[Federal Register Volume 60, Number 17 (Thursday, January 26, 1995)]
[Rules and Regulations]
[Pages 5131-5133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1973]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1926
[Docket No. S-206]
Safety Standards for Fall Protection in the Construction Industry
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Final rule; delay of effective date.
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SUMMARY: The Occupational Safety and Health Administration (OSHA)
issued a final rule on Fall Protection in the Construction Industry (59
FR 40672, August 9, 1994), which is scheduled to become effective on
February 6, 1995. The Agency has determined that interested persons did
not receive adequate notice that subpart M would apply to non-building
steel erection activities. Accordingly, OSHA is delaying the
application of the final rule to steel erection activities, as well as
the effectiveness of certain items in the final rule, until August 6,
1995. OSHA intends to reopen the subpart M rulemaking record in a
subsequent Federal Register notice for comment regarding the
appropriate fall protection measures to be taken to protect employees
engaged in non-building steel erection activities from fall hazards.
[[Page 5132]] EFFECTIVE DATE: As of February 6, 1995, the effective
date for items 4, 5, 6, and 7, in the Federal Register document of
August 9, 1994, (59 FR 40729) is delayed until August 6, 1995. In
addition, OSHA is not applying subpart M to the non-building steel
erection industry until August 6, 1995.
FOR FURTHER INFORMATION CONTACT: Anne C. Cyr, Office of Information and
Consumer Affairs, Occupational Safety and Health Administration, U.S.
Department of Labor, Room N-3647, 200 Constitution Avenue, NW.,
Washington, DC 20210. Telephone (202) 219-8148.
SUPPLEMENTARY INFORMATION:
I. Why OSHA Is Delaying the Effective Date of Subpart M to the Extent
the Standard Applies to Steel Erection Activities
On November 25, 1986, OSHA proposed to revise fall protection
requirements for the construction industry and to consolidate those
requirements in subpart M of Part 1926. (51 FR 43718, November 26,
1986). At that time, the agency stated that it intended to apply
subpart M to all steel erection activities, but noted that
``[a]dditional requirements to have fall protection for connectors and
for workers on derrick and erection floors during steel erection would
remain in subpart R--Steel Erection.'' 51 FR 43720.
Steel erection involves a wide variety of structures, roughly
grouped into building and non-building structures. The term
``building'' includes single-story and multi-story buildings, such as
mill buildings, warehouses, gymnasiums, stadiums, power plants, and
theaters as well as metal floor decking and metal roof decking
installed during the erection process. The term ``non-building
structures'' refers to the erection of steel members during the
construction of bridges (including viaducts and overpasses), towers,
tanks, antennae and similar structures.
After reviewing comments on the proposed revisions to subpart M,
OSHA decided that fall hazards for workers engaged in the erection of
steel framed buildings would be better addressed in a rulemaking to
revise Subpart R, ``Steel Erection.'' Subpart R applies to steel frame
buildings and contains a variety of safety requirements, of which fall
protection is only one part.
OSHA announced this decision in the Federal Register on January 26,
1988:
The comments received to date have convinced the Agency to
develop a separate proposed rule which will provide comprehensive
coverage for fall protection in steel erection. OSHA intends,
therefore, that the consolidation and revision of fall protection
provisions in Subpart M not apply to steel erection and that the
current fall protection requirements of Part 1926 continue to cover
steel erection until the steel erection rulemaking is completed.
53 FR 2053.
OSHA also requested information on issues it believed would assist
the agency in developing a proposal to revise subpart R. In discussing
the request for information, OSHA stated that the revised subpart R
would apply to ``the steel erection industry'' and would provide fall
protection for ``steel erection workers.'' 54 FR 2053.
On March 22-23, 1988, OSHA held a hearing for the purpose of taking
testimony relevant to: (a) the subpart M proposal (as revised in scope
to exclude steel frame buildings), and (b) the January 1988 request for
information concerning ``fall protection in steel erection.''
When OSHA stated in the January 26, 1988, Federal Register notice
and at the March 1988 hearing that ``steel erection'' fall hazards
would be addressed in a rulemaking to revise subpart R rather than in
the subpart M rulemaking, it meant ``steel erection fall hazards
covered by the existing subpart R.'' Since existing subpart R related
only to buildings, these statements, OSHA believed, conveyed its
intention that steel erection of buildings was being eliminated from
subpart M rulemaking but not non-building steel erection.
The final Subpart M standard was issued August 9, 1994. It imposes
the duty to provide fall protection for all construction activities and
workplaces except designated activities for which other subparts of
part 1926 specify fall protection requirements. See
Sec. 1926.501(a)(2). With respect to steel erection,
Sec. 1926.500(a)(2)(iii) provides:
(2) Section 1926.501 sets forth those workplaces, conditions,
operations, and circumstances for which fall protection shall be
provided except as follows: * * *
(iii) Requirements relating to fall protection for employees
performing steel erection work in buildings are provided in subpart
R of this part.
59 FR 40730.
Steel erection of non-building structures is not exempt from
coverage because no other subpart of part 1926 specifies fall
protection requirements for those activities and because the existing
rulemaking record contains substantial evidence of the feasibility and
efficacy of subpart M requirements in non-building steel erection work.
On October 7, 1994, five steel erection companies petitioned OSHA
for an administrative stay of final subpart M to the extent the
standard applies to steel erection activities, regardless of the type
of steel erection being performed. They asserted that they had
understood OSHA's January 26, 1988, and March 22-23, 1988, statements
to mean that subpart M would not apply to any steel erection
activities. They argued that OSHA had not given fair notice that
subpart M would apply to the steel erection industry at all and, in
consequence, petitioners were deprived of an opportunity to comment on
this issue.
OSHA has reviewed the rulemaking record in light of petitioner's
fair notice claims. In retrospect, OSHA agrees that the January 26,
1988, Federal Register notice and March 22-23, 1988, hearing statements
did not clearly communicate OSHA's intention that non-building steel
erection would continue to be included in the subpart M revision.
Because OSHA has determined that petitioners and other interested
persons did not receive adequate notice that subpart M would apply to
non-building steel erection activities, OSHA is not applying the
standard steel erection until August 6, 1995. The delay of application
will begin on February 6, 1995 and continue for 6 months, through
August 6, 1995. OSHA is also delaying for 6 months the effective date
of supporting amendments to subpart E (items 4, 5, 6 and 7) of the
August 9, 1994, Federal Register notice). The purpose of the delay is
to maintain the fall protection requirements for steel erection that
were in effect before issuance of revised subpart M and to permit OSHA
to reopen the subpart M record for supplemental comments concerning
subpart M coverage of non-building steel erection work.
Subpart M and supporting amendments to subparts R, H, N, P, Q, and
V will become effective for all construction activity other than steel
erection on February 6, 1995.
II. Authority
This document was prepared under the direction of Joseph A. Dear,
Assistant Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210.
It is issued under section 6(b) of the Occupational Safety and
Health Act (29 U.S.C. 655), section 107 of the Construction Safety Act
(40 U.S.C. 333), and 29 CFR part 1911.
[[Page 5133]] Signed at Washington, DC, this 20th day of
January 1995.
Jospeh A. Dear,
Assistant Secretary of Labor.
[FR Doc. 95-1973 Filed 1-25-95; 8:45 am]
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