“Docket No. 79-4618 \u00a0SECRETARY OF LABOR,Complainant,v.WILLIAMS ENTERPRISES OFGEORGIA,Respondent.Docket No. 79-4618ORDERBY THE COMMISSION:This case is here at the direction of the UnitedStates Court of Appeals for the Eleventh Circuit.\u00a0 Brock v. Williams Enterprisesof Georgia, 832 F.2d 567, 574 (11th Cir. 1987), rev’g Williams Enterprisesof Georgia, 12 BNA OSHC 2097, 1986-87 CCH OSHD ? 27,692 (No. 79-4618, 1986).\u00a0 Inaccordance with the Eleventh Circuit’s decision, we reinstate the Secretary of Labor’scitation 1, item 2, insofar as it alleges that Williams Enterprises of Georgia violated 29C.F.R. ? 1926.105(a).\u00a0 We also reinstate the penalty of $350 assessed by theadministrative law judge.FOR THE COMMISSIONRay H. Darling Jr.Executive SecretaryJanuary 3, 1989SECRETARY OF LABOR, Complainant,v. WILLIAMS ENTERPRISES OF GEORGIA, INC., Respondent.OSHRC Docket No. 79-4618DECISION Before:\u00a0 BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).At issue on review are three items of a citationalleging serious violations of the Act.\u00a0 Administrative Law Judge Joe D. Sparksaffirmed item 2 as a serious violation, affirmed item 4 as a nonserious violation, andvacated item 5.\u00a0 For the reasons stated in this decision, we reverse the judge’sdecision.\u00a0 We affirm item 5 as a serious violation of the Act, but vacate items 2 and4.The primary issue in this case relates to item 2of the citation.\u00a0 That issue, which is once again before us, is whether fallprotection for employees engaged in steel erection work is governed solely by the steelerection standards located at Subpart R of Part 1926, Code of Federal Regulations, orwhether standards located in other subparts of Part 1926 may properly be applied torequire additional fall protection beyond that required under Subpart R[[1]]\u00a0 For thereasons set forth below, we conclude that Subpart R is exclusive and that fall protectionstandards located in other subparts of Part 1926 are not applicable to steel erection.\u00a0 We therefore reaffirm Commission precedent holding that 29 C.F.R. ?1926.105(a)[[2]] may not be applied in the steel erection industry to require fallprotection methods different than those specified in Subpart R.\u00a0 E.g., Adams SteelErection, Inc., 84 OSAHRC, 11 BNA OSHC 2073, 1984 CCH OSHD ? 26,976 (No. 77-4238,1984), rev’d, 766 F.2d 804 (3d Cir. 1985).IA.The citation in question was issued as a result of a four-day inspection in July 1979 of amulti-employer construction worksite in Atlanta, Georgia.\u00a0 Williams Enterprises ofGeorgia, Inc., was the steel erection subcontractor on the project, which was theconstruction of a \”tiered\” or \”multi-floored\” high-rise officebuilding.\u00a0 Item 2 of the citation alleges that Williams violated 29 C.F.R. ??1926.105(a) and 1926.28(a)[[3]] by failing to provide its employees protection againstexterior falls from \”beams\” (horizontal structural steel members) and\”columns\” (vertical members) at the perimeter of the building.The alleged violation involves employees in thethree job classifications of connectors, bolt-up men and plumb-up men.\u00a0 These are theemployees who carry out the first three stages of the steel erection process.\u00a0 Theconnectors are part of the erection crew, which is responsible for the \”setting ofthe iron,\” that is, the placement and the initial attachment of the structural steelmembers to form the framework of the building.\u00a0 Working from columns or from diagonalmembers, the connectors guide the hoisted beams into place and temporarily connect them tothe vertical and diagonal members.\u00a0 The bolt-up crew then goes up onto thenewly-created framework to make more secure connections of the steel members by insertingand tightening bolts.\u00a0 The plumb-up crew follows next, working from the structuralsteel to properly align or \”plumb\” it in relation to the more stable andcompleted lower elevations of the building.During the inspection, the OSHA complianceofficer observed employees in all three of these job classifications working at theperimeter of the building.\u00a0 At various times throughout the four-day inspectionperiod, members of the bolt-up and plumb-up crews worked on perimeter beams at the fifth,sixth and seventh levels of the building, while connectors worked between these threelevels on vertical and diagonal steel.\u00a0 It is undisputed that any of these employeescould have fallen from the perimeter of the building to the ground.There is also no disagreement between theparties over what fall protection measures Williams took to safeguard the three work crewsat issue and what measures it did not take.\u00a0 The Secretary concedes that Williamsprovided temporary floors within two stories of the structural steel on which itsemployees were working, i.e., initially a floor at the fourth level of the building and,later in the inspection, a floor at the sixth level.\u00a0 Neither does he dispute thetestimony that Williams’ employees strictly complied with its work rule requiring them towork no more than two stories or 30 feet above the highest \”completed deck\”(fully-planked temporary floor).\u00a0 In addition, the Secretary acknowledges thatWilliams provided safety belts and lanyards for its bolt-up and plumb-up crews andrequired these employees to tie off their lanyards whenever they worked in stationarypositions on the perimeter beams.[[4]]On the other hand, Williams concedes that it didnot require the members of these two work crews to use personal protective equipment whilethey were traveling along the beams, and that it did not require the connectors to usepersonal protective equipment at any time.\u00a0 It is also undisputed that Williams didnot install \”perimeter safety nets,\” i.e., safety nets attached to and extendingout from the perimeters of the temporary floors.Based on the compliance officer’s observations of the work at the perimeter of thebuilding, the Secretary cited Williams for an alleged serious violation of sections1926.105(a) and 1926.28(a) in that members of the erection, bolt-up and plumb-up crewswere not protected against falls \”to the outside of the perimeter of the building . .. by the use of lifelines, lanyards and safety belts or other means.\”\u00a0 At thehearing, the Secretary (through the testimony of his witnesses) described with greaterparticularity the additional precautionary measures that Williams allegedly should haveimplemented.\u00a0 First, the Secretary claims that members of the bolt-up and plumb-upcrews could and should have used safety belts and lanyards during the entire time theyworked on perimeter beams, rather than just using this equipment while working instationary positions.[[5]]\u00a0 Second, he asserts that the connectors should have usedanother type of personal protective equipment known as a \”connector’s toggle\” tosecure themselves to the columns they worked from \”when they [were] not actuallyreceiving and connecting steel.\”\u00a0 Finally, the Secretary contends that Williamsshould have provided perimeter safety nets, because in his view no other form of fallprotection could have eliminated the exterior fall hazard to which the connectors wereexposed.Williams defends against the charge in item 2 onthe grounds that it had complied fully with the applicable fall protection standards inSubpart R and that the standards cited by the Secretary were not applicable because itsemployees were engaged in steel erection work.\u00a0 Thus, it argues that the duties ofsteel erectors with respect to fall protection for employees working on structural steelare governed exclusively by the following provisions of 29 C.F.R. ? 1926.750(b).\u00a0 Itasserts that the requirement that was \”specifically applicable\” to its worksite,see note 6 infra, was section 1926.750(b)(2)(i), which provides:(b) Temporary flooring–skeleton steelconstruction in tiered buildings.(2)(i) Where skeleton steel erection is beingdone, a tightly planked and substantial floor shall be maintained within two stories or 30feet, whichever is less, below and directly under that portion of each tier of beams onwhich any work is being performed, except when gathering and stacking temporary floorplanks on a lower floor, in preparation for transferring such planks for use on an upperfloor.\u00a0 Where such a floor is not practicable, paragraph (b)(1)(ii) of this sectionapplies.Williams also cites us to the referencedparagraph, ? 1926.750(b)(1)(ii), which provides:(ii) On buildings or structures not adaptable totemporary floors, and where scaffolds are not used, safety nets shall be installed andmaintained whenever the potential fall distance exceeds two stories or 25 feet.\u00a0 Thenets shall be hung with sufficient clearance to prevent contacts with the surface ofstructures below.Williams claims that it complied with its dutyunder section 1926.750(b)(2)(i) by providing temporary floors and instructing itsemployees to work no more than two stories or 30 feet above the highest floor.\u00a0 Itadds that, under the terms of section 1926.750(b)(1)(ii), it therefore was not required toinstall safety nets in addition to temporary floors.\u00a0 Finally, it argues that it wasnot required to comply with sections 1926.28(a) and 1926.105(a) because those standardsare preempted, under the Secretary’s regulations, by the more \”specificallyapplicable\” standards of Subpart R.[[6]]The Secretary concedes that Williams fullycomplied with its duty under section 1926.750(b)(2)(i).\u00a0 He also concedes thatWilliams’ practices with regard to the use of personal protective equipment wereconsistent with the custom and practice of the steel erection industry.\u00a0 For thisreason, the Secretary has abandoned his charge under section 1926.28(a).\u00a0Nevertheless, the Secretary has not abandoned his claim that Williams should haverequired its employees to make greater use of personal protective equipment.\u00a0 He now\”maintains that safety belts were and are required under 1926.105(a)\” and thatWilliams violated this standard both by failing to install perimeter safety nets and byfailing to require greater use of personal protective equipment.\u00a0 In the Secretary’sview, section 1926.105(a) can be applied to steel erection work because it is notpreempted under his regulations.[[7]]Judge Sparks affirmed both of the allegations of item 2, i.e., the alleged violations ofsections 1926.28(a) and 1926.105(a). Accordingly, both of the allegations are before us onreview.\u00a0 We dispose of the section 1926.28(a) charge summarily.\u00a0 It is wellestablished, under precedent created by the United States Court of Appeals for the FifthCircuit, that in order for the Secretary to sustain a section 1926.28(a) charge arising inthat Circuit, he must prove that an employer’s conduct with respect to the use of personalprotective equipment did not conform to the custom and practice of its industry.\u00a0 E.g.,S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. 1981);B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978).\u00a0 As arguedby Williams, this precedent is also considered binding in cases arising in the EleventhCircuit.\u00a0 See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981)(holding that decisions of the Fifth Circuit of Appeals issued prior to October 1, 1981,are binding as precedent in the Eleventh Circuit).[[8]]\u00a0 The Secretary implicitlyacknowledges that the Fifth Circuit precedent discussed above is binding in this case andthat he has failed to meet his burden of proof under that precedent.\u00a0 In particular,we note that the Secretary has not taken exception to the judge’s finding that Williams’practices with regard to the use of personal protective equipment were consistent with thecustom and practice of the steel erection industry.\u00a0 On the contrary, the Secretaryin effect abandons the section 1926.28(a) charge in his arguments before us.\u00a0 Underthese circumstances, we vacate the allegation that Williams violated 29 C.F.R. ?1926.28(a).As noted at the beginning of this decision, the Commission has previously held that thesteel erection standards in Subpart R preempt the application of section 1926.105(a) tofalling hazards during structural steel assembly.\u00a0 E.g., Adams Steel Erection, Inc.However, several courts have reached conclusions contrary to the Commission’s on thispoint and have held that general fall protection standards can be applied to steelerection in addition to the standards in Subpart R.\u00a0 The first such case was BristolSteel & Iron Works v. OSHRC, 601 F.2d 717 (4th Cir. 1979).\u00a0 There, thecourt reasoned that Subpart R standards could not be exclusive because those standards,\”while providing safety protection to employees engaged in steel erection, cannotachieve the goal of adequately protecting those employees in every conceivablesituation.\”\u00a0 Id. at 721.\u00a0 Similar reasoning led other courts toconclude that \”the remedial purposes of the Act\” justify the application ofstandards governing fall protection during general construction work to steel erectionwork presenting the risk of falls as to which, in their view, the steel erection standarddid not require a level of protection comparable to that mandated by the generalconstruction standards.\u00a0 Brock v. L.R. Willson & Sons, Inc., 773F.2d 1377 (D.C. Cir. 1985;[[9]]\u00a0 Donovan v. Adams Steel Erection, 766 F.2d 804(3d Cir. 1985); Donovan v. Daniel Marr & Son Co., 763 F.2d 477 (1st Cir.1985).\u00a0 Those courts reversed the Commission in Adams and related cases on thegrounds that 1) ? 1926.750(b) does not provide protection against exterior falls and tothat extent does not preempt ? 1926.105(a); 2) the Commission’s decisions containedinadequate evidence that the Secretary made a reasoned and deliberate decision to preemptthe general construction standards on fall protection; and 3) the Commission reversed itsprecedent, Williams Enterprises, Inc., 83 OSAHRC 26\/42, 11 BNA OSHC 1410, 1983-84CCH OSHD ? 26, 542 (No. 79-843, 1983), aff’d in part, rev’d in part, 744F.2d 170 (D.C. Cir. 1984), without announcing a principled and rational reason for doingso.\u00a0 We have reexamined the Commission’s holding in Adams in light of these courtdecisions.\u00a0 While we recognize that the Subpart R standards might not protect steelerection workers \”in every conceivable situation,\” we do not believe that wehave the authority to resolve the issue on that basis.\u00a0 Rather, as set forth in Fbelow, we conclude that the specific standards in Subpart R supercede any provisions of amore general standard.\u00a0 We have engaged in a more detailed examination of therulemaking in Subpart R than appears in our Adams decision.\u00a0 That examination showsthat Subpart R represents a clear effort to establish exclusive requirements for fallprotection during steel erection work.\u00a0 We conclude that the Secretary so intendedbecause Subpart R’s provisions are consistently narrower than those in the general fallprotection standards.\u00a0 If the general fall protection standards were superimposed onthe specific requirements of Subpart R, the rulemaking decision to require less protectionin steel erection than in general construction work would be nullified. We reaffirm theCommission’s decision in Adams and set forth below in greater detail the reasons foroverruling Williams.B.Under the Act, the authority to promulgate occupational safety and health standards isgranted to the Secretary of Labor.\u00a0 It is axiomatic that such standards must providefair notice to affected parties of their requirements.\u00a0 Moreover, where, as here,there is disagreement as to the scope and application of a specific OSHA standard, theCommission must carefully examine the public record to determine whether it evidences anintent to replace or to merely supplement general standards.\u00a0 That intent cannot bedetermined simply by reciting the Act’s remedial purpose.\u00a0 See Marshallv. Anaconda Co., 596 F.2d 370, 376-77 & n. 6 (9th Cir. 1979).\u00a0 \”Theremedial purpose of the Act does not give the Commission license to ignore the standard’splain meaning.\”\u00a0 Lisbon Contractors, Inc., 84 OSAHRC , 11 BNA OSHC1971, 1973, 1984 CCH OSHD ? 26,924, p. 34,500 (No. 80-97, 1984).\u00a0 See BungeCorp., 86 OSAHRC , 12 BNA OSHC 1785, 1791, 1986 CCH OSHD ? \u00a0 27,565, p. 35,806(Nos. 77-1622, 78-838 & 78-2213, 1986) (\”Adoption of a strained interpretation .. . [of a standard] would not serve the purposes of the Act because the standard would notbe effective in guiding the conduct of employers.\”) [[10]]\u00a0 Nor is itappropriate to rely on section 6(a) of the Act as did the Third Circuit in Adams Steelfor the proposition that the Secretary is under a duty to promulgate \”the standardwhich assures the greatest protection of the safety and health of the affectedemployees.\”\u00a0 766 F.2d at 810.