“SECRETARY OF LABOR,\t Complainant,\t v.\t\/\/OSHRC Docket No. 03-1622SUMMIT CONTRACTORS, INC.,\t Respondent.\t APPEARANCES:Stephen D. Turow, Attorney; Ann Rosenthal, Counsel for AppellateLitigation; Daniel J. Mick, Counsel for Regional Trial Litigation;Joseph M. Woodward, Associate Solicitor; Howard M. Radzely, Solicitor;U.S. Department of Labor, Washington, DCFor the Complainant Robert E. Rader, Jr., Esq.; Rader & Campbell, Dallas, TXFor the Respondent Arthur G. Sapper, Esq.; Robert C. Gombar, Esq.; James A. Lastowka, Esq.;McDermott Will & Emery LLP, Washington, DCFor Amici National Association of Home Builders; Contractors\u2019Association of Greater New York; Texas Association of Builders; andGreater Houston Builders Association Victoria L. Bor, Esq.; Sue D. Gunter, Esq.; Sherman, Dunn, Cohen, Leifer& Yellig, P.C., Washington, DCFor Amicus Building and Construction Trades Department, AFL-CIODECISIONBefore: ROGERS, Chairman; THOMPSON, Commissioner.BY THE COMMISSION:STATEMENT OF THE CASE This case is before the Commission on remand from the UnitedStates Court of Appeals for the Eighth Circuit. \/Solis v. SummitContractors, Inc.\/, 558 F.3d 815 (8th Cir. 2009). In its initialdecision, a Commission majority held that 29 C.F.R.\u00a7 1910.12(a)^Footnote \u2014a regulation thatdescribes the reach of the Occupational Safety and Health Administration(\u201cOSHA\u201d) construction standards\u2014precluded the Secretary from citing a\u201ccontrolling employer\u201d under her multi-employer citation policy for aviolation it did not create and to which none of its own employees wereexposed. The Commission, therefore, vacated a citation alleging thatgeneral contractor Summit Contractors, Inc. (\u201cSummit\u201d) violated29 C.F.R. \u00a7 1926.451(g)(1)(vii)^Footnote because the citedconditions were created by a subcontractor whose employees were the onlyones exposed. \/Summit Contractors, Inc.\/, 21 BNA OSHC 2020, 2025,2007 CCH OSHD \u00b6 32,888, p. 53,264 (No. 03-1622, 2007).On appeal by the Secretary, the court vacated the Commission\u2019s decisionand remanded the case, holding that the plain language of \u00a7 1910.12(a)\u201cis unambiguous in that it does not preclude OSHA from issuing citationsto employers for violations when their own employees are not exposed toany hazards related to the violations.\u201d^Footnote \/Summit\/, 558 F.3dat 825. For the following reasons, we affirm the citation.ISSUES The primary issue before the Commission on remand is whetherSummit exercised sufficient control over the worksite to prevent ordetect and abate a hazardous condition created by its subcontractor, AllPhase Construction, Inc. (\u201cAll Phase\u201d), to which none of its ownemployees were exposed. If so, Summit can be properly cited as a\u201ccontrolling employer\u201d under the Secretary\u2019s multi-employer citationpolicy for the violation in question.^As a threshold matter, we also address Summit\u2019s contention before theCommission that the Secretary could not lawfully apply themulti-employer citation policy \u201cwithout first adopting it through theinformal rulemaking process of\u201d the Administrative Procedure Act (the\u201cAPA\u201d).^Footnote \/Summit\/, 558 F.3d at 826 n.6 (internal citations omitted).FINDINGS OF FACT In June 2003, OSHA conducted an inspection of a collegedormitory construction site in Little Rock, Arkansas, for which Summitwas the general contractor. On June 18 and 19, an OSHA complianceofficer (\u201cCO\u201d) observed and photographed employees of subcontractor AllPhase working on scaffolds from elevations over ten feet above a lowerlevel without fall protection. At approximately ten o\u2019clock in themorning of June 18, the CO took photographs of the cited conditions fromthe street, but did not enter the worksite until the next day, when hereturned around nine o\u2019clock in the morning. On both days, the COobserved that All Phase employees were working on the same scaffoldwithout fall protection. On the second day, the CO also observed AllPhase employees working on a second scaffold, again without fallprotection. At Summit\u2019s request, the CO agreed to hold an openingconference several days later to discuss the violative conditions heobserved, but by then the scaffolds were no longer standing.Summit had four employees present at the site on both June 