” SECRETARY OF LABOR,Complainant,v.WILLIAMS ENTERPRISES OFGEORGIA,Respondent.Docket No. 79-4618_ORDER_BY THE COMMISSION:This case is here at the direction of the United States Court of Appealsfor the Eleventh Circuit. _Brock v. Williams Enterprises of_ _Georgia_,832 F.2d 567, 574 (11th Cir. 1987), _rev’g Williams Enterprises ofGeorgia_, 12 BNA OSHC 2097, 1986-87 CCH OSHD ? 27,692 (No. 79-4618,1986). In accordance with the Eleventh Circuit’s decision, we reinstatethe Secretary of Labor’s citation 1, item 2, insofar as it alleges thatWilliams Enterprises of Georgia violated 29 C.F.R. ? 1926.105(a). Wealso reinstate the penalty of $350 assessed by the administrative law judge.FOR THE COMMISSIONRay H. Darling Jr.Executive SecretaryJanuary 3, 1989__————————————————————————SECRETARY OF LABOR,Complainant,v.WILLIAMS ENTERPRISES OF GEORGIA, INC.,Respondent.OSHRC Docket No. 79-4618_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).At issue on review are three items of a citation alleging seriousviolations of the Act. Administrative Law Judge Joe D. Sparks affirmeditem 2 as a serious violation, affirmed item 4 as a nonseriousviolation, and vacated item 5. For the reasons stated in this decision,we reverse the judge’s decision. We affirm item 5 as a seriousviolation of the Act, but vacate items 2 and 4.The primary issue in this case relates to item 2 of the citation. Thatissue, which is once again before us, is whether fall protection foremployees engaged in steel erection work is governed solely by the steelerection standards located at Subpart R of Part 1926, Code of FederalRegulations, or whether standards located in other subparts of Part 1926may properly be applied to require additional fall protection beyondthat required under Subpart R[[1]] For the reasons set forth below, weconclude that Subpart R is exclusive and that fall protection standardslocated in other subparts of Part 1926 are not applicable to steelerection. We therefore reaffirm Commission precedent holding that 29C.F.R. ? 1926.105(a)[[2]] may not be applied in the steel erectionindustry to require fall protection methods different than thosespecified in Subpart R. _E.g., Adams Steel Erection, 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 inspectionin July 1979 of a multi-employer construction worksite in Atlanta,Georgia. Williams Enterprises of Georgia, Inc., was the steel erectionsubcontractor on the project, which was the construction of a \”tiered\”or \”multi-floored\” high-rise office building. Item 2 of the citationalleges that Williams violated 29 C.F.R. ?? 1926.105(a) and1926.28(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 the three jobclassifications of connectors, bolt-up men and plumb-up men. These arethe employees who carry out the first three stages of the steel erectionprocess. The connectors are part of the erection crew, which isresponsible for the \”setting of the iron,\” that is, the placement andthe initial attachment of the structural steel members to form theframework of the building. Working from columns or from diagonalmembers, the connectors guide the hoisted beams into place andtemporarily connect them to the vertical and diagonal members. Thebolt-up crew then goes up onto the newly-created framework to make moresecure connections of the steel members by inserting and tighteningbolts. 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 compliance officer observed employees inall three of these job classifications working at the perimeter of thebuilding. At various times throughout the four-day inspection period,members of the bolt-up and plumb-up crews worked on perimeter beams atthe fifth, sixth and seventh levels of the building, while connectorsworked between these three levels on vertical and diagonal steel. It isundisputed that any of these employees could have fallen from theperimeter of the building to the ground.There is also no disagreement between the parties over what fallprotection measures Williams took to safeguard the three work crews atissue and what measures it did not take. The Secretary concedes thatWilliams provided temporary floors within two stories of the structuralsteel on which its employees were working, i.e., initially a floor atthe fourth level of the building and, later in the inspection, a floorat the sixth level. Neither does he dispute the testimony thatWilliams’ employees strictly complied with its work rule requiring themto work no more than two stories or 30 feet above the highest \”completeddeck\” (fully-planked temporary floor). In addition, the Secretaryacknowledges that Williams provided safety belts and lanyards for itsbolt-up and plumb-up crews and required these employees to tie off theirlanyards whenever they worked in stationary positions on the perimeterbeams.[[4]]On the other hand, Williams concedes that it did not require the membersof these two work crews to use personal protective equipment while theywere traveling along the beams, and that it did not require theconnectors to use personal protective equipment at any time. It is alsoundisputed that Williams did not install \”perimeter safety nets,\” i.e.,safety nets attached to and extending out from the perimeters of thetemporary floors.Based on the compliance officer’s observations of the work at theperimeter of the building, the Secretary cited Williams for an allegedserious violation of sections 1926.105(a) and 1926.28(a) in that membersof the erection, bolt-up and plumb-up crews were not protected againstfalls \”to the outside of the perimeter of the building . . . by the useof lifelines, lanyards and safety belts or other means.\” At thehearing, the Secretary (through the testimony of his witnesses)described with greater particularity the additional precautionarymeasures that Williams allegedly should have implemented. First, theSecretary claims that members of the bolt-up and plumb-up crews couldand should have used safety belts and lanyards during the entire timethey worked on perimeter beams, rather than just using this equipmentwhile working in stationary positions.[[5]] Second, he asserts that theconnectors should have used another type of personal protectiveequipment known as a \”connector’s toggle\” to secure themselves to thecolumns they worked from \”when they [were] not actually receiving andconnecting steel.\” Finally, the Secretary contends that Williams shouldhave provided perimeter safety nets, because in his view no other formof fall protection could have eliminated the exterior fall hazard towhich the connectors were exposed.Williams defends against the charge in item 2 on the grounds that it hadcomplied fully with the applicable fall protection standards in SubpartR and that the standards cited by the Secretary were not applicablebecause its employees were engaged in steel erection work. Thus, itargues that the duties of steel erectors with respect to fall protectionfor employees working on structural steel are governed exclusively bythe following provisions of 29 C.F.R. ? 1926.750(b). It asserts thatthe requirement that was \”specifically applicable\” to its worksite, seenote 6 _infra_, was section 1926.750(b)(2)(i), which provides:(b) _Temporary flooring–skeleton steel construction in tiered buildings_.(2)(i) Where skeleton steel erection is being done, a tightly plankedand substantial floor shall be maintained within two stories or 30 feet,whichever is less, below and directly under that portion of each tier ofbeams on which any work is being performed, except when gathering andstacking temporary floor planks on a lower floor, in preparation fortransferring such planks for use on an upper floor. Where such a flooris not practicable, paragraph (b)(1)(ii) of this section applies.Williams also cites us to the referenced paragraph, ?1926.750(b)(1)(ii), which provides:(ii) On buildings or structures not adaptable to temporary floors, andwhere scaffolds are not used, safety nets shall be installed andmaintained whenever the potential fall distance exceeds two stories or25 feet. The nets shall be hung with sufficient clearance to preventcontacts with the surface of structures below.Williams claims that it complied with its duty under section1926.750(b)(2)(i) by providing temporary floors and instructing itsemployees to work no more than two stories or 30 feet above the highestfloor. It adds that, under the terms of section 1926.750(b)(1)(ii), ittherefore was not required to install safety nets in addition totemporary floors. Finally, it argues that it was not required to complywith sections 1926.28(a) and 1926.105(a) because those standards arepreempted, under the Secretary’s regulations, by the more \”specificallyapplicable\” standards of Subpart R.[[6]]The Secretary concedes that Williams fully complied with its duty undersection 1926.750(b)(2)(i). He also concedes that Williams’ practiceswith regard to the use of personal protective equipment were consistentwith the custom and practice of the steel erection industry. For thisreason, the Secretary has abandoned his charge under section 1926.28(a). Nevertheless, the Secretary has not abandoned his claim that Williamsshould have required its employees to make greater use of personalprotective equipment. He now \”maintains that safety belts were and arerequired under 1926.105(a)\” and that Williams violated this standardboth by failing to install perimeter safety nets and by failing torequire greater use of personal protective equipment. In theSecretary’s view, section 1926.105(a) can be applied to steel erectionwork because it is not preempted under his regulations.[[7]]Judge Sparks affirmed both of the allegations of item 2, i.e., thealleged violations of sections 1926.28(a) and 1926.105(a). Accordingly,both of the allegations are before us on review. We dispose of thesection 1926.28(a) charge summarily. It is well established, underprecedent 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 in that Circuit, he must prove that an employer’s conductwith respect to the use of personal protective equipment did not conformto the custom and practice of its industry. _E.g., S & H Riggers &Erectors, Inc. v._ _OSHRC_, 659 F.2d 1273 (5th Cir. 1981); _B & BInsulation, Inc. v. OSHRC_, 583 F.2d 1364 (5th Cir. 1978). As argued byWilliams, this precedent is also considered binding in cases arising inthe Eleventh Circuit. _See Bonner v. City of Prichard_, 661 F.2d 1206(11th Cir. 1981) (holding that decisions of the Fifth Circuit of Appealsissued prior to October 1, 1981, are binding as precedent in theEleventh Circuit).[[8]] The Secretary implicitly acknowledges that theFifth Circuit precedent discussed above is binding in this case and thathe has failed to meet his burden of proof under that precedent. Inparticular, we note that the Secretary has not taken exception to thejudge’s finding that Williams’ practices with regard to the use ofpersonal protective equipment were consistent with the custom andpractice of the steel erection industry. On the contrary, the Secretaryin effect abandons the section 1926.28(a) charge in his arguments beforeus. Under these circumstances, we vacate the allegation that Williamsviolated 29 C.F.R. ? 1926.28(a).As noted at the beginning of this decision, the Commission haspreviously held that the steel erection standards in Subpart R preemptthe application of section 1926.105(a) to falling hazards duringstructural steel assembly. _E.g., Adams Steel Erection, Inc_. However,several courts have reached conclusions contrary to the Commission’s onthis point and have held that general fall protection standards can beapplied to steel erection in addition to the standards in Subpart R. The first such case was _Bristol Steel_ _& Iron Works v. OSHRC_, 601F.2d 717 (4th Cir. 1979). There, the court reasoned that Subpart Rstandards could not be exclusive because those standards, \”whileproviding safety protection to employees engaged in steel erection,cannot achieve the goal of adequately protecting those employees inevery conceivable situation.\” _Id_. at 721. Similar reasoning ledother courts to conclude that \”the remedial purposes of the Act\” justifythe application of standards governing fall protection during generalconstruction work to steel erection work presenting the risk of falls asto which, in their view, the steel erection standard did not require alevel of protection comparable to that mandated by the generalconstruction standards. _Brock v. L.R. Willson & Sons_, _Inc_., 773F.2d 1377 (D.C. Cir. 1985;[[9]] _Donovan v. Adams Steel Erection_, 766F.2d 804 (3d Cir. 1985); _Donovan v. Daniel_ _Marr & Son Co_., 763 F.2d477 (1st Cir. 1985). Those courts reversed the Commission in Adams andrelated cases on the grounds that 1) ? 1926.750(b) does not provideprotection against exterior falls and to that extent does not preempt ?1926.105(a); 2) the Commission’s decisions contained inadequate evidencethat the Secretary made a reasoned and deliberate decision to preemptthe general construction standards on fall protection; and 3) theCommission reversed its precedent, _Williams Enterprises, Inc._, 83OSAHRC 26\/42, 11 BNA OSHC 1410, 1983-84 CCH OSHD ? 26, 542 (No. 79-843,1983), _aff’d in part_, _rev’d in part_, 744 F.2d 170 (D.C. Cir. 1984),without announcing a principled and rational reason for doing so. Wehave reexamined the Commission’s holding in Adams in light of thesecourt decisions. While we recognize that the Subpart R standards mightnot protect steel erection workers \”in every conceivable situation,\” wedo not believe that we have the authority to resolve the issue on thatbasis. Rather, as set forth in F below, we conclude that the specificstandards in Subpart R supercede any provisions of a more generalstandard. We have engaged in a more detailed examination of therulemaking in Subpart R than appears in our Adams decision. Thatexamination shows that Subpart R represents a clear effort to establishexclusive requirements for fall protection during steel erection work. We conclude that the Secretary so intended because Subpart R’sprovisions are consistently narrower than those in the general fallprotection standards. If the general fall protection standards weresuperimposed on the specific requirements of Subpart R, the rulemakingdecision to require less protection in steel erection than in generalconstruction work would be nullified. We reaffirm the Commission’sdecision in Adams and set forth below in greater detail the reasons foroverruling _Williams_.B.Under the Act, the authority to promulgate occupational safety andhealth standards is granted to the Secretary of Labor. It is axiomaticthat such standards must provide fair notice to affected parties oftheir requirements. Moreover, where, as here, there is disagreement asto the scope and application of a specific OSHA standard, the Commissionmust carefully examine the public record to determine whether itevidences an intent to replace or to merely supplement generalstandards. That intent cannot be determined simply by reciting theAct’s remedial purpose. _See_ _Marshall_ v. _Anaconda Co_., 596 F.2d370, 376-77 & n. 6 (9th Cir. 1979). \”The remedial purpose of the Actdoes not give the Commission license to ignore the standard’s plainmeaning.\” _Lisbon_ _Contractors, Inc_., 84 OSAHRC , 11 BNA OSHC 1971,1973, 1984 CCH OSHD ? 26,924, p. 34,500 (No. 80-97, 1984). _See_ _BungeCorp._, 86 OSAHRC , 12 BNA OSHC 1785, 1791, 1986 CCH OSHD ? 27,565, p.35,806 (Nos. 77-1622, 78-838 & 78-2213, 1986) (\”Adoption of a strainedinterpretation . . . [of a standard] would not serve the purposes of theAct because the standard would not be effective in guiding the conductof employers.\”) [[10]] Nor is it appropriate to rely on section 6(a) ofthe Act as did the Third Circuit in _Adams Steel_ for the propositionthat the Secretary is under a duty to promulgate \”the standard whichassures the greatest protection of the safety and health of the affectedemployees.\” 766 F.2d at 810. That merely prescribes a rule for theSecretary in selecting among national consensus and established federalstandards \”in the event of conflict among any such standards.