\u00a0 That merely prescribes a rule for theSecretary in selecting among national consensus and established federal standards \”inthe event of conflict among any such standards.\”\u00a0 That rule is inapposite here.\u00a0 Both Subpart R and ? 1926.105(a) were adopted as part of one package ofestablished federal standards – the Construction Safety Act standards.\u00a0 Therefore, weare not asked to determine whether the Secretary properly chose to adopt Subpart R insteadof some other standard.\u00a0 Moreover, it cannot be assumed that the Secretary’s intentin promulgating a particular standard is to create a \”risk-free\” workingenvironment, as opposed to providing some lesser degree of protection.\u00a0 See, e.g.,Donovan v. General Motors Corp., 764 F.2d 32, 35-36 (1st Cir. 1985); LisbonContractors, Inc., 11 BNA OSHC at 1973, 1984 CCH OSHD at p. 34,500 (\”TheSecretary’s standards . . . strike a balance between the protection of employees and theimposition of burdens on employers\”).In determining whether Subpart R sets forthexclusive requirements for fall protection in steel erection, we must look beyond the viewas to whether Subpart R is sufficiently protective and focus first on whether theSecretary intended it to be exclusive, and also on whether any employer subject tosanctions under the standards would have had fair notice that he was subject to bothSubpart R and such general construction safety standards as ? 1926.105(a) and ?1926.28(a).\u00a0 The legislative history of Subpart R offers no explicit statement of theSecretary’s intent at the time of promulgation of the subpart with respect to its intendedinterrelationship with the general construction industry standards.\u00a0 We musttherefore ascertain the applicability of the general construction standards by referenceto general rules of statutory construction (reflected in OSHA regulation 1910.5(c)) and bycarefully examining Subpart R’s provisions concerning fall protection.\u00a0 Inconsidering this question we are mindful of the principles set down by the U.S. Court ofAppeals for the Fifth Circuit for construing OSHA standards:The respondents contend that the regulationsshould be liberally construed to give broad coverage because of the intent of Congress toprovide safe and healthful working conditions for employees.\u00a0 An employer, however,is entitled to fair notice in dealing with his government.\u00a0 Like other statutes andregulations which allow monetary penalties against those who violate them, an occupationalsafety and health standard must give an employer fair warning of the conduct it prohibitsor requires, and it must provide a reasonably clear standard of culpability tocircumscribe the discretion of the enforcing authority and its agents …. If a violationof a regulation subjects private parties to criminal or civil sanctions, a regulationcannot be construed to mean what an agency intended but did not adequately express.Diamond Roofing Co. v. OSHRC, 528 F.2d645, 649 (5th Cir. 1976).Only in recent years, and only in hiscommunications with his compliance officers has the Secretary asserted an intent tosupplement Subpart R with ? 1926.105(a).\u00a0 See OSHA Instruction STD 3-3.1 (July 18,1983) reprinted in Employment Safety and Health Guide (CCH) ? 12,855 at17,166.\u00a0 But this interpretation has not been published in the Federal Register in amanner calculated to inform affected employers and bind the Secretary.\u00a0 At the timethis citation was issued, neither the Commission nor any court had held ? 1926.105(a)applicable to employers in steel erection.\u00a0 Thus, even if we assumed arguendothat the Secretary originally intended that Subpart R would not be exclusive, we do notbelieve that an employer in steel erection would have had any reason to believe, from thepublic record, that he was also subject to the general construction standards.\u00a0Therefore, under the teaching in Diamond Roofing, it would be unfair to\”construe\” the general construction standards to apply to steel erection.Perhaps more importantly, our thorough analysisof the history of Subpart R compels us to conclude that the Secretary originally intendedthat Subpart R would exclusively govern protection from falls in the steel erectionindustry.We recognize that the Commission once held thatthe steel erection subpart cannot be considered exclusive where \”general standardsprovide meaningful protection to employees beyond the protection accorded by the steelerection standards.\”\u00a0 Williams Enterprises, Inc., 11 BNA OSHC at1416, 1983-84 CCH OSHD at p. 33,877.\u00a0 That decision relied on the 1983 Willsondecision of the D.C. Circuit and contains no independent reasoned analysis for itsconclusion.\u00a0 For the reasons set forth below, we believe that the Commission erred inthe 1983 Williams case; our review of this issue leads us to the inescapableconclusion that Subpart R evidences an intent to establish an exclusive and comprehensivescheme of protection from falls in the steel erection industry.C.Subpart R was promulgated as a part of a larger package of standards that comprise Part1926.\u00a0 Part 1926, including Subpart R, was initially adopted by the Secretary as aset of standards under the Construction Safety Act, 29 U.S.C. ? 333 (1969).\u00a0 Shortlyafter their initial promulgation under the Construction Safety Act, the standards wereadopted as \”established federal standards\” under section 6(a), 29 U.S.C. ?655(a), of the Occupational Safety and Health Act.[[11]]\u00a0 See generally, NationalIndustrial Constructors, Inc. v. OSHRC, 583 F.2d 1048, 1050-51 (8th Cir. 1978).We begin our analysis with a review of Subpart Rin the context of Part 1926 as a whole.\u00a0 This leads us to two conclusions. \u00a0First, Subpart R contains a set of specifically applicable fall protection standards thatappears to be comprehensive in its scope.\u00a0 Second, Subpart R contains some provisionsthat make sense only if the drafters of Subpart R intended it to be exclusive (or at leastworked under the assumption that it would be exclusive).In concluding that Subpart R establishes acomprehensive regulatory scheme with respect to falling hazards during steel erection, wehave looked at both\u00a0the types of falls that are regulated and the types of fallprotection measures that are required.\u00a0 From either viewpoint, Subpart R appears tobe comprehensive.\u00a0 Thus, Subpart R deals with all of the major categories of fallsthat occur during steel erection work–from structure steel (? .750(b)(2)(i)), from theperimeter of the building (? .750(b)(1)(iii)), and through floor openings (??.750(b)(1)(i) & .752(f), (h), & (j)).\u00a0 In addition, it refers to all of theprincipal fall protection devices, as well as to personal protective equipment, definingcircumstances under which each is to be used–safety belts (?? .750(b)(2)(iii) and.752(k)), safety nets (? .750(b)(1)(ii)), temporary floors (?? .750(b)(10)(i),(b)(2)(i) & (b)(2)(ii)), scaffolds (?? .750(b)(1)(ii) & .752(k)), and safetyrailings (? .750(b)(1)(iii)).We have also compared the fall protectionstandards in Subpart R with the protection standards found elsewhere in Part 1926,standards that are applicable to general construction work, including the construction ofhigh-rise buildings once steel erection phase has been completed.\u00a0 That reviewreveals that there are at least three instances where specific steel erection standardswere drafted that were essentially no different than general construction standardscovering the same situation.\u00a0 The existence of these provisions strongly suggeststhat the drafters of Subpart R did not intend or anticipate that the general fallprotection standards in other subparts of Part 1926 would be used to supplement theSubpart R standards.In particular, we note the existence of twosteel erection standards that essentially duplicate general construction fall protectionstandards.\u00a0 Thus, Subpart R standard 1926.752(k) states, as follows:Employees shall be provided with safety belts inaccordance with ? 1926.104 when they are working on float scaffolds.The general construction standard governing workon float scaffolds contains this same requirement in section 1926.451(w)(6):Each employee [working on a float scaffold]shall be protected by an approved safety lifebelt and lifeline, in accordance with ?1926.104.Similarly, the Subpart R standard at section1926.750 (b)(1)(ii) includes the following specification requirement applicable to thesafety nets that are required under that section:The nets shall be hung with sufficient clearanceto prevent contacts with the surface of structures below.The standard governing safety nets duringconstruction work generally also contains this same requirement in section 1926.105(c)(1):Nets shall be hung with sufficient clearance toprevent user’s contact with the surfaces or structures below.Clearly, the drafters of these two Subpart Rprovisions must have believed it was necessary to duplicate these provisions in Subpart Rbecause the general construction standards would not be applicable to steel erection work.\u00a0If the general standards were to be applied, there would have been no reason torepeat their requirements in Subpart R.Indeed, we question whether the drafters ofSubpart R would have gone to the effort of drafting that subpart’s two most important fallprotection standards, sections 1926.750(b)(2)(i) and (b)(1)(ii), which are quoted in partIA supra, if they had believed that section 1926.105(a), note 2 supra, wouldbe applied to steel erection work.\u00a0 In this regard, we note that the original versionof section 1926.750(b)(2) stated, as follows:Where erection is being done by means of a craneoperating on the ground, a tight and substantial floor shall be maintained within twostories or 25 feet, whichever is less, below and directly under that portion of each tierof beams on which bolting, riveting, welding, or painting is being done.Therefore, under the original version of SubpartR, sections 1926.750(b)(2) and (b)(1)(ii), when read together, accomplished two basicobjectives:\u00a0 (1) they established 25 feet as the maximum distance an ironworker couldfall and (2) they established a preference for temporary floors over safety nets.[[12]]\u00a0 Yet, section 1926.105(a) also accomplishes both of these objectives.[[13]]Accordingly, when the standards are viewed in terms of their essential requirements, itbecomes clear that the original versions of sections 1926.750(b)(2) and (b)(1)(iii) wereno more than a duplication of the general construction standard at section 1926.105(a).In sum, our analysis of Subpart R’s fallprotection standards in the context of Part 1926 as a whole leads us to conclude that thedrafters of Subpart R intended these provisions to be exclusive.\u00a0 The fact that thedrafters attempted to develop a comprehensive set of fall protection requirements supportsthis conclusion.\u00a0 In addition, the fact that the drafters developed separate SubpartR standards that merely duplicate general construction standards supports this conclusion.\u00a0 Certainly, the drafters would not have intentionally created redundant andunnecessary standards if they had believed that the general construction standards wouldbe applied to falling hazards during steel erection work.D.We also look at Subpart R in the context of evidence, from this record and from othercases, on the industry custom and practice with respect to fall protection measures duringsteel erection.\u00a0 This analysis leads us to three conclusions.\u00a0 First, there is astrong correlation between the fall protection requirements of Subpart R and the customand practice within the steel erection industry. Second, there is an equally strongdivergence between the fall protection requirements for general construction (thestandards found outside of Subpart R) and the industry custom and practice in steelerection.\u00a0 Third, this industry custom and practice reflects a consensus within theindustry as to the feasibility of various fall protection measures as well as a commonindustry understanding of its responsibilities under Part 1926.These points are well illustrated by the recordin the case before us.\u00a0 The record compels a finding, which the judge in factentered, that Williams’ safety practices met or exceeded the level of protection set byindustry custom and practice.\u00a0 Williams established this claim through the unrebuttedtestimony of five witnesses with an average of twenty years of experience in the steelerection industry.[[14]]\u00a0 We specifically note the testimony of the union businessagent that he had never received any complaints about any of Williams’ jobs and that heconsidered Williams to be \”one of the better contractors in compliance\” because\”they make an extra effort to try.\”\u00a0 Similarly, the compliance officeradmitted that he had made a statement at the time of the inspection \”that this wasabout the safest erection job [he] had seen.\”As we noted previously, the Secretary has conceded that Williams’ practices with respectto the use of personal protective equipment were consistent with industry custom andpractice.\u00a0 The record also conclusively establishes that Williams’ nonuse ofperimeter safety nets was fully consistent with industry custom and practice.\u00a0 Indeed, based on this record, it appears that the use of perimeter safety nets onmulti-storied buildings, like the high-rise office building that Williams was erecting,was virtually unknown in the industry, at least in those areas where Williams performedits work.\u00a0 General foreman Aenchbacher testified that, during his 32 years of steelerection work, he had never seen connectors work over perimeter safety nets.\u00a0Erection crew foreman Johnson testified that, in his 14-1\/2 years of experience, hehad never worked on a building where safety nets were installed.\u00a0 Plumb-up crewforeman Robinson, who had worked in the industry for 35 years, testified that he had neverknown of a high-rise construction project where perimeter safety nets were used duringsteel erection.\u00a0 Similarly, union business agent Mayotte testified that, in his 12years of experience, he had never known perimeter netting to be used on a building duringsteel erection.The Secretary made no attempt to rebut thisshowing.\u00a0 His proof on the feasibility of perimeter safety nets came from thetestimony of his expert witness, safety consultant Casey.\u00a0 Yet, even this witnesstestified that he had never seen perimeter safety nets installed on a high-rise building.\u00a0Through his consulting work, he was aware that perimeter safety nets wereoccasionally used on these buildings, but he only knew of three specific instances.\u00a0Understandably, therefore, Casey fully conceded that the use of perimeter safetynets on high-rise buildings \”is not common in the industry at all.\”The conclusions we draw from this record arecorroborated by the history of litigation between the Secretary and the steel erectionindustry, as revealed by an extensive body of case law extending over a period of severalyears.\u00a0 That litigation history demonstrates, among other things, the sharp conflictbetween the Secretary’s enforcement position and the customs and practices of the steelerection industry.[[15]]\u00a0 Specifically, we note that the Secretary’s attempts toenforce general fall protection standards have brought him into direct and sustainedconflict with the steel erection industry.\u00a0 The litigation history also reveals anoticeable consistency in the arguments presented by the steel erectors–a common beliefthat Subpart R was intended to be a comprehensive and exclusive set of fall protectionrequirements for the industry and an equally widespread belief that the fall protectionmeasures sought by the Secretary through his attempted enforcement of the general fallprotection standards are infeasible if not themselves hazardous when applied in thecontext of steel erection work.In his efforts to require the installation ofperimeter safety nets, the use of personal protective equipment by connectors, and the useof personal protective equipment by other ironworkers when they are moving alongstructural steel, the Secretary is seeking dramatic changes in the relatively uniformpractices of an entire industry.\u00a0 Simply stated, the industry practice is to protectits employees by complying with the requirements of Subpart R, including most notably theprovisions of section 1926.750, part IA supra.\u00a0 The Secretary seeks topersuade us that his enforcement efforts are consistent with his intent in draftingSubpart R. However, we find this difficult to believe.