dissenting:

The Commission found that the petitioner had the status of a repeated violator of the Act and nothing in the record indicates that the Commission ignored that finding in assessing the penalty. I agree with the opinion of the court that it is entirely proper for the petitioner to challenge that determination, and I agree with parts II and IV of the opinion. But in my view this case should be remanded to the Commission for further proceedings with reference to the alleged repeat violations, and I dissent from the decision to affirm .the Commission’s order.

The Administrative Law Judge refused to inquire .whether the violations in question here were substantially similar to the previous violations, and concluded that the petitioner was a repeated violator merely because it had committed the violations “more than once.” On review, the Commission affirmed the finding of repeated violations with the simple observation that “on the same ship herein involved, respondent [previously] failed to comply with the same standards with which it is found in noncompliance here.”

This court affirms the order holding that petitioner is a repeated violator, but declines to state a definition of the legal standards which support that determination. One might infer that the court adopts the Commission’s conclusion that a repeated violation may be established on a mere showing of its having occurred more than once. That rule would be wholly inconsistent with the statute.

The congressional purpose shown by the design of this statute is to impose sanctions in the degree necessary to deter employer violations. Heavier sanctions are imposed when the employer’s noncompliance indicates a degree of deliberateness or fault. Thus, we have held that section 666 penalties are to be imposed to the extent necessary to obtain employer compliance with the Act, but that the employer is not strictly liable for all violations. Brennan v. Occupational Safety & Health Review Commission, 511 F.2d 1139, 1144-45 (9th Cir. 1975). The definition of a repeated violation must be consistent with this statutory purpose.

A single violation of the Act is punishable by a civil fine of up to $1,000. 29 U.S.C. § 666 (b)-(c). In assessing this penalty, the Commission is to consider, among other factors, the employer’s “history of previous violations.” Id. § 666(i). One must assume the Act contemplates that sufficient deterrence of an employer who has an OSHA violation record can in some cases be accomplished without applying sanctions for repeated violations. If every second offender were a repeated violator it would make no sense for the statute to direct that the history of violations be considered in assessing the relatively minor penalties for single violations. 1

More severe penalties are applicable where an employer not only is aware of his OSHA transgression but also deliberately refuses to comply with the Act. An em *1333 ployer who has not corrected a violation subsequent to a final Commission order may be fined up to $1,000 per day. Id. § 666(d). Fines may be as much as ten times those imposed for a serious violation when an employer’s noncompliance is knowing and intentional and hence may be characterized as a willful violation. Id. § 666(a). See Intercounty Construction Co. v. Occupational Safety & Health Review Commission, 522 F.2d 777, 779-80 (4th Cir. 1975), cert. denied, 423 U.S. 1072 , 96 S.Ct. 854 , 47 L.Ed.2d 82 (1976); F. X. Messina Construction Corp. v. Occupational Safety & Health Review Commission, 505 F.2d 701, 702 (1st Cir. 1974) (“willful” described as “conscious, intentional, deliberate, [and] voluntary”).

A repeated violation, like a willful violation, is punishable by a potential $10,000 fine. 29 U.S.C. § 666 (a). To adopt a definition of “repeated” which would include a second fortuitous violation of one of the myriad standards, rules, or orders promulgated pursuant to the Act would be to read into section 666 a punitive sanction unrelated to the section’s purpose to deter. Such a definition is inconsistent with the statutory scheme. The more stringent penalties prescribed by section 666 are reserved for instances where an employer’s deliberate disregard of the Act may be inferred. I would

conclude, therefore, that a repeated violation requires a showing of at least constructive knowledge of the violation by the employer, 2 and a past history of violations of such nature that the employer’s failure to prevent the most recent violation gives rise to an inference that he acted deliberately or with reckless disregard of the requirements of the Act.

The Third Circuit has reached substantially this result. Bethlehem Steel Corp. v. Occupational Safety & Health Review Commission, 540 F.2d 157 (3d Cir. 1976). Based on the legislative history of subsection 666(a) and the juxtaposition of the terms “willfully” and “repeatedly” in the statute, that court construed “repeatedly” as creating an objective evidentiary standard for proving willfulness. Id. at 161-62 . The case also sets forth factors which are'useful in evaluating whether an employer’s conduct constitutes a repeated violation:

Id. at 162 . I would agree with the Third Circuit in holding that these criteria are *1334 relevant to determining whether an employer is a repeated violator. 3

A bare showing that a regulation had been violated more than once on a given ship is not enough to bring the conduct automatically within the scope of the term “repeated.” Cases may arise where the number of times a standard is violated will be sufficient to establish a repeated violation. But where the number of violations is low, further inquiry is necessary to establish the character of the employer’s violations. Here the Commission refused to consider even whether the violations were substantially similar, and it made no inquiry at all as to whether it would be possible to draw an inference of deliberate or reckless disregard of the requirements of the Act. I would grant the petition for review and remand the case to the Commission for findings in accordance with the standards and definitions set forth in this opinion.

. Chairman Bamako makes this argument as part of a very thoughtful analysis of the type of conduct encompassed by repeated violations. George Hyman Construction Co., 5 OSHC 1318, 1321 (1977), appeal docketed, No. 77-1591 (4th Cir., May 2, 1977).

The Occupational Safety and Health Review Commission apparently can no longer agree on *1333 what constitutes a repeated violation. In a 1975 decision, the Review Commission read the term “repeated” to mean “happening more than once in a manner which flaunts the requirements of the Act,” Secretary v. General Electric Co., 17 OSAHRC 49, 65 (1975), rev’din part on other grounds sub nom. General Electric Co. v. Occupational Safety & Health Review Commission, 540 F.2d 67 (2d Cir. 1976), thereby consciously adopting terminology used in a Third Circuit case which had discussed classification of violations as “willful.” See Frank Irey, Jr., Inc. v. Occupational Safety & Health Review Commission, 519 F.2d 1200 (3d Cir. 1974), aff’d, 519 F.2d 1215 (3d Cir. 1975) (en banc), aff’d on other grounds sub nom. Atlas Roofing Co. v. Occupational Safety & Health Review Commission, 430 U.S. 442 , 97 S.Ct. 1261 , 51 L.Ed.2d 464 (1977). Subsequently, the Commission reiterated the definition of “repeated” as articulated in General Electric but added gloss which seemed to de-emphasize the importance of examining the nature of the violations: “Thus ‘repeated’ or ‘repeatedly’ identifies a second or subsequent violation of a standard previously cited.” Edward Hines Lumber Co., 4 OSHC 1735, 1737 (1976). The Third Circuit meanwhile adopted the “flaunting of the requirements of the Act” standard. Bethlehem Steel Corp. v. Occupational Safety & Health Review Commission, 540 F.2d 157, 162 (3d Cir. 1976). By the time the Commission was called upon to decide George Hyman Construction Co., supra, however, agreement on the meaning of repeated had so far deteriorated that no two of the three commissioners could reach a consensus on the issue.

The Commission’s indecision and confusion, which might be dissipated by some definitive guidance from the circuit courts, can only be aggravated by the refusal of the majority in this case to squarely confront the problem of construing § 666(a).

. This court has held that before a penalty may be assessed for even a nonserious violation of the Act, it must be established that the employer “knew or should have known of the existence of an employee violation . . . .” Brennan v. Occupational Safety & Health Review Commission, 511 F.2d 1139, 1145 (9th Cir. 1975).

. Though I am in substantial agreement with the definition of a repeated violation as articulated by the Third Circuit, I would avoid that court’s use of the term “flaunting” as being somewhat inexact and confusing in light of its history of use in this context. See note 1, supra.