\” Thatrule is inapposite here. Both Subpart R and ? 1926.105(a) were adoptedas part of one package of established federal standards – theConstruction Safety Act standards. Therefore, we are not asked todetermine whether the Secretary properly chose to adopt Subpart Rinstead of some other standard. Moreover, it cannot be assumed that theSecretary’s intent in promulgating a particular standard is to create a\”risk-free\” working environment, as opposed to providing some lesserdegree of protection. _See_, _e.g., Donovan_ v. _General Motors Corp_.,764 F.2d 32, 35-36 (1st Cir. 1985); _Lisbon Contractors, Inc._, 11 BNAOSHC at 1973, 1984 CCH OSHD at p. 34,500 (\”The Secretary’s standards . .. strike a balance between the protection of employees and theimposition of burdens on employers\”).In determining whether Subpart R sets forth exclusive requirements forfall protection in steel erection, we must look beyond the view as towhether Subpart R is sufficiently protective and focus first on whetherthe Secretary intended it to be exclusive, and also on whether anyemployer subject to sanctions under the standards would have had fairnotice that he was subject to both Subpart R and such generalconstruction safety standards as ? 1926.105(a) and ? 1926.28(a). Thelegislative history of Subpart R offers no explicit statement of theSecretary’s intent at the time of promulgation of the subpart withrespect to its intended interrelationship with the general constructionindustry standards. We must therefore ascertain the applicability ofthe general construction standards by reference to general rules ofstatutory construction (reflected in OSHA regulation 1910.5(c)) and bycarefully examining Subpart R’s provisions concerning fall protection. In considering this question we are mindful of the principles set downby the U.S. Court of Appeals for the Fifth Circuit for construing OSHAstandards:The respondents contend that the regulations should be liberallyconstrued to give broad coverage because of the intent of Congress toprovide safe and healthful working conditions for employees. Anemployer, however, is entitled to fair notice in dealing with hisgovernment. Like other statutes and regulations which allow monetarypenalties against those who violate them, an occupational safety andhealth standard must give an employer fair warning of the conduct itprohibits or requires, and it must provide a reasonably clear standardof culpability to circumscribe the discretion of the enforcing authorityand its agents …. If a violation of a regulation subjects privateparties to criminal or civil sanctions, a regulation cannot be construedto mean what an agency intended but did not adequately express._Diamond Roofing Co. v. OSHRC_, 528 F.2d 645, 649 (5th Cir. 1976).Only in recent years, and only in his communications with his complianceofficers has the Secretary asserted an intent to supplement Subpart Rwith ? 1926.105(a). See OSHA Instruction STD 3-3.1 (July 18, 1983)reprinted in _Employment Safety and Health_ _Guide_ (CCH) ? 12,855 at17,166. But this interpretation has not been published in the FederalRegister in a manner calculated to inform affected employers and bindthe Secretary. At the time this citation was issued, neither theCommission nor any court had held ? 1926.105(a) applicable to employersin steel erection. Thus, even if we assumed _arguendo_ that theSecretary originally intended that Subpart R would not be exclusive, wedo not believe that an employer in steel erection would have had anyreason to believe, from the public record, that he was also subject tothe general construction standards. Therefore, under the teaching in_Diamond Roofing_, it would be unfair to \”construe\” the generalconstruction standards to apply to steel erection.Perhaps more importantly, our thorough analysis of the history ofSubpart R compels us to conclude that the Secretary originally intendedthat Subpart R would exclusively govern protection from falls in thesteel erection industry.We recognize that the Commission once held that the steel erectionsubpart cannot be considered exclusive where \”general standards providemeaningful protection to employees beyond the protection accorded by thesteel erection standards.\” _Williams_ _Enterprises, Inc_., 11 BNA OSHCat 1416, 1983-84 CCH OSHD at p. 33,877. That decision relied on the1983 _Willson_ decision of the D.C. Circuit and contains no independentreasoned analysis for its conclusion. For the reasons set forth below,we believe that the Commission erred in the 1983 _Williams_ case; ourreview of this issue leads us to the inescapable conclusion that SubpartR evidences an intent to establish an exclusive and comprehensive schemeof protection from falls in the steel erection industry.C.Subpart R was promulgated as a part of a larger package of standardsthat comprise Part 1926. Part 1926, including Subpart R, was initiallyadopted by the Secretary as a set of standards under the ConstructionSafety Act, 29 U.S.C. ? 333 (1969). Shortly after their initialpromulgation 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]] _Seegenerally, National Industrial_ _Constructors, Inc. v. OSHRC_, 583 F.2d1048, 1050-51 (8th Cir. 1978).We begin our analysis with a review of Subpart R in the context of Part1926 as a whole. This leads us to two conclusions. First, Subpart Rcontains a set of specifically applicable fall protection standards thatappears to be comprehensive in its scope. Second, Subpart R containssome provisions that make sense only if the drafters of Subpart Rintended it to be exclusive (or at least worked under the assumptionthat it would be exclusive).In concluding that Subpart R establishes a comprehensive regulatoryscheme with respect to falling hazards during steel erection, we havelooked at both the types of falls that are regulated and the types offall protection measures that are required. From either viewpoint,Subpart R appears to be comprehensive. Thus, Subpart R deals with allof the major categories of falls that occur during steel erectionwork–from structure steel (? .750(b)(2)(i)), from the perimeter of thebuilding (? .750(b)(1)(iii)), and through floor openings (??.750(b)(1)(i) & .752(f), (h), & (j)). In addition, it refers to all ofthe principal fall protection devices, as well as to personal protectiveequipment, defining circumstances under which each is to be used–safetybelts (?? .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 safety railings (? .750(b)(1)(iii)).We have also compared the fall protection standards in Subpart R withthe protection standards found elsewhere in Part 1926, standards thatare applicable to general construction work, including the constructionof high-rise buildings once steel erection phase has been completed. That review reveals that there are at least three instances wherespecific steel erection standards were drafted that were essentially nodifferent than general construction standards covering the samesituation. The existence of these provisions strongly suggests that thedrafters of Subpart R did not intend or anticipate that the general fallprotection standards in other subparts of Part 1926 would be used tosupplement the Subpart R standards.In particular, we note the existence of two steel erection standardsthat essentially duplicate general construction fall protectionstandards. Thus, Subpart R standard 1926.752(k) states, as follows:Employees shall be provided with safety belts in accordance with ?1926.104 when they are working on float scaffolds.The general construction standard governing work on float scaffoldscontains this same requirement in section 1926.451(w)(6):Each employee [working on a float scaffold] shall be protected by anapproved safety lifebelt and lifeline, in accordance with ? 1926.104.Similarly, the Subpart R standard at section 1926.750 (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 clearance to prevent contactswith the surface of structures below.The standard governing safety nets during construction work generallyalso contains this same requirement in section 1926.105(c)(1):Nets shall be hung with sufficient clearance to prevent user’s contactwith the surfaces or structures below.Clearly, the drafters of these two Subpart R provisions must havebelieved it was necessary to duplicate these provisions in Subpart Rbecause the general construction standards would not be applicable tosteel erection work. If the general standards were to be applied, therewould have been no reason to repeat their requirements in Subpart R.Indeed, we question whether the drafters of Subpart R would have gone tothe effort of drafting that subpart’s two most important fall protectionstandards, sections 1926.750(b)(2)(i) and (b)(1)(ii), which are quotedin part IA _supra_, if they had believed that section 1926.105(a), note2 _supra_, would be applied to steel erection work. In this regard, wenote that the original version of section 1926.750(b)(2) stated, as follows:Where erection is being done by means of a crane operating on theground, a tight and substantial floor shall be maintained within twostories or 25 feet, whichever is less, below and directly under thatportion of each tier of beams on which bolting, riveting, welding, orpainting is being done.Therefore, under the original version of Subpart R, sections1926.750(b)(2) and (b)(1)(ii), when read together, accomplished twobasic objectives: (1) they established 25 feet as the maximum distancean ironworker could fall and (2) they established a preference fortemporary floors over safety nets.[[12]] Yet, section 1926.105(a) alsoaccomplishes both of these objectives.[[13]] Accordingly, when thestandards are viewed in terms of their essential requirements, itbecomes clear that the original versions of sections 1926.750(b)(2) and(b)(1)(iii) were no more than a duplication of the general constructionstandard at section 1926.105(a).In sum, our analysis of Subpart R’s fall protection standards in thecontext of Part 1926 as a whole leads us to conclude that the draftersof Subpart R intended these provisions to be exclusive. The fact thatthe drafters attempted to develop a comprehensive set of fall protectionrequirements supports this conclusion. In addition, the fact that thedrafters developed separate Subpart R standards that merely duplicategeneral construction standards supports this conclusion. Certainly,the drafters would not have intentionally created redundant andunnecessary standards if they had believed that the general constructionstandards would be applied to falling hazards during steel erection work.D.We also look at Subpart R in the context of evidence, from this recordand from other cases, on the industry custom and practice with respectto fall protection measures during steel erection. This analysis leadsus to three conclusions. First, there is a strong correlation betweenthe fall protection requirements of Subpart R and the custom andpractice within the steel erection industry. Second, there is an equallystrong divergence between the fall protection requirements for generalconstruction (the standards found outside of Subpart R) and the industrycustom and practice in steel erection. Third, this industry custom andpractice reflects a consensus within the industry as to the feasibilityof various fall protection measures as well as a common industryunderstanding of its responsibilities under Part 1926.These points are well illustrated by the record in the case before us. The record compels a finding, which the judge in fact entered, thatWilliams’ safety practices met or exceeded the level of protection setby industry custom and practice. Williams established this claimthrough the unrebutted testimony of five witnesses with an average oftwenty years of experience in the steel erection industry.[[14]] Wespecifically note the testimony of the union business agent that he hadnever 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.\” Similarly, the complianceofficer admitted that he had made a statement at the time of theinspection \”that this was about the safest erection job [he] had seen.\”As we noted previously, the Secretary has conceded that Williams’practices with respect to the use of personal protective equipment wereconsistent with industry custom and practice. The record alsoconclusively establishes that Williams’ nonuse of perimeter safety netswas fully consistent with industry custom and practice. Indeed, basedon this record, it appears that the use of perimeter safety nets onmulti-storied buildings, like the high-rise office building thatWilliams was erecting, was virtually unknown in the industry, at leastin those areas where Williams performed its work. General foremanAenchbacher testified that, during his 32 years of steel erection work,he had never seen connectors work over perimeter safety nets. Erectioncrew foreman Johnson testified that, in his 14-1\/2 years of experience,he had never worked on a building where safety nets were installed. Plumb-up crew foreman Robinson, who had worked in the industry for 35years, testified that he had never known of a high-rise constructionproject where perimeter safety nets were used during steel erection. Similarly, union business agent Mayotte testified that, in his 12 yearsof experience, he had never known perimeter netting to be used on abuilding during steel erection.The Secretary made no attempt to rebut this showing. His proof on thefeasibility of perimeter safety nets came from the testimony of hisexpert witness, safety consultant Casey. Yet, even this witnesstestified that he had never seen perimeter safety nets installed on ahigh-rise building. Through his consulting work, he was aware thatperimeter safety nets were occasionally used on these buildings, but heonly knew of three specific instances. Understandably, therefore, Caseyfully conceded that the use of perimeter safety nets on high-risebuildings \”is not common in the industry at all.\”The conclusions we draw from this record are corroborated by the historyof litigation between the Secretary and the steel erection industry, asrevealed by an extensive body of case law extending over a period ofseveral years. That litigation history demonstrates, among otherthings, the sharp conflict between the Secretary’s enforcement positionand the customs and practices of the steel erection industry.