\u00a0 It does not seem reasonableto us that a regulator whose intent was to change the practices of an entire industrywould rely on general standards to achieve these changes while drafting a set of specificstandards that essentially codified the customs and practices of that industry.It is far more likely, in light of the strongcorrelation between the fall protection requirements of Subpart R and the custom andpractice within the steel erection industry, that Subpart R was drafted to reflect theprevailing practices within the industry.\u00a0 Thus, the drafters of Subpart R presumablyagreed with or at least deferred to the industry’s consensus view as to what fallprotection measures are feasible during steel erection work and what measures are not.\u00a0As indicated above, that consensus view was (and still is) that the fall protectionmeasures required under Subpart R, and only those measures, are feasible and appropriateduring the steel erection phase of the construction process. Accordingly, our analysis ofSubpart R in the context of industry custom and practice corroborates our belief that thedrafters of Subpart R intended its fall protection requirements to be exclusive.E. Finally, we examine Subpart R in the context of the evidence on the feasibility of variousfall protection measures during steel erection work and in the context of the differencesbetween the steel erection (Subpart R) fall protection standards and the generalconstruction (non-Subpart R) fall protection standards.\u00a0 This analysis leads us toconclude that, in drafting Subpart R, the Secretary made several deliberate decisions totreat steel erection work differently than general construction work, including decisionsto establish less stringent fall protection requirements where practical considerationswarranted differential treatment.We note initially that there are significantdifferences between steel erection work and other kinds of construction work, differencesthat have a substantial bearing on the feasibility and likely utility of various forms offall protection.\u00a0 See, e.g., Industrial Steel Erectors, Inc.,74 OSAHRC 2\/E5, 1 BNA OSHC 1497, 1973-74 CCH OSHD ? 17,186 (No. 703, 1974) (earlyCommission decision recognizing the existence of these differences).\u00a0 The contrast isespecially pronounced during the early stages of steel erection that are at issue in thiscase.\u00a0 As explained in part IA supra, the Secretary’s charge here involvesemployees in the job classifications of connectors, bolt-up men and plumb-up men.\u00a0 These are the employees who carry out the first three stages of the steel erectionprocess.\u00a0 They share common working conditions that are different from those normallyfaced by other construction workers and even by other categories of ironworkers.Unlike the typical worker in generalconstruction, the employees at issue in this case do not perform their work whilestanding, sitting or kneeling on either temporary or permanent flooring.\u00a0 Insteadtheir working surface is the structural steel framework (beams and columns) at the highestlevels of the building.\u00a0 Accordingly, these employees do not receive the fallprotection that most construction workers receive from working on solid floors orplatforms with standard railings installed around the open sides.\u00a0 See 29 C.F.R. ?1926.500(d)(1).[[16]]Similarly, because of the differences in workingconditions, the ironworkers at issue in this case do not receive the degree of fallprotection many general construction workers receive from safety belts, lanyards andlifelines.\u00a0 This distinction is most dramatically illustrated by examining thesituation with respect to the connectors.\u00a0 These employees work at levels where theframework of the building has not even been completely erected.\u00a0 They work on andfrom vertical or diagonal steel members and in the presence of steel beams being movedinto position by crane.\u00a0 Given these circumstances, all of the witnesses, includingthose appearing for the Secretary as well as those appearing for Williams, agreed thatconnectors should not be provided with and required to wear safety belts and lanyards.\u00a0These witnesses shared the opinion that a connector would be exposed to a greaterhazard if he tied off because he then would not be able to move out of danger ifstructural steel suspended by a crane suddenly swung toward him.[[17]]For most workers engaged in general constructionwork on a high-rise building, safety belts and\/or perimeter safety railings are basic fallprotection measures.\u00a0 Ladders and scaffolds are also common means of eliminating fallhazards in some situations.\u00a0 Most, if not all, of the falling hazards that thegeneral construction worker is exposed to can be eliminated through these means.\u00a0 Insharp contrast, all of these fall protection measures play a much less significant role inthe protection of ironworkers, particularly during the early stages of steel erection atissue in this case.\u00a0 Conversely, temporary floors and interior safety nets play amuch greater role in the protection of ironworkers during the early stages of steelerection than they do in protecting other construction workers.[[18]]Subpart R provides strong evidence that theSecretary recognized these and other differences between steel erection work and othertypes of construction work, as well as their effect on the feasibility and likely utilityof various fall protection methods.\u00a0 Moreover, Subpart R reveals that the Secretary,in recognition of these differences, made deliberate decisions to impose less stringentfall protection requirements on employers engaged in steel erection work than on othercontractors.\u00a0 The clearest example of this is the Secretary’s decision to rely ontemporary floors and safety nets as the primary methods of fall protection for ironworkersworking on structural steel.\u00a0 29 C.F.R. ?? 1926.750 (b)(1)(ii) & (b)(2)(i).\u00a0While these fall protection devices are more practical in steel erection work, theydefinitely provide less protection to the ironworker than the typical construction workerreceives from such fall protection devices as safety belts and scaffolds.Another clear example occurs in the context ofperimeter fall protection at levels where temporary floors have already been installed.\u00a0Under the general provisions of Part 1926, most construction workers are protectedagainst perimeter falls by a substantial physical barrier that includes a top rail, anintermediate rail and a toeboard; this barrier must be strong enough to withstand a200-pound load applied in any direction.\u00a0 29 C.F.R. ?? 1926.500(d)(1) & (f).\u00a0In contrast, ironworkers are protected only by a device that obviously provides lessprotection than a standard railing, i.e., by \”[a] safety railing of 1\/2-inch wirerope or equal . . . approximately 42 inches high.\”\u00a0 29 C.F.R. ?1926.750(b)(1)(iii).A third example occurs in the context ofprotection against falls through floor openings.\u00a0 Subpart M of Part 1926 containsseveral provisions requiring guardrails around or covers over various floor, roof or wallopenings.\u00a0 General construction workers receive this protection regardless of whetherthe openings are being used, e.g., for employee access, the performance of work on themovement of materials.\u00a0 In contrast, ironworkers are only protected against fallsthrough those floors openings that are \”unused.\”[[19]]Still another example occurs in the context oflimitations on the distance an employee can fall.\u00a0 Under section 1926.105(a), asafety net is required when work is performed without other kinds of fall protection\”more than 25 feet above the ground or water surface, or other surfaces.\”\u00a0Thus, general construction workers are protected against a fall of more than 25feet.\u00a0 Yet, under section 1926.750(b)(2)(i), an ironworker is allowed to work as highas 30 feet above the temporary floor that is installed for the purpose of protecting himagainst falls.\u00a0 The legislative history of this provision, which was created by a1974 amendment of Subpart R’s original requirements, clearly shows that the 30-foot falllimit was the result of a deliberate decision by the Secretary to provide less stringentfall protection for ironworkers than for other construction workers, who are protected bythe 25-foot fall limit of section 1926.105(a).\u00a0 Moreover, the basis for thisdifferential treatment was the Secretary’s recognition that a 25-foot fall limit isimpractical in steel erection work.\u00a0 39 Fed. Reg. 24360-361 (July 2, 1974).This analysis of the differences between SubpartR and non-Subpart R fall protection standards in the light of practical considerationsaffecting the feasibility of various fall protection measures adds further corroborationfor our determination that the drafters of Subpart R intended its fall protectionrequirements to be exclusive.\u00a0 Indeed, when we combine this analysis with ourprevious conclusions, we are persuaded beyond a doubt that this was the Secretary’soriginal intent at the time of promulgation.Because of the differences between steelerection and general construction work, the drafters obviously concluded that it was notfeasible to apply the general construction fall protection standards to steel erectionwork and that it was necessary to draft a separate set of fall protection standards thatwould be specifically applicable to the steel erection process.\u00a0 As noted, thisseparate set of standards reflected the practices that prevailed within the industry andthe industry’s consensus view as to what fall protection measures are feasible duringsteel erection.\u00a0 In addition, the drafters apparently attempted to deal with allaspects of the falling hazard during steel erection work.Under these circumstances, for us to apply thegeneral construction standards to steel erection would be to negate what the draftersattempted to do by establishing separate and different requirements for steel erection.\u00a0Surely, this would be contrary to the apparent intent of the drafters.\u00a0Conversely stated, the drafters must have intended that their Subpart R fallprotection standards would be applied as exclusive requirements so that the distinctionsthey had deliberately created between fall protection during steel erection and duringgeneral construction would be preserved.F. For all of the reasons set forth above, we conclude that the Secretary intended Subpart Rto establish fall protection requirements for steel erection that would be exclusive.\u00a0 In reaching a contrary conclusion, the courts have relied heavily on a regulationgoverning the applicability of OSHA standards, 29 C.F.R. ? 1910.5;[[20]]? 1910.5 Applicability of standards.(c)(1) If a particular standard is specifically applicable to a condition, practice,means, method, operation, or process, it shall prevail over any different general standardwhich might otherwise be applicable to the same condition, practice, means, method,operation, or process . . . .(2) On the other hand, any standard shall apply according to its terms to any employmentand place of employment in any industry, even though particular standards are alsoprescribed for the industry, as in Subpart B or Subpart R of this part, to the extent thatnone of such particular standards applies . . . .Section 1910.5(c)(1) is a restatement of thebasic principle of statutory construction that the specific takes precedence over thegeneral.\u00a0 E.g., 2A Sutherland Statutory Construction, ? 46.05, p. 92& n. 12 (4th ed. 1984).\u00a0 The Secretary must have had this principle in mind whenhe drafted the construction standards for, as we have discussed above, there are overlapsin the standards that can be resolved only by applying this principle.\u00a0 Section1910.5(c) simply codifies the principle.\u00a0 The regulation recognizes that, where theSecretary has decided that a specific means of protecting against a hazard is appropriatein certain circumstances and has drafted a \”particular\” standard reflecting thatdetermination, it would defeat the intent of the rulemaker to apply a \”general\”standard that requires a different means of protection.\u00a0 To apply the more generalstandard because it provides additional or greater protection would render the particularstandard redundant and defeat the rulemaking decision made by the Secretary when hepromulgated the particular standard.\u00a0 Nothing in ? 1910.5(c) suggests that theemployer’s duty to comply with generally applicable safety standards depends upon whetheremployees are adequately protected by more specifically applicable safety standards.\u00a0 Under the terms of ? 1910.5(c)(1), general standards are preempted by morespecifically applicable standards even when the general standards provide greaterprotection for employees.An analogous situation has arisen in cases wherethe Secretary has cited employers under section 5(a)(1) of the Act, 29 U.S.C. ?654(a)(1), the Act’s \”general duty clause,\” even though the hazard at issue isaddressed by a standard or a group of standards.\u00a0 See, e.g., DanielInternational, Inc., 82 OSAHRC 23\/D3, 10 BNA OSHC 1556, 1982 CCH OSHD ? 26,033 (No.78-4279, 1982).\u00a0 In these cases, the Commission has held that the Secretary cannotuse the general duty clause to achieve greater protection for employees than his standardsrequire.\u00a0 For example, in Daniel International, Inc., the Commission stated:To permit the Secretary to require furtherprecautions under section 5(a)(1) because his standards purportedly do not providesufficient protection would circumvent the rulemaking process and is impermissible.10 BNA OSHC at 1559, 1982 CCH OSHD at p. 32,683.\u00a0 In the same way, to permit the Secretary to require further precautions undergeneral standards because applicable particular standards appear to be inadequate wouldalso circumvent the rulemaking process.We are not persuaded by the Secretary’s argumentthat the situation before us is governed by section 1910.5(c)(2) rather than section1910.5(c)(1).\u00a0 The Secretary reasons that general standards can be applied to the\”condition\” at issue in this case, which he defines as the hazard of exteriorfalls from structural steel at the perimeter of the building, because none of theparticular standards in Subpart R apply to this \”condition\”.\u00a0 We do notagree with this reasoning.First, we note that the Secretary colors thepreemption issue at the outset by defining the relevant \”condition\” as those\”hazards\” that the particular standard does not require protection against.\u00a0Thus, the Secretary asserts \”that Subpart R does not provide for exterior fallprotection for steel erection employees working at levels at which the temporary floor hasnot yet been installed.\”\u00a0 He then defines the relevant \”condition,\”for purposes of implementing section 1910.5(c), as the hazard of exterior falls fromstructural steel at the perimeter of the building.\u00a0 Additionally, many of the courtdecisions that held that Subpart R did not preempt the general fall protection standardsagreed with the distinction between interior and exterior falls drawn by the Secretary.\u00a0 Brock v. L.R. Willson & Sons, 773 F.2d at 1382; Donovan v.Adams Steel Erection, 766 F.2d at 808; Donovan v. Daniel Marr & Son Co.,763 F.2d at 483.\u00a0 An earlier Commission decision also accepted this distinction.\u00a0 Williams Enterprises, 83 OSAHRC 26\/A2, 11 BNA OSHC 1410, 1416, 1983 CCH OSHD? 26,542, p. 33,877 (No. 79-843, 1983), aff’d on this point, 744 F.2d 170 (D.C.Cir. 1984).\u00a0 We have carefully considered the Secretary’s reasoning and that of thesedecisions, but we cannot agree with it.The problem with the Secretary’s argument isthat it predetermines the answer.\u00a0 By defining the relevant \”condition\” asthose matters that a particular standard does not require protection against, the argumentassures that the standard does not \”apply\” to that condition.\u00a0 We can thinkof no legitimate reason for defining the relevant \”condition\” so narrowly.\u00a0 Such a definition of the condition to which a specific standard applies insuresthat any decision by the drafters of the specific standard to impose only limited dutieson an employer will be nullified.Indeed, any attempt to employ a definition ofthe regulated condition as the linchpin of a preemption analysis will draw one’s attentionaway from the quint-essential question:\u00a0 Did the drafter of the specific standardintend that employers be required to provide a specific form of protection but no more?This problem is particularly acute under theSecretary’s argument, which presumes that a standard does not apply to a condition unlessthe standard provides for protection against the condition.\u00a0 Thus, the Secretary andthe courts reason, none of the standards in Subpart R apply to the hazard of exteriorfalls from structural steel at the perimeter of the building because none of the standardsin Subpart R require protection against that hazard.[[21]]\u00a0 The Secretary’s reasoningis that employed by the Commission in Williams I.\u00a0 See 11 BNA at 1416.