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OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.
September 10, 1991
The Honorable Slade Gorton
United States Senate
Washington, D.C. 20515
Dear Senator Gorton:
Thank you for your letter of July 5, relating the concerns of Mr. Jan B. Willis, President of American Line Builders, Inc. Mr. Willis alleges that the Occupational Safety and Health Administration (OSHA) has adopted a new interpretation of the fall protection standard as it relates to electric power transmission line construction and maintenance.
The OSHA standard, 29 CFR 1926.951(b)(1), which requires workers engaged in power transmission line construction and maintenance to be protected from falls from their elevated work places has been a requirement of the regulations since its adoption on November 17, 1972. The OSHA standard states:
Body belts with straps of lanyards shall be worn to protect employees working at elevated locations on poles, towers, or other structures except where such use creates a greater hazard to the safety of the employees, in which case other safeguards shall be employed.
The Agency's determination that 29 CFR 1926.951(b) requires fall protection for employees climbing towers, as well as for employees at work stations, is not "a dramatically new interpretation" of current rules as they relate to fall protection. OSHA's position in this matter is based on its understanding of what the Agency intended when it promulgated the pertinent standard in 1972. Furthermore, OSHA's position is consistent with decisions by the Occupational Safety and Health Review Commission (OSHRC) (Gelco Builders, Inc., 6 BNA 1104, 1106 (1977)) and the Fourth Circuit (Daniel International Corporation v. OSHRC, 656 F.2d 925, 932 (1981)), which have held that "work" includes presence in areas of access to and from work areas.
In addition, the OSHRC has consistently rejected the contention, raised most recently in Secretary of Labor v. Seibel Modern Manufacturing & Welding Corporation (OSHRC Docket No. 88-821, August 9, 1991), that "the failure of OSHA to cite certain conditions deprived the employer of notice that those conditions were either hazardous or in violation of OSHA standards."
Therefore, the fact that powerline contractors have operated for years without being cited for failure to protect climbing employees form fall hazards does not immunize them from citation for violation of 29 CFR 1926.951(b).
On February 28, shortly after a contractor employee of the Western Area Power Administration (WAPA) suffered a severe injury from falling 105 feet from a transmission tower, Admiral James D. Watkins, Secretary of the Department of Energy, issued a memorandum to the Administrator of WAPA. That memorandum directed WAPA to "develop and implement procedures of engineering controls to protect tower workers in accordance with 29 CFR 1926.951(b)." A copy of Secretary Watkins' memorandum is enclosed.
As the result of Secretary Watkins' memorandum and the citation issued by OSHA to the Job Line Construction Company, OSHA is working with WAPA to develop procedures and methods which will ensure compliance with the requirements of the standard.
If we may be of further assistance, please contact us.
Gerard F. Scannell