“Docket No. 80-6032 SECRETARY OF LABOR, Complainant, v.SKYLINE CRANE SERVICE, INC., Respondent.OSHRC Docket No. 80-6032ORDER VACATING DIRECTION FOR REVIEWBefore:\u00a0 BUCKLEY, Chairman; WALL, Commissioner.BY THE COMMISSION:On August 23, 1982, Administrative Law Judge BenjaminG. Usher affirmed a multiple item citation that alleged that Skyline Crane Service failedto provide adequate fall protection for its employees engaged in structural steel erectionon a project in Fairfax, Virginia.The central issue on review is whether, at the timeof the inspection in 1980, Skyline had fair notice that it was obligated to provideperimeter nets under the general construction industry standard at 29 C.F.R. ? 1926.105.\u00a0 Skyline contends that it lacked such notice because the construction standardsspecifically applicable to steel erection under Subpart R of Part 1926 do not require suchprotection, and because the Secretary generally was not issuing citations to steelerection employers for lack of perimeter nets.The Fourth Circuit, where this case arose, has held that Subpart R does not preempt thegeneral standard requiring personal protective equipment to guard against hazards whichare not covered by that subpart.\u00a0 Bristol Steel & Iron Works, Inc. v. OSHRC,601 F.2d 717 (4th Cir. 1979).\u00a0 Bristol did not, however, address whether thefall protection requirements in the steel erection standards preempt any obligation ofsteel erectors to provide perimeter nets under section 1926.105.\u00a0 After the issuanceof the citation here, there have been several decisions in other circuits that haveelaborated upon the reasoning in Bristol and specifically concluded that steelerection standards do not preempt any requirement in section 1926.105 to use perimeternets in circumstances similar to those here.[[1]]\u00a0 The Secretary has also issued aninstruction explicitly stating that during structural steel erection, perimeter fallprotection, including perimeter nets, is required under section 1926.105.\u00a0 Thedocument directs OSHA field personnel to issue citations accordingly.\u00a0 OSHAInstruction STD 3-3.1 (July 18, 1983), reprinted in 1 BNA OSH Rep. Ref. File ? 21:9118 and in 1982-83 CCH Employ. S. & H. Guide New Developments ? 12,855.In view of these developments in the case law and inthe Secretary’s enforcement policy, the issue of whether a steel erect on employer in theFourth Circuit has fair notice of an obligation to provide perimeter nets for fallprotection is in a completely different posture now than it was in 1980.\u00a0 A decisionon whether Skyline had notice of such a requirement when this case arose would notestablish whether Skyline, or other steel erection employers, have notice of a need forperimeter nets under the current state of the law.\u00a0 Since Skyline’s constructionproject has been completed, abatement of the alleged fall hazards is not in controversy.\u00a0 Under these circumstances, we conclude that review is no longer provident.\u00a0 SeePaschen\/Morrison-Knudsen\/Kenny, a Joint Venture, 86 OSAHRC _____, 12 BNAOSHC 1827, 1986 CCH OSHD ? 27,571 (No. 80-6448, 1986); P & Z Co., 82 OSAHRC8\/C8, 10 BNA OSHC 1427, 1982 CCH OSHD ? 25,937 (No. 76-431, 1982); A. C. & S., Inc.,76 OSAHRC 93\/A2, 4 BNA OSHC 1529, 1976-77 CCH OSHD ? 20,955 (No. 2229, 1976).Accordingly, the direction for review is vacated; thejudge’s decision is the final order of the Commission.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED:\u00a0 APR 16 1987\u00a0SECRETARY OF LABORComplainantv.SKYLINE CRANE SERVICE, INC.,RespondentOSHRC DOCKET NO. 80-6032DECISION AND ORDERAppearances:Michael S. Berger, Esq.Office of the Regional Solicitor U. S. Department of Labor Philadelphia, Pennsylvaniafor the ComplainantJames Brent Clarke, Jr., Esq. Washington, D. C.andDavid R. Clarke, Esq. Fairfax, Virginiafor the Respondent Usher, Judge:These proceedings were initiated by the Secretary ofLabor, United States Department of Labor, pursuant to Section 10(c) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651, et seq. (\”theAct\”).\u00a0 The Secretary seeks affirmance of two Citations charging several\”serious\” and \”other than serious\” violations of Section 5(a)(2) ofthe Act and seeks further the assessment of a $780 penalty.[[1\/]]The Citations, resulting from an inspection ofRespondent’s worksite at Fairfax, Virginia, on July 31 through August 14, 1980, wereissued on September 11, 1980.