\u00a0However, this reasoning overlooks that a standard can apply to a condition and yetrequire no protection against it.\u00a0 This is inherent in the very nature of regulation,which requires regulators to draw lines between what is required and what is not. \u00a0For example, the current standard on lead states that the permissible exposure level is 50ug\/m3, averaged over an eight-hour period.\u00a0 29 C.F.R. ? 1910.1025(c)(1)(1985).\u00a0 In establishing this limit, the Secretary did not conclude that allexposures below 50 ug\/m3 were safe, but he determined that 50 ug\/m3 was the lowestairborne level the major lead-based industries could feasibly achieve and he balanced thisfeasibility constraint against the need for employee protection.\u00a0 See Amax LeadCo. of Missouri, 86 OSAHRC ____, 12 BNA OSHC 1878, 1880, 1986 CCH OSHD ?27,629, pp. 35,919-20 (No. 80-1793, 1986).\u00a0 The Secretary’s approach in this caseimplies that a general standard (e.g., section 1910.134, which deals with respiratoryprotection) or the general duty clause could be applied to require protection againsthazardous lead levels below 50 ug\/m3.\u00a0 That approach, however, would overturn thebalance the Secretary drew in rulemaking and would effectively nullify the leadstandard.[[22]]Unquestionably, a worker standing on a narrowsteel girder is subject to a falling hazard.\u00a0 The Secretary was obviously aware ofthat hazard in drafting Subpart R.\u00a0 As in drafting any standard, the Secretary had todraw lines.\u00a0 One line he drew was in permitting ironworkers to work 30 feet ratherthan 25 feet above temporary floors.\u00a0 This requirement obviously does not entirelyeliminate the hazard that a worker could be injured in such a fall.\u00a0 Yet under theSecretary’s reasoning, ? 1926.105(a) could be applied, in a situation where employeesworked 30 feet above a temporary floor, to require a safety net 25 feet below theemployees.[[23]] However, to define the hazard as a fall of 30 feet, and thereby concludethat the standard does not apply to lesser falls and that measures mandated by moregeneral standards can be required for such lesser falls, would be to entirely ignore theline the Secretary drew in rulemaking.\u00a0 Similarly, to require the use of perimeternets for exterior falls would also ignore a line the Secretary drew in rulemaking, not torequire safety nets when a building was \”adaptable to temporary floors.\” \u00a0Accordingly, we decline to follow the Secretary’s approach because it fails to give effectto policy decisions made during rulemaking proceedings and leaves employers in the dark asto their obligations.To impose general standards on top of thecomprehensive scheme, which was crafted to conform to the special conditions of steelerection work, would result in disruption of that regulatory scheme and reversals ofdecisions made during the rulemaking process. Section 1910.5(c) clearly states that suchsuperimposition is not the usual scheme of the OSHA standards.\u00a0 Such superimpositionis done only when no specific standard applies to the condition, practice, means, method,operation or process.\u00a0 We therefore hold in accordance with 1910.5(c)(1), as well asexisting Commission precedent, e.g., Adams Steel Erection, Inc., that thegeneral fall protection standards found outside of Subpart R are preempted during thesteel erection phase of the construction process.We are aware that in reaching this conclusion wehave rejected the interpretation advanced by the Secretary as to section 1910.5(c)(1) andSubpart R.\u00a0 However we do not believe the interpretation proffered by the Secretaryis entitled to any deference. Although the Secretary drafted Subpart R and enforces thestandards contained therein, we are not convinced that his current interpretation reflectshis views as of the time Subpart R was adopted.\u00a0 Indeed, for the reasons advancedabove, it is implausible that when drafted the Secretary intended the various fallprotection standards outside Subpart R to apply to steel erection.Accordingly, for the above reasons, we vacatethe Secretary’s allegation that Williams violated section 1926.105(a).\u00a0 Since we havealso previously vacated the section 1926.28(a) charge, we vacate item 2 of the citation inits entirety.IIItem 4 alleges that the sixth floor of the inspected building was not solidly planked asrequired by 29 C.F.R. ? 1926.750(b)(1)(i). That standard provides, in pertinent part:? 1926.750 Flooring requirements.(b) Temporary flooring–skeleton steel construction in tiered buildings. \u00a0(1)(i) The derrick or erection floor shall be solidly planked or decked over its entiresurface except for access openings . . . .It is undisputed that Williams left severalopenings in the decking of the sixth floor, which was the erection floor at the time ofthe inspection.\u00a0 The parties disagree, however, over whether the openings were the\”access openings\” permitted by the standard’s exception.\u00a0 We agree with theSecretary that the \”access openings\” exception does not apply to the openings inquestion.\u00a0 We further conclude, however, that another standard does apply.\u00a0 Because the Secretary cited the wrong standard, we vacate this citation item.The disputed openings were intentionally createdby Williams in the sixth-floor decking along the \”column lines,\” which areparallel rows of columns connected by beams.\u00a0 The openings were directly over thebeams, which were in the center of the openings and between 12 and 18 inches below thelevel of the decking.\u00a0 In some areas, the beams had been built up to floor level byplacing I-beams on top of the structural beams.There were ten to twelve openings in the sixthfloor, corresponding to the number of column lines.\u00a0 The average opening was threefeet wide, but the beam in the center in effect divided it into two separate openings, oneon each side of the beam, and these were only 10 to 12 inches wide.\u00a0 From thephotographic exhibits, it appears that the openings were approximately 80 feet long andthat they extended across the entire width of the sixth floor.\u00a0 The complianceofficer testified, without contradiction, that the openings remained uncovered throughouthis inspection, which lasted four days.Through the testimony of general foremanAenchbacher, Williams sought to prove that it had complied with the custom and practice inthe steel erection industry by leaving these \”column line\” openings in thesixth-floor decking.\u00a0 Aenchbacher’s testimony does establish that the openings werecustomary.\u00a0 However, it further establishes that Williams violated industry custom,and alsoits own standard practice, by failing to keep the openings covered while they were not inuse.The parties agree that the purpose of theopenings was to permit the welding and the \”final bolting\” of the structuralbeams to the columns, as well as the subsequent inspection of the bolting and weldingwork.\u00a0 According to general foreman Aenchbacher, it was standard practice at everyjob, whether for Williams or for other steel erectors, to leave the column lines open towork on the connections between the columns and the beams.\u00a0 The witness alsotestified, however, that it was customary, following the welding of connections, to putdecking temporarily in place until the time arrived for the inspection of the welds.\u00a0 The decking would then be removed so the inspection could be conducted.\u00a0Similarly, it was apparently customary to cover the openings temporarily during theperiod between the bolting-up work and the inspection of that work.General foreman Aenchbacher gave additionaltestimony to the effect that Williams’ normal practice and the custom within the industrywas to leave the openings uncovered for no more than a day, since the welding operationusually took less than a day. However, the witness made no claim that the citedsixth-floor openings were uncovered only for a day or less.\u00a0 Nor did he dispute thecompliance officer’s testimony that the cited conditions existed throughout theinspection.\u00a0 On the contrary, the general foreman implicitly acknowledged that thecustomary practice had not been followed because \”the welding was behind at that timea little bit.\”[[24]]The principal dispute in this case has been over the meaning of the cited standard’sexception for \”access openings.\”\u00a0 The judge held that Williams did notqualify for this exception because \”the extent and duration of the openings farexceed[ed] the legitimate needs to be served by the exception.\”\u00a0 Williams seeksto have this conclusion reversed.\u00a0 It argues that the openings were literally\”access openings\” because their purpose was to give welders and inspectors\”access\” to the connections between the columns and the beams.\u00a0 In anyevent, it reasons, because the term \”access openings\” is ambiguous, the standard\”must be construed to require what is commonly done in the industry.\”\u00a0 TheSecretary supports the judge’s conclusion that the openings were not \”accessopenings,\” but he urges a different rationale.\u00a0 In the Secretary’s view, theexception is limited to openings used for employee transit between floors.We agree with Williams that the term\”access openings\” is ambiguous.\u00a0 This is shown by the fact that the twoparties have offered different definitions of the term and yet both definitions arecompatible with its literal meaning.\u00a0 We further agree with Williams that it isappropriate to look to the custom and practice in the steel erection industry in definingthe term.\u00a0 We conclude, however, that industry custom and practice supports theSecretary’s definition rather than Williams’.The most persuasive extrinsic evidence of the standard’s meaning of which we are aware isfound in the provisions of American National Standard Safety Requirements for SteelErection, ANSI A10.13-1972.\u00a0 Based on the striking similarity between not only thesubstance but even the language of these two steel erection codes (Subpart R and the ANSIstandard), we conclude that the standard cited in this case, section 1926.750(b)(1)(i),was probably derived from section 6 of ANSI A10.13-1972.[[25]]\u00a0 In any event, becauseof the consensus procedures followed by ANSI in developing its standards, we view section6 as a strong indication of the steel erection industry’s custom and practice with regardto floor openings.\u00a0 Thus, regardless of whether we characterize it as a sourcedocument or merely an indicia of industry custom and practice, we consider ANSIA10.13-1972 to be highly relevant in resolving the issue before us.Section 6 of the ANSI standard reveals that thesteel erection industry draws a clear distinction between relatively permanent openingsfor the purpose of employee movement between floors and temporary openings for the purposeof performing work, like those at issue in this case.\u00a0 These two types of openingsare treated differently under the following related provisions of the ANSI standard:6.1\u00a0 The derrick or working floor of every building shall be solidly decked over itsentire surface except for access openings.6.11\u00a0 All unused openings in floors, temporary or permanent, shall be completelyplanked over or barricaded until such time as they are used.6.12\u00a0 Floor planks that are temporarily removed to perform work shall be replaced assoon as possible, or the open area shall be guarded.We conclude that, under the ANSI standard, the\”access openings\” referred to in section 6.1 are relatively permanent openingsfor the purpose of employee movement between floors.\u00a0 In contrast, temporary openingsfor the purpose of performing work are governed by sections 6.11 and 6.12.[[26]]We further conclude that the distinctionreflected in the ANSI standard was carried over by the Secretary into Subpart R.\u00a0 Asindicated, section 6.1 of the ANSI standard finds its counterpart in the cited standard,section 1926.750(b)(1)(i).\u00a0 However, section 6.11 of the ANSI standard also has acounterpart, in 29 C.F.R. ? 1926.752(j), which is quoted at note 19 supra.We therefore agree with the Secretary that theopenings at issue were not \”access openings\” within the meaning of the citedstandard.\u00a0 We hold that that exception applies only to openings for the purpose ofemployee transit between floors.\u00a0 Temporary openings for the purpose of performingwork are governed instead by the requirements of section 1926.752(j), that is, they mustbe \”completely planked over or guarded\” whenever they are \”[u]nused.\”Accordingly, we further conclude that theSecretary cited the wrong standard in this case.\u00a0 Under the terms of the Secretary’sregulatory guidelines at section 1910.5(c)(1), note 6 supra, the cited standard isnot applicable to the cited conditions because another standard, section 1926.752(j), ismore \”specifically applicable.\”\u00a0 Because the cited standard does not apply,we reverse the judge and vacate item 4 of the citation.[[27]]III Item 5 of the citation alleges a serious violation of 29 C.F.R. ? 1926. 750 (5)(1)(iii),which provides:? 1926.750 Flooring requirements.(b) Temporary flooring–skeleton steel construction in tiered buildings. (1)(iii) Floor periphery–safety railing.\u00a0 A safety railing of 1\/2-inch wire rope orequal shall be installed, approximately 42 inches high, around the periphery of alltemporary-planked or temporary metal-decked floors of tier buildings and othermultifloored structures during structural steel assembly.The occurrence of the violative conditions isnot at issue.\u00a0 However, two issues are raised concerning this item.\u00a0 The firstissue is whether Williams had actual or constructive knowledge of the violativeconditions.\u00a0 The second is whether Williams was the employer responsible for theviolation.\u00a0 The judge concluded that Williams lacked both knowledge andresponsibility and accordingly vacated the citation item.\u00a0 However, the judge failedto consider the conditions that existed on the second day of the OSHA inspection.\u00a0With respect to those conditions, we conclude that the Secretary established thealleged violation.\u00a0 We therefore reverse the judge and affirm this citation item, butonly as it relates to the conditions on the second day of the inspection.The location of the alleged violation was astairway landing at the building’s first-floor level, which was approximately 20 feethigh. The stairway came up from ground level to the landing and then reversed direction,going back on itself to continue up to the higher elevations.\u00a0 On the west side ofthe landing, the side opposite the stairs, was the perimeter of the building.\u00a0 On theother two sides of the landing (the north and south sides) were elevated sections of thefirst floor.\u00a0 The first-floor decking was approximately 30 inches above the landing.\u00a0The width of the landing, which extended along the building’s perimeter, wasapproximately 6 feet.At the hearing, the compliance officer testifiedthat he had observed the area described above on both the first and second days of hisinspection.\u00a0 On both of those days, the perimeter of the building had been guarded bya single wire-rope safety railing.\u00a0 This single wire rope served as the soleperimeter protection not only for the landing itself but also for the adjacent elevatedsections of the first floor on the north and south sides of the landing.\u00a0 When theinspection party observed it on the first day of the inspection, the wire-rope railing wassagging to the extent that it touched the elevated floor on both sides of the landing.\u00a0 Thus, in relation to the landing, the railing was approximately 30 inches high.When the compliance officer returned to the areaon the second day, the wire-rope railing was stretched taut.\u00a0 Accordingly, inrelation to the landing, the railing was close to the height required under section1926.750(b)(1)(iii) (\”approximately 42 inches high\”).\u00a0 On the other hand,the railing was still only 6 to 10 inches above the adjacent first-floor decking.\u00a0During the interval between these two observations, the railing had been tightenedby employees of Williams.\u00a0 The compliance officer described this occurrence, asfollows:\u00a0 after he saw the sagging railing on the first day, he pointed out thecondition to Williams’ representatives \”and they immediately put someone to drawingit tight; and, the next day it was tight.\”The record does not disclose why the cable wassagging at the time it was observed on the first day of the inspection.\u00a0 The evidencesuggests, however, that the condition could have been created by other contractors at thismulti-employer construction worksite.\u00a0 At the time in question, the prime contractorwas doing form work on the first floor.\u00a0 Eight or nine subcontractors were alsopresent at the worksite.