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 http://www.osha.gov.

August 22, 1994

MEMORANDUM FOR: CINDY A. COE

Acting Regional Administrator

THROUGH: JOHN B. MILES Director Directorate of Compliance Programs

FROM: ROY F. GURNHAM, Director Office of Construction and Maritime Compliance Assistance

SUBJECT: Request for Review of Potential 1926.95(a) Citation for Fall Protection in Steel Erection

We have reviewed your request to issue a willful citation to Miller Construction Company for failure to provide fall protection during bridge construction. We concur with your request to issue a citation under 1926.95(a).

The 1926.95(a) citation which you propose to issue, however, would have to be based on a hazard other than drowning since drowning hazards are addressed by other standards (also proposed for citation). Hypothermia does not seem a likely hazard under the facts as we understand them. If the water temperature was 50 to 60 degrees Fahrenheit, a worker would probably be pulled from the water well before a hypothermia danger would arise. The most likely hazard, therefore, would be an impact hazard. The object would be to show the possibility of injury in the event of a fall and that a reasonable person would recognize this possibility and the need to protect against it. If the river was very shallow in places beneath the work areas, the likelihood of injuries as a result of stiking the river bed can probably be established although you may need expert testimony should the citation be contested and litigated.

If you have any further questions please contact me (at extension 150) or Mr. Dale Cavanaugh (at extension 149) of my staff at 202/219-8136.

June 23, 1994

MEMORANDUM FOR: JOHN MILES, JR., Director

Directorate of Compliance Programs

THROUGH: JIMMY ROBERTS, Acting Director Office of Field Programs

FROM: CINDY A. COE Acting Regional Administrator

SUBJECT: Request for "Egregious" Information

This is in response to your memorandum concerning the above listed subject. The status report for this week is negative.

June 24, 1994

MEMORANDUM FOR: JOHN B. MILES, JR., Director

Directorate of Compliance Programs

ATTENTION: ROY GURNHAM Office of Construction & Maritime Assistance

FROM: CINDY A. COE Acting Regional Administrator

SUBJECT: Potential Citation-- 29CFR 1926.95(a) Fall Protection Less than 25 feet Miller Construction Company Inspection #10877119

In accordance with the requirements of the February 22, 1994, memorandum from James W. Stanley, Deputy Assistant Secretary, enclosed is a proposed 1926.95(a) willful citation for employees, of the Miller Construction Company, who were exposed to falls from a bridge of approximately 15 feet to the Sugar River in Newport, New Hampshire.

The Concord Area Office is proposing to issue three citations as listed below:

Citation #1 - Serious

Item #1 29CFR 1926.106(c) $ 1,000 Item #2 29CFR 1926.106(d) $ 1,000

Citation #2 - Willful

Item #1 29CFR 1926.95(a) $ 49,000

Note: This is the item for which we request your review as required by the memorandum from James W. Stanley dated February 22, 1994.

Item #2 29CFR 1926.106(a) $ 49,000

Citation #3 - Repeat

Item #1 29CFR 1926.1052(c)(1) $ 1,600

Total Penalty $101,600

If you have any questions, please contact Robert B. Hooper, Assistant Regional Administrator for Federal-State Operations, at (617) 565-7164, extension 120.

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