                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                      June 2, 2006
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                        No. 05-60897
                                      Summary Calendar



       WILLIAMS INSULATION,

                                                           Petitioner,

                                             versus

       OCCUPATIONAL, SAFETY AND HEALTH REVIEW COMMISSION;
       ELAINE CHAO, SECRETARY, DEPARTMENT OF LABOR,

                                                           Respondents.


                            Appeal from the United States
                  Occupational Safety and Health Review Commission
                                (Docket No. 05-0031)
           _________________________________________________________


Before REAVLEY, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

       Williams Insulation petitions for review of a Final Order of the United States

Occupational Safety and Health Review Commission relating to a citation and penalty for

failure to ensure rooftop laborer Juan Gomez was protected by fall arrest systems in


       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
violation of 29 C.F.R. 1926.501(b)(13). Reviewing the record for substantial evidence,

we deny the petition because substantial evidence supports the finding that Gomez was

engaged in construction-related rooftop activities without fall protection. Williams relies

on the exception to the fall protection requirement provided in 29 C.F.R. §

1926.500(a)(1) for employees engaged in inspection, investigation or assessment of

workplace conditions prior to the actual start of construction work. When a standard

contains an exception to its general requirement, the burden of proving that the exception

applies lies with the party claiming the benefit of the exception.1 Williams introduced no

witnesses and adduced no testimony to support its contention that Gomez was engaged in

pre-work inspection and fall anchor installation at the time the inspection occurred.

Other than the assertions of Williams’s counsel and remarks of one compliance officer as

to what Gomez claimed to be doing, there is nothing in the record to establish that Gomez

was engaged in exempted activities while on the roof without fall protection.

PETITION DENIED.




       1
           ConAgra Flour Milling Co., 15 BNA OSHC 1817, 1823, 1992 OSHD ¶29,808
(1992).

                                             2