\u00a0 Whether these other employers were also working on thefirst floor is not clear.\u00a0 Nevertheless, it is clear that Williams was no longerworking on the first floor.\u00a0 Williams’ witnesses further testified that it was notuncommon for other contractors to take down, damage or improperly replace railings afterWilliams had left a floor.The record does not establish how long thesagging railing had existed prior to the inspection.\u00a0 Nor does it establish whetherany of Williams’ supervisory personnel had prior knowledge of the sagging railing.\u00a0General foreman Aenchbacher and several of his crew foremen were called as witnessesat the hearing.\u00a0 Yet, no witness was asked whether he had been aware of the conditionof the railing prior to the inspection and no witness volunteered this information.In his decision, Judge Sparks found that, whenthe compliance officer first observed it, the first-floor \”safety cable\”(wire-rope railing) had been sagging to the floor; that Williams had originally installedthe cable; and that employees of Williams had been exposed to a falling hazard as a resultof the cable’s inadequacy.\u00a0 However, the judge vacated the item because the recorddid not convince him \”that respondent was responsible for or had knowledge of thesagging safety cable at the time . . . alleged in the citation.\”We express no opinion as to whether the judge’sruling was correct with respect to the conditions observed by the compliance officer onthe first day of the inspection. Nevertheless, we reverse the judge’s decision because weagree with the Secretary that, regardless of whether there was a violation on the firstday, Williams violated the standard on the second day of the inspection.[[28]]Williams claims that it relinquished itsresponsibility for maintenance of the first-floor railing after it completed its work onthat floor and moved on to higher elevations.\u00a0 If so, then it re-assumedresponsibility after the compliance officer pointed out to it that the railing was saggingduring the first day of the inspection.\u00a0 The compliance officer gave unrebuttedtestimony that Williams’ response to this information was immediately to assign someone totighten the wire-rope railing.\u00a0 We conclude that, when Williams assumed thisresponsibility, it also assumed the responsibility for seeing that the railing wasinstalled in accordance with the requirements of the cited standard.We also find that employees of Williams wereexposed to the falling hazard present on the first-floor landing.\u00a0 The complianceofficer explained that in going to the only water barrel on the site, workers wereobserved within 12-18 inches of the perimeter while on the first-floor landing.\u00a0 Hestated that he saw a Williams employee come within 18-inches of the perimeter while goingto get a drink of water.We further conclude that Williams either knew, or could have known with the exercise ofreasonable diligence, that the railing was not re-erected in compliance with thestandard’s requirements and that its employees were exposed to this condition.\u00a0Indeed, it was physically impossible for a single wire-rope railing to provideadequate perimeter protection for two different elevations, one 30 inches higher than theother.\u00a0 The same railing could not have been both \”approximately 42 inches\”above the first-floor landing and \”approximately 42 inches\” above the adjacentfirst-floor decking.\u00a0 Therefore, Williams had actual or constructive knowledge of theviolative conditions on the second day of the inspection because it either knew, or couldhave known with the exercise of reasonable diligence, that its employees had re-erectedthe wire-rope railing improperly and were exposed to the falling hazard created thereby.We also agree with the Secretary that theviolation was \”serious\” within the meaning of section 17(k) of the Act, 29U.S.C. ? 666(k).\u00a0 An employee falling over the inadequately guarded perimeter wouldhave fallen 20 feet onto uneven ground or a poured-concrete pad.\u00a0 Thus, death orserious physical harm was substantially probable.\u00a0 We disagree, however, with theproposed penalty of $420.\u00a0 Because of Williams’ good faith in tightening the saggingrailing as soon as the condition was pointed out to it, notwithstanding its belief that itwas no longer responsible for maintaining the railing, we conclude that a penalty of $200is appropriate.Accordingly, the judge’s decision with respect to items 2, 4 and 5 is reversed. \u00a0Items 2 and 4 are vacated.\u00a0 Item 5 is affirmed as a serious violation of theAct.\u00a0 A Penalty of $200 is assessed.FOR THE COMMISSIONRay H. Darling, Jr. Executive Secretary Dated: September 12, 1988WALL, Commissioner, concurring in part anddissenting in part:I dissent from the majority’s disposition ofitem 2.\u00a0 The analysis on this item is predicted in part on an interpretation of 29C.F.R.? 1910.5(c) of the Secretary’s Regulations.\u00a0 I cannot agree to a reading ofthe standard that affords virtually no fall protection to employees in a recognizablyhazardous occupation, and I do not agree to apply this general guideline in a way that hasbeen overwhelmingly rejected by the federal courts.The employees in this case were working onperimeter beams of skeletal steel without fall protection.\u00a0 Williams Enterprises wascited for a violation of ? 1926.105(a) for failing to provide exterior safety nets.[[1]]\u00a0The question before us is whether section 1926.105(a), which appears in the generalconstruction industry standards, has been \”preempted\” by standards draftedspecifically for the steel erection industry.The steel erection standards (Subpart R) includeseveral standards directed to fall hazards, but none of them provides exterior fallprotection for employees working on perimeter beams of skeletal steel.[[2]]\u00a0 Section1926.105(a), however, does provide for falls to the exterior of the building; it requiressafety nets or other fall protection without regard to whether the fall is to the interioror the exterior of the building.The \”preemption\” rule at 1910.5(c)states that \”[i]f a particular standard is specifically applicable to a condition,practice, means, method, operation, or process, it shall prevail over any differentgeneral standard which might otherwise be applicable to the same condition, practice,means, method, operation, or process . . . . \” The majority identifies standards inSubpart R that deal with various kinds of fall hazards[[3]] and concludes that theyprevail over the more general construction standard at 1926.105(a). Having found thatsteel erection standards apply to the facts of this case, the majority vacates becausenone of those standards requires protection against exterior falls from perimeter beams.The essential elements of the majority analysisare these:\u00a0 First, that the steel erection standards apply to steel erection workwhere there is a hazard of falling.\u00a0 Second, that the omission from Subpart R of anyprotection against exterior falls from perimeter beam reflects a deliberate policydecision by the drafters of Subpart R.\u00a0 And third, that under the\”preemption\” rule at 1910.5(c), the specific fall provisions in the steelerection standards may not be supplemented with a general standard like 1926.105(a).These essential elements of the majorityrationale formed the basis of four Commission decisions that were reversed in the CircuitCourts.\u00a0 Bristol Steel & Iron Works, Inc., 77 OSAHRC 181\/D6, 5 BNA OSHC1940, 1977-78 CCH OSHD ? 22,240 (No. 14537, 1977), rev’d, 601 F.2d 717 (4th Cir.1979); Adam Steel Erection, Inc., 84 OSAHRC 29\/A2, 11 BNA OSHC 2073, 1984 CCH OSHD? 26,976 (No. 77-4238, 1984), rev’d, 766 F.2d 804 (3d Cir. 1985), (\”AdamsSteel\”); Daniel Marr & Son Co., 84 OSAHRC 37\/E7, 11 BNA 2088, 1984 CCHOSHD ? 26,980 (No. 82-612, 1984), rev’d, 763 F.2d 477 (1st Cir. 1985), (\”DanielMarr\”); L. R. Willson & Sons, Inc., 84 OSAHRC 36\/A2, 11 BNA OSHC2182, 1984 CCH OSHD ? 26,978 (No. 80-5866, 1984), rev’d, 773 F.2d 1377 (D.C. Cir.1985), (\”L. R. Willson III\”).\u00a0 Moreover, the D.C. Circuit Court ofAppeals affirmed three prior Commission decisions in which general construction industrystandards supplemented the steel erection standards with respect to exterior falls.\u00a0 Donovanv. Williams Enterprises, Inc., 744 F.2d 170 (D.C. Cir. 1984), (\”WilliamsEnterprises\”); L. R. Willson & Sons, Inc. v. OSHRC, 698 F.2d507 (D.C. Cir. 1983), (\”L. R. Willson II\”); L. R. Willson & Sons,Inc. v. Donovan, 685 F.2d 664 (D.C. Cir. 1982), (\”L. R. Willson I\”).The majority justifies preemption by Subpart Rby reciting those provisions in Subpart R that apply to fall hazards.\u00a0 The Fourth,Third, First, and District of Columbia Circuits have all rejected this simplisticapproach.\u00a0 Each court has said it is not enough to speak of \”falls,\” theapplicability of a standard depends on the employee’s location and whether the fall is tothe interior or exterior: \”The question is not whether Subpart R provides anyexterior fall protection standards, but rather whether it provides standards to guardagainst the particular exterior fall hazard for which Willson was cited.\”\u00a0 L. R. Willson I at 672 (emphasis by the court).\”The particular hazard at issue . . . wasexterior falls from above the level of temporary floors or decking\” and\”exterior falls and interior falls are different hazards . . . .\” L. R.Willson III at 1381-1382.\u00a0 \”The particular hazard at issue here is thedanger of an exterior fall from a perimeter beam . . . . Although the steel erectionstandards address interior falls, and exterior falls from temporary flooring, no sectionapplies to exterior falls from perimeter beams.\”\u00a0 Adams Steel Erection at808.\”We find no other standard in Subpart Rwhich could be considered as addressing the hazard of an exterior fall.\u00a0 Section1926.750 (b)(1)(iii) which requires that a railing be provided on the perimeter of thetemporary flooring might be deemed to provide exterior fall protection for employees doingwork on that floor, but not for connectors working on beam above that level.\”\u00a0 DanielMarr at 483.The majority suggests that the absence ofexterior fall protection for ironworkers on perimeter beam is a deliberate omission.\u00a0 Again, this view has been rejected and sharply criticized by the courts:The Third Circuit:\”The Commission’s wishful reliance on thesupposed intent of the Secretary also is misplaced.\u00a0 In concluding that the Secretaryintended to leave the hazard of exterior falls from perimeter beam totally unregulated,the Commission pointed to three standards . . . [that] do not apply to the hazard underconsideration here.\u00a0 We reject this reasoning . . . . it would take a lot moreevidence than that cited by the majority to convince [us] that the Secretary made areasoned and deliberate decision\” such as this.\”\”Furthermore, there is convincing evidencethat the Secretary did not intend the more rigorous standards enunciated in section1926.105(a) to be preempted by the relaxed rules of Subpart R . . . .\”\”In sum, the Commission’s interpretationcontradicts the legislative scheme which contemplates that general safety standards willsupplement specific safety standards by filling those gaps necessarily remaining after thepromulgation of specific standards.\”Adams Steel Erection at 809-810.The Third Circuit found the inference of a deliberate omission by the Secretary \”hardto square\” with the fact that the Secretary is the author of section 1910.5(c)(2),which specifically addresses the question of regulatory lacunae:\u00a0 \”Generalstandards shall apply . . . to the extent that none of such particular standardsapplies.\”The District of Columbia Circuit considered themajority’s inference of a deliberate omission \”counterintuitive,\”\”unconvincing,\” and \”mysterious.\”The Fourth and Ninth Circuits have held thatsupplementing specific standards with general standards is both consistent with thestructure of the OSH Act itself and necessary for realistic improvement.\u00a0\”Lacking the omniscience to perceive the myriad conditions to which specificstandards may be addressed, however, the Secretary, in an effort to insure the safety ofemployees as required by the Act must at times necessarily resort to the general safetystandards.\”\u00a0 Bristol Steel & Iron Works, Inc. v. OSAHRC, 601 F.2d717, n.11 (4th Cir. 1979).\u00a0 The Ninth Circuit pointed out that the OSH Act itselfcontemplates a mix of specific and general responsibilities: \”Petitioner’s complaintthat they were misled by the regulations into believing that no guards are required onpress brakes is not credible in view of 29 U.S.C. ? 654(a)(1) [the general duty clause]which, even in the absence of any regulations, requires every employer to protect hisemployees from ‘recognized hazards that . . . are likely to cause . . . serious physical[injury].’\” Irvington Moore v. OSHRC, 556 F.2d 431, 435 (9th Cir. 1977).In sum, the majority today elaborates andexpands upon a rationale previously rejected by four federal courts of appeals in thestrongest of terms.\u00a0 While generally omitting the characterizations placed on theCommission rationale, the District of Columbia Circuit Court declared that \”There isreally nothing for us to add to the other courts’ decisions, other than to express ourhope that the Commission will finally accept the unanimous position of three courts ofappeals and the Secretary of Labor that ? 105(a) does apply to protect workers fromexterior fall hazards in the steel erection industry.\” L. R. Willson II at1382.\u00a0 When, on the other hand, the Commission held that general constructionstandards may supplement steel erection standards with respect to exterior falls, thosedecisions were roundly affirmed.\u00a0 L. R. Willson I, L. R. Willson II,and Williams Enterprises.\u00a0 In addition, the Ninth and Fourth Circuits stronglysupport the general proposition that specific standards can be augmented by more generalstandards.It is worth noting that the Fifth Circuitrecently felt constrained to eschew its own interpretation of an aspect of the OSH Actbecause four other circuits had reached unanimity on an opposing view.\u00a0 \”Were wewriting on a clean slate, we would be inclined to uphold the Union and Commission position. . . . Nevertheless we feel constrained to adopt the Secretary’s interpretation becausewe find a compelling reason to do so in the unanimity of the authorities behind theSecretary’s position.\”\u00a0 Donovan v. Oil, Chemical, and Atomic WorkersInternational Union, Local 4-23, 718 F.2d 1341, 1351-52 (5th Cir. 1983), cert. den.,104 S.Ct. 2344 (1984).The majority also places considerable relianceon the practice in the industry.\u00a0 I am less inclined to do so, particularly where theindustry provides no protection whatsoever against falls to the exterior of a building,and virtually none against falls to the inside.[[4]]\u00a0 In Cape & Vineyard Div.v. OSHRC, 512 F.2d at 1152 (1st Cir. 1975) the court said:\”There may, however, be instances whereindustry practice fails to take reasonable precautions against hazards generally known inthe industry; in such event it may not be unfair to hold the employer to a standard higherthan that of actual practice.\”The Fourth Circuit reached a similar conclusionin Bristol Steel Iron Works (supra) saying\”While the custom and practice of mostindustries will adequately protect employees from hazardous conditions, the inquiry mustbe broad enough to prevent an industry, which fails to take sufficient precautionarymeasures against hazardous conditions from subverting the underlying purposes of theAct.\”It is true, as the majority decision explains,that the Fifth Circuit relies to a greater extent on the custom and practice in theindustry, S & H Riggers & Erectors (supra), and B & BInsulation (supra), but as pointed out in the recent Fifth Circuit decision in Brockv. City Oil Well Service Co., 795 F.2d 507 (5th Cir. 1986), industry custom hasbeen used to flesh out generally worded regulations in order to avoid notice problemsunder the due process clause.\u00a0 The Fifth Circuit has recognized that where anemployer has actual knowledge of the requirements imposed by a regulation the problem offair notice does not exist, and the employer may be found in violation even though itsconduct complies fully with the general practice in the industry; see S & HRiggers & Erectors, 659 F.2d at 1278.\u00a0 The court also said:\”We did not hold [in B & BInsulation] that industry custom is controlling in all OSHA cases, or that theSecretary cannot impose standards more stringent than those customarily followed in anindustry.\u00a0 We merely held that he cannot do so under as general and broadly worded aregulation as ? 1926.28(a).\”S & H Riggers, 659 F.2d at 1282.One of Congress’ purposes in requiring that all contested cases begin in this forum was tofoster a uniform national body of OSHA law.