, _viz_.: 1) employees working morethan 25 feet above the ground were not protected against falls by theuse of safety nets, ladders, scaffolds, catch platforms, temporaryfloors, or (in some instances) by the use of safety belts or lanyardstied to safety lines; 2) no safety nets were installed beyond the edge(perimeter) of the work surfaces where employees were exposed to thehazard of falling 25 feet or more; 3) unused floor openings were notplanked over, or otherwise covered, or guarded by railings; and 4) fireextinguishing equipment was not provided where welding was beingperformed by Respondent’s employee.The evidence adduced by Respondent through its president, foreman, andemployee (Russell) failed to contradict Complainant’s CO insofar as hertestimony regarding what she observed is concerned. She observedviolations of the safety standards promulgated by Complainant. Thecited safety standards are applicable here; they are not unenforceablyvague, and those standards were violated by Respondent in the mannersand at the times and place asserted by Complainant’s agent.The CO opined that the violations set forth in Citation No. 1 are\”serious\” because a 60-foot fall by an employee from the top of thebuilding (or a 12-foot fall through an unguarded floor opening) wouldresult in death or serious physical harm. I agree._The Penalties._The CO proposed that penalties totaling $780 be assessed for theviolations set forth in Citation No. 1 (Items 1 and 2). Using the$1,000 mandatory penalty for a serious violation (Section 17(b) of theAct), she considered the \”gravity\” of the violations and Respondent’s\”size\”, \”good faith\” and the history of its compliance with the Act’sprovisions, and she made adjustments accordingly (Tr. pp. 256-258).I find no fault with her reasoning, and, giving due consideration to thefactors set forth in Section 17(j) of the Act, the proposed penaltiesare appropriate and will be assessed._FINDINGS OF FACT_A preponderance of the probative evidence of record, taken in itsentirety, compels the following findings of fact:1. Respondent, a corporate entity, is engaged in the business ofconstruction, specifically steel erection, in the Commonwealth ofVirginia and in other states (_e.g_., in Tennessee and North Carolina)2. Goods and materials used by Respondent in its business activitiesare shipped in interstate commerce from extrastate sources.3. During the period July 31 to August 14, 1980, Complainant’s agentconducted an inspection of the worksite maintained by Respondent at 8401Arlington Boulevard, Fairfax, Virginia.4. At the time and place specified in Finding of Fact numbered 3,Respondent’s employees worked more than 25 feet above the ground leveland were not protected against the hazard of falling 25 feet or more bythe use of safety nets, ladders, scaffolds, catch platforms, temporaryfloors, safety lines, safety belts, or other appropriate protectiveequipment or installation.5. At the time and place specified in Finding of Fact numbered 3,safety nets did not extend eight feet beyond the edge of the worksurface (perimeter of the building being constructed by Respondent)where Respondent’s employees were exposed to the hazard of falling 25feet or more.6. At the time and place specified in Finding of Fact numbered 3,unused openings in the floors of the building being constructed byRespondent were not fully planked over or guarded by railings to protectits exposed employees from falling hazards.7. At the time and place specified in Finding of Fact numbered 3,Respondent’s employee engaged in a welding operation, and suitable fireextinguishing equipment was not immediately available in the work area.8. The conditions described in Findings of Fact numbered 4, 5 and 6presented a substantial probability that death or serious physical harmcould result to Respondent’s employees, and Respondent knew of thepresence of these conditions.9. The condition described in Finding of Fact numbered 7 did notpresent a substantial probability of resulting death or serious physicalharm._CONCLUSIONS OF LAW_1. Jurisdiction of the parties and of the subject matter herein isconferred upon the Occupational Safety and Health Review Commission bySection 10(c) of the Act.2. At all times relevant hereto, Respondent was an employer engaged ina business affecting commerce within the meaning of Section 3(5) of theAct and as such was subject to the requirements of Section 5(a)(2) ofthe Act.3. On or about July 31 and August 5, 1980, Respondent violated Section5(a)(2) of the Act by its failure to comply with the safety standardspromulgated by Complainant and codified at 29 CFR 1926.28(a) and 29 