\u00a0 Respondent filed a timely Notice of Contest; aComplaint and Answer were filed in accordance with the Commission’s Rules of Procedure;and the issues were tried before me at Washington, D. C., on March 17 and 18 and April 27and 28, 1981.\u00a0 No employee or employee representative sought party status pursuant toRule 20(a) of the 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-trialbriefs have served to raise the following issues:\u00a0 1) whether the safety standardscited 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 theactivities of his employees at the time of the inspection; 2) whether Respondent was\”selectively\” cited for the violations alleged in Citation No. 1;\u00a0 3)whether the aforementioned safety standards referred to in Citation No. 1 are unacceptablyambiguous and thus unenforceable;\u00a0 4) if these safety standards are enforceable andapplicable to Respondent, whether Respondent violated Section 5(a)(2) of the Act ascharged in Citation No. 1 and the Complaint;\u00a0 5) whether Respondent violated Section5(a)(2) of the Act because of its failure to comply with the provisions of the safetystandard codified at 29 CFR 1926.752(j), as also charged in Citation No. 1;\u00a0 6)whether Respondent violated Section 5(a)(2) of the Act as charged in Citation No. 2;\u00a0 7) if violative conduct on Respondent’s part was proved, whether the violations setforth in Citation No. 1 are properly characterized as \”serious\” as defined inSection 17(k) of the Act;\u00a0 and 8) if violations were proved, what penalties, if any,are appropriate.[[2\/]]The Citations issued by Complainant on September 11, 1980, read, in full, as follows:(Citation No. 1 – \”Serious\”):The violations described in this citation are allegedto have occurred on or about the day the inspection was made unless otherwise indicatedwithin the description given below.la 29 CFR 1926.28(a) and 1926.105(a):\u00a0 Employee(s) were not protected against falls ofmore than 25 feet by the use of safety nets, ladders, scaffolds, catch platforms,temporary floors, safety lines, safety belts, or other appropriate personal protectiveequipment:(a) Fifth Floor, North End – Employees walking andworking 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. 1b 29 CFR 1926.105(c)(1):\u00a0 Nets did not extend 8-feet beyond the edge ofthe work surface where employees were exposed:(a) Fifth Floor – Employees walking and working atthe edge, welding and carrying material, on 7\/31\/80.2 29 CFR 1926.752(j):\u00a0 All unused openings in floors, temporary orpermanent, were not completely planked over or guarded by standard railings or equivalent:(a) Second Floor – openings on East Side, 13-feetsix-inches by three and a half feet and six feet by eight and a half feet; South Side,seventy five-feet by nineteen-feet and eight inches, exposing employees to a fall ofapproximately twenty five-feet, on 7\/31\/80.(Citation No. 2 – \”Other Than Serious\”):29 CFR 1926.352(d):\u00a0 Suitable fire extinguishingequipment was not immediately available in the work area(s) where welding, cutting, orheating was being performed:(a) First Floor, Wouth [sic] Side, – Employee usingLincoln Arc Welder, on 8\/6\/80. Abatement of the conditions described in theCitations was ordered \”immediately;\” and penalties of $420 (for item 1a ofCitation No. 1) and $360 (for item 2 of Citation No. 1) were proposed by Complainant.The safety standards referred to in the Citationsprovide, in pertinent part:29 CFR 1926.28 – Personal Protective Equipment(a) The employer is responsible for requiring thewearing of appropriate personal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the need for using suchequipment to reduce the hazards to the employees.29 CFR 1926.105 – Safety Nets(a) Safety nets shall be provided when workplaces aremore than 25 feet above the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts isimpractical.(b) . . .(c)(1) Nets shall extend 8 feet beyond the edge ofthe work surface where employees are exposed and shall be installed as close under thework as practical but in no case more than 25 feet below such work surface.\u00a0 Netsshall be hung with sufficient clearance to prevent user’s contact with the surfaces orstructures below.