[[5]]\u00a0 But on this issue it is theCommission that injects disunity into what is, up to this point, a cohesive body of caselaw.BUCKLEY, Chairman, concurring in part and dissenting in part:I agree with the lead opinion’s conclusion thatthe standards in Subpart R contain exclusive requirements for fall protection during steelerection, with its discussion of that issue, and with its corresponding vacation of item 2of the citation.\u00a0 I also concur with its affirmance of item 5.\u00a0 I dissent,however, from the decision to vacate item 4.\u00a0 I would affirm the judge’s decisionfinding that Williams violated 29 C.F.R. ? 1926.750(b)(1)(i).As the lead opinion notes, the principal issueunder item 4 argued by the parties is whether the unguarded openings on the sixth floorwere \”access openings\” within the meaning of section 1926.750(b)(1)(i).\u00a0Unlike the lead opinion, I would not limit \”access openings\” to openingsused only for the movement of people from floor to floor.\u00a0 It is obviously not theintent of the standards to preclude openings created for the purpose of performingrequired work.\u00a0 Thus, the openings in this case, to the extent they were necessary togive access to girders for the purposes of bolting, welding, and inspecting, would fitwithin both the plain meaning of \”access opening\” and the intent of thestandard.\u00a0 However, an opening only qualifies as an \”access opening\” to theextent it provides access to a required work area.\u00a0 The judge found that the openingsin this case existed for a longer period of time than was necessary to permit the requiredbolting, welding, and inspecting to be done, and the evidence supports that finding.\u00a0 I therefore conclude that Williams violated section 1926.750(b)(1)(i).Having so concluded, I would not vacate thecitation on the basis that section 1926.752(j) is more specifically applicable to thecited condition.\u00a0 Section 1926.750(b)(1)(i) applies to the derrick or erection floor,which is the floor involved in this item, while section 1926.752(j) is more general,applying to openings on all floors.\u00a0 Both standards thus apply to openings on thederrick or erection floor, and to that extent they overlap, but the cited standard isclearly the one that is specifically applicable.\u00a0 In any event, there need be made nochoice between them.\u00a0 The two standards prescribe consistent requirements, and thereis no possibility that employers will be misled with respect to what they are required todo.\u00a0 Where two standards might be regarded as equally applicable and are consistentwith each other, the employer can be properly cited under either standard.\u00a0 I wouldtherefore affirm the citation item under section 1926.750(b)(1)(i).SECRETARY OF LABOR, Complainant, V. WILLIAMS ENTERPRISES OF GEORGIA, INC., Respondent.OSHRC Docket No. 79-4618DECISION AND ORDER APPEARANCES:Larry A. Auerbach, Esquire, Office of theSolicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainantIra J. Smotherman, Jr., Esquire, Atlanta,Georgia, on behalf of respondentSPARKS, Judge:\u00a0 In July 1979, respondent,Williams Enterprises of Georgia, Inc., was erecting structural steel at the constructionsite of a new Georgia Power Company building in Atlanta, Georgia.\u00a0 An inspection by asafety compliance officer of the Occupational Safety and Health Administration resulted inthe issuance of serious and nonserious citations.\u00a0 Only the serious citation wascontested.At the time of the inspection between July 24 to27, 1979, respondent was erecting steel at the sixth floor level.Respondent’s employees are divided into six workcrews or \”gangs\” which perform specialized functions (Tr. 57-58).\u00a0 First,the erection crew \”sets the iron\” and then connectors insert two or three boltsat each joint of steel beam and columns (Tr. 60).\u00a0 The bolt-up gang insertsadditional bolts where the steel members join, and the plumb-up crew plumbs the buildingand places safety cables around the perimeter.\u00a0 The decking crew follows and preparesthe decking for the pouring of concrete.\u00a0 The welding crew then welds the beams intothe vertical columns (Tr. 58).During the inspection Mr. Lloyd Black, thecompliance officer, observed employees working without being tied off by their safetybelts (Exh. C-1).\u00a0 Connectors were observed climbing the vertical steel and insertingbolts without being tied off.\u00a0 He testified that \”inherently\” connectorscannot tie off (Tr. 18).Bolt-up men were seen using safety belts whileat their work stations but not while they were moving from station to station.\u00a0 Itwas estimated that 50 percent of their time was spent at the work stations, and 50 percentof their time was moving from place to place.The compliance officer observed a \”plumb-upman\” walking perimeter steel, approximately 90 feet above ground level, who waswearing a safety belt but did not have on a lanyard (Tr. 16).The compliance officer also observed that thedecking had not been installed at any locations on the working floor where horizontalbeams joined vertical columns, thereby leaving openings about three feet wide (Tr. 21-23).On the first floor Mr. Black observed that theentire perimeter safety cable was slack and in some cases touched the deck.\u00a0 Workershad to come near the perimeter to obtain drinking water and use the stairways.The compliance officer was of the opinion thateach of the circumstances described exposed employees to the danger of falling from 20 to90 feet and would have resulted in serious injury or death.Other items charged in the citation have been settled by stipulation (Tr. 5).Respondent contends that its work practicesconform to those prevailing in the industry (Tr. 60, 62, 72, 85, 98-99, 100-101, 103, 112,134).\u00a0 Union work rules do not require safety belts while moving (Tr. 68, 80; Exh.R-1).\u00a0 Complainant does not allege that respondent’s practices fall below theindustry norm (Tr. 112, 134) but insists they were not in compliance with safetyregulations.29 C.F.R. ? 1926.28(a) 29 C.F.R. ?1926.105(a)Failure to Use Personal Protective Equipment and\/or Safety NetsThe evidence clearly establishes that employeesdid not wear personal protective equipment such as safety belts while exposed to thehazard of falling, nor did respondent use safety nets or other alternate means ofprotection.\u00a0 Respondent, however, makes the following contentions:1.\u00a0 The legal doctrines of res judicata andcollateral estoppel bar complainant from enforcing the cited standards because the issueof whether or not such standards are applicable to steel erection activity has been triedand lost by the Secretary in previous cases involving the respondent.2.\u00a0 The regulations cited are inapplicable to the circumstances of this case becausesteel erection activities are exclusively governed by Subpart R of the constructionregulations.3.\u00a0 The facts and circumstances of this case fail to establish a violation of 29C.F.R. ? 1926.28(a).4.\u00a0 The facts of record fail to establish a violation of 29 C.F.R. ? 1926.105(a).5.\u00a0 The evidence of record establishes that it was impossible and infeasible to usesafety nets for perimeter protection for connectors, bolt-up workers and others.6.\u00a0 The evidence fails to establish a serious violation of 29 C.F.R. ?1926.750(b)(1)(i) as a result of the floor openings.7.\u00a0 The alleged violation of 29 C.F.R. ? 1926.750(b)(iii) relating to the saggingsafety cable was not created or caused by respondent, and respondent’s employees hadlittle or no exposure to the hazard created by the alleged violation.There is little doubt that the doctrine of resjudicata which includes collateral estoppel is applicable to administrative proceedings ofthe type involving the Review Commission.\u00a0 The Supreme Court has stated as follows:Occasionally, courts have used language to theeffect that res judicata principles do not apply to administrativeproceedings, but such language is certainly too broad.\u00a0 When an administrative agencyis acting in a judicial capacity and resolves disputed issues of fact properly before itwhich the parties have had an adequate opportunity to litigate, the courts have nothesitated to apply res adjudicata to enforce repose … U. S. v. Utah Construction andMining Co., 384 U.S. 394, 421, 86 S.C. 1545, 1560 (1966)[citations and footnote omitted].Collateral estoppel was recently applied toenjoin the Secretary of Labor from prosecuting alleged violations of noise standards atdifferent plants of the Continental Can Company where prior proceedings had resulted infindings that controls were not economically feasible.\u00a0 Continental Can Company v.Marshall, 603 F.2d 590 (7th Cir. 1979).Complainant contends that res judicata andcollateral estoppel should be restricted to instances of attempts to relitigate allegedviolations occurring on the same date and place alleged in the prior action.\u00a0 Suchrestrictive application or collateral estoppel would make the doctrine meaningless and isinconsistent with the purpose of collateral estoppel.\u00a0 It is the identity of partiesand legal issues that give rise to the doctrine.\u00a0 Secretary v. Continental Can Co.,supra.Respondent contends that prior decisions of theReview Commission involving the use of personal protective equipment foreclosecomplainant’s action in this case.\u00a0 In Secretary v. Williams Enterprises ofGeorgia, Inc. (No. 13063), Judge Larkin held that 29 C.F.R. ? 1926.28(a), ? 1926.104and ? 1926.105 do not apply to steel erection.\u00a0 The decision became the final actionof the Commission since the two Commission members at that time could not agree.\u00a0 InDocket No. 15449, the same parties and same alleged violations were involved.\u00a0 JudgeBrady held that steel erection was the general business of respondent, and the specificwork being performed by the employees involved in that action.\u00a0 On that basis, thealleged violations were vacated.\u00a0 Judge Brady specifically held that \”thegeneral regulations of 29 C.F.R. ?\u00a01926.28(a) and (b) and 29 C.F.R. ? 1926.104 and? 1926.105 do not apply to steel erection.\”The decision of Judge Brady in Docket No. 15849was ordered reviewed by the Commission upon its own motion.\u00a0 The decision wasaffirmed after the Commission noted that \”. . . the parties have filed no objectionto the administrative law judge’s decision, either by way of petitions for discretionaryreview or response to the order for review.\u00a0 Accordingly, there has been no appeal tothe Commission, and no party has otherwise expressed dissatisfaction with theadministrative law judge’s decision.\”\u00a0 In his decision, Judge Brady found that\”the evidence in this case establishes that respondent was engaged in steel erectionat the work site, and employees working at various levels without protective equipment didso at or near open beams.\”The courts have recognized, however, that thedoctrine of res judicata should not be rigidly applied so as to prevent normal developmentof administrative law or to permit different applications to affected parties.\u00a0Professor Davis, in discussing the decision of the Supreme Court in Federal TradeCommission v. Raladam Co., 283 U.S 643, 51 S. Ct. 587 (1931), which refused to applyres judicata to a second proceeding brought on the same grounds as an earlier case, statedas follows:. . . Why may the same question be tried again?\u00a0 Probably the best answer is that the question of the legality of the company’s 1929practices is not necessarily the same as the question of the legality of the company’s1935 practices, even if the practices remained the same.\u00a0 Otherwise the opportunityfor development of law and policy by processes of administrative and judicialinterpretation would be cut off.\u00a0 The doctrine of res judicata should prevent asecond prosecution for the same act or acts.\u00a0 And it should prevent an agency fromharassing a respondent by repeated prosecutions for continuing the same practices. \u00a0But it should not prevent an agency, after a decent interval, from testing the questionwhether or not law or policy concerning continuing practices may have changed. \u00a02 K.Davis, Administrative Law Treatise at 571 (1958).Since the earlier decisions by Judge Larkin(1975) and Judge Brady (1976), there have been significant developments in the legalprinciples applicable to this case which mitigate against strict adherence to theprinciples of res judicata.On February 9, 1979, the standards applicable tothe construction industry were published by the Occupational Safety and HealthAdministration as a supplement to the Federal Register.\u00a0 The supplementprovides a single source of standards for construction activities and includes generalindustry standards applicable to construction as well as general and specializedconstruction standards.The general provisions of Subpart C relate toproblems commonly found in the construction industry, and the other subsections deal withspecialized problems.Respondent contends the requirement for personalprotective equipment found among the general requirements of 29 C.F.R. ? 1926.28(a) ispreempted by the specific safety requirements of Subpart R concerning steel erection.\u00a0A similar contention was recently considered by the Review Commission and by theCourt of Appeals for the Fourth Circuit in Secretary v. Bristol Steel & IronWorks, Inc., 77 OSAHRC 181\/D6, 5 BNA OSHC 1940,1977-78 CCH OSHD ? 22,240,1979 CCHOSHD ? 23,651 (No. 14537).\u00a0 Although the two members of the Commission were unableto agree, the Court of Appeals held that the general safety requirements were notpreempted by Subpart R.\u00a0 The Court stated as follows:The specific standards relied upon by Bristol,while providing safety protection to employees engaged in steel erection, cannot achievethe goal of adequately protecting those employees in every conceivable situation.\u00a0Infinite hypotheticals can be envisioned in which employees engaged in steelerection would be exposed to an unnecessary hazard not covered by a Subpart R specificsafety standard.\u00a0 The general safety standard dealing with personal protectiveequipment found in 29 C.F.R. ? 1926.28(a) complements the Subpart R specific standardsdealing with steel erection by requiring \”the wearing of appropriate personalprotective equipment [where there is a need] for using such equipment to reduce thehazards to the employees.\”Bristol suggests that its position is supportedby 29 C.F.R.? 1910.5(c)(1) which provides that a specific standard applicable to acondition shall prevail over any different general standard which might otherwise beapplicable thereto.\u00a0 This argument, however, elides the language of ? 1910.5(c)(2)that any standard shall apply according to its terms, even though particular standards arealso prescribed for an industry, to the extent that none of such particular standardsapply.\u00a0 Were ? 1910.5(c) read in the manner Bristol suggests, the Secretary would beprevented from coping with the variety of hazards not covered by the specific standards,and we decline to read it in such a limited fashion.\u00a0 Bristol Steel & IronWorks, Inc. v. OSHRC, 601 F.2d 717, 721 [footnote omitted].It would be improvident to apply res judicata soas to freeze the development of safety law as applied to this employer, especially afterreviewing bodies have questioned the vitality of the legal principle upon which theearlier decisions were based.\u00a0 A change in the \”legal climate\” issufficient reason to render inapplicable the doctrine of collateral estoppel inadministrative proceedings.\u00a0 2 K. Davis, Administrative Law Treatise at 574(1958).Respondent further contends that Subpart Rpreempts the application of general regulations requiring personal protective equipment.\u00a0 Respondent argues as follows:Section 28 of Part 1926 is found in Subpart C of the regulations, \”General Safety andHealth Provisions\”, and Section 105 is found in Subpart E, \”Personal Protectiveand Lifesaving Equipment\”, to which reference is specifically made in Section 28(b).\u00a0These regulations, on their face and read in context with the rest of theregulations in Part 1926, are general regulations which apply to construction conditionsin the absence of specific standards.\u00a0 Where a more specific standard is applicable,it prevails over a general standard which would otherwise be applicable.\u00a0 29 C.F.R.? 1910.5(c)(1).The evidence in this case that the Respondentwas engaged in steel erection on the worksite in question, and that its employees engagedin steel erection worked without continuous protection by personal protective equipment orsafety nets on steel beams at levels above the floors that were temporarily or permanentlydecked over, makes applicable the requirements of Subpart R, \”steel erection.