[[15]] Specifically, we note that the Secretary’s attempts to enforce generalfall protection standards have brought him into direct and sustainedconflict with the steel erection industry. The litigation history alsoreveals a noticeable consistency in the arguments presented by the steelerectors–a common belief that Subpart R was intended to be acomprehensive and exclusive set of fall protection requirements for theindustry and an equally widespread belief that the fall protectionmeasures sought by the Secretary through his attempted enforcement ofthe general fall protection standards are infeasible if not themselveshazardous when applied in the context of steel erection work.In his efforts to require the installation of perimeter safety nets, theuse of personal protective equipment by connectors, and the use ofpersonal protective equipment by other ironworkers when they are movingalong structural steel, the Secretary is seeking dramatic changes in therelatively uniform practices of an entire industry. Simply stated, theindustry practice is to protect its employees by complying with therequirements of Subpart R, including most notably the provisions ofsection 1926.750, part IA _supra_. The Secretary seeks to persuade usthat his enforcement efforts are consistent with his intent in draftingSubpart R. However, we find this difficult to believe. It does not seemreasonable to us that a regulator whose intent was to change thepractices of an entire industry would rely on general standards toachieve these changes while drafting a set of specific standards thatessentially codified the customs and practices of that industry.It is far more likely, in light of the strong correlation between thefall protection requirements of Subpart R and the custom and practicewithin the steel erection industry, that Subpart R was drafted toreflect the prevailing practices within the industry. Thus, thedrafters of Subpart R presumably agreed with or at least deferred to theindustry’s consensus view as to what fall protection measures arefeasible during steel erection work and what measures are not. Asindicated above, that consensus view was (and still is) that the fallprotection measures required under Subpart R, and only those measures,are feasible and appropriate during the steel erection phase of theconstruction process. Accordingly, our analysis of Subpart R in thecontext of industry custom and practice corroborates our belief that thedrafters of Subpart R intended its fall protection requirements to beexclusive.E.Finally, we examine Subpart R in the context of the evidence on thefeasibility of various fall protection measures during steel erectionwork and in the context of the differences between the steel erection(Subpart R) fall protection standards and the general construction(non-Subpart R) fall protection standards. This analysis leads us toconclude that, in drafting Subpart R, the Secretary made severaldeliberate decisions to treat steel erection work differently thangeneral construction work, including decisions to establish lessstringent fall protection requirements where practical considerationswarranted differential treatment.We note initially that there are significant differences between steelerection work and other kinds of construction work, differences thathave a substantial bearing on the feasibility and likely utility ofvarious forms of fall protection. _See_, _e.g_., _Industrial Steel__Erectors, Inc_., 74 OSAHRC 2\/E5, 1 BNA OSHC 1497, 1973-74 CCH OSHD ?17,186 (No. 703, 1974) (early Commission decision recognizing theexistence of these differences). The contrast is especially pronouncedduring the early stages of steel erection that are at issue in thiscase. As explained in part IA _supra_, the Secretary’s charge hereinvolves employees in the job classifications of connectors, bolt-up menand plumb-up men. These are the employees who carry out the firstthree stages of the steel erection process. They share common workingconditions that are different from those normally faced by otherconstruction workers and even by other categories of ironworkers.Unlike the typical worker in general construction, the employees atissue in this case do not perform their work while standing, sitting orkneeling on either temporary or permanent flooring. Instead theirworking surface is the structural steel framework (beams and columns) atthe highest levels of the building. Accordingly, these employees do notreceive the fall protection that most construction workers receive fromworking on solid floors or platforms with standard railings installedaround the open sides. See 29 C.F.R. ? 1926.500(d)(1).[[16]]Similarly, because of the differences in working conditions, theironworkers at issue in this case do not receive the degree of fallprotection many general construction workers receive from safety belts,lanyards and lifelines. This distinction is most dramaticallyillustrated by examining the situation with respect to the connectors. These employees work at levels where the framework of the building hasnot even been completely erected. They work on and from vertical ordiagonal steel members and in the presence of steel beams being movedinto position by crane. Given these circumstances, all of thewitnesses, including those appearing for the Secretary as well as thoseappearing for Williams, agreed that connectors should not be providedwith and required to wear safety belts and lanyards. These witnessesshared the opinion that a connector would be exposed to a greater hazardif he tied off because he then would not be able to move out of dangerif structural steel suspended by a crane suddenly swung toward him.[[17]]For most workers engaged in general construction work on a high-risebuilding, safety belts and\/or perimeter safety railings are basic fallprotection measures. Ladders and scaffolds are also common means ofeliminating fall hazards in some situations. Most, if not all, of thefalling hazards that the general construction worker is exposed to canbe eliminated through these means. In sharp contrast, all of these fallprotection measures play a much less significant role in the protectionof ironworkers, particularly during the early stages of steel erectionat issue in this case. Conversely, temporary floors and interior safetynets play a much greater role in the protection of ironworkers duringthe early stages of steel erection than they do in protecting otherconstruction workers.[[18]]Subpart R provides strong evidence that the Secretary recognized theseand other differences between steel erection work and other types ofconstruction work, as well as their effect on the feasibility and likelyutility of various fall protection methods. Moreover, Subpart R revealsthat the Secretary, in recognition of these differences, made deliberatedecisions to impose less stringent fall protection requirements onemployers engaged in steel erection work than on other contractors. Theclearest example of this is the Secretary’s decision to rely ontemporary floors and safety nets as the primary methods of fallprotection for ironworkers working on structural steel. 29 C.F.R. ??1926.750 (b)(1)(ii) & (b)(2)(i). While these fall protection devicesare more practical in steel erection work, they definitely provide lessprotection 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 of perimeter fall protectionat levels where temporary floors have already been installed. Under thegeneral provisions of Part 1926, most construction workers are protectedagainst perimeter falls by a substantial physical barrier that includesa top rail, an intermediate rail and a toeboard; this barrier must bestrong enough to withstand a 200-pound load applied in any direction. 29 C.F.R. ?? 1926.500(d)(1) & (f). In contrast, ironworkers areprotected only by a device that obviously provides less protection thana standard railing, i.e., by \”[a] safety railing of 1\/2-inch wire ropeor equal . . . approximately 42 inches high.\” 29 C.F.R. ?1926.750(b)(1)(iii).A third example occurs in the context of protection against fallsthrough floor openings. Subpart M of Part 1926 contains severalprovisions requiring guardrails around or covers over various floor,roof or wall openings. General construction workers receive thisprotection regardless of whether the openings are being used, e.g., foremployee access, the performance of work on the movement of materials. In contrast, ironworkers are only protected against falls through thosefloors openings that are \”unused.\”[[19]]Still another example occurs in the context of limitations on thedistance an employee can fall. Under section 1926.105(a), a safety netis required when work is performed without other kinds of fallprotection \”more than 25 feet above the ground or water surface, orother surfaces.\” Thus, general construction workers are protectedagainst a fall of more than 25 feet. Yet, under section1926.750(b)(2)(i), an ironworker is allowed to work as high as 30 feetabove the temporary floor that is installed for the purpose ofprotecting him against falls. The legislative history of thisprovision, which was created by a 1974 amendment of Subpart R’s originalrequirements, clearly shows that the 30-foot fall limit was the resultof a deliberate decision by the Secretary to provide less stringent fallprotection for ironworkers than for other construction workers, who areprotected by the 25-foot fall limit of section 1926.105(a). Moreover,the basis for this differential treatment was the Secretary’srecognition that a 25-foot fall limit is impractical in steel erectionwork. 39 Fed. Reg. 24360-361 (July 2, 1974).This analysis of the differences between Subpart R and non-Subpart Rfall protection standards in the light of practical considerationsaffecting the feasibility of various fall protection measures addsfurther corroboration for our determination that the drafters of SubpartR intended its fall protection requirements to be exclusive. Indeed,when we combine this analysis with our previous conclusions, we arepersuaded beyond a doubt that this was the Secretary’s original intentat the time of promulgation.Because of the differences between steel erection and generalconstruction work, the drafters obviously concluded that it was notfeasible to apply the general construction fall protection standards tosteel erection work and that it was necessary to draft a separate set offall protection standards that would be specifically applicable to thesteel erection process. As noted, this separate set of standardsreflected the practices that prevailed within the industry and theindustry’s consensus view as to what fall protection measures arefeasible during steel erection. In addition, the drafters apparentlyattempted to deal with all aspects of the falling hazard during steelerection work.Under these circumstances, for us to apply the general constructionstandards to steel erection would be to negate what the draftersattempted to do by establishing separate and different requirements forsteel erection. Surely, this would be contrary to the apparent intentof the drafters. Conversely stated, the drafters must have intendedthat their Subpart R fall protection standards would be applied asexclusive requirements so that the distinctions they had deliberatelycreated between fall protection during steel erection and during generalconstruction would be preserved.F.For all of the reasons set forth above, we conclude that the Secretaryintended Subpart R to establish fall protection requirements for steelerection that would be exclusive. In reaching a contrary conclusion,the courts have relied heavily on a regulation governing theapplicability 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 acondition, practice, means, method, operation, or process, it shallprevail over any different general standard which might otherwise beapplicable to the same condition, practice, means, method, operation, orprocess . . . .(2) On the other hand, any standard shall apply according to its termsto any employment and place of employment in any industry, even thoughparticular standards are also prescribed for the industry, as in SubpartB or Subpart R of this part, to the extent that none of such particularstandards applies . . . .Section 1910.5(c)(1) is a restatement of the basic principle ofstatutory construction that the specific takes precedence over thegeneral. _E.g_., 2A _Sutherland Statutory Construction_, ? 46.05, p. 92& n. 12 (4th ed. 1984). The Secretary must have had this principle inmind when he drafted the construction standards for, as we havediscussed above, there are overlaps in the standards that can beresolved only by applying this principle. Section 1910.5(c) simplycodifies the principle. The regulation recognizes that, where theSecretary has decided that a specific means of protecting against ahazard is appropriate in certain circumstances and has drafted a\”particular\” standard reflecting that determination, it would defeat theintent of the rulemaker to apply a \”general\” standard that requires adifferent means of protection. To apply the more general standardbecause it provides additional or greater protection would render theparticular standard redundant and defeat the rulemaking decision made bythe Secretary when he promulgated the particular standard. Nothing in ?1910.5(c) suggests that the employer’s duty to comply with generallyapplicable safety standards depends upon whether employees areadequately protected by more specifically applicable safety standards. Under the terms of ? 1910.5(c)(1), general standards are preempted bymore specifically applicable standards even when the general standardsprovide greater protection for employees.An analogous situation has arisen in cases where the Secretary has citedemployers under section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), theAct’s \”general duty clause,\” even though the hazard at issue isaddressed by a standard or a group of standards. _See_, _e.g., DanielInternational, Inc._, 82 OSAHRC 23\/D3, 10 BNA OSHC 1556, 1982 CCH OSHD ?26,033 (No. 78-4279, 1982). In these cases, the Commission has heldthat the Secretary cannot use the general duty clause to achieve greaterprotection for employees than his standards require. For example, in_Daniel International, Inc_., the Commission stated:To permit the Secretary to require further precautions under section5(a)(1) because his standards purportedly do not provide sufficientprotection would circumvent the rulemaking process and is impermissible.10 BNA OSHC at 1559, 1982 CCH OSHD at p. 32,683. In the same way, topermit the Secretary to require further precautions under generalstandards because applicable particular standards appear to beinadequate would also circumvent the rulemaking process.We are not persuaded by the Secretary’s argument that the situationbefore us is governed by section 1910.5(c)(2) rather than section1910.5(c)(1). The Secretary reasons that general standards can beapplied to the \”condition\” at issue in this case, which he defines asthe hazard of exterior falls from structural steel at the perimeter ofthe building, because none of the particular standards in Subpart Rapply to this \”condition\”. We do not agree with this reasoning.First, we note that the Secretary colors the preemption issue at theoutset by defining the relevant \”condition\” as those \”hazards\” that theparticular standard does not require protection against. Thus, theSecretary asserts \”that Subpart R does not provide for exterior fallprotection for steel erection employees working at levels at which thetemporary floor has not yet been installed.\” He then defines therelevant \”condition,\” for purposes of implementing section 1910.5(c), asthe hazard of exterior falls from structural steel at the perimeter ofthe building. Additionally, many of the court decisions that held thatSubpart R did not preempt the general fall protection standards agreedwith the distinction between interior and exterior falls drawn by theSecretary. _Brock v. L.R. Willson &_ _Sons_, 773 F.2d at 1382;_Donovan v. Adams Steel Erection_, 766 F.2d at 808; _Donovan v. DanielMarr & Son Co._, 763 F.2d at 483. An earlier Commission decision alsoaccepted this distinction. _Williams Enterprises_, 83 OSAHRC 26\/A2, 11BNA 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). We havecarefully considered the Secretary’s reasoning and that of thesedecisions, but we cannot agree with it.The problem with the Secretary’s argument is that it predetermines theanswer. By defining the relevant \”condition\” as those matters that aparticular standard does not require protection against, the argumentassures that the standard does not \”apply\” to that condition. We canthink of no legitimate reason for defining the relevant \”condition\” sonarrowly. Such a definition of the condition to which a specificstandard applies insures that any decision by the drafters of thespecific standard to impose only limited duties on an employer will benullified.Indeed, any attempt to employ a definition of the regulated condition asthe linchpin of a preemption analysis will draw one’s attention awayfrom the quint-essential question: Did the drafter of the specificstandard intend that employers be required to provide a specific form ofprotection but no more?This problem is particularly acute under the Secretary’s argument, whichpresumes that a standard does not apply to a condition unless thestandard provides for protection against the condition. Thus, theSecretary and the courts reason, none of the standards in Subpart Rapply to the hazard of exterior falls from structural steel at theperimeter of the building because none of the standards in Subpart Rrequire protection against that hazard.