CFR1926.105(a).4. On or about July 31, 1980, Respondent violated Section 5(a)(2) ofthe Act by its failure to comply with the safety standard promulgated byComplainant and codified at 29 CFR 1926.105(c)(1).5. On or about July 31, 1980, Respondent violated Section 5(a)(2) ofthe Act by its failure to comply with the safety standard promulgated byComplainant and codified at 29 CFR 1926.752(j).6. On or about August 6, 1980, Respondent violated Section 5(a)(2) ofthe Act by its failure to comply with the safety standard promulgated byComplainant and codified at 29 CFR 1926.352(d).7. The violations described in Conclusions of Law numbered 3, 4 and 5are \”serious\” in nature; the violation described in Conclusion of Lawnumbered 6 are \”other than serious\” (Section 17(k) of the Act)._ORDER_Upon consideration of the foregoing findings and conclusions, it ishereby ORDERED that the Citations issued to Respondent by Complainant onSeptember 11, 1980, are AFFIRMED, and penalties totaling $780 are ASSESSED.BENJAMIN G. USHERJUDGE, OSHRCDated: August 23, 1982New York, New York[[1]] _See_, _e.g_., _Brock v. L.R. Willson & Sons Inc_., 773 F.2d 1377(D.C. Cir. 1985); _Donovan v. Adams Steel Erection, Inc_., 766 F.2d 804(3d Cir. 1985); _Donovan v. Daniel Marr & Son Co_., 763 F.2d 477 (1stCir. 1985).[[1\/]] Section 5(a)(2) of the Act requires:Each employer***shall comply with occupational safety and health standards promulgatedunder this Act.[[2\/]] Section 17 of the Act provides, in pertinent part:(a) ***(b) Any employer who has received a citation for a serious violation ofthe requirements of section 5 of this Act, of any standard, rule, ororder promulgated pursuant to section 6 of this Act, or of anyregulations prescribed pursuant to this Act, shall be assessed a civilpenalty of up to $1,000 for each such violation.(c) Any employer who has received a citation for a violation of therequirements of section 5 of this Act, of any standard, rule, or orderpromulgated pursuant to section 6 of this Act, or of regulationsprescribed pursuant to this Act, and such violation is specificallydetermined not to be of a serious nature, may be assessed a civilpenalty of up to $1,000 for each such violation.***(j) The Commission shall have authority to assess all civil penaltiesprovided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations.(k) For purposes of this section, a serious violation shall be deemed toexist in a place of employment if there is a substantial probabilitythat death or serious physical harm could result from a condition whichexists, or from one or more practices, means, methods, operations, orprocesses which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exerciseof reasonable diligence, know of the presence of the violation.[[3\/]] As opposed to the \”General Industry Standards andInterpretations\” which are codified at Part 1910 of the Code of FederalRegulations and the \”Maritime Standards and Interpretations\” codified atPart 1915 of the Code of Federal Regulations.[[4\/]] See, _e.g_., _Lipper_ v. _SEC_, 547 F.2d 171 (2d Cir. 1976);_U.S._ v. _Ness_, 652 F.2d 890 (9th Cir. 1981); _Oyler_ v. _Boles_, 368U.S. 448.[[5\/]] Respondent’s president, Richard McSpadden, confirmed that thefive floors of the then-uncompleted building were approximately 12 feetapart.[[6\/]] Michael Russell is the son of a part-owner of Skyline CraneService, Inc., Charles H. Russell.[[7\/]] In the Citation it is alleged that the floor openings wereobserved on the second floor, east side. The CO testified that thefloor in question might be termed the third floor, depending uponwhether the ground floor was included as a \”floor.\” Nevertheless, shesaw the openings, as did Goodwin who accompanied her. Testimony(cross-examination) was adduced _ad nauseam_ concerning whether thesecond or third floor was the scene of the violation. Supposedly thepurpose of this was to confuse the CO. It did not. Or to make it appearthat she was uncertain. It did not.[[8\/]] Again, there was confusion among the parties regarding whetherthe fire extinguishing equipment was missing from the first or secondfloor of the building under construction. The disagreement hereresulted as before from a difference of opinion concerning whether theuncompleted \” ground floor\” should be considered as the first floor. This matters little inasmuch as Respondent’s foreman (Goodwin) was withthe CO when she made mention of the absence of the required fireextinguisher during the inspection tour. He was certainly not confusedabout the location of the violation, and, if the CO’s description of thelocation was inaccurate, Respondent cannot be said to have been misled.”