\”\u00a0 Moreover, the condition or hazard involved in this case, working on steel beamconstruction without protection against falls, is specifically covered by a specificregulation, 29 C.F.R. ? 1926.750, which provides in pertinent part:(b) Temporary Flooring – Skeleton SteelConstruction in Tiered Buildings. . .(1)(ii) On buildings or structures not adaptable to temporary floors, and where scaffoldsare not used, safety nets shall be installed and maintained whenever the potential falldistance exceeds 2 stories or 25 feet.\u00a0 The nets shall be hung with sufficientclearance to prevent contacts with the surface of structures below.. . .(2)(i) Where skeleton steel erection is being done, a tightly planked and substantialfloor shall be maintained within 2 stories or 30 feet, whichever is less, below anddirectly under that portion of each tier of beams on which any work is being performed,except when gathering and stacking temporary floor planks on a lower floor, in preparationfor transferring such planks for use on an upper floor.\u00a0 Where such a floor is notpracticable, (b)(1)(ii) of this section applies.The effect of these standards is to require fallprotection by way of temporary floors within 30 feet or 2 stories of all steel erectionwork, except where the structure is not adaptable to temporary floors, in which casesafety nets are required to be hung where the potential fall distance exceeds 25 feet or 2stories.\u00a0 The difference in the figures is attributable to an amendment to bring thetemporary flooring requirement into line with current steel design.\u00a0 See 39 Fed.Reg. 24360 (1974).\u00a0 (Respondent’s Brief, pp. 17- 18)It is noted by complainant, however, thattemporary floors do not provide any fall protection to the outside of the building andwould permit falls as great as 30 feet or two stories to the inside of the building.\u00a0 Such fall protection is inadequate and could not have been intended to beexclusive.\u00a0 Temporary floors simply do not provide effective protection from falls,and the requirement of temporary floors does not preempt the general requirement ofpersonal protective equipment, safety nets or other protection.\u00a0 Bristol Steel& Iron Works v. OSHRC, supra; Guy, Incorporated, 7 BNA OSHC2115, 1979 CCH OSHD ? 23,911 (No. 78-5795, 1979).Respondent next contends that courts of appealhave held that the constraints of due process require that broad regulations such as 29C.F.R. ? 1926.28(a), which prescribe general standards of safe conduct be interpreted andapplied in such a manner as to assure that an employer has adequate warning of the conductprohibited by such regulations.\u00a0 B & B Insulation, Inc. v. OSHRC, Et.Al., 583 F.2d 1364, 1367-1368 (5th Cir. 1978); Power Plant Division, Brown &Root, Inc. v. OSHRC, Et. Al., 590 F.2d 1363,1365 (5th Cir. 1969); BristolSteel & Iron Works v. OSHRC, 601 F.2d 717 (4th Cir. 1979); Cape and VineyardDivision v. OSHRC, 512 F.2d 1148 (1st Cir. 1975).The courts have devised various tests fordetermining the standard for compliance with 29 C.F.R. ? 1926.28(a).\u00a0 The test ofFifth Circuit in B & B Insulation, supra, requires only those protectivemeasures which the knowledge and experience of the employer’s industry would clearly deemappropriate under the circumstances.\u00a0 The Court further states that:Where the Government seeks to encourage a higherstandard of safety performance from the industry than customary industry practicesexhibit, the proper recourse is to the standard-making machinery provided in the Act,selective enforcement of general standards being inappropriate to achieve such a purpose.\u00a0 B & B Insulation, supra, at p. 1371.Other courts have applied a higher standard thanindustry custom and practice.The Review Commission respectfully declined tofollow the holding of\u00a0 B & B Insulation Co., supra, in S & HRiggers and Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ?23,480, on the grounds the Commission was responsible for developing consistentinterpretation of safety law of nationwide application.\u00a0 The Review Commission hasvery recently reaffirmed its intention not to utilize the test of industry custom andpractice announced in B & B Insulation, supra; S & H Riggersand Erectors, Inc. (Nos. 76-1104 and 76-1739, March 31, 1980).\u00a0 The undersignedis compelled to follow the decisions of the Review Commission.Respondent further contends that it wasimpossible or infeasible to use safety belts, safety nets or other protective equipment.Respondent’s evidence consisted primarily of testimony by its superintendent and foremen,who have had many years’ experience in the steel erection business, that use of safetybelts and safety nets, as suggested by the Secretary, are not used in the industry (Tr.60, 62-72, 80, 85, 98-101,103).\u00a0 Mr. Robinson, plumb-up foreman, testified thatsafety nets would interfere with the plumb-up operations, but a larger \”target\”or different means of plumbing the building could be used (Tr. 87, 109).Common practice, however, is not the appropriatetest of what is feasible or possible because the act envisioned that higher levels ofsafety practices may be required than was customary in industry.\u00a0 The Secretaryoffered the expert testimony of Mr. Charles Casey who has been in the \”safetybusiness\” since May 1966 (Tr. 110) primarily in the safety departments ofconstruction companies.\u00a0 He has also worked as a safety inspector.\u00a0 Much of hisexperience has been with power plant and other large construction projects, but he has hadsome experience with the erection of tiered buildings (Tr. 117).Mr. Casey’s testimony is convincing that employees moving along beams can tie off by meansof a long lanyard attached to the safety belt.\u00a0 He described the procedure asfollows:One end of that lanyard is snapped into a D-ringon the person’s safety belt.\u00a0 Then, that lanyard is – is wrapped around the steelmember and brought back up to the other part of the safety belt and snapped in.\u00a0 Bothends of that lanyard snapped into the personal protective equipment, but looped the iron(Tr. 123).The bolt-up and plumb-up men could use suchprotection while moving from work station to work station (Tr. 120-121).Mr. Casey further testified that safety netscould be placed around the perimeter of this and other high-rise structural steelbuildings. His experience in the use of safety nets in high-rise buildings is verylimited, and he acknowledged he had never seen them used in that manner (Tr. 143).\u00a0Mr. Casey further testified that a connector’s toggle is designed to allow aconnector to be secured to the steel that he is standing or working on.\u00a0 He describedits use as follows:This connector’s toggle is designed that thehead of it, the bolt, fits to an existing hole in the steel, existing bolt hole, and it isanother method to reduce exposure of that man falling or that person falling if anythingelse occurs or happens.\u00a0 It, again, does not allow for mobility and it does not allowhim complete protection at all times; but, it was designed to reduce the exposure when theconnector, you know, is at a location or at a work station where – where there issomething that he can hook off to (Tr. 128).Mr. Casey acknowledged that he had never seenthe connector’s toggle in use, and the company he worked for refused to use it.The evidence is convincing that plumb-up andbolt-up men can, during times of movement, utilize lanyards slung around beams (Tr. 20,120-121).\u00a0 It was estimated that the use of safety belts would increase the timespent on steel erection by 10 percent to 20 percent (Tr. 77).\u00a0 The evidence is notentirely reassuring that use of safety nets or connector’s toggles is without problemsduring construction of the type involved in this case.As an affirmative defense, the burden of proof, however, is upon the respondent toestablish that safety nets and other personal protection are impossible or infeasible.\u00a0The evidence produced by respondent demonstrates that nets and toggles are notcommonly used in high-rise construction especially in the South.\u00a0 Respondent’switnesses suggest problems associated with the use of nets while plumbing-up the buildingand with wearing safety lanyards, but the evidence is not convincing that such problemsare of such magnitude as to make the use of personal protective equipment or netsimpossible or infeasible.\u00a0 Respondent has failed to carry its burden of establishingthe affirmative defenses.\u00a0 Bristol Steel & Iron Works, Inc., 79 OSAHRC102\/C14, 1979 CCH OSHD ? 24,080 (No. 78-3126); Guy, Incorporated, supra.It is not disputed that openings were left inthe decking to permit the welding and inspection of beams and columns (Tr. 22). Respondentcontends the openings were \”access openings\” permitted by 29 C.F.R. ?1926.750(b)(1)(i).\u00a0 The section provides as follows:The derrick or erection floor shall be solidly planked or decked over its entire surfaceexcept for access openings.Respondent again contends it was followingindustry practice, that the openings were usually uncovered of about one day only, andthat little hazard was presented to employees.\u00a0 In this instance, however, theyremained open for two or three days (Tr. 21-22).The openings were about 3 feet wide and ran thelength of the building because the design engineer would not permit decking to be cut lessthan 40 feet long (Tr. 36, 69-71).\u00a0 They intersected with every vertical column andwere over and extended 10 to 12 inches on each side of the floor beams (Tr. 21-22, 48;Exh. C-2).\u00a0 It is unlikely workers would fall entirely through the openings, althoughemployees stepping over the openings could trip and fall onto the floor (Tr. 22).\u00a0The safety specialist testified that employees falling into the openings and therebystriking the beams from heights up to 20 feet could suffer serious injuries (Tr. 23), butserious injury could be expected from any fall from the height whether falling ontotemporary floors or beams.It is necessary for access openings to be leftopen for a reasonable period of time to permit welding and inspections.\u00a0 Openingswhich run the entire length of a building and which remain uncovered for several dayscannot be said to be within the exception for \”access openings,\” since theextent and duration of the openings far exceed the legitimate needs to be served by theexception.\u00a0 An accident involving the hazard, however, would likely result in lessthan death or serious injury, thereby establishing an other than serious violation.Finally, complainant alleges respondent violated29 C.F.R. ? 1926.750(b)(1)(iii) which states as follows:Floor periphery–safety railing.\u00a0 A safetyrailing of 1\/2-inch wire rope or equal shall be installed, approximately 42 inches high,around the periphery of all temporary-planked or temporary metal-decked floors of tierbuildings and other multifloored structures during structural steel assembly.A temporary floor was guarded by aperimeter-wire cable which sagged so as to touch the floor (Exh. C-3; Tr. 38, 108).\u00a0The cable had been installed by respondent originally but, as work had progressed,responsibility for the cable had shifted to the general contractor (Tr. 63-64, 86). \u00a0The evidence does not establish that the cable was erected improperly since othercontractors remove cables on occasion to facilitate work or the movement of materials orequipment (Tr. 62, 108).\u00a0 Respondent’s employees were exposed to the hazard whenusing stairway and to reach the water barrel (Tr. 32-34, 38-39, 41 50-52).\u00a0 Theevidence is not convincing, however, that respondent was responsible for or had knowledgeof the sagging safety cable at the time observed by the compliance officer and alleged inthe citation.\u00a0 It is uncertain how long the cable had been in that condition.\u00a0That item is, therefore, vacated.In assessing the penalty, as provided in section17(j) of the Act, consideration must be given to the size of the business, gravity of theviolation, good faith of the employer and history of previous violations.\u00a0 Respondenthad more than 100 employees.\u00a0 Many employees working without safety belts or otherequipment were frequently exposed to the hazard of falling from great heights.\u00a0 Theparties stipulated that final orders of the Review Commission have been entered findingrespondent in nonserious violation of several regulations and in serious violation of 29C.F.R. ? 1926.302(b)(7) on October 5 to 6, 1978 (Tr. 42, Letter of Complainant datedMarch 7, 1980, and Letter of Respondent dated March 21, 1980).\u00a0 Respondent was givencredit for having an average safety program (Tr. 35), although the compliance officeracknowledged that the project was about the safest erection job he had seen (Tr. 38).\u00a0 There were regular safety meetings, and there had been no complaints from the union(Tr. 64, 76).\u00a0 Moreover, as previously discussed, two prior decisions had concludedthat respondent’s failure to require the use of personal protective equipment was not aviolation of the standards.FINDINGS OF FACT1.\u00a0 Respondent erected structural steel for the construction of the Georgia PowerCompany building as a subcontractor.2.\u00a0 Employees of respondent worked on various crews performing work necessary toerecting structural steel including raising, connecting, bolting-up, plumbing-up, deckingand welding.3.\u00a0 Employees often worked at heights above 20 feet without using safety belts andlanyards or safety nets and were thereby exposed to a falling hazard.4.\u00a0 A fall from the heights at which respondent’s employees were working would likelyresult in death or serious bodily injury.5.\u00a0 Respondent’s employees observed the customs and practices of the steel erectionindustry in this area regarding use of safety nets and personal protective equipmentincluding safety belts.6.\u00a0 It was not infeasible for respondent’s employees to use personal protectiveequipment including safety belts and lanyards while moving along perimeter steel. 7.\u00a0 The use of safety nets and connector’s toggles were not infeasible under thecircumstances of this case.8.\u00a0 Respondent’s employees were exposed to a tripping hazard by openings left in thedecking.9.\u00a0 The floor openings were too extensive to be \”access openings\” necessaryfor welding operations.10.\u00a0 In the event of an accident, employees exposed to the hazard of floor openingswould likely suffer injury but probably not death or serious bodily injury. 11.\u00a0 Although respondent originally erected the perimeter safety cable, which wasobserved sagging to the floor, it was not responsible for the cable at the time of theinspection.12.\u00a0 Safety cables were removed from time to time by other contractors on the job.13.\u00a0 Respondent’s employees were exposed to a falling hazard by the sagging safetycable, but responsible supervisors of respondent may not have been aware of such acondition.14.\u00a0 Considering the gravity of the violations and size, history and good faith ofthe respondent, the following penalties are warranted: Item 1 – Withdrawn by Complainant Item 2 – $350.00 Item 3 – $300.00 (By Stipulation) Item 4 – $ 50.00 Item 5 – Vacated Item 6 – $210.00 (By Stipulation) CONCLUSIONS OF LAW1.\u00a0 The Review Commission has jurisdiction of the parties and the subject matter.2.\u00a0 The doctrine of res judicata will not bar proceedings alleging violations of 29C.F.R. ? 1926.28(a) and ? 1926.105(a).3.\u00a0 Respondent violated 29 C.F.R. ? 1926.28(a) and 29 C.F.R. ? 1926.105(a) byexposing employees to the hazard of falling without requiring personal protectiveequipment or providing alternate protection including safety nets and connector’s toggles.4.\u00a0 It was not infeasible to require safety belts and lanyards by bolt-up andplumb-up workers, nor to provide safety nets and connector’s toggles.5.\u00a0 Respondent failed to comply with 29 C.F.R. ? 1926.750(b)(1)(i) under conditionsconstituting a nonserious violation6.\u00a0 Respondent did not violate 29 C.F.R. ? 1926.750(b)(1)(iii).7.\u00a0 Total civil penalties of $910.00 are appropriate.It is ORDERED:1.\u00a0 Items 2, 3 and 6 of the citation are affirmed.2.\u00a0 Item 4 is modified to nonserious and is affirmed 3.\u00a0 Items 1 and 5 are vacated.4.\u00a0 Civil penalties of $910.00 are assessed. Dated this 27th day of May, 1980.JOE D. SPARKS JudgeFOOTNOTES: [[1]] Part 1926 is entitled \”Safety andHealth Regulations for Construction.\”\u00a0 Subpart R, entitled \”SteelErection,\” is located at 29 C.F.R. ?? 1926.750-752. [[2]] Section 1926.105(a) is published in Part 1926, Subpart E–Personal Protective andLife Saving Equipment.\u00a0 It provides: ? 1926.105 Safety nets.(a) Safety nets shall be provided when workplaces are more than 25 feet abovethe ground or water surface, or other surfaces where the use of ladders, scaffolds, catchplatforms, temporary floors, safety lines, or safety belts is impractical.