[[21]] The Secretary’s reasoningis that employed by the Commission in _Williams I_. See 11 BNA at 1416. However, this reasoning overlooks that a standard can apply to acondition and yet require no protection against it. This is inherent inthe very nature of regulation, which requires regulators to draw linesbetween what is required and what is not. For example, the currentstandard on lead states that the permissible exposure level is 50 ug\/m3,averaged over an eight-hour period. 29 C.F.R. ? 1910.1025(c)(1)(1985). In establishing this limit, the Secretary did not conclude thatall exposures below 50 ug\/m3 were safe, but he determined that 50 ug\/m3was the lowest airborne level the major lead-based industries couldfeasibly achieve and he balanced this feasibility constraint against theneed for employee protection. _See Amax Lead Co. of_ _Missouri_, 86OSAHRC ____, 12 BNA OSHC 1878, 1880, 1986 CCH OSHD ? 27,629, pp.35,919-20 (No. 80-1793, 1986). The Secretary’s approach in this caseimplies that a general standard (e.g., section 1910.134, which dealswith respiratory protection) or the general duty clause could be appliedto require protection against hazardous lead levels below 50 ug\/m3. That approach, however, would overturn the balance the Secretary drew inrulemaking and would effectively nullify the lead standard.[[22]]Unquestionably, a worker standing on a narrow steel girder is subject toa falling hazard. The Secretary was obviously aware of that hazard indrafting Subpart R. As in drafting any standard, the Secretary had todraw lines. One line he drew was in permitting ironworkers to work 30feet rather than 25 feet above temporary floors. This requirementobviously does not entirely eliminate the hazard that a worker could beinjured in such a fall. Yet under the Secretary’s reasoning, ?1926.105(a) could be applied, in a situation where employees worked 30feet 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, andthereby conclude that the standard does not apply to lesser falls andthat measures mandated by more general standards can be required forsuch lesser falls, would be to entirely ignore the line the Secretarydrew in rulemaking. Similarly, to require the use of perimeter nets forexterior falls would also ignore a line the Secretary drew inrulemaking, not to require safety nets when a building was \”adaptable totemporary floors.\” Accordingly, we decline to follow the Secretary’sapproach because it fails to give effect to policy decisions made duringrulemaking proceedings and leaves employers in the dark as to theirobligations.To impose general standards on top of the comprehensive scheme, whichwas crafted to conform to the special conditions of steel erection work,would result in disruption of that regulatory scheme and reversals ofdecisions made during the rulemaking process. Section 1910.5(c) clearlystates that such superimposition is not the usual scheme of the OSHAstandards. Such superimposition is done only when no specific standardapplies to the condition, practice, means, method, operation orprocess. We therefore hold in accordance with 1910.5(c)(1), as well asexisting Commission precedent, _e.g_., _Adams Steel Erection, Inc_.,that the general fall protection standards found outside of Subpart Rare preempted during the steel erection phase of the construction process.We are aware that in reaching this conclusion we have rejected theinterpretation advanced by the Secretary as to section 1910.5(c)(1) andSubpart R. However we do not believe the interpretation proffered bythe Secretary is entitled to any deference. Although the Secretarydrafted Subpart R and enforces the standards contained therein, we arenot convinced that his current interpretation reflects his views as ofthe time Subpart R was adopted. Indeed, for the reasons advanced above,it is implausible that when drafted the Secretary intended the variousfall protection standards outside Subpart R to apply to steel erection.Accordingly, for the above reasons, we vacate the Secretary’s allegationthat Williams violated section 1926.105(a). Since we have alsopreviously vacated the section 1926.28(a) charge, we vacate item 2 ofthe citation in its entirety.IIItem 4 alleges that the sixth floor of the inspected building was notsolidly planked as required by 29 C.F.R. ? 1926.750(b)(1)(i). Thatstandard provides, in pertinent part:? 1926.750 Flooring requirements.(b) _Temporary flooring–skeleton steel construction in tieredbuildings_. (1)(i) The derrick or erection floor shall be solidlyplanked or decked over its entire surface except for access openings . . . .It is undisputed that Williams left several openings in the decking ofthe sixth floor, which was the erection floor at the time of theinspection. The parties disagree, however, over whether the openingswere the \”access openings\” permitted by the standard’s exception. Weagree with the Secretary that the \”access openings\” exception does notapply to the openings in question. We further conclude, however, thatanother standard does apply. Because the Secretary cited the wrongstandard, we vacate this citation item.The disputed openings were intentionally created by Williams in thesixth-floor decking along the \”column lines,\” which are parallel rows ofcolumns connected by beams. The openings were directly over the beams,which were in the center of the openings and between 12 and 18 inchesbelow the level of the decking. In some areas, the beams had been builtup to floor level by placing I-beams on top of the structural beams.There were ten to twelve openings in the sixth floor, corresponding tothe number of column lines. The average opening was three feet wide,but the beam in the center in effect divided it into two separateopenings, one on each side of the beam, and these were only 10 to 12inches wide. From the photographic exhibits, it appears that theopenings were approximately 80 feet long and that they extended acrossthe entire width of the sixth floor. The compliance officer testified,without contradiction, that the openings remained uncovered throughouthis inspection, which lasted four days.Through the testimony of general foreman Aenchbacher, Williams sought toprove that it had complied with the custom and practice in the steelerection industry by leaving these \”column line\” openings in thesixth-floor decking. Aenchbacher’s testimony does establish that theopenings were customary. However, it further establishes that Williamsviolated industry custom, and alsoits own standard practice, by failing to keep the openings covered whilethey were not in use.The parties agree that the purpose of the openings was to permit thewelding and the \”final bolting\” of the structural beams to the columns,as well as the subsequent inspection of the bolting and welding work. According to general foreman Aenchbacher, it was standard practice atevery job, whether for Williams or for other steel erectors, to leavethe column lines open to work on the connections between the columns andthe beams. The witness also testified, however, that it was customary,following the welding of connections, to put decking temporarily inplace until the time arrived for the inspection of the welds. Thedecking would then be removed so the inspection could be conducted. Similarly, it was apparently customary to cover the openingstemporarily during the period between the bolting-up work and theinspection of that work.General foreman Aenchbacher gave additional testimony to the effect thatWilliams’ normal practice and the custom within the industry was toleave the openings uncovered for no more than a day, since the weldingoperation usually took less than a day. However, the witness made noclaim that the cited sixth-floor openings were uncovered only for a dayor less. Nor did he dispute the compliance officer’s testimony that thecited conditions existed throughout the inspection. On the contrary,the general foreman implicitly acknowledged that the customary practicehad not been followed because \”the welding was behind at that time alittle bit.\”[[24]]The principal dispute in this case has been over the meaning of thecited standard’s exception for \”access openings.\” The judge held thatWilliams did not qualify for this exception because \”the extent andduration of the openings far exceed[ed] the legitimate needs to beserved by the exception.\” Williams seeks to have this conclusionreversed. It argues that the openings were literally \”access openings\”because their purpose was to give welders and inspectors \”access\” to theconnections between the columns and the beams. In any event, itreasons, because the term \”access openings\” is ambiguous, the standard\”must be construed to require what is commonly done in the industry.\” The Secretary supports the judge’s conclusion that the openings were not\”access openings,\” but he urges a different rationale. In theSecretary’s view, the exception is limited to openings used for employeetransit between floors.We agree with Williams that the term \”access openings\” is ambiguous. This is shown by the fact that the two parties have offered differentdefinitions of the term and yet both definitions are compatible with itsliteral meaning. We further agree with Williams that it is appropriateto look to the custom and practice in the steel erection industry indefining the term. We conclude, however, that industry custom andpractice supports the Secretary’s definition rather than Williams’.The most persuasive extrinsic evidence of the standard’s meaning ofwhich we are aware is found in the provisions of American NationalStandard Safety Requirements for Steel Erection, ANSI A10.13-1972. Based on the striking similarity between not only the substance but eventhe language of these two steel erection codes (Subpart R and the ANSIstandard), we conclude that the standard cited in this case, section1926.750(b)(1)(i), was probably derived from section 6 of ANSIA10.13-1972.[[25]] In any event, because of the consensus proceduresfollowed by ANSI in developing its standards, we view section 6 as astrong indication of the steel erection industry’s custom and practicewith regard to floor openings. Thus, regardless of whether wecharacterize it as a source document or merely an indicia of industrycustom and practice, we consider ANSI A10.13-1972 to be highly relevantin resolving the issue before us.Section 6 of the ANSI standard reveals that the steel erection industrydraws a clear distinction between relatively permanent openings for thepurpose of employee movement between floors and temporary openings forthe purpose of performing work, like those at issue in this case. Thesetwo types of openings are treated differently under the followingrelated provisions of the ANSI standard:6.1 The derrick or working floor of every building shall be solidlydecked over its entire surface except for access openings.6.11 All unused openings in floors, temporary or permanent, shall becompletely planked over or barricaded until such time as they are used.6.12 Floor planks that are temporarily removed to perform work shall bereplaced as soon 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 openings for thepurpose of employee movement between floors. In contrast, temporaryopenings for the purpose of performing work are governed by sections6.11 and 6.12.[[26]]We further conclude that the distinction reflected in the ANSI standardwas carried over by the Secretary into Subpart R. As indicated, section6.1 of the ANSI standard finds its counterpart in the cited standard,section 1926.750(b)(1)(i). However, section 6.11 of the ANSI standardalso has a counterpart, in 29 C.F.R. ? 1926.752(j), which is quoted atnote 19 _supra_.We therefore agree with the Secretary that the openings at issue werenot \”access openings\” within the meaning of the cited standard. We holdthat that exception applies only to openings for the purpose of employeetransit between floors. Temporary openings for the purpose ofperforming work are governed instead by the requirements of section1926.752(j), that is, they must be \”completely planked over or guarded\”whenever they are \”[u]nused.\”Accordingly, we further conclude that the Secretary cited the wrongstandard in this case. Under the terms of the Secretary’s regulatoryguidelines at section 1910.5(c)(1), note 6 _supra_, the cited standardis not applicable to the cited conditions because another standard,section 1926.752(j), is more \”specifically applicable.\” Because thecited standard does not apply, we reverse the judge and vacate item 4 ofthe citation.[[27]]IIIItem 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 tieredbuildings_. (1)(iii) Floor periphery–safety railing. A safety railing of 1\/2-inchwire rope or equal shall be installed, approximately 42 inches high,around the periphery of all temporary-planked or temporary metal-deckedfloors of tier buildings and other multifloored structures duringstructural steel assembly.The occurrence of the violative conditions is not at issue. However,two issues are raised concerning this item. The first issue is whetherWilliams had actual or constructive knowledge of the violativeconditions. The second is whether Williams was the employer responsiblefor the violation. The judge concluded that Williams lacked bothknowledge and responsibility and accordingly vacated the citation item. However, the judge failed to consider the conditions that existed on thesecond day of the OSHA inspection. With respect to those conditions, weconclude that the Secretary established the alleged violation. Wetherefore reverse the judge and affirm this citation item, but only asit relates to the conditions on the second day of the inspection.The location of the alleged violation was a stairway landing at thebuilding’s first-floor level, which was approximately 20 feet high. Thestairway came up from ground level to the landing and then reverseddirection, going back on itself to continue up to the higherelevations. On the west side of the landing, the side opposite thestairs, was the perimeter of the building. On the other two sides ofthe landing (the north and south sides) were elevated sections of thefirst floor. The first-floor decking was approximately 30 inches abovethe landing. The width of the landing, which extended along thebuilding’s perimeter, was approximately 6 feet.At the hearing, the compliance officer testified that he had observedthe area described above on both the first and second days of hisinspection. On both of those days, the perimeter of the building hadbeen guarded by a single wire-rope safety railing. This single wirerope served as the sole perimeter protection not only for the landingitself but also for the adjacent elevated sections of the first floor onthe north and south sides of the landing. When the inspection partyobserved it on the first day of the inspection, the wire-rope railingwas sagging to the extent that it touched the elevated floor on bothsides of the landing. Thus, in relation to the landing, the railingwas approximately 30 inches high.When the compliance officer returned to the area on the second day, thewire-rope railing was stretched taut. Accordingly, in relation to thelanding, the railing was close to the height required under section1926.750(b)(1)(iii) (\”approximately 42 inches high\”). On the otherhand, the railing was still only 6 to 10 inches above the adjacentfirst-floor decking. During the interval between these twoobservations, the railing had been tightened by employees of Williams. The compliance officer described this occurrence, as follows: after hesaw the sagging railing on the first day, he pointed out the conditionto Williams’ representatives \”and they immediately put someone todrawing it tight; and, the next day it was tight.