\u00a0 Such clearances shall be determined 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 be completely plankedover or guarded in accordance with Subpart M of this part.29 CFR 1926.352 – Fire Prevention***(d) Suitable fire extinguishing equipment shall be immediately available in the work areaand shall be maintained in a state of readiness for instant use.The safety standards codified at 29 CFR 1926.28(a) and 29 CFR 1926.105(a) and (c)(1) areincluded in Subparts C and E of the regulations and are commonly referred to as the\”general construction standards.\”\u00a0 Subpart R of the regulations (codifiedat 29 CFR 1926.750 through 1926.752) is specifically entitled \”Steel Erection.\”\u00a0 Subpart M (referred to in the standard codified at 29 CFR 1926.752(j)) is a\”general construction\” standard which requires guardrails, handrails and thecovering of floor openings, stairways, etc.\u00a0 All of Part 1926 (subparts A through Z)is entitled \”Construction Industry Standards and Interpretations.\”[[3\/]]Applicability of the StandardsRespondent’s counsel has argued at great length that the \”general construction\”standards codified at 29 CFR 1926.28(a) and 1926.105(a) and (c)(1) are not applicable inthis instance — do not apply to this Respondent, engaged in steel erection because\”Respondent was not given fair notice that the perimeter net requirements [andpersonal protective requirements] apply to the steel erection of tiered structures.\”\u00a0 He adduced evidence to support that contention, specifically the testimony of aState of Maryland Occupational Safety and Health (\”OSHA\”) inspector and a formerDistrict of Columbia OSHA official who now consults for employers.\u00a0 Their opiniontestimony was not persuasive.\u00a0 He cites further the opinions of two administrativelaw judges of this Commission who agree with him.\u00a0 See Secretary of Labor v. L.R. Wilson and Sons Incorporated, OSHRC Docket No. 80-5866, CCH OSHD ? 25,842(November 16, 1981) and Secretary of Labor v. Williams Enterprises, Inc.,OSHRC Docket No. 81-0381, CCH OSHD ? 25,930 (January 20, 1982); but, see Secretaryof Labor v. L. R. Wilson and Sons, Inc., OSHRC Docket No. 80-2760, 9 BNA OSHC1936.\u00a0 I disagree.This Respondent is admittedly engaged in steelerection, and its employees were performing steel erection at the time the OSHA ComplianceOfficer (\”CO\”) observed them.\u00a0 The employees were working approximatelysixty feet above ground level and were not protected by any means (at times) from fallsfrom the perimeter that would have resulted in serious injury or, perhaps, death (seeevaluation of the evidence, infra.).From the record it clearly appears that the OSHA andits counsel (the Office of the Solicitor) are in a quandry about how to — or, ratherwhether to — require the protection of steel erection workers from injury or death.\u00a0 See Transcript, pages 569 to 725 (and the exhibits mentioned therein).\u00a0 I amnot.Fairfax, Virginia, the site of the alleged violativeconduct, is within the 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.\u00a0 The logic of Bristolis clear:The declared purpose of the Act is ‘to assure so far as possible every working man andwoman in the Nation safe and healthful working conditions and to preserve our humanresources * * *.’ 29 U.S.C. ? 651(b).\u00a0 Being remedial and preventative in nature,the Act must ‘be construed liberally in favor of the workers whom it was designed toprotect * * *.’\u00a0 While the Act substantially contemplates specific safety standardspromulgated by the secretary, * * *, its purposes are also effectuated by the generalsafety standards and the general duty clause which are designed to fill those intersticesnecessarily remaining after the promulgation of specific safety standards.* * *Infinite hypotheticals can be envisioned in which employees engaged in steel erectionwould be exposed to an unnecessary hazard not covered by a Subpart R specific safetystandard.\u00a0 The general safety standard dealing with personal protective equipmentfound in 29 C.F.R. ? 1926.28(a) complements the Subpart R specific standards dealing withsteel erection by requiring ‘the wearing of appropriate personal protective equipment[where there is a need] for using such equipment to reduce the hazards to the employees.’***We agree with the First and Ninth Circuits that the reasonable man test should not belimited to the custom and practice of the industry.\u00a0 While the custom and practice ofmost industries will adequately protect employees from hazardous conditions, the inquirymust be broad enough to prevent an industry, which fails to take sufficient precautionarymeasures against hazardous conditions, from subverting the underlying purposes of the Act.