[[3]] Section 1926.28(a) is published in Part1926, Subpart C–General Safety and Health Provisions.\u00a0 It provides:? 1926.28 Personal protective equipment.(a) The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardous conditionsand where this part indicates the need for using such equipment to reduce the hazards tothe employees.See The L.E. Myers Co., High Voltage SystemsDiv., 86 OSAHRC 12 BNA OSHC 1609, 1986 CCH OSHD ? 27,476 (No. 82-1137, 1986), appealfiled, No. 86-3215 (6th Cir. March 14, 1986).[[4]] The parties apparently agree that the workof the bolt-up and plumb-up crews permitted the crew members to tie off in stationary workpositions approximately half the time they were present on the perimeter beams.\u00a0 Theother half of the time, it was necessary for the crew members to be in motion, travelingback and forth along the beams.[[5]] Specifically, he contends, the employeesshould have used the \”long-lanyard method\” of protection when they were movingalong the perimeter beams.\u00a0 Under this method, the employee walks along the bottomflanges of the beam while straddling the beam.\u00a0 He wears a safety belt with anextra-long lanyard that circles beneath the beam, with the two ends of the lanyardattached to opposite sides of his safety belt.[[6]] Williams cites to the followingregulation: ? 1910.5 Applicability of standards.(c)(1) If a particular standard is specifically applicable to a condition, practice,means, method, operation, or process, it shall prevail over any different general standardwhich might otherwise be applicable to the same condition, practice, means, method,operation, or process. . . . [Example omitted].[[7]] The Secretary relies on the followingregulation: ? 1910.5 Applicability of standards.[(c)](2) On the other hand, any standard shall apply according to its terms to anyemployment and place of employment in any industry, even though particular standards arealso prescribed for the industry, . . . , to the extent that none of such particularstandards applies. . . . [Examples omitted].[[8]] Both Williams’ principal place of businessand the construction worksite where the inspection occurred were located in the state ofGeorgia.\u00a0 Accordingly, Williams asserts before us that it \”both resides andperformed the work involved in this case in the jurisdiction of the new EleventhCircuit.\”[[9]] The D.C. Circuit earlier reached similarholdings in Donovan v. Williams Enterprises, 744 F.2d 170 (D.C. Cir. 1984); L.R.Willson & Sons, Inc. v. OSHRC, 698 F.2d 507 (D.C. Cir. 1983); and L.R.Willson & Sons, Inc. v. Donovan, 685 F.2d 664 (D.C Cir. 1982).[[10]] In fact, it is our view that the\”remedial purposes of the Act\” are not served by interpretations which seek tobolster a vague standard; but rather that those purposes are best served by requiring theSecretary to clarify those standards which are ambiguous or inconsistent or fail to giveadequate notice to employers of required conduct.\u00a0 The relationship of Subpart R tothe general standards, and particularly to ? 1926.105(a) with its history of litigation,and which was described by one circuit court as \”teetering on the precipice ofvagueness,\” is a prime example of regulatory failure which has dogged the Secretarysince the inception of the Occupational Safety and Health Act.\u00a0 See DiamondRoofing Co. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976) (\”The purpose of OSHA isto obtain safe and healthful working conditions through promulgation of occupationalsafety and health standards which tell employers what they must do to avoid hazardousconditions.\u00a0 To strain the plain and natural meaning of words for the purpose ofalleviating a perceived safety hazard is to delay the day when the occupational safety andhealth regulations will be written in clear and concise language so that employers will beable to understand and observe them.\”)[[11]] Virtually all of the standards issued under the Construction Safety Act wereadopted without significant change under the Occupational Safety and Health Act.\u00a0(The only substantial change was in the coverage of the standards, a change thatreflected the differences in the respective coverage of the two statutes).\u00a0 Therepromulgation under OSHA occurred very shortly after the initial promulgation under theConstruction Safety Act.[[12]] In 1974, ? 1926.750(b)(2) was amended toread as it does now.\u00a0 39 Fed. Reg. 24360-361 (July 2, 1974).\u00a0 The currentversion permits a 30-foot fall distance when temporary floors are used during steelerection, as opposed to the 25-foot limit during general construction.\u00a0 However, thecreation of this height differential in 1974 has no bearing in determining the intent ofthe drafters with respect to the original Subpart R.[[13]] The fact that ? 1926.105(a) allows theuse of other alternatives instead of temporary floors or safety nets is, as a practicalmatter, irrelevant in the context of steel erection work.\u00a0 As will be seen later inthis decision, temporary floors and interior safety nets are widely regarded as the onlypractical alternatives during steel erection, and particularly during the early phases ofsteel erection that are at issue in this case.\u00a0 (Safety belts are generally viewed asa supplemental form of protection and not as a substitute for the two basic safeguards.)[[14]] These witnesses gave consistent testimonyconcerning the customs and practices of the industry, which were essentially the samepractices followed by Williams at the time of the inspection.\u00a0 According to thesewitnesses, the standard practice was to protect connectors, plumb-up men and bolt-up menby instructing them to work no more than two stories or 30 feet above the highestcompleted deck floor.\u00a0 Bolt-up and plumb-up men received supplemental protection attimes from tied-off safety belts. However, they did not use safety belts while movingalong structural steel, and connectors never used safety belts.[[15]] In particular, that litigation history confirms the point made on this recordconcerning the nonuse of perimeter safety nets on high-rise buildings within the steelerection industry.\u00a0 See, e.g., Brock v. L.R. Willson & Sons, Inc.,773 F.2d 1377, 1386-1388 (D.C. Cir. 1985); Donovan v. Daniel Marr & Son Co.,763 F.2d 477, 480, 484 (1st Cir. 1985).[[16]] At the hearing, the compliance officeradvocated a method of fall protection involving safety belts, lanyards, and a lifelinestrung between columns.\u00a0 Williams’ more experienced witnesses responded that alifeline strung between columns would be hazardous to the employees at issue because itwould interfere with their ability to walk along the perimeter beams safely.\u00a0 Forthis reason, the witnesses continued, the industry practice is to wait until a temporaryfloor has been installed before putting up the wire-rope railing required under ?1926.750(b)(1)(iii).\u00a0 Thus, customarily, not even wire-rope railings are installeduntil sometime after the bolt-up and plumb-up crews complete their work on the perimeterbeams.[[17]] The Secretary’s expert witness, safety consultant Casey, nevertheless testifiedthat another type of personal protective equipment known as a \”connector’stoggle\” could have been used to provide some additional protection while theconnectors were not actually working with or near moving steel.\u00a0 Casey conceded thatthe device is of very limited utility because it does not permit any mobility.\u00a0 Hewas unable to even estimate the percentage of time toggles could have been used, and heacknowledged that he had never seen them in use.\u00a0 In fact, he admitted, on the oneoccasion when he had recommended the use of connector’s toggles on a particular project,his own employer had rejected his recommendation.\u00a0 The other witnesses who were askedabout connector’s toggles indicated that they were totally unfamiliar with the device.\u00a0 In light of this record, the judge quite understandably stated that \”[t]heevidence is not entirely reassuring that use of . . . connector’s toggles is withoutproblems.\”[[18]] Consistent with Subpart R’s preferencefor temporary floors over safety nets, see ?? 1926.750 (b)(1)(ii) & (b)(2)(i), theindustry apparently regards interior safety nets as a feasible means of fall protectiononly in situations where temporary floors cannot be used.\u00a0 Moreover, the industrydisputes the Secretary’s contention that perimeter safety nets are feasible in high-risemulti-floored construction.\u00a0 Both of these points are well illustrated by the recordin this case.\u00a0 With respect to the feasibility of perimeter safety nets, we note thefollowing.\u00a0 General foreman Aenchbacher, who had 32 years of experience in the steelerection industry, raised several objections to the use of perimeter safety nets.\u00a0 Heargued that connectors cannot be protected by nets because there is nothing at that stageof the erection process to which the nets can be attached.\u00a0 He also expressed hisopinion that it would not be practical to protect the bolt-up and plumb-up crews withperimeter safety nets because other employees would be exposed to a falling hazard whilehanging the nets, the nets could be burned during the welding phase of the steel erection,and the nets would interfere with the plumbing-up operations.\u00a0 Plumb-up crew foremanRobinson, who had 35 years of experience in the industry, also believed that perimetersafety nets would be infeasible because they would interfere with the plumbing-upoperations.[[19]] Section 1926.752(j), a Subpart R standard, provides:All unused openings in floors, temporary or permanent, shall be completely planked over orguarded in accordance with Subpart M of this part.[[20]] We note that this regulation does not by itself have any substantive significance.\u00a0It was adopted under the Occupational Safety and Health Act after the constructionsafety standards were promulgated under the Construction Safety Act.\u00a0 36 Fed. Reg.10466 (May 29, 1971).\u00a0 It could not change the construction standards in anysubstantive manner, for it was promulgated without notice-and-comment rulemakingproceedings.\u00a0 36 Fed.Reg. 10466 (1971).\u00a0 See Usery v. Kennecott Copper Corp.,577 F.2d 1113 (10th Cir. 1977); Senco Products, 82 OSAHRC 59\/E9, 10 BNA OSHC 2091,1982 CCH OSHD ? 26,304 (No. 79-3291,1982).[[21]] The 1982 Willson court went even further.\u00a0 \”The question is notwhether Subpart R provides any exterior fall protection standards, but rather whether itprovides standards to guard against the particular exterior fall hazard for which Willsonwas cited.\” 685 F.2d at 672.\u00a0 As we said in Adams Steel Erection, 11 BNAOSHC at 2077, \”An employer would not be able to determine what standards applied tohis workplace under this test because his obligations would shift depending on the natureof the particular circumstances resulting in a citation.\” [[22]] This same principle applies to other standards, such as the noise standard at 29C.F.R. ? 1910.95(c)-(p).\u00a0 In establishing an 8 hour time weighted average to soundlevels of 85 dBA the Secretary did not conclude that all exposures below 85 dBA were safe;indeed he estimated that there would be a substantial number of cases of hearingimpairment at exposure levels between 80 and 85 dBA.\u00a0 46 Fed. Reg. 4078, 4105 (Jan.16, 1981).\u00a0 Nevertheless, the Secretary decided to leave the protection of theseparticularly susceptible workers to voluntary employer action rather than mandating alimit below 85 dBA.\u00a0 Id. at 4095-96.[[23]] The rationale for this result would be as follows.\u00a0 Section 1926.750(b)(2)(i)only eliminates the hazard of falling more than 30 feet.\u00a0 Even if the employercomplies with this requirement, employees are still exposed to the hazard of falling morethan 25 feet. Therefore, ? 1926.105(a) can be applied to this hazard since no standard inSubpart R applies.\u00a0 See, e.g., Williams Enterprises, Inc., 83 OSAHRC 26\/A2, 11BNA OSHC 1410, 1423, 1983-84 CCH OSHD ? 26,542, p. 33,883 (No. 79-843, 1983) (Cottine,Commissioner, dissenting in part), aff’d in pertinent part, 744 F.2d 170 (D.C. Cir.1984).\u00a0 See also OSHA Instruction STD 3-3.1 (July 18, 1983) reprinted in EmploymentSafety and Health Guide (CCH) ? 12,855 at 17,166.[[24]] With respect to the feasibility ofcovering the openings, the witness gave contradictory testimony.\u00a0 When asked why itwas necessary to leave openings that extended the entire distance between columns, heresponded that the sheets of decking were 40 feet long, that they could not have been cut,and that they would have been hazardous if used to partially cover the openings. \u00a0However, he then gave his testimony about the customary practice of placing temporarycovers over the openings between the welding of the connections and the inspection of thewelds and also between the bolting-up work and the inspection of that work.\u00a0Furthermore, on cross-examination, he indicated that, at some time prior to theinspection, the sixth floor in fact had been solidly decked.\u00a0 Thus, the openings atissue apparently were created by removing decking that previously had been installed.\u00a0This decking was removed to allow for the welding.[[25]] The ANSI standard sets forth in four separate subsections (6.1, 6.6, 6.7 and 6.10)the substance and frequently the exact wording of the OSHA standard.\u00a0 We recognizethat the Secretary of Labor promulgated his standard before ANSI formally adopted itsstandard.\u00a0 Nevertheless, the ANSI procedure for developing an industry consensusstandard is a lengthy one.\u00a0 It is therefore likely that ANSI drafted and circulatedits standard before the Secretary drafted his and that the authors of Subpart R were awareof the ANSI proposal.\u00a0 We note in this regard that the Department of Labor wasrepresented on American National Standards Committee A10, Safety in the ConstructionIndustry.[[26]] This conclusion is fully corroborated by the record in this case.\u00a0 Asindicated, Williams introduced evidence to the effect that its own usual practice and thepractice of its industry was to leave the column line openings temporarily covered whenthey were not being used.\u00a0 Planking would then be removed when necessary to permitbolting, welding or inspecting of connections.\u00a0 Industry custom and practiceaccordingly conformed exactly to the procedures prescribed in sections 6.11 and 6.12,suggesting that the industry considered these provisions to be controlling.[[27]] We decline to amend the citation toallege a violation of section 1926.752(j), since the parties did not expressly orimpliedly consent to try a violation of this standard.\u00a0 McWilliams Forge Co.,84 OSAHRC 11 BNA OSHC 2128, 1984 CCH OSHD ? 26,979 (No. 80-5868, 1984).[[28]] We conclude that the allegation of thecitation is broad enough to include both of the dates (the first and second days of theinspection) and both of the locations (the first-floor landing and the adjacentfirst-floor decking) discussed above.\u00a0 In particular, we note that Williams did notobject to the compliance officer’s testimony concerning the conditions on the second dayof the inspection.\u00a0 It has not asserted that this evidence went beyond the scope ofthe pleadings.\u00a0 Nor has Williams responded to the Secretary’s claim that the citationitem can be sustained on the basis of this evidence.\u00a0 Yet, Williams has been aware ofthe Secretary’s position at least since the filing of the Secretary’s post-hearing brief.[[1]] 29 C.F.R. ? 1926.105(a) provides:? 1926.105 Safety Nets(a) Safety nets shall be provided when workplaces are more than 25 feet above the groundor water surface, or other surfaces where the use of ladders, scaffolds, catch platforms,temporary floors, safety lines, or safety belts is impractical.[[2]] 29 C.F.R. ? 1926.750(b)(2)(i) deals with falls from structural beams to theinterior of the building; ? 1926.750(b)(1)(iii) with falls from temporary flooring; ??1926.750(b)(1)(i), and 752(f), (h), (i), and (j) with falls through floor openings.[[3]] Id.[[4]] The industry \”protection\” provides for a floor 30 feet or two storiesbelow employees working on beams.\u00a0 One would presume it would not require an inspiredengineering feat to improve on this.[[5]] See Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 962 (3d Cir. 1976)(the \”statutory framework furthers two laudable goals of administrative law:\u00a0 itencourages the Commission to achieve uniformly applied occupational safety and health standardsin furtherance of the Act’s overall objectives, while guaranteeing as far as practicablethat the administrative process will be efficient rather than protracted.\”\u00a0(emphasis added); cf., Brennan v. Gilles & Cotting, Inc., 504 F.2d1255 (4th Cir. 1974).”