\”The record does not disclose why the cable was sagging at the time itwas observed on the first day of the inspection. The evidence suggests,however, that the condition could have been created by other contractorsat this multi-employer construction worksite. At the time in question,the prime contractor was doing form work on the first floor. Eight ornine subcontractors were also present at the worksite. Whether theseother employers were also working on the first floor is not clear. Nevertheless, it is clear that Williams was no longer working on thefirst floor. Williams’ witnesses further testified that it was notuncommon for other contractors to take down, damage or improperlyreplace railings after Williams had left a floor.The record does not establish how long the sagging railing had existedprior to the inspection. Nor does it establish whether any of Williams’supervisory personnel had prior knowledge of the sagging railing. General foreman Aenchbacher and several of his crew foremen were calledas witnesses at the hearing. Yet, no witness was asked whether he hadbeen aware of the condition of the railing prior to the inspection andno witness volunteered this information.In his decision, Judge Sparks found that, when the compliance officerfirst 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 fallinghazard as a result of the cable’s inadequacy. However, the judgevacated the item because the record did not convince him \”thatrespondent was responsible for or had knowledge of the sagging safetycable at the time . . . alleged in the citation.\”We express no opinion as to whether the judge’s ruling was correct withrespect to the conditions observed by the compliance officer on thefirst day of the inspection. Nevertheless, we reverse the judge’sdecision because we agree with the Secretary that, regardless of whetherthere was a violation on the first day, Williams violated the standardon the second day of the inspection.[[28]]Williams claims that it relinquished its responsibility for maintenanceof the first-floor railing after it completed its work on that floor andmoved on to higher elevations. If so, then it re-assumed responsibilityafter the compliance officer pointed out to it that the railing wassagging during the first day of the inspection. The compliance officergave unrebutted testimony that Williams’ response to this informationwas immediately to assign someone to tighten the wire-rope railing. Weconclude that, when Williams assumed this responsibility, it alsoassumed the responsibility for seeing that the railing was installed inaccordance with the requirements of the cited standard.We also find that employees of Williams were exposed to the fallinghazard present on the first-floor landing. The compliance officerexplained that in going to the only water barrel on the site, workerswere observed within 12-18 inches of the perimeter while on thefirst-floor landing. He stated that he saw a Williams employee comewithin 18-inches of the perimeter while going to get a drink of water.We further conclude that Williams either knew, or could have known withthe exercise of reasonable diligence, that the railing was notre-erected in compliance with the standard’s requirements and that itsemployees were exposed to this condition. Indeed, it was physicallyimpossible for a single wire-rope railing to provide adequate perimeterprotection for two different elevations, one 30 inches higher than theother. The same railing could not have been both \”approximately 42inches\” above the first-floor landing and \”approximately 42 inches\”above the adjacent first-floor decking. Therefore, Williams had actualor constructive knowledge of the violative conditions on the second dayof the inspection because it either knew, or could have known with theexercise of reasonable diligence, that its employees had re-erected thewire-rope railing improperly and were exposed to the falling hazardcreated thereby.We also agree with the Secretary that the violation was \”serious\” withinthe meaning of section 17(k) of the Act, 29 U.S.C. ? 666(k). Anemployee falling over the inadequately guarded perimeter would havefallen 20 feet onto uneven ground or a poured-concrete pad. Thus, deathor serious physical harm was substantially probable. We disagree,however, with the proposed penalty of $420. Because of Williams’ goodfaith in tightening the sagging railing as soon as the condition waspointed out to it, notwithstanding its belief that it was no longerresponsible for maintaining the railing, we conclude that a penalty of$200 is appropriate.Accordingly, the judge’s decision with respect to items 2, 4 and 5 isreversed. Items 2 and 4 are vacated. Item 5 is affirmed as a seriousviolation of the Act. A Penalty of $200 is assessed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: September 12, 1988WALL, Commissioner, concurring in part and dissenting in part:I dissent from the majority’s disposition of item 2. The analysis onthis item is predicted in part on an interpretation of 29 C.F.R.?1910.5(c) of the Secretary’s Regulations. I cannot agree to a readingof the standard that affords virtually no fall protection to employeesin a recognizably hazardous occupation, and I do not agree to apply thisgeneral guideline in a way that has been overwhelmingly rejected by thefederal courts.The employees in this case were working on perimeter beams of skeletalsteel without fall protection. Williams Enterprises was cited for aviolation of ? 1926.105(a) for failing to provide exterior safetynets.[[1]] The question before us is whether section 1926.105(a), whichappears in the general construction industry standards, has been\”preempted\” by standards drafted specifically for the steel erectionindustry.The steel erection standards (Subpart R) include several standardsdirected to fall hazards, but none of them provides exterior fallprotection for employees working on perimeter beams of skeletalsteel.[[2]] Section 1926.105(a), however, does provide for falls to theexterior of the building; it requires safety nets or other fallprotection without regard to whether the fall is to the interior or theexterior of the building.The \”preemption\” rule at 1910.5(c) states that \”[i]f a particularstandard 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 samecondition, practice, means, method, operation, or process . . . . \” Themajority identifies standards in Subpart R that deal with various kindsof fall hazards[[3]] and concludes that they prevail over the moregeneral construction standard at 1926.105(a). Having found that steelerection standards apply to the facts of this case, the majority vacatesbecause none of those standards requires protection against exteriorfalls from perimeter beams.The essential elements of the majority analysis are these: First, thatthe steel erection standards apply to steel erection work where there isa hazard of falling. Second, that the omission from Subpart R of anyprotection against exterior falls from perimeter beam reflects adeliberate policy decision by the drafters of Subpart R. And third,that under the \”preemption\” rule at 1910.5(c), the specific fallprovisions in the steel erection standards may not be supplemented witha general standard like 1926.105(a).These essential elements of the majority rationale formed the basis offour Commission decisions that were reversed in the Circuit Courts. _Bristol Steel & Iron Works, Inc._, 77 OSAHRC 181\/D6, 5 BNA OSHC 1940,1977-78 CCH OSHD ? 22,240 (No. 14537, 1977), _rev’d_, 601 F.2d 717 (4thCir. 1979); _Adam Steel Erection, Inc_., 84 OSAHRC 29\/A2, 11 BNA OSHC2073, 1984 CCH OSHD ? 26,976 (No. 77-4238, 1984), _rev’d_, 766 F.2d 804(3d Cir. 1985), (\”_Adams Steel_\”); _Daniel Marr & Son Co_., 84 OSAHRC37\/E7, 11 BNA 2088, 1984 CCH OSHD ? 26,980 (No. 82-612, 1984), _rev’d_,763 F.2d 477 (1st Cir. 1985), (\”_Daniel_ _Marr_\”); _L. R. Willson &Sons, Inc_., 84 OSAHRC 36\/A2, 11 BNA OSHC 2182, 1984 CCH OSHD ? 26,978(No. 80-5866, 1984), _rev’d_, 773 F.2d 1377 (D.C. Cir. 1985), (\”_L. R.Willson III_\”). Moreover, the D.C. Circuit Court of Appeals affirmedthree prior Commission decisions in which general construction industrystandards supplemented the steel erection standards with respect toexterior falls. _Donovan v. Williams Enterprises, Inc_., 744 F.2d 170(D.C. Cir. 1984), (\”_Williams Enterprises_\”); _L. R. Willson &_ _Sons,Inc. v. OSHRC_, 698 F.2d 507 (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 R by reciting thoseprovisions in Subpart R that apply to fall hazards. The Fourth, Third,First, and District of Columbia Circuits have all rejected thissimplistic approach. Each court has said it is not enough to speak of\”falls,\” the applicability of a standard depends on the employee’slocation and whether the fall is to the interior or exterior: \”Thequestion is not whether Subpart R provides any exterior fall protectionstandards, but rather whether it provides standards to guard against_the particular exterior fall hazard_ for which Willson was cited.\” _L. R. Willson I_ at 672 (emphasis by the court).\”The particular hazard at issue . . . was exterior falls from above thelevel of temporary floors or decking\” and \”exterior falls and interiorfalls are different hazards . . . .\” _L. R. Willson III_ at 1381-1382. \”The particular hazard at issue here is the danger of an exterior fallfrom a perimeter beam . . . . Although the steel erection standardsaddress interior falls, and exterior falls from temporary flooring, nosection applies to exterior falls from perimeter beams.\” _Adams SteelErection_ at 808.\”We find no other standard in Subpart R which could be considered asaddressing the hazard of an exterior fall. Section 1926.750 (b)(1)(iii)which requires that a railing be provided on the perimeter of thetemporary flooring might be deemed to provide exterior fall protectionfor employees doing work on that floor, but not for connectors workingon beam above that level.\” _Daniel Marr_ at 483.The majority suggests that the absence of exterior fall protection forironworkers on perimeter beam is a deliberate omission. Again, thisview has been rejected and sharply criticized by the courts:The Third Circuit:\”The Commission’s wishful reliance on the supposed intent of theSecretary also is misplaced. In concluding that the Secretary intendedto leave the hazard of exterior falls from perimeter beam totallyunregulated, the Commission pointed to three standards . . . [that] donot apply to the hazard under consideration here. We reject thisreasoning . . . . it would take a lot more evidence than that cited bythe majority to convince [us] that the Secretary made a reasoned anddeliberate decision\” such as this.\”\”Furthermore, there is convincing evidence that the Secretary did notintend the more rigorous standards enunciated in section 1926.105(a) tobe preempted by the relaxed rules of Subpart R . . . .\”\”In sum, the Commission’s interpretation contradicts the legislativescheme which contemplates that general safety standards will supplementspecific safety standards by filling those gaps necessarily remainingafter the promulgation of specific standards.\”_Adams Steel Erection_ at 809-810.The Third Circuit found the inference of a deliberate omission by theSecretary \”hard to square\” with the fact that the Secretary is theauthor of section 1910.5(c)(2), which specifically addresses thequestion of regulatory lacunae: \”General standards shall apply . . . tothe extent that none of such particular standards applies.\”The District of Columbia Circuit considered the majority’s inference ofa deliberate omission \”counterintuitive,\” \”unconvincing,\” and \”mysterious.\”The Fourth and Ninth Circuits have held that supplementing specificstandards with general standards is both consistent with the structureof the OSH Act itself and necessary for realistic improvement. \”Lackingthe omniscience to perceive the myriad conditions to which specificstandards may be addressed, however, the Secretary, in an effort toinsure the safety of employees as required by the Act must at timesnecessarily resort to the general safety standards.\” _Bristol Steel &Iron Works, Inc. v. OSAHRC,_ 601 F.2d 717, n.11 (4th Cir. 1979). TheNinth Circuit pointed out that the OSH Act itself contemplates a mix ofspecific and general responsibilities: \”Petitioner’s complaint that theywere misled by the regulations into believing that no guards arerequired on press brakes is not credible in view of 29 U.S.C. ?654(a)(1) [the general duty clause] which, even in the absence of anyregulations, requires every employer to protect his employees from’recognized hazards that . . . are likely to cause . . . seriousphysical [injury].’\” _Irvington Moore v. OSHRC_, 556 F.2d 431, 435 (9thCir. 1977).In sum, the majority today elaborates and expands upon a rationalepreviously rejected by four federal courts of appeals in the strongestof terms. While generally omitting the characterizations placed on theCommission rationale, the District of Columbia Circuit Court declaredthat \”There is really nothing for us to add to the other courts’decisions, other than to express our hope that the Commission willfinally accept the unanimous position of three courts of appeals and theSecretary of Labor that ? 105(a) does apply to protect workers fromexterior fall hazards in the steel erection industry.\” _L. R. WillsonII_ at 1382. When, on the other hand, the Commission held that generalconstruction standards may supplement steel erection standards withrespect to exterior falls, those decisions were roundly affirmed. _L.R. Willson I_, _L. R. Willson II_, and _Williams Enterprises_. Inaddition, the Ninth and Fourth Circuits strongly support the generalproposition that specific standards can be augmented by more generalstandards.It is worth noting that the Fifth Circuit recently felt constrained toeschew its own interpretation of an aspect of the OSH Act because fourother circuits had reached unanimity on an opposing view. \”Were wewriting on a clean slate, we would be inclined to uphold the Union andCommission position . . . . Nevertheless we feel constrained to adoptthe Secretary’s interpretation because we find a compelling reason to doso in the unanimity of the authorities behind the Secretary’sposition.\” _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 reliance on the practice in theindustry. I am less inclined to do so, particularly where the industryprovides no protection whatsoever against falls to the exterior of abuilding, and virtually none against falls to the inside.[[4]] In _Cape& Vineyard Div. v. OSHRC_, 512 F.2d at 1152 (1st Cir. 1975) the court said:\”There may, however, be instances where industry practice fails to takereasonable precautions against hazards generally known in the industry;in such event it may not be unfair to hold the employer to a standardhigher than that of actual practice.\”The Fourth Circuit reached a similar conclusion in _Bristol Steel IronWorks_ (_supra_) saying\”While the custom and practice of most industries will adequatelyprotect employees from hazardous conditions, the inquiry must be broadenough to prevent an industry, which fails to take sufficientprecautionary measures against hazardous conditions from subverting theunderlying purposes of the Act.\”It is true, as the majority decision explains, that the Fifth Circuitrelies to a greater extent on the custom and practice in the industry,_S & H Riggers & Erectors_ (_supra_), and _B & B Insulation_ (_supra_),but as pointed out in the recent Fifth Circuit decision in _Brock v_._City Oil Well Service Co_., 795 F.2d 507 (5th Cir. 1986), industrycustom has been used to flesh out generally worded regulations in orderto avoid notice problems under the due process clause. The FifthCircuit has recognized that where an employer has actual knowledge ofthe requirements imposed by a regulation the problem of fair notice doesnot exist, and the employer may be found in violation even though itsconduct complies fully with the general practice in the industry; _see__S & H Riggers & Erectors_, 659 F.2d at 1278. The court also said:\”We did not hold [in _B & B Insulation_] that industry custom iscontrolling in all OSHA cases, or that the Secretary cannot imposestandards more stringent than those customarily followed in anindustry. We merely held that he cannot do so under as general andbroadly worded a regulation as ? 