273 F.3d 1131 (D.C. Cir. 2001)
Manganas Painting Company, Petitionerv.Secretary of Labor, Respondent
No. 00-1497
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2001Decided December 11, 2001

Petition for Review of an Order of the Occupational Safety and Health Review Commission
Roger L. Sabo argued the cause and filed the briefs for  petitioner.
John Shortall, Attorney, United States Department of Labor, argued the cause for respondent.  With him on the brief  were Joseph M. Woodward, Associate Solicitor, and Ann S.  Rosenthal, Attorney.
Before:  Henderson and Tatel, Circuit Judges, and  Silberman, Senior Circuit Judge.
Opinion for the Court filed Per Curiam.

Per Curiam:

1
Manganas Painting Company appeals the  Occupational Safety and Health Review Commission's decision that it violated the Occupational Safety and Health Act of  19701 by failing to adequately protect its employees against  falls when preparing a bridge for repainting.  The Secretary  of Labor reasonably interpreted her own regulations, and  substantial evidence on the record as a whole supports the  Commission's findings, and therefore, we affirm.

I.

2
Manganas is a painting contractor that specializes in industrial commercial painting.  At its peak, the company employed approximately 35 employees.  In 1992, Manganas was  the low bidder to the Ohio Department of Transportation to  sandblast, repaint, and make certain structural repairs to the  Jeremiah Morrow Bridge, a twin structure supported by  structural steel girders spanning an approximate two hundred  foot gorge which includes the Little Miami River.  The EPA  and the Occupational Safety and Health Administration  (OSHA) required Manganas to equip the bridge with a device  to contain the lead-based paint being removed from the  bridge and with protection (such as a safety net) for employees exposed to the risk of falling.  The Act and its implementing regulations set forth a comprehensive scheme of fall  protection that applies in the absence of an industry-specific  scheme--OSHA has not implemented regulations specific to  the bridge painting industry, so the general fall protection  regulations applied to Manganas' bridge project.  In 1993, an  OSHA Compliance Officer inspected the bridge, which Manganas was in the process of preparing for environmental  containment and safety nets. At that time, the scaffold regulation provided as follows:


3
Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats....  Scaffolds 4 to 10 feet in height having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails on open sides and ends of the platform.


4
29 C.F.R. 1926.451(a)(4)(repealed).  The safety net regulation  provided:


5
Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts is impractical.


6
29 C.F.R. 1926.105(a).


7
After multiple inspections, the OSHA CO issued Manganas  several citations, three of which are on appeal.2  First, the  CO cited Manganas based on the employees' method of using  safety belts, which they were using while rigging the bridge  for safety nets.  When they were working on the steel beams  of the bridge, and were exposed to falls upwards of 150 feet,  the employees would hook the metal safety hooks of their  safety belts to the portholes of the steel flanges that were a  part of the bridge deck structure:  the metal hooks did not  close completely.  The employees also used this method of  "tying off" their safety belts when ascending and descending  45 and 90 degree angle beams.  Second, the CO faulted  Manganas' use of "painters' picks," which are lightweight  boards, approximately twenty inches wide and eight to twelve  feet in length.  The painters' picks extended from the handrail of a permanent catwalk running underneath the length of  the highway spanning the bridge, and rested on a cable  running horizontally along the outside of the bridge.  Considering them to be scaffolds, the CO issued Manganas a citation  because they did not have guardrails.  Finally, the CO found  that a Manganas employee, Stillwell, had failed to tie his  safety belt off at all when he was in the process of securing  the painters' picks to the horizontal cable running along the  outside of the bridge.3  The CO characterized the safety belt  violation stemming from the open hooks as a "repeat" violation because Manganas had been cited previously for violating  the same standard.


8
Manganas challenged the citations and an Administrative  Law Judge held a three-day hearing, issuing a decision in  1996.  The ALJ concluded that the painters' picks were  scaffolds requiring guardrails;  that Stillwell had failed to tie  off when on the painters' picks;  and that the safety belts,  with open hooks, did not provide adequate fall protection.  He  rejected the Secretary's argument that the safety belt violation was a "repeat" violation.  The Secretary petitioned the  Commission for review, arguing that it was;  Manganas also  petitioned for review, arguing that the painters' picks were  not governed by the scaffold regulation and disputing the  ALJ's finding that the fall protection was inadequate.  Four  years later, the Commission affirmed the ALJ's finding of  violations, but reversed his finding that the safety belt violation was not "repeat."  Counsel explained that the delay was  a result of the Commission's inability to find two commissioners who could agree on the outcome of the case.

