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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 http://www.osha.gov.
March 16, 1998
Mr. Brian McQuade
Laborer's Health and Safety Fund of North America
1225 Eye Street, N.W., Suite 900
Washington D.C., 20005-3914
Re: §1926.602(a)(1); §1926.1000(a)(2); section 5(a)(1) of the OSH Act (General Duty clause)
Dear Mr. McQuade:
Thank you for your two letters on behalf of the Laborer's Health and Safety Fund of North America to the Occupational Safety and Health Administration (OSHA.) Both letters, dated December 18, 1997, provided detailed statistical information on recent fatalities and serious injuries concerning road construction hazards. One letter raised safety concerns about the operation of roller compactors while the other addressed controlling hazardous energy (lockout/tagout) in construction.
Regarding roller compactors, you indicated that a study of BLS's Census of Fatal Occupational Injuries found that this type of equipment was most often involved in fatal overturns at road construction sites. However, as explained in OSHA's letters of interpretation dated April 23, 1979, and August 8, 1991, that were enclosed with your letter, the Agency does not have a specific standard addressing compactors and rubber-tired skid steer equipment used in construction. As you noted, in §1926.602(a)(1) and §1926.1000(a)(2), OSHA held off issuing safety standards that would address seat belts and roll-over protection (ROPS) pending consideration of (consensus) standards being developed at that time.
The construction industry has long recognized the hazard of rollover with respect to compactors and skid steer equipment. In 1977, SAE adopted performance criteria for ROPS when used on a variety of different kinds of machines, including compactors and skid steer equipment. In other words, if a manufacturer or owner decided to install ROPS on such equipment, SAE recommended that it meet a specified minimum level of performance. It developed that criteria after studying how ROPS had performed in actual rollover incidents (SAE J1040b (1977).) Therefore, at least since 1977, the industry has recognized that there is a rollover hazard associated with this type of equipment.
Thus, it is OSHA's position that the hazard of equipment rollover is a "recognized" hazard within the meaning of the General Duty clause (section 5(a)(1) of the Occupational Safety and Health Act, and that ROPS and seat belts are feasible in many situations to reduce this hazard for compactors and skid steer equipment
In response to your query about understanding the Agency's position on this matter on the 1979 and 1991 letters referenced above, please be advised that it is the 1979 letter and not the 1991 letter to Mr. Ken Cooper that more accurately reflects the Agency's position. The 1991 letter should be regarded as superseded.
We are studying your request that the Agency move forward with regulatory action to establish requirements for ROPS and seat belts on compactors and rubber tired skid steer equipment, and intend to discuss this matter with OSHA's Advisory Committee on Construction Safety and Health at their upcoming meeting. We will let you know if the Agency decides to proceed with that rulemaking.
Your other letter, addressing the control of hazardous energy ("lockout/tagout") in construction, provided results from a recent study of data sources that included the BLS Census of Fatal Occupational Injuries. You indicated that these results showed that about six fatalities a year were attributable to non-electrocution events during the control of hazardous energy. You then asked that the Agency begin citing the General Duty clause in situations were employees in the heavy and highway construction sector (SIC 161) are exposed to uncontrolled hazardous energy sources.
The unexpected energization of equipment during maintenance and repair operations is a hazard that is recognized by the industry. Where no standard addresses this hazard, it is OSHA policy to cite the General Duty clause if the employer failed to take feasible steps to eliminate or reduce the hazard. (We note that some of the examples you mentioned in your letter appear to stem from hazards that are covered by existing standards.)
In addition, in the most recent Unified Agenda, published in the October 29, 1997, Federal Register, OSHA listed a notice of proposed rulemaking for the control of hazardous energy (lockout/tagout) in construction as an action item. While we have not yet set a target date for completion of a rule, we are endeavoring to move forward in this regard.
Thank you for your concern about these important occupational safety issues.
Russell B. Swanson, Director
Directorate of Construction