1926.28(a).\”_S & H Riggers_, 659 F.2d at 1282.One of Congress’ purposes in requiring that all contested cases begin inthis forum was to foster a uniform national body of OSHA law.[[5]] Buton this issue it is the Commission that injects disunity into what is,up to this point, a cohesive body of case law.BUCKLEY, Chairman, concurring in part and dissenting in part:I agree with the lead opinion’s conclusion that the standards in SubpartR contain exclusive requirements for fall protection during steelerection, with its discussion of that issue, and with its correspondingvacation of item 2 of the citation. I also concur with its affirmanceof item 5. I dissent, however, from the decision to vacate item 4. Iwould affirm the judge’s decision finding that Williams violated 29C.F.R. ? 1926.750(b)(1)(i).As the lead opinion notes, the principal issue under item 4 argued bythe parties is whether the unguarded openings on the sixth floor were\”access openings\” within the meaning of section 1926.750(b)(1)(i). Unlike the lead opinion, I would not limit \”access openings\” toopenings used only for the movement of people from floor to floor. Itis obviously not the intent of the standards to preclude openingscreated for the purpose of performing required work. Thus, the openingsin this case, to the extent they were necessary to give access togirders for the purposes of bolting, welding, and inspecting, would fitwithin both the plain meaning of \”access opening\” and the intent of thestandard. However, an opening only qualifies as an \”access opening\” tothe extent it provides access to a required work area. The judge foundthat the openings in this case existed for a longer period of time thanwas necessary to permit the required bolting, welding, and inspecting tobe done, and the evidence supports that finding. I therefore concludethat Williams violated section 1926.750(b)(1)(i).Having so concluded, I would not vacate the citation on the basis thatsection 1926.752(j) is more specifically applicable to the citedcondition. Section 1926.750(b)(1)(i) applies to the derrick or erectionfloor, which is the floor involved in this item, while section1926.752(j) is more general, applying to openings on all floors. Bothstandards thus apply to openings on the derrick or erection floor, andto that extent they overlap, but the cited standard is clearly the onethat is specifically applicable. In any event, there need be made nochoice between them. The two standards prescribe consistentrequirements, and there is no possibility that employers will be misledwith respect to what they are required to do. Where two standards mightbe regarded as equally applicable and are consistent with each other,the employer can be properly cited under either standard. 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. 79-4618_DECISION AND ORDER_APPEARANCES:Larry A. Auerbach, Esquire, Office of the Solicitor, U. S. Department ofLabor, Atlanta, Georgia, on behalf of complainantIra J. Smotherman, Jr., Esquire, Atlanta, Georgia, on behalf of respondentSPARKS, Judge: In July 1979, respondent, Williams Enterprises ofGeorgia, Inc., was erecting structural steel at the construction site ofa new Georgia Power Company building in Atlanta, Georgia. An inspectionby a safety compliance officer of the Occupational Safety and HealthAdministration resulted in the issuance of serious and nonseriouscitations. Only the serious citation was contested.At the time of the inspection between July 24 to 27, 1979, respondentwas erecting steel at the sixth floor level.Respondent’s employees are divided into six work crews or \”gangs\” whichperform specialized functions (Tr. 57-58). First, the erection crew\”sets the iron\” and then connectors insert two or three bolts at eachjoint of steel beam and columns (Tr. 60). The bolt-up gang insertsadditional bolts where the steel members join, and the plumb-up crewplumbs the building and places safety cables around the perimeter. Thedecking crew follows and prepares the decking for the pouring ofconcrete. The welding crew then welds the beams into the verticalcolumns (Tr. 58).During the inspection Mr. Lloyd Black, the compliance officer, observedemployees working without being tied off by their safety belts (Exh.C-1). Connectors were observed climbing the vertical steel andinserting bolts without being tied off. He testified that \”inherently\”connectors cannot tie off (Tr. 18).Bolt-up men were seen using safety belts while at their work stationsbut not while they were moving from station to station. It wasestimated that 50 percent of their time was spent at the work stations,and 50 percent of their time was moving from place to place.The compliance officer observed a \”plumb-up man\” walking perimetersteel, approximately 90 feet above ground level, who was wearing asafety belt but did not have on a lanyard (Tr. 16).The compliance officer also observed that the decking had not beeninstalled at any locations on the working floor where horizontal beamsjoined vertical columns, thereby leaving openings about three feet wide(Tr. 21-23).On the first floor Mr. Black observed that the entire perimeter safetycable was slack and in some cases touched the deck. Workers had to comenear the perimeter to obtain drinking water and use the stairways.The compliance officer was of the opinion that each of the circumstancesdescribed exposed employees to the danger of falling from 20 to 90 feetand 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 practices conform to those prevailingin the industry (Tr. 60, 62, 72, 85, 98-99, 100-101, 103, 112, 134). Union work rules do not require safety belts while moving (Tr. 68, 80;Exh. R-1). Complainant does not allege that respondent’s practices fallbelow the industry norm (Tr. 112, 134) but insists they were not incompliance with safety regulations._29 C.F.R. ? 1926.28(a) 29 C.F.R. ? 1926.105(a)__Failure to Use Personal Protective Equipment and\/or Safety Nets_The evidence clearly establishes that employees did not wear personalprotective equipment such as safety belts while exposed to the hazard offalling, nor did respondent use safety nets or other alternate means ofprotection. Respondent, however, makes the following contentions:1. The legal doctrines of res judicata and collateral estoppel barcomplainant from enforcing the cited standards because the issue ofwhether or not such standards are applicable to steel erection activityhas been tried and lost by the Secretary in previous cases involving therespondent.2. The regulations cited are inapplicable to the circumstances of thiscase because steel erection activities are exclusively governed bySubpart R of the construction regulations.3. The facts and circumstances of this case fail to establish aviolation of 29 C.F.R. ? 1926.28(a).4. The facts of record fail to establish a violation of 29 C.F.R. ?1926.105(a).5. The evidence of record establishes that it was impossible andinfeasible to use safety nets for perimeter protection for connectors,bolt-up workers and others.6. 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. The alleged violation of 29 C.F.R. ? 1926.750(b)(iii) relating tothe sagging safety cable was not created or caused by respondent, andrespondent’s employees had little or no exposure to the hazard createdby the alleged violation.There is little doubt that the doctrine of res judicata which includescollateral estoppel is applicable to administrative proceedings of thetype involving the Review Commission. The Supreme Court has stated asfollows:Occasionally, courts have used language to the effect that _res__judicata_ principles do not apply to administrative proceedings, butsuch language is certainly too broad. When an administrative agency isacting in a judicial capacity and resolves disputed issues of factproperly before it which the parties have had an adequate opportunity tolitigate, the courts have not hesitated to apply res adjudicata toenforce repose … U. S. v. Utah Construction and Mining Co., 384 U.S.394, 421, 86 S.C. 1545, 1560 (1966)[citations and footnote omitted].Collateral estoppel was recently applied to enjoin the Secretary ofLabor from prosecuting alleged violations of noise standards atdifferent plants of the Continental Can Company where prior proceedingshad resulted in findings that controls were not economically feasible. _Continental Can Company v. Marshall_, 603 F.2d 590 (7th Cir. 1979).Complainant contends that res judicata and collateral estoppel should berestricted to instances of attempts to relitigate alleged violationsoccurring on the same date and place alleged in the prior action. Suchrestrictive application or collateral estoppel would make the doctrinemeaningless and is inconsistent with the purpose of collateralestoppel. It is the identity of parties and legal issues that give riseto the doctrine. _Secretary v. Continental Can Co_., _supra_.Respondent contends that prior decisions of the Review Commissioninvolving the use of personal protective equipment foreclosecomplainant’s action in this case. In _Secretary v. WilliamsEnterprises of Georgia, Inc_. (No. 13063), Judge Larkin held that 29C.F.R. ? 1926.28(a), ? 1926.104 and ? 1926.105 do not apply to steelerection. The decision became the final action of the Commission sincethe two Commission members at that time could not agree. In Docket No.15449, the same parties and same alleged violations were involved. Judge Brady held that steel erection was the general business ofrespondent, and the specific work being performed by the employeesinvolved in that action. On that basis, the alleged violations werevacated. Judge Brady specifically held that \”the general regulations of29 C.F.R. ? 1926.28(a) and (b) and 29 C.F.R. ? 1926.104 and ? 1926.105do not apply to steel erection.\”The decision of Judge Brady in Docket No. 15849 was ordered reviewed bythe Commission upon its own motion. The decision was affirmed after theCommission noted that \”. . . the parties have filed no objection to theadministrative law judge’s decision, either by way of petitions fordiscretionary review or response to the order for review. Accordingly,there has been no appeal to the Commission, and no party has otherwiseexpressed dissatisfaction with the administrative law judge’sdecision.\” In his decision, Judge Brady found that \”the evidence inthis case establishes that respondent was engaged in steel erection atthe work site, and employees working at various levels withoutprotective equipment did so at or near open beams.\”The courts have recognized, however, that the doctrine of res judicatashould not be rigidly applied so as to prevent normal development ofadministrative law or to permit different applications to affectedparties. Professor Davis, in discussing the decision of the SupremeCourt in _Federal Trade Commission v. Raladam Co._, 283 U.S 643, 51 S.Ct. 587 (1931), which refused to apply res judicata to a secondproceeding brought on the same grounds as an earlier case, stated asfollows:. . . Why may the same question be tried again? Probably the bestanswer is that the question of the legality of the company’s 1929practices is not necessarily the same as the question of the legality ofthe company’s 1935 practices, even if the practices remained the same. Otherwise the opportunity for development of law and policy by processesof administrative and judicial interpretation would be cut off. Thedoctrine of res judicata should prevent a second prosecution for thesame act or acts. And it should prevent an agency from harassing arespondent by repeated prosecutions for continuing the same practices. But it should not prevent an agency, after a decent interval, fromtesting the question whether or not law or policy concerning continuingpractices may have changed. 2 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 legal principlesapplicable to this case which mitigate against strict adherence to theprinciples of res judicata.On February 9, 1979, the standards applicable to the constructionindustry were published by the Occupational Safety and HealthAdministration as a supplement to the _Federal Register_. Thesupplement provides a single source of standards for constructionactivities and includes general industry standards applicable toconstruction as well as general and specialized construction standards.The general provisions of Subpart C relate to problems commonly found inthe construction industry, and the other subsections deal withspecialized problems.Respondent contends the requirement for personal protective equipmentfound among the general requirements of 29 C.F.R. ? 1926.28(a) ispreempted by the specific safety requirements of Subpart R concerningsteel erection. A similar contention was recently considered by theReview Commission and by the Court of Appeals for the Fourth Circuit in_Secretary v. Bristol Steel &_ _Iron Works, Inc_., 77 OSAHRC 181\/D6, 5BNA OSHC 1940,1977-78 CCH OSHD ? 22,240,1979 CCH OSHD ? 23,651 (No.14537). Although the two members of the Commission were unable toagree, the Court of Appeals held that the general safety requirementswere not preempted by Subpart R. The Court stated as follows:The specific standards relied upon by Bristol, while providing safetyprotection to employees engaged in steel erection, cannot achieve thegoal of adequately protecting those employees in every conceivablesituation. Infinite hypotheticals can be envisioned in which employeesengaged in steel erection would be exposed to an unnecessary hazard notcovered by a Subpart R specific safety standard. The general safetystandard dealing with personal protective equipment found in 29 C.F.R. ?1926.28(a) complements the Subpart R specific standards dealing withsteel erection by requiring \”the wearing of appropriate personalprotective equipment [where there is a need] for using such equipment toreduce the hazards to the employees.\”Bristol suggests that its position is supported by 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 mightotherwise be applicable thereto. This argument, however, elides thelanguage of ? 1910.5(c)(2) that any standard shall apply according toits terms, even though particular standards are also prescribed for anindustry, to the extent that none of such particular standards apply. Were ? 1910.5(c) read in the manner Bristol suggests, the Secretarywould be prevented from coping with the variety of hazards not coveredby the specific standards, and we decline to read it in such a limitedfashion. _Bristol Steel & Iron Works, Inc. v. OSHRC_, 601 F.2d 717, 721[footnote omitted].It would be improvident to apply res judicata so as to freeze thedevelopment of safety law as applied to this employer, especially afterreviewing bodies have questioned the vitality of the legal principleupon which the earlier decisions were based. A change in the \”legalclimate\” is sufficient reason to render inapplicable the doctrine ofcollateral estoppel in administrative proceedings. 2 K. Davis,_Administrative Law Treatise_ at 574 (1958).Respondent further contends that Subpart R preempts the application ofgeneral regulations requiring personal protective equipment. Respondent argues as follows:Section 28 of Part 1926 is found in Subpart C of the regulations,\”General Safety and Health Provisions\”, and Section 105 is found inSubpart E, \”Personal Protective and Lifesaving Equipment\”, to whichreference is specifically made in Section 28(b). These regulations, ontheir face and read in context with the rest of the regulations in Part1926, are general regulations which apply to construction conditions inthe absence of specific standards. Where a more specific standard isapplicable, it prevails over a general standard which would otherwise beapplicable. 29 C.F.R. ? 