[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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