GEWIN, Circuit Judge:
Pursuant to 29 U.S.C. § 660(b),
It is solely upon an interpretation of the language employed therein that the disposition of this appeal is contingent. The Commission maintains that where the use of one of the safety devices listed in this regulation is practical, then resort to safety nets is not required even though the practical device is not in fact utilized by the employer.
The Occupational Safety & Health Act of 1970, 29 U.S.C. § 651 et seq. (1970), was enacted to provide "so far as possible every working man and woman in the Nation safe and healthful working conditions. . . ." 29 U.S.C. § 651. To effectuate this benevolent purpose, Congress authorized the Secretary of Labor, charged with enforcing the Act, to "set mandatory occupational safety and health standards. . . ." 29 U. S.C. § 651(b) (3). Employer noncompliance with the standards promulgated by the Secretary may result in the issuance of citations and the imposition of fiscal penalties. See 29 U.S.C. §§ 658(a), 659(a), 666.
The facts which gave rise to the sanctions imposed by the Secretary and subsequently vacated by the Commission are uncontroverted. Southern was engaged in disassembling the structural steel members of a missile launching tower at
Pursuant to section 659(a), Southern sought review of the Secretary's decision to impose these sanctions. At the proceedings conducted before the Administrative Law Judge, a safety specialist with the Air Force testified, at the behest of the Secretary, that in a dismantling operation such as the one conducted at Launch Complex 34 only safety belts with lanyards could properly protect workers while at the same time afford them the mobility required. Such safety belts, he claimed, would have been the practical safety equipment to utilize. The Administrative Law Judge ascribed paramount significance to this testimony, but much to the Secretary's chagrin, seized upon it as the rationale for retracting not countenancing the sanctions imposed by the Secretary. His reasoning was as follows:
On appeal, the Commission concurred in the gloss placed on the regulation at issue by the Administrative Law Judge.
This case presents a novel issue to this court. In Brennan v. Occupational Safety & Health Review Commission & J. W. Bounds, 488 F.2d 337 (5th Cir. 1973), a panel of this court was confronted with the related but nevertheless distinct issue of whether an employer who utilizes one of the safety devices enumerated in the regulation is amenable to sanctions for failing to employ a more effective device. Acknowledging
Although agreeing with the panel in Brennan v. Occupational Safety & Health Review Commission and J. W. Bounds, supra, that the term "impractical" is ambiguous, we are constrained to hold that the Commission's tortuous construction of the regulation cannot be sustained. Since, as was noted earlier, the Secretary is authorized to promulgate regulations, his interpretation is entitled to great weight. See Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 854, 28 L.Ed.2d 158, 165 (1971); United States v. Chicago, 400 U.S. 8, 10, 91 S.Ct. 18, 20, 27 L.Ed.2d 9, 12-13 (1970); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700, 1702 (1945). We have held that the promulgator's interpretation is controlling as long as it is one of several reasonable interpretations, although it may not appear as reasonable as some other. Roy Bryant Cattle Co. v. United States, 463 F.2d 418, 420 (5th Cir. 1972). See also Board of Directors & Officers, Forbes Federal Credit Union v. National Credit Union Administration, 477 F.2d 777, 784 (10th Cir. 1973). In view of the salutary purpose of the Occupational & Safety Health Act, we cannot conclude that the ambiguity in the term "impractical" is so fatal as to warrant condemnation of the Secretary's interpretation of the regulation as unreasonable.
In contrast, the Commission's construction would eviscerate the import of the regulation and flout the purposes of the enabling legislation. The Occupational Safety & Health Act was designed to protect the health and safety of workers and to improve physical working conditions on employment premises. See 29 U.S.C. § 651; 1970 U.S.Code Cong. & Admin.News p. 5177. Under the Commission's interpretation, an employer unsolicitous of the safety of his employees could dodge the Act's sanctions merely by adducing evidence that a device listed in 29 C.F.R. 1926.105(a) could have been practically utilized. And under this interpretation, the regulation rather than eliciting greater responsiveness on the part of employers would condone greater neglect.
To reiterate, we hold that 29 C. F.R. 1926.105(a) must be read to require an employer to employ either a safety net or one of the other safety devices listed in the regulations, and hence that failure to use any of such devices is a proper predicate for the imposition of sanctions prescribed in the Occupational Safety & Health Act of 1970. The citation issued by the Secretary charged the following violation: "Failure to provide safety nets, safety belts or other appropriate protection for workers exposed to falls of more than 25 feet." Southern admittedly did not employ safety nets. Evidence having established that it was, in fact, practical to use safety belts, Southern was in violation of the regulation. Accordingly, we reverse the Commission's order which found 29 C.F.R. 105(a) inapplicable to the facts alleged in the complaint lodged against Southern.
Reversed with directions to reinstate the citation issued by the Secretary.