18 and 19:project superintendent Jimmy D. Guevara and three assistantsuperintendents, all of whom were responsible for overseeing the work ofall subcontractors on the dormitory project. Guevara, who had attendedan OSHA thirty-hour training course and was designated Summit\u2019scompetent person onsite, inspected the worksite once or twice a day.According to Guevara, he had \u201cwalked the jobsite prior to\u201d the CO\u2019sarrival on the second day but had not observed the cited conditions.Prior to the inspection, whenever Guevara had observed All Phaseemployees at the site working on scaffolds without the required fallprotection, he informed the subcontractor and the violative conditionswere abated.Summit\u2019s contract with the owner\u2019s representative for the dormitoryproject assigned the company \u201cexclusive authority to manage, direct andcontrol\u201d the construction. The contract also assigned Summit theresponsibility to comply with applicable laws, supervise all safetyprecautions, and \u201ctake reasonable precautions for safety\u201d of employeeson the project. Additionally, Summit\u2019s subcontract with All Phaseindicated that \u201ccontrol of the Work Schedule, use of the site andcoordination of all on-site personnel will be performed under thecomplete direction of\u201d Summit\u2019s staff. The subcontract permitted Summitto terminate and remove All Phase if it disregarded OSHA regulations,temporarily or permanently bar specific All Phase personnel from thesite, and withhold payment \u201cuntil the subcontractor has satisfied all ofits obligations.\u201dPROCEDURAL HISTORYFollowing the inspection, the Secretary issued a serious citation toSummit for violating \u00a7 1926.451(g)(1)(vii) and proposed a penalty of$4,000.^Footnote Summit contested the citation, arguing primarily that the Secretary\u2019smulti-employer citation policy was invalid and, even if applicable, thecompany lacked sufficient control of the worksite for it to be cited.Summit disputed none of the elements required to establish a violationand stipulated to having knowledge of the cited conditions.^Footnote After a hearing,the judge issued a decision rejecting Summit\u2019s arguments, finding thatthe company had conceded the elements needed to prove the violation,affirming the citation as serious, and assessing a penalty of $2,000based on his finding that Summit was entitled to credit for good faith.On review, a Commission majority held that the language of \u00a7 1910.12(a),as well as the Secretary\u2019s interpretation and enforcement of thatregulation, precluded the Secretary from citing a general contractor asa controlling employer for a violation created by another employer towhich the controlling employer\u2019s employees were not exposed. \/Summit\/,21 BNA OSHC at 2024, 2007 CCH OSHD at p. 53,264. The Eighth Circuitrejected this conclusion and remanded the case to the Commission for\u201cfurther proceedings.\u201d^Footnote \/Summit\/, 558 F.3dat 829.DISCUSSIONI. RULEMAKINGPRINCIPLES OF LAW Pursuant to the APA, an agency generally must engage in\u201cinformal\u201d (also known as \u201cnotice-and-comment\u201d) rulemaking whenpromulgating, amending, or repealing a rule. 5 U.S.C. \u00a7 553. However,the APA exempts from these procedures certain types of agencystatements, including \u201cinterpretative rules, general statements ofpolicy, or rules of agency organization, procedure, or practice.\u201d \/Id.\/\u00a7 553(b)(A).ANALYSISSummit argued before the Commission that the Secretary\u2019s multi-employercitation policy was not exempt from the APA\u2019s notice-and-commentrulemaking procedures or, alternatively, that previous changes in thepolicy now required the Secretary to engage in rulemaking. It is truethat the \u201c[e]xceptions to the notice and comment provisions of section553 are to be recognized \u2018only reluctantly.\u2019\u201d\/Nat\u2019l Assoc. of HomeHealth Agencies v. Schweiker\/ 690 F.2d 932, 949 (D.C. Cir. 1982) (citing\/Humana of South Carolina v. Califano\/, 590 F.2d 1070, 1082) (D.C. Cir.1978)). However, the Commission has held that the Secretary\u2019smulti-employer citation policy is not a standard or substantive rule andthus falls within the APA\u2019s exemptions. \/Limbach Co.