1910.5(c)(1).The evidence in this case that the Respondent was engaged in steelerection on the worksite in question, and that its employees engaged insteel erection worked without continuous protection by personalprotective equipment or safety nets on steel beams at levels above thefloors that were temporarily or permanently decked over, makesapplicable the requirements of Subpart R, \”steel erection.\” Moreover,the condition or hazard involved in this case, working on steel beamconstruction without protection against falls, is specifically coveredby a specific regulation, 29 C.F.R. ? 1926.750, which provides inpertinent part:(b) _Temporary Flooring – Skeleton Steel Construction in Tiered Buildings_. . .(1)(ii) On buildings or structures not adaptable to temporary floors,and where scaffolds are not used, safety nets shall be installed andmaintained whenever the potential fall distance exceeds 2 stories or 25feet. The nets shall be hung with sufficient clearance to preventcontacts with the surface of structures below.. . .(2)(i) Where skeleton steel erection is being done, a tightly plankedand substantial floor shall be maintained within 2 stories or 30 feet,whichever is less, below and directly under that portion of each tier ofbeams on which any work is being performed, except when gathering andstacking temporary floor planks on a lower floor, in preparation fortransferring such planks for use on an upper floor. Where such a flooris not practicable, (b)(1)(ii) of this section applies.The effect of these standards is to require fall protection by way oftemporary floors within 30 feet or 2 stories of all steel erection work,except where the structure is not adaptable to temporary floors, inwhich case safety nets are required to be hung where the potential falldistance exceeds 25 feet or 2 stories. The difference in the figures isattributable to an amendment to bring the temporary flooring requirementinto line with current steel design. _See_ 39 _Fed_. _Reg_. 24360(1974). (Respondent’s Brief, pp. 17- 18)It is noted by complainant, however, that temporary floors do notprovide any fall protection to the outside of the building and wouldpermit falls as great as 30 feet or two stories to the inside of thebuilding. Such fall protection is inadequate and could not have beenintended to be exclusive. Temporary floors simply do not provideeffective protection from falls, and the requirement of temporary floorsdoes not preempt the general requirement of personal protectiveequipment, safety nets or other protection. _Bristol Steel & Iron Worksv. OSHRC_, _supra_; _Guy_, _Incorporated_, 7 BNA OSHC 2115, 1979 CCHOSHD ? 23,911 (No. 78-5795, 1979).Respondent next contends that courts of appeal have held that theconstraints of due process require that broad regulations such as 29C.F.R. ? 1926.28(a), which prescribe general standards of safe conductbe interpreted and applied in such a manner as to assure that anemployer has adequate warning of the conduct prohibited by suchregulations. _B & B Insulation, Inc. v. OSHRC_, _Et_. _Al_., 583 F.2d1364, 1367-1368 (5th Cir. 1978); _Power Plant Division, Brown & Root,Inc. v. OSHRC_, _Et_. _Al_., 590 F.2d 1363,1365 (5th Cir. 1969);_Bristol Steel & Iron Works v. OSHRC_, 601 F.2d 717 (4th Cir. 1979);_Cape and Vineyard Division v. OSHRC_, 512 F.2d 1148 (1st Cir. 1975).The courts have devised various tests for determining the standard forcompliance with 29 C.F.R. ? 1926.28(a). The test of Fifth Circuit in _B& B Insulation_, _supra_, requires only those protective measures whichthe knowledge and experience of the employer’s industry would clearlydeem appropriate under the circumstances. The Court further states that:Where the Government seeks to encourage a higher standard of safetyperformance from the industry than customary industry practices exhibit,the proper recourse is to the standard-making machinery provided in theAct, selective enforcement of general standards being inappropriate toachieve such a purpose. _B & B Insulation_, _supra_, at p. 1371.Other courts have applied a higher standard than industry custom andpractice.The Review Commission respectfully declined to follow the holding of _B& B Insulation Co_., _supra_, in _S & H Riggers and_ _Erectors, Inc._,79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ? 23,480, on the groundsthe Commission was responsible for developing consistent interpretationof safety law of nationwide application. The Review Commission has veryrecently reaffirmed its intention not to utilize the test of industrycustom and practice announced in _B & B Insulation_, _supra_; _S & H__Riggers and Erectors, Inc_. (Nos. 76-1104 and 76-1739, March 31,1980). The undersigned is compelled to follow the decisions of theReview Commission.Respondent further contends that it was impossible or infeasible to usesafety belts, safety nets or other protective equipment. Respondent’sevidence consisted primarily of testimony by its superintendent andforemen, who have had many years’ experience in the steel erectionbusiness, that use of safety belts and safety nets, as suggested by theSecretary, are not used in the industry (Tr. 60, 62-72, 80, 85,98-101,103). Mr. Robinson, plumb-up foreman, testified that safety netswould interfere with the plumb-up operations, but a larger \”target\” ordifferent means of plumbing the building could be used (Tr. 87, 109).Common practice, however, is not the appropriate test of what isfeasible or possible because the act envisioned that higher levels ofsafety practices may be required than was customary in industry. TheSecretary offered the expert testimony of Mr. Charles Casey who has beenin the \”safety business\” since May 1966 (Tr. 110) primarily in thesafety departments of construction companies. He has also worked as asafety inspector. Much of his experience has been with power plant andother large construction projects, but he has had some experience withthe erection of tiered buildings (Tr. 117).Mr. Casey’s testimony is convincing that employees moving along beamscan tie off by means of a long lanyard attached to the safety belt. Hedescribed the procedure as follows:One end of that lanyard is snapped into a D-ring on the person’s safetybelt. Then, that lanyard is – is wrapped around the steel member andbrought back up to the other part of the safety belt and snapped in. Both ends of that lanyard snapped into the personal protectiveequipment, but looped the iron (Tr. 123).The bolt-up and plumb-up men could use such protection while moving fromwork station to work station (Tr. 120-121).Mr. Casey further testified that safety nets could be placed around theperimeter of this and other high-rise structural steel buildings. Hisexperience 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). Mr. Casey further testified that a connector’s toggle isdesigned to allow a connector to be secured to the steel that he isstanding or working on. He described its use as follows:This connector’s toggle is designed that the head of it, the bolt, fitsto an existing hole in the steel, existing bolt hole, and it is anothermethod to reduce exposure of that man falling or that person falling ifanything else occurs or happens. It, again, does not allow for mobilityand it does not allow him complete protection at all times; but, it wasdesigned to reduce the exposure when the connector, you know, is at alocation or at a work station where – where there is something that hecan hook off to (Tr. 128).Mr. Casey acknowledged that he had never seen the connector’s toggle inuse, and the company he worked for refused to use it.The evidence is convincing that plumb-up and bolt-up men can, duringtimes of movement, utilize lanyards slung around beams (Tr. 20,120-121). It was estimated that the use of safety belts would increasethe time spent on steel erection by 10 percent to 20 percent (Tr. 77). The evidence is not entirely reassuring that use of safety nets orconnector’s toggles is without problems during construction of the typeinvolved in this case.As an affirmative defense, the burden of proof, however, is upon therespondent to establish that safety nets and other personal protectionare impossible or infeasible. The evidence produced by respondentdemonstrates that nets and toggles are not commonly used in high-riseconstruction especially in the South. Respondent’s witnesses suggestproblems associated with the use of nets while plumbing-up the buildingand with wearing safety lanyards, but the evidence is not convincingthat such problems are of such magnitude as to make the use of personalprotective equipment or nets impossible or infeasible. Respondent hasfailed to carry its burden of establishing the affirmative defenses. _Bristol Steel & Iron Works, Inc._, 79 OSAHRC 102\/C14, 1979 CCH OSHD ?24,080 (No. 78-3126); _Guy, Incorporated, supra_.It is not disputed that openings were left in the decking to permit thewelding 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). The section provides as follows:The derrick or erection floor shall be solidly planked or decked overits entire surface except for access openings.Respondent again contends it was following industry practice, that theopenings were usually uncovered of about one day only, and that littlehazard was presented to employees. In this instance, however, theyremained open for two or three days (Tr. 21-22).The openings were about 3 feet wide and ran the length of the buildingbecause the design engineer would not permit decking to be cut less than40 feet long (Tr. 36, 69-71). They intersected with every verticalcolumn and were over and extended 10 to 12 inches on each side of thefloor beams (Tr. 21-22, 48; Exh. C-2). It is unlikely workers wouldfall entirely through the openings, although employees stepping over theopenings could trip and fall onto the floor (Tr. 22). The safetyspecialist testified that employees falling into the openings andthereby striking the beams from heights up to 20 feet could sufferserious injuries (Tr. 23), but serious injury could be expected from anyfall from the height whether falling onto temporary floors or beams.It is necessary for access openings to be left open for a reasonableperiod of time to permit welding and inspections. Openings which runthe entire length of a building and which remain uncovered for severaldays cannot be said to be within the exception for \”access openings,\”since the extent and duration of the openings far exceed the legitimateneeds to be served by the exception. An accident involving the hazard,however, would likely result in less than death or serious injury,thereby establishing an other than serious violation.Finally, complainant alleges respondent violated 29 C.F.R. ?1926.750(b)(1)(iii) which states as follows:Floor periphery–safety railing. A safety railing of 1\/2-inch wire ropeor equal shall be installed, approximately 42 inches high, around theperiphery of all temporary-planked or temporary metal-decked floors oftier buildings and other multifloored structures during structural steelassembly.A temporary floor was guarded by a perimeter-wire cable which sagged soas to touch the floor (Exh. C-3; Tr. 38, 108). The cable had beeninstalled by respondent originally but, as work had progressed,responsibility for the cable had shifted to the general contractor (Tr.63-64, 86). The evidence does not establish that the cable was erectedimproperly since other contractors remove cables on occasion tofacilitate work or the movement of materials or equipment (Tr. 62,108). Respondent’s employees were exposed to the hazard when usingstairway and to reach the water barrel (Tr. 32-34, 38-39, 41 50-52). The evidence is not convincing, however, that respondent was responsiblefor or had knowledge of the sagging safety cable at the time observed bythe compliance officer and alleged in the citation. It is uncertain howlong the cable had been in that condition. That item is, therefore,vacated.In assessing the penalty, as provided in section 17(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 previousviolations. Respondent had more than 100 employees. Many employeesworking without safety belts or other equipment were frequently exposedto the hazard of falling from great heights. The parties stipulatedthat final orders of the Review Commission have been entered findingrespondent in nonserious violation of several regulations and in seriousviolation of 29 C.F.R. ? 1926.302(b)(7) on October 5 to 6, 1978 (Tr. 42,Letter of Complainant dated March 7, 1980, and Letter of Respondentdated March 21, 1980). Respondent was given credit for having anaverage safety program (Tr. 35), although the compliance officeracknowledged that the project was about the safest erection job he hadseen (Tr. 38). There were regular safety meetings, and there had beenno complaints from the union (Tr. 64, 76). Moreover, as previouslydiscussed, two prior decisions had concluded that respondent’s failureto require the use of personal protective equipment was not a violationof the standards._FINDINGS OF FACT_1. Respondent erected structural steel for the construction of theGeorgia Power Company building as a subcontractor.2. Employees of respondent worked on various crews performing worknecessary to erecting structural steel including raising, connecting,bolting-up, plumbing-up, decking and welding.3. Employees often worked at heights above 20 feet without using safetybelts and lanyards or safety nets and were thereby exposed to a fallinghazard.4. A fall from the heights at which respondent’s employees were workingwould likely result in death or serious bodily injury.5. Respondent’s employees observed the customs and practices of thesteel erection industry in this area regarding use of safety nets andpersonal protective equipment including safety belts.6. It was not infeasible for respondent’s employees to use personalprotective equipment including safety belts and lanyards while movingalong perimeter steel.7. The use of safety nets and connector’s toggles were not infeasibleunder the circumstances of this case.8. Respondent’s employees were exposed to a tripping hazard by openingsleft in the decking.9. The floor openings were too extensive to be \”access openings\”necessary for welding operations.10. In the event of an accident, employees exposed to the hazard offloor openings would likely suffer injury but probably not death orserious bodily injury.11. Although respondent originally erected the perimeter safety cable,which was observed sagging to the floor, it was not responsible for thecable at the time of the inspection.12. Safety cables were removed from time to time by other contractorson the job.13. Respondent’s employees were exposed to a falling hazard by thesagging safety cable, but responsible supervisors of respondent may nothave been aware of such a condition.14. Considering the gravity of the violations and size, history andgood faith of the respondent, the following penalties are warranted:Item 1 – \tWithdrawn by ComplainantItem 2 – \t$350.00Item 3 – \t$300.00 (By Stipulation)Item 4 – \t$ 50.00Item 5 – \tVacatedItem 6 – \t$210.00 (By Stipulation)_CONCLUSIONS OF LAW_1. The Review Commission has jurisdiction of the parties and thesubject matter.2. The doctrine of res judicata will not bar proceedings allegingviolations of 29 C.F.R. ? 1926.28(a) and ? 1926.105(a).3. Respondent violated 29 C.F.R. ? 1926.28(a) and 29 C.F.R. ?1926.105(a) by exposing employees to the hazard of falling withoutrequiring personal protective equipment or providing alternateprotection including safety nets and connector’s toggles.4. It was not infeasible to require safety belts and lanyards bybolt-up and plumb-up workers, nor to provide safety nets and connector’stoggles.5. Respondent failed to comply with 29 C.F.R. ? 1926.750(b)(1)(i) underconditions constituting a nonserious violation6. Respondent did not violate 29 C.F.R. ? 1926.750(b)(1)(iii).7. Total civil penalties of $910.00 are appropriate.It is ORDERED:1. Items 2, 3 and 6 of the citation are affirmed.2. Item 4 is modified to nonserious and is affirmed3. Items 1 and 5 are vacated.4. Civil penalties of $910.00 are assessed.Dated this 27th day of May, 1980.JOE D. SPARKSJudgeFOOTNOTES:[[1]] Part 1926 is entitled \”Safety and Health Regulations forConstruction.