\u00a0 In determining whether Bristol violated ? 1926.28(a), the appropriate inquiry iswhether under the circumstances a reasonably prudent employer familiar with steel erectionwould have protected against the hazard of falling by the means specified in the citation.\u00a0 (Footnotes and citations omitted.)Thus, the \”general construction\” standards are applicable in this instance\”to assure . . . safe and healthful working conditions [for steel erectors] and topreserve our human resources.\”\u00a0 Thus, Respondent did have \”fair notice thatthe perimeter net requirement of 29 CFR 1926.105 applied to the steel erection of tieredstructures.\”\u00a0 The Court of Appeals gave such notice on June 25, 1979.Selectivity for Prosecution.Respondent’s contention that the application by Complainant’s agents of the\”general\” safety standards to the steel erection industry is not Nation-wide mayhave some validity in fact, but its argument that such conduct by Complainant invalidatesthe Citations issued here has no basis in the law.\u00a0 Respondent has shown noimpermissible motive in Complainant’s selection of offending steel erectors, e.g.,this Respondent.\u00a0 Government agencies need not cite, apprehend or prosecute everyviolation of a law in order to validate their prosecution of a particular defendant orrespondent.[[4\/]]Vagueness of Standards.Respondent contends that the cited safety standards which require fall protection(personal protective equipment and safety nets) are \”unenforceably vague,\” andits counsel has successfully argued that contention before two different administrativelaw judges in recent months.\u00a0 I disagree.\u00a0 The requirements of the three safetystandards set forth in Citation No. 1 appear clear enough to apprise an employer — whoseemployees are exposed to falling hazards — what he is obliged to do to eliminate thehazards, or at least to reduce the risk.\u00a0 The Commission and several courts ofappeals have likewise not been confused regarding the requirements of the standards inquestion.\u00a0 See, for example:\u00a0 Secretary of Labor v. Vicon Corporation,CCH OSHD ? 25,749 (1981); Secretary of Labor v. Bristol Steel and IronWorks Inc., et al., 667 F.2d 1025 (6th Cir. 1981); ClevelandConsolidated, Inc. v. OSHRC, et al., 649 F.2d 1160 (5th Cir.1981); Secretary of Labor v. Bethlehem Steel Corporation, OSHRC Docket No.16067, 10 BNA OSHC 1264 (1980).Summary of the Evidence.The OSHA CO, Josephine Hopkins, visited the site of Respondent’s construction activitiesat 8401 Arlington Boulevard, Fairfax, Virginia, on several days during the period fromJuly to August 14, 1980.\u00a0 She visually observed the employees’ activities and spokewith them; she measured and photographed what she saw; consulted with Respondent’ssupervisory personnel; and at the conclusion of the investigation, she recommended theissuance of Citations which are contested here.The CO observed Respondent’s employees putting steel beams and plates in place andconnecting, bolting and welding them.\u00a0 The employees worked at the edges(\”perimeter\”) of the building some 60 feet above the ground.[[5\/]]\u00a0 Noperimeter safety nets were installed to prevent the employees’ falling to the ground fromtheir workplaces atop the fifth floor of the building, and the employees were not alwaystied off to safety lines attached to safety belts.Respondent had erected safety cables around theperimeter of the building, and the steelworkers wore safety belts with lanyards attached.\u00a0 Pat Goodwin, Respondent’s foreman, testified that he reminded his employees to tieoff to the lanyard when they worked at or near the edge of the building.\u00a0 However,there is considerable doubt that it was always possible to do so, and the CO’s testimonycertainly supports the conclusion that the employees were not always protected from fallsas they performed certain of the tasks on the roof top.\u00a0 That testimony was confirmedby employee Michael Russell,[[6\/]] foreman Goodwin, and Respondent’s president. \u00a0Referring to the columns to which the employees’ safety lanyards were to be tied, Russellsaid:. . . one column here and one column there . . . say 25 or 30-foot distances, you can’ttie off when you’re in the middle because there is no place to put up cables to tie off to[and] you can hardly tie off with a six foot rope, all the time [when you’re] laying deck,because you’re constantly walking from the pile to the end and back . . . only in certaininstances are you at the perimeter of the building . . . occasionally you would have to goout there [to the perimeter or edge of the roof] and mask the deck to get it in. With asix-foot rope you could not reach the spot.