\/, 6 BNA OSHC 1244,1246, 1977-78 CCH OSHD \u00b6 22,467, p. 27,081 (No. 14302, 1977);\/see alsoUniv. Constr. Co. v. OSHRC\/, 182 F.3d 726, 728 n.2 (10th Cir. 1999)(rejecting employer\u2019s contention that rulemaking was necessary forapplying the multi-employer citation policy). Although the version ofthe policy at issue in \/Limbach\/ precedes the version at issuehere,\/Limbach\/ establishes the general principle that the multi-employercitation policy does not \u201cin fact or law[] create liability on anemployer.\u201d \/Limbach\/, 6 BNA OSHC at 1245-46, 1977-78 CCH OSHD atp. 27,081. As the Secretary has noted in her 1999 Instruction, thepolicy \u201cneither imposes new duties on employers nor detracts from theirexisting duties under the OSH Act.\u201d^Footnote Multi-EmployerCitation Policy, OSHA Instruction CPL 2-0.124 \u00a7 IX.B. (Dec. 10, 1999)(\u201cCPL\u201d). Because the policy is not a substantive rule, the changes madeby the Secretary to her policy to which Summit takes exception would notrequire notice-and-comment rulemaking. \/Id\/;\/Brown Express, Inc. v.United States\/, 607 F.2d 695, 700-02 (5th Cir. 1979). Accordingly, wereject Summit\u2019s contentions that the Secretary had to engage innotice-and-comment rulemaking before applying her multi-employercitation policy.II. FALL PROTECTION VIOLATIONPRINCIPLES OF LAWUnder the Eighth Circuit\u2019s plain reading of \u00a7 1910.12(a), the Secretary\u201cmay issue citations to general contractors at construction sites whohave the ability to prevent or abate hazardous conditions created bysubcontractors through the reasonable exercise of supervisory authorityregardless of whether the general contractor created the hazard . . . orwhether the general contractor\u2019s own employees were exposed to thehazard.\u201d^Footnote \/Summit\/, 558 F.3d at 818. In determining the liability of a generalcontractor for safety violations of its subcontractors, the EighthCircuit has considered factors such as the \u201cdegree of supervisorycapacity\u201d and the \u201cnature and extent of precautionary measures taken.\u201d\/Marshall v. Knutson Constr. Co.\/, 566 F.2d 596, 601 (8th Cir. 1977).Prior to the Commission\u2019s decision in \/Summit\/, our test of liabilityfor a controlling employer on a multi-employer worksite was similar tothat articulated by the court. \u201c[A]n employer may be held responsiblefor the violations of other employers \u2018where it could reasonably beexpected to prevent or detect and abate the violations due to itssupervisory authority and control over the worksite.\u2019\u201d \/McDevitt StreetBovis Inc.\/, 19 BNA OSHC 1108, 1109, 2000 CCH OSHD \u00b6 32,204, p. 48,780(No. 97-1918, 2000) (quoting \/Centex-Rooney Constr. Co.\/, 16 BNA OSHC2127, 2130, 1993-95 CCH OSHD \u00b6 30,621, p. 42,410 (No. 92-0851, 1994));\/see Hackensack Steel Corp.\/, 20 BNA OSHC 1387, 1396, 2002-2004 CCH OSHD\u00b6 32,690, p. 51,561 (No. 97-0755, 2003) (providing that subcontractorseeking to establish multi-employer worksite defense must prove that ittook \u201call reasonable alternative measures,\u201d also described as\u201creasonable precautions,\u201d to protect its employees); \/Am. WreckingCorp.\/, 19 BNA OSHC 1703, 1709, 2001 CCH OSHD \u00b6 32,504, p. 50,402 (No.96-1330, 2001) (consolidated cases) (noting that general contractor atmulti-employer worksite \u201cwas responsible for taking reasonable steps toprotect the exposed employees of subcontractors\u201d); \/Grossman Steel &Aluminum Corp.\/, 4 BNA OSHC 1185, 1188, 1975-76 CCH OSHD \u00b6 20,691,p. 24,791 (No. 12775, 1976) (holding general contractor \u201cresponsible forviolations it could reasonably have been expected to prevent or abate byreason of its supervisory capacity\u201d).The Secretary\u2019s multi-employer citation policy is to the same effect: acontrolling employer is one who \u201chas general supervisory authority overthe worksite, including the power to correct safety and healthviolations itself or require others to correct them.\u201d CPL \u00a7 X.E.1. (Dec.10, 1999). Under this policy, a controlling employer \u201cmust exercisereasonable care to prevent and detect violations on the site,\u201d althoughthe extent of measures a controlling employer must implement to satisfythe duty of reasonable care \u201cis less than what is required of anemployer with respect to protecting its own employees.\u201d \/Id.