\” Subpart R, entitled \”Steel Erection,\” is located at 29C.F.R. ?? 1926.750-752.[[2]] Section 1926.105(a) is published in Part 1926, Subpart E–PersonalProtective and Life Saving Equipment. It provides:? 1926.105 _Safety nets_.(a) Safety nets shall be provided when workplaces are more than 25 feetabove the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, orsafety belts is impractical.[[3]] Section 1926.28(a) is published in Part 1926, Subpart C–GeneralSafety and Health Provisions. It provides:? 1926.28 _Personal protective equipment_.(a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions and where this part indicates the needfor using such equipment to reduce the hazards to the employees._See The L.E. Myers Co., High Voltage Systems Div_., 86 OSAHRC 12 BNAOSHC 1609, 1986 CCH OSHD ? 27,476 (No. 82-1137, 1986), _appeal_ _filed_,No. 86-3215 (6th Cir. March 14, 1986).[[4]] The parties apparently agree that the work of the bolt-up andplumb-up crews permitted the crew members to tie off in stationary workpositions approximately half the time they were present on the perimeterbeams. The other half of the time, it was necessary for the crewmembers to be in motion, traveling back and forth along the beams.[[5]] Specifically, he contends, the employees should have used the\”long-lanyard method\” of protection when they were moving along theperimeter beams. Under this method, the employee walks along the bottomflanges of the beam while straddling the beam. He wears a safety beltwith an extra-long lanyard that circles beneath the beam, with the twoends of the lanyard attached to opposite sides of his safety belt.[[6]] Williams cites to the following regulation:? 1910.5 _Applicability of standards_.(c)(1) If a particular standard is specifically applicable to acondition, practice, means, method, operation, or process, it shallprevail over any different general standard which might otherwise beapplicable to the same condition, practice, means, method, operation, orprocess. . . . [Example omitted].[[7]] The Secretary relies on the following regulation:? 1910.5 _Applicability of standards_.[(c)](2) On the other hand, any standard shall apply according to itsterms to any employment and place of employment in any industry, eventhough particular standards are also prescribed for the industry, . . ., to the extent that none of such particular standards applies. . . .[Examples omitted].[[8]] Both Williams’ principal place of business and the constructionworksite where the inspection occurred were located in the state ofGeorgia. Accordingly, Williams asserts before us that it \”both residesand performed the work involved in this case in the jurisdiction of thenew Eleventh Circuit.\”[[9]] The D.C. Circuit earlier reached similar holdings 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 to bolster a vaguestandard; but rather that those purposes are best served by requiringthe Secretary to clarify those standards which are ambiguous orinconsistent or fail to give adequate notice to employers of requiredconduct. The relationship of Subpart R to the general standards, andparticularly to ? 1926.105(a) with its history of litigation, and whichwas described by one circuit court as \”teetering on the precipice ofvagueness,\” is a prime example of regulatory failure which has doggedthe Secretary since the inception of the Occupational Safety and HealthAct. See _Diamond Roofing Co. v. OSHRC_, 528 F.2d 645, 650 (5th Cir.1976) (\”The purpose of OSHA is to obtain safe and healthful workingconditions through promulgation of occupational safety and healthstandards which tell employers what they must do to avoid hazardousconditions. To strain the plain and natural meaning of words for thepurpose of alleviating a perceived safety hazard is to delay the daywhen the occupational safety and health regulations will be written inclear and concise language so that employers will be able to understandand observe them.\”)[[11]] Virtually all of the standards issued under the ConstructionSafety Act were adopted without significant change under theOccupational Safety and Health Act. (The only substantial change was inthe coverage of the standards, a change that reflected the differencesin the respective coverage of the two statutes). The repromulgationunder OSHA occurred very shortly after the initial promulgation underthe Construction Safety Act.[[12]] In 1974, ? 1926.750(b)(2) was amended to read as it does now. 39Fed. Reg. 24360-361 (July 2, 1974). The current version permits a30-foot fall distance when temporary floors are used during steelerection, as opposed to the 25-foot limit during general construction. However, the creation of this height differential in 1974 has no bearingin determining the intent of the drafters with respect to the originalSubpart R.[[13]] The fact that ? 1926.105(a) allows the use of other alternativesinstead of temporary floors or safety nets is, as a practical matter,irrelevant in the context of steel erection work. As will be seen laterin this decision, temporary floors and interior safety nets are widelyregarded as the only practical alternatives during steel erection, andparticularly during the early phases of steel erection that are at issuein this case. (Safety belts are generally viewed as a supplemental formof protection and not as a substitute for the two basic safeguards.)[[14]] These witnesses gave consistent testimony concerning the customsand practices of the industry, which were essentially the same practicesfollowed by Williams at the time of the inspection. According to thesewitnesses, the standard practice was to protect connectors, plumb-up menand bolt-up men by instructing them to work no more than two stories or30 feet above the highest completed deck floor. Bolt-up and plumb-upmen received supplemental protection at times from tied-off safetybelts. However, they did not use safety belts while moving alongstructural steel, and connectors never used safety belts.[[15]] In particular, that litigation history confirms the point made onthis record concerning the nonuse of perimeter safety nets on high-risebuildings within the steel erection industry. _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 officer advocated a method of fallprotection involving safety belts, lanyards, and a lifeline strungbetween columns. Williams’ more experienced witnesses responded that alifeline strung between columns would be hazardous to the employees atissue because it would interfere with their ability to walk along theperimeter beams safely. For this reason, the witnesses continued, theindustry practice is to wait until a temporary floor has been installedbefore putting up the wire-rope railing required under ?1926.750(b)(1)(iii). Thus, customarily, not even wire-rope railings areinstalled until sometime after the bolt-up and plumb-up crews completetheir work on the perimeter beams.[[17]] The Secretary’s expert witness, safety consultant Casey,nevertheless testified that another type of personal protectiveequipment known as a \”connector’s toggle\” could have been used toprovide some additional protection while the connectors were notactually working with or near moving steel. Casey conceded that thedevice is of very limited utility because it does not permit anymobility. He was unable to even estimate the percentage of time togglescould have been used, and he acknowledged that he had never seen them inuse. In fact, he admitted, on the one occasion when he had recommendedthe use of connector’s toggles on a particular project, his own employerhad rejected his recommendation. The other witnesses who were askedabout connector’s toggles indicated that they were totally unfamiliarwith the device. In light of this record, the judge quiteunderstandably stated that \”[t]he evidence is not entirely reassuringthat use of . . . connector’s toggles is without problems.\”[[18]] Consistent with Subpart R’s preference for temporary floors oversafety nets, see ?? 1926.750 (b)(1)(ii) & (b)(2)(i), the industryapparently regards interior safety nets as a feasible means of fallprotection only in situations where temporary floors cannot be used. Moreover, the industry disputes the Secretary’s contention thatperimeter safety nets are feasible in high-rise multi-flooredconstruction. Both of these points are well illustrated by the recordin this case. With respect to the feasibility of perimeter safety nets,we note the following. General foreman Aenchbacher, who had 32 years ofexperience in the steel erection industry, raised several objections tothe use of perimeter safety nets. He argued that connectors cannot beprotected by nets because there is nothing at that stage of the erectionprocess to which the nets can be attached. He also expressed hisopinion that it would not be practical to protect the bolt-up andplumb-up crews with perimeter safety nets because other employees wouldbe exposed to a falling hazard while hanging the nets, the nets could beburned during the welding phase of the steel erection, and the netswould interfere with the plumbing-up operations. Plumb-up crew foremanRobinson, who had 35 years of experience in the industry, also believedthat perimeter safety nets would be infeasible because they wouldinterfere with the plumbing-up operations.[[19]] Section 1926.752(j), a Subpart R standard, provides:All unused openings in floors, temporary or permanent, shall becompletely planked over or guarded in accordance with Subpart M of thispart.[[20]] We note that this regulation does not by itself have anysubstantive significance. It was adopted under the Occupational Safetyand Health Act after the construction safety standards were promulgatedunder the Construction Safety Act. 36 Fed. Reg. 10466 (May 29, 1971). It could not change the construction standards in any substantivemanner, for it was promulgated without notice-and-comment rulemakingproceedings. 36 Fed.Reg. 10466 (1971). _See Usery v. Kennecott CopperCorp_., 577 F.2d 1113 (10th Cir. 1977); _Senco Products_, 82 OSAHRC59\/E9, 10 BNA OSHC 2091, 1982 CCH OSHD ? 26,304 (No. 79-3291,1982).[[21]] The 1982 _Willson_ court went even further. \”The question is notwhether Subpart R provides any exterior fall protection standards, butrather whether it provides standards to guard against the particularexterior fall hazard for which Willson was cited.\” 685 F.2d at 672. Aswe said in _Adams Steel Erection_, 11 BNA OSHC at 2077, \”An employerwould not be able to determine what standards applied to his workplaceunder this test because his obligations would shift depending on thenature of the particular circumstances resulting in a citation.\”[[22]] This same principle applies to other standards, such as the noisestandard at 29 C.F.R. ? 1910.95(c)-(p). In establishing an 8 hour timeweighted average to sound levels of 85 dBA the Secretary did notconclude that all exposures below 85 dBA were safe; indeed he estimatedthat there would be a substantial number of cases of hearing impairmentat exposure levels between 80 and 85 dBA. 46 Fed. Reg. 4078, 4105 (Jan.16, 1981). Nevertheless, the Secretary decided to leave the protectionof these particularly susceptible workers to voluntary employer actionrather than mandating a limit below 85 dBA. _Id_. at 4095-96.[[23]] The rationale for this result would be as follows. Section1926.750(b)(2)(i) only eliminates the hazard of falling more than 30feet. Even if the employer complies with this requirement, employeesare still exposed to the hazard of falling more than 25 feet. Therefore,? 1926.105(a) can be applied to this hazard since no standard in SubpartR applies. _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 pertinentpart_, 744 F.2d 170 (D.C. Cir. 1984). See also OSHA Instruction STD3-3.1 (July 18, 1983) reprinted in _Employment Safety and Health Guide_(CCH) ? 12,855 at 17,166.[[24]] With respect to the feasibility of covering the openings, thewitness gave contradictory testimony. When asked why it was necessaryto leave openings that extended the entire distance between columns, heresponded that the sheets of decking were 40 feet long, that they couldnot have been cut, and that they would have been hazardous if used topartially cover the openings. However, he then gave his testimonyabout the customary practice of placing temporary covers over theopenings between the welding of the connections and the inspection ofthe welds and also between the bolting-up work and the inspection ofthat work. Furthermore, on cross-examination, he indicated that, atsome time prior to the inspection, the sixth floor in fact had beensolidly decked. Thus, the openings at issue apparently were created byremoving decking that previously had been installed. This decking wasremoved 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 theOSHA standard. We recognize that the Secretary of Labor promulgated hisstandard before ANSI formally adopted its standard. Nevertheless, theANSI procedure for developing an industry consensus standard is alengthy one. It is therefore likely that ANSI drafted and circulatedits standard before the Secretary drafted his and that the authors ofSubpart R were aware of the ANSI proposal. We note in this regard thatthe Department of Labor was represented on American National StandardsCommittee A10, Safety in the Construction Industry.[[26]] This conclusion is fully corroborated by the record in thiscase. As indicated, Williams introduced evidence to the effect that itsown usual practice and the practice of its industry was to leave thecolumn line openings temporarily covered when they were not being used. Planking would then be removed when necessary to permit bolting, weldingor inspecting of connections. Industry custom and practice accordinglyconformed exactly to the procedures prescribed in sections 6.11 and6.12, suggesting that the industry considered these provisions to becontrolling.[[27]] We decline to amend the citation to allege a violation of section1926.752(j), since the parties did not expressly or impliedly consent totry a violation of this standard. _McWilliams Forge Co_., 84 OSAHRC 11BNA OSHC 2128, 1984 CCH OSHD ? 26,979 (No. 80-5868, 1984).[[28]] We conclude that the allegation of the citation is broad enoughto include both of the dates (the first and second days of theinspection) and both of the locations (the first-floor landing and theadjacent first-floor decking) discussed above. In particular, we notethat Williams did not object to the compliance officer’s testimonyconcerning the conditions on the second day of the inspection. It hasnot asserted that this evidence went beyond the scope of the pleadings. Nor has Williams responded to the Secretary’s claim that the citationitem can be sustained on the basis of this evidence. Yet, Williams hasbeen aware of the Secretary’s position at least since the filing of theSecretary’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 feetabove the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, orsafety belts is impractical.[[2]] 29 C.F.R. ? 1926.750(b)(2)(i) deals with falls from structuralbeams to the interior of the building; ? 1926.750(b)(1)(iii) with fallsfrom 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 twostories below employees working on beams. One would presume it wouldnot require an inspired engineering feat to improve on this.[[5]] _See Keystone Roofing Co., Inc. v. OSHRC_, 539 F.2d 960, 962 (3dCir. 1976) (the \”statutory framework furthers two laudable goals ofadministrative law: _it encourages the Commission to achieve uniformlyapplied occupational safety and health_ _standards_ in furtherance ofthe Act’s overall objectives, while guaranteeing as far as practicablethat the administrative process will be efficient rather thanprotracted.\” (emphasis added); _cf_., _Brennan v. Gilles & Cotting,Inc_., 504 F.2d 1255 (4th Cir. 1974).”