\u00a0 (Tr. 519, 520.)More specifically, in answer to Complainant’scounsel’s question: \”. . . there are certain times when you were laying deck that youhad to go to the perimeter . . . and during those certain occasions, on this job, youcould not use your safety rope?\”\u00a0 Russell answered, \”Yes\” (Tr. p. 519,520).\u00a0 He also answered affirmatively the question:\u00a0 \”When you were workinglaying deck, were there times when you were on the perimeter of the building exposed to afall of more than 25 feet?\”\u00a0 (Tr. 512).The Respondent’s president, Richard McSpadden,,likewise testified that the employees worked \”at the perimeter\” of the buildingconnecting steel, bolting steel and laying the steel decking.\u00a0 He admitted that theywere \”exposed to the perimeter\” and \”exposed at some times to falls inexcess of 25 feet from the perimeter:\”\u00a0 He further admitted that it washazardous for employees to weld, bolt and connect steel at or near the perimeter of thebuilding’s floors without fall protection (Tr. pp. 94-97).\u00a0 Thus, the CO’s testimonythat she observed employees working, walking or standing at the very edge of decked floorsor on the beams of undecked floors of the building was confirmed by Respondent’srepresentatives and its employee, Russell.\u00a0 One of the three employees whom the COobserved on August 5, 1980, welding at \”the very edge\” of the fifth floor,approximately 60 feet above the ground, was identified as McSpadden’s son.\u00a0 Not onlywas he not tied off to a safety line, but he was not even wearing a safety belt to use totie off if there was a line.\u00a0 According to the testimony of the CO, she wasaccompanied by the foreman Goodwin, at the time, and he then instructed employee McSpaddento go to the trailer to obtain a belt and lanyard.\u00a0 The others were instructed byGoodwin to use their belts and lanyards (Tr. pp. 240-245).The CO testified that she observed openings in thedecked floor which were not planked over or guarded by a railing to prevent employees fromfalling through to the floor below.[[7\/]]\u00a0 Respondent’s employees used this floor togain access to higher and lower floors as they worked, according to the testimony, andthey were thus exposed to the falling hazard presented (Tr. pp. 316, et seq.).Employee Russell likewise testified to the existence of the uncovered, unguarded flooropenings and 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 safety standard codified at 29 CFR 1926.352(d) because fire extinguishingequipment was not immediately available in an area where welding was being performed byone of Respondent’s employees.[[8\/]]\u00a0 The CO brought this fact to the foreman’sattention as they observed that an extinguisher was not provided in the area, according tothe CO’s testimony, and the foreman (Goodwin) then went to the floor below to bring a fireextinguisher to the place where it might be needed.\u00a0 The CO stated that shecharacterized the violation as \”other than serious\” because there was in fact noflammable or combustible material in the immediate area where the cutting, welding orburning was being performed, 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 absence of the fireextinguishing equipment; neither he nor any other witness controverted her testimonyconcerning that asserted fact.Evaluation of the EvidenceThe evidence adduced by Complainant leaves no doubt regarding the facts essential to afinding that Respondent allowed the conditions described by the CO to exist at theworksite it maintained at Fairfax, Virginia, on July 31 through August 14, 1980, viz.:1) employees working more than 25 feet above the ground were not protected against fallsby the use of safety nets, ladders, scaffolds, catch platforms, temporary floors, or (insome instances) by the use of safety belts or lanyards tied to safety lines; 2) no safetynets were installed beyond the edge (perimeter) of the work surfaces where employees wereexposed to the hazard of falling 25 feet or more; 3) unused floor openings were notplanked over, or otherwise covered, or guarded by railings; and 4) fire extinguishingequipment was not provided where welding was being performed by Respondent’s employee.The evidence adduced by Respondent through itspresident, foreman, and employee (Russell) failed to contradict Complainant’s CO insofaras her testimony regarding what she observed is concerned.