II.

9
Manganas argues primarily that the regulations in place in  1993, as opposed to more explicit subsequent regulations, did not adequately proscribe the cited conduct.  Because the  later regulations explicitly address the method of using safety  belts, the company reasons, it could not be cited for inadequate fall protection if the problem stemmed from the method  of use, rather than the type of protection.  This argument is  without merit.  We defer to the Secretary's reasonable interpretation of her original regulation.  In this case, the Secretary has interpreted the safety net regulation to require  effective fall protection, an interpretation that certainly merits  deference--indeed, it seems obvious.  It certainly is not so  unexpected as to violate Manganas' due process rights, as the  company argued.  Substantial evidence, including courtroom  testimony and demonstrations, supports the Commission's  finding that Manganas' method of tying off was effective only  when the employees leaned back.  In other words, the protection was not effective in many situations, and therefore  Manganas failed to provide adequate fall protection.


10
Petitioner makes a similar argument with respect to the  scaffold regulation violation.  According to the company, the  painters' picks are actually catenary scaffolds, which subsequent regulations address as a separate category.  The company's argument fails for two reasons.  First, the Secretary  reasonably concluded that the painters' picks are not catenary  scaffolds, which are defined as platforms between two horizontal cables--the painters' picks, by contrast, had one end  resting on a permanent catwalk while the other rested on a  horizontal cable.  Second, even if the painters' picks were  catenary scaffolds, the Secretary reasonably concluded that  such scaffolds fell within the general scaffold regulation,  which required guardrails.  The appropriate question is not  whether the regulations explicitly addressed the specific  method of safety belt use or guardrails on catenary scaffolds; instead, the question is whether the Secretary's interpretation  of the safety net and scaffolding regulations as proscribing  the cited conduct was reasonable.  It was.


11
The company also challenges the Commission's finding that  it had constructive knowledge of the violations, arguing that  the Commission imposed a constant supervision requirement  on the company, contrary to its own precedent.  The record does not support this argument.  As to the safety belt  violation that stemmed from the non-closing hooks, Manganas  taught its employees to use that fall protection and cannot  now argue that it was unaware that its employees were  following directions.  In addition, Manganas was clearly  aware that its painters' picks lacked guardrails.  As to Stillwell's failure to tie off his safety belt while on the painters'  picks, his testimony made clear that Manganas was not cited  for an isolated incident.  Instead, Stillwell's practice was to  walk across the painters' picks without tying off and to fasten  the painters' picks to the cable without tying off.  The record  also makes clear that Stillwell was visible to his supervisor,  and was, in fact, periodically aided by his supervisor when  setting up the painters' picks.  The Commission's finding that  Manganas should have been aware, or was aware, is supported by substantial evidence.


12
Finally, Manganas disputes that the Secretary carried her  burden of showing that the safety net violation was a "repeat"  one.  According to Manganas, it was not enough that the  Secretary showed that Manganas twice violated the same  standard while painting bridges.  But the Commission has  made it clear that the Secretary makes a prima facie showing  that a violation is "repeat" if the prior and present violations  are for failure to comply with the same standard.  See, e.g.,  Potlatch Corp., 7 O.S.H.C. 1061 (1979).  The burden then  shifts to the employer to demonstrate that the violations took  place under disparate conditions and hazards associated with  the separate violations, which Manganas did not do.  The  company argued only that the first violation was for a failure  to provide any fall protection, the second for a failure to  provide adequate fall protection.  This argument does not  show that Manganas did not commit a "repeat" violation of  the safety net regulation.


13
Accordingly, the Commission's decision is affirmed.



Notes:


1
 29 U.S.C. §§ 651-678 (1994 ed. & Supp. V (2000)).


2
 The CO issued several separate citations and an amended  citation, but only three violations are on appeal.


3
 Manganas argues that the CO essentially double-counted the  same violation:  that Stillwell worked on the painters' picks without  guardrails and without tying off.  In oral argument, counsel for the  Commission clarified that the second citation for Stillwell's conduct  was for his failure to tie off while putting the pick in place, a  situation in which the guardrails would not have provided fall  protection.  Counsel for the Commission also clarified that the  guardrails are a type of fall prevention, while safety belts arrest  falls that have already occurred, and that they are not necessarily  interchangeable forms of abatement.