\/ \u00a7 X.E.2.ANALYSISThe record demonstrates that Summit had the supervisory authority onthis worksite to detect and obtain abatement of the violation created byAll Phase.^Footnote Summit\u2019s contractto serve as the general contractor on this project assigned it the\u201cexclusive authority to manage, direct and control\u201d the construction, aswell as the responsibility to comply with safety laws and take safetyprecautions for all employees onsite. Contrary to Summit\u2019s claim that itlacked authority over All Phase, their subcontract granted Summit\u201ccomplete direction\u201d of the subcontractor\u2019s use of the site andpermitted Summit to, among other things, terminate or remove All Phasefor disregarding safety regulations, temporarily or permanently barspecific All Phase personnel from the site, as well as withholdpayments.\/McDevitt\/, 19 BNA OSHC at 1109-10, 2000 CCH OSHD at p. 48,780(finding evidence of control where general contractor had \u201coverallauthority at the worksite,\u201d including authority to demand compliancewith safety requirements, stop a subcontractor\u2019s work, and remove asubcontractor from the site); \/see IBP, Inc. v. Herman\/, 144 F.3d 861,867 (D.C. Cir. 1998) (finding control lacking where contract did notreserve for plant owner the right to suspend or otherwise discipline thesubcontractor\u2019s employees). In fact, the record shows that althoughGuevara maintained he would only \u201csuggest or recommend\u201d that All Phasecorrect its fall protection violations, he never had to do more thanrequest abatement for the subcontractor to comply. On those occasionswhen he observed All Phase employees working on scaffolds without fallprotection, he would, without exception, inform the subcontractor of thehazardous condition and, without exception, All Phase would abate thecondition. Accordingly, we find Summit exercised sufficient control atthe worksite such that it is a controlling employer. Based on its stipulation of knowledge, Summit knew that AllPhase employees violated the fall protection standard as alleged in thecitation. Therefore, with respect to Summit\u2019s efforts to obtainabatement, the record establishes that Summit failed to inform All Phaseof the violative conditions at issue in the citation. Given that Summithad previously succeeded in obtaining abatement by informing All Phaseof the fall protection violations it had detected, we find Summit failedto take reasonable precautionary measures to obtain abatement by notdoing the same with regard to the cited conditions.^Footnote \/See KnutsonConstr.\/, 566 F.2d at 601 (noting that a controlling employer\u2019sliability depends on the \u201cnature and extent of precautionary measurestaken\u201d); \/Am. Wrecking\/, 19 BNA OSHC at 1709, 2001 CCH OSHD at p. 50,402(holding general contractor responsible for \u201ctaking reasonable steps toprotect\u201d subcontractors\u2019 employees); \/McDevitt\/, 19 BNA OSHC at 1109,2000 CCH OSHD at p. 48,780 (finding general contractor could havereasonably detected and obtained abatement of the violative conditions);\/see also Hackensack Steel\/, 20 BNA OSHC at 1396, 2002-2004 CCH OSHD atp. 51,561 (finding subcontractor failed to prove, in attempting toestablish the multi-employer defense, that it took \u201call reasonablealternative measures\u201d or \u201creasonable precautions\u201d to protect itsemployees); \/cf.\/ CPL \u00a7 X.E.2. (permitting the citation of a controllingemployer that fails to \u201cexercise reasonable care to prevent and detectviolations on the site\u201d).CONCLUSIONS OF LAW Based on the foregoing analysis, we conclude Summit was acontrolling employer properly cited under the multi-employer citationpolicy for violative conditions it did not create and to which none ofits employees was exposed. Additionally, we find Summit stipulated thatAll Phase employees were not in compliance with the fall protectionstandard and it had knowledge of the cited conditions. By not informingAll Phase of the violative conditions, Summit failed to take thereasonable steps and measures necessary to obtain abatement. Thus, weconclude the Secretary established a serious violation of\u00a7 1926.451(g)(1)(vii).^FootnoteORDER We affirm Citation 1, Item 1, and assess a penalty of $2,000.SO ORDERED. \/s\/ ThomasinaV. Rogers Chairman \/s\/ HoraceA. Thompson III CommissionerDated: July 27, 2009”