\u00a0 She observed violationsof the safety standards promulgated by Complainant.\u00a0 The cited safety standards areapplicable here; they are not unenforceably vague, and those standards were violated byRespondent in the manners and at the times and place asserted by Complainant’s agent.The CO opined that the violations set forth inCitation No. 1 are \”serious\” because a 60-foot fall by an employee from the topof the building (or a 12-foot fall through an unguarded floor opening) would result indeath or serious physical harm.\u00a0 I agree. The Penalties.The CO proposed that penalties totaling $780 be assessed for the violations set forth inCitation No. 1 (Items 1 and 2).\u00a0 Using the $1,000 mandatory penalty for a seriousviolation (Section 17(b) of the Act), she considered the \”gravity\” of theviolations and Respondent’s \”size\”, \”good faith\” and the history ofits compliance with the Act’s provisions, and she made adjustments accordingly (Tr. pp.256-258).I find no fault with her reasoning, and, giving dueconsideration to the factors set forth in Section 17(j) of the Act, the proposed penaltiesare appropriate and will be assessed. FINDINGS OF FACTA preponderance of the probative evidence of record, taken in its entirety, compels thefollowing findings of fact:1.\u00a0 Respondent, a corporate entity, is engagedin the business of construction, specifically steel erection, in the Commonwealth ofVirginia and in other states (e.g., in Tennessee and North Carolina)2.\u00a0 Goods and materials used by Respondent in its business activities are shipped ininterstate commerce from extrastate sources.3.\u00a0 During the period July 31 to August 14, 1980, Complainant’s agent conducted aninspection of the worksite maintained by Respondent at 8401 Arlington Boulevard, Fairfax,Virginia.4.\u00a0 At the time and place specified in Finding of Fact numbered 3, Respondent’semployees worked more than 25 feet above the ground level and were not protected againstthe hazard of falling 25 feet or more by the use of safety nets, ladders, scaffolds, catchplatforms, temporary floors, safety lines, safety belts, or other appropriate protectiveequipment or installation.5.\u00a0 At the time and place specified in Finding of Fact numbered 3, safety nets didnot extend eight feet beyond the edge of the work surface (perimeter of the building beingconstructed by Respondent) where Respondent’s employees were exposed to the hazard offalling 25 feet or more.6.\u00a0 At the time and place specified in Finding of Fact numbered 3, unused openings inthe floors of the building being constructed by Respondent were not fully planked over orguarded by railings to protect its exposed employees from falling hazards.7.\u00a0 At the time and place specified in Finding of Fact numbered 3, Respondent’semployee engaged in a welding operation, and suitable fire extinguishing equipment was notimmediately available in the work area.8.\u00a0 The conditions described in Findings of Fact numbered 4, 5 and 6 presented asubstantial probability that death or serious physical harm could result to Respondent’semployees, and Respondent knew of the presence of these conditions.9.\u00a0 The condition described in Finding of Fact numbered 7 did not present asubstantial probability of resulting death or serious physical harm.CONCLUSIONS OF LAW1.\u00a0 Jurisdiction of the parties and of the subject matter herein is conferred uponthe Occupational Safety and Health Review Commission by Section 10(c) of the Act.2.\u00a0 At all times relevant hereto, Respondent was an employer engaged in a businessaffecting commerce within the meaning of Section 3(5) of the Act and as such was subjectto the requirements of Section 5(a)(2) of the Act.3.\u00a0 On or about July 31 and August 5, 1980, Respondent violated Section 5(a)(2) ofthe Act by its failure to comply with the safety standards promulgated by Complainant andcodified at 29 CFR 1926.28(a) and 29 CFR 1926.105(a).4.\u00a0 On or about July 31, 1980, Respondent violated Section 5(a)(2) of the Act by itsfailure to comply with the safety standard promulgated by Complainant and codified at 29CFR 1926.105(c)(1).5.\u00a0 On or about July 31, 1980, Respondent violated Section 5(a)(2) of the Act by itsfailure to comply with the safety standard promulgated by Complainant and codified at 29CFR 1926.752(j).6.\u00a0 On or about August 6, 1980, Respondent violated Section 5(a)(2) of the Act by itsfailure to comply with the safety standard promulgated by Complainant and codified at 29CFR 1926.352(d).7.\u00a0 The violations described in Conclusions of Law numbered 3, 4 and 5 are\”serious\” in nature; the violation described in Conclusion of Law numbered 6 are\”other than serious\” (Section 17(k) of the Act).ORDERUpon consideration of the foregoing findings andconclusions, it is hereby ORDERED that the Citations issued to Respondent by Complainanton September 11, 1980, are AFFIRMED, and penalties totaling $780 are ASSESSED.BENJAMIN G. USHER JUDGE, OSHRCDated:\u00a0 August 23, 1982 New 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 SteelErection, Inc., 766 F.2d 804 (3d Cir. 1985); Donovan v. Daniel Marr & Son Co.,763 F.2d 477 (1st Cir. 1985).[[1\/]] Section 5(a)(2) of the Act requires:Each employer***shall comply with occupational safety and health standards promulgated under this Act.[[2\/]] Section 17 of the Act provides, in pertinentpart:(a) ***(b) Any employer who has received a citation for aserious violation of the requirements of section 5 of this Act, of any standard, rule, ororder promulgated pursuant to section 6 of this Act, or of any regulations prescribedpursuant to this Act, shall be assessed a civil penalty of up to $1,000 for each suchviolation.(c) Any employer who has received a citation for aviolation of the requirements of section 5 of this Act, of any standard, rule, or orderpromulgated pursuant to section 6 of this Act, or of regulations prescribed pursuant tothis Act, and such violation is specifically determined not to be of a serious nature, maybe assessed a civil penalty of up to $1,000 for each such violation.***(j) The Commission shall have authority to assess all civil penalties provided in thissection, giving due consideration to the appropriateness of the penalty with respect tothe size of the business of the employer being charged, the gravity of the violation, thegood faith of the employer, and the history of previous violations.(k) For purposes of this section, a serious violationshall be deemed to exist in a place of employment if there is a substantial probabilitythat death or serious physical harm could result from a condition which exists, or fromone or more practices, means, methods, operations, or processes which have been adopted orare in use, in such place of employment unless the employer did not, and could not withthe exercise of reasonable diligence, know of the presence of the violation.[[3\/]] As opposed to the \”General IndustryStandards and Interpretations\” which are codified at Part 1910 of the Code of FederalRegulations and the \”Maritime Standards and Interpretations\” codified at Part1915 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); Oylerv. Boles, 368 U.S. 448.[[5\/]] Respondent’s president, Richard McSpadden,confirmed that the five floors of the then-uncompleted building were approximately 12 feetapart.[[6\/]] Michael Russell is the son of a part-owner ofSkyline Crane Service, Inc., Charles H. Russell.[[7\/]] In the Citation it is alleged that the flooropenings were observed on the second floor, east side.\u00a0 The CO testified that thefloor in question might be termed the third floor, depending upon whether the ground floorwas included as a \”floor.\”\u00a0 Nevertheless, she saw the openings, as didGoodwin who accompanied her.\u00a0 Testimony (cross-examination) was adduced ad nauseamconcerning whether the second or third floor was the scene of the violation. \u00a0Supposedly the purpose of this was to confuse the CO.\u00a0 It did not. Or to make itappear that she was uncertain.\u00a0 It did not.[[8\/]] Again, there was confusion among the partiesregarding whether the fire extinguishing equipment was missing from the first or secondfloor of the building under construction.\u00a0 The disagreement here resulted as beforefrom a difference of opinion concerning whether the uncompleted \” ground floor\”should be considered as the first floor.\u00a0 This matters little inasmuch asRespondent’s foreman (Goodwin) was with the CO when she made mention of the absence of therequired fire extinguisher during the inspection tour.\u00a0 He was certainly not confusedabout the location of the violation, and, if the CO’s description of the location wasinaccurate, Respondent cannot be said to have been misled.”