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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.
December 27, 2001
Mr. Arun Shirole
National Steel Bridge Alliance
1405 North Lilac Drive, Suite 212
Golden Valley, MN 55422-4528
Dear Mr. Shirole:
This is in response to your letter of August 31 regarding your support for the American Road and Transportation Builders Association's (ARTBA's) petition to exempt bridge construction from OSHA's shear connector requirements in 29 CFR 1926.754(c)(1). You also suggest that OSHA, while reviewing ARTBA's petition, should reconsider the effective date of the standard's component requirements as they apply to bridge projects.
After evaluating ARTBA's petition, I do not believe it is appropriate to exempt bridge construction from the shear connector requirements in 29 CFR 1926.754(c)(1).
As you are aware, OSHA's revised steel erection standard was under development for many years. In 1992, following petitions from affected parties in the steel erection industry, the Agency decided that 29 CFR 1926, Subpart R (Safety Standards for Steel Erection) should be amended by negotiated rulemaking. The composition of a negotiated rulemaking committee is required to represent a broad spectrum of the affected industry.
On December 29, 1992, OSHA published a Notice of Intent to Establish a Negotiated Rulemaking Committee. From the numerous nominations for participation, OSHA selected committee members representing labor, industry, public interests and government agencies. The Steel Erection Negotiated Rulemaking Advisory Committee (SENRAC) began negotiations in June 1994 and met 11 times over an 18-month period. The meetings were held in cities across the country, including Denver, St. Louis, Boston and Washington, DC. The public was encouraged to attend the meetings, participate in SENRAC workgroups and address the Committee. All meetings were announced in the Federal Register and through other means, including through industry publications.
Based on the SENRAC recommendations, OSHA issued a steel erection proposed rule in August 1998. Included in the proposal was an economic analysis, which provided estimates of the costs that would result if the proposal were enacted. OSHA provided the public with a 90 day comment period to make written comments on the proposed rule. In addition, OSHA provided the public with an opportunity to testify at a public hearing held December 1-11, 1998.
Over 300 written comments were submitted, and approximately 50 persons testified at the public hearing. A number of the comments addressed shear connectors. OSHA received written comments and testimony from representatives of construction companies, engineering firms, and the American Iron and Steel Institute and the Associated General Contractors. OSHA received neither written comments nor hearing testimony from representatives of the ARTBA or the National Steel Bridge Alliance (NSBA). In addition, neither organization participated in the negotiated rulemaking meetings to have their views heard by the SENRAC Committee.
Following a complete review and analysis of the entire rulemaking record, including the written comments and hearing testimony, OSHA issued the Steel Erection final rule on January 18, 2001. OSHA addressed the shear connector issues raised by the commenters in the preamble to the final rule. The Agency found that the rulemaking record supported the position that shear connectors need to be installed in the field. Shop-welded shear connectors on top flanges of beams/girders were shown to be a significant tripping hazard. The record supported the contention that it is safer to install the shear connectors after the decking has been installed, so that the deck can be used as a work platform. Using the deck as a work platform reduces the fall hazards associated with field installation of shear connectors.
Comments opposing the shear connector provision did not provide persuasive evidence to support their contentions. In particular, those comments concerned with the application of §1926.754(c)(1) to bridge construction did not show that compliance with the provision would be infeasible nor did they provide evidence that field-installed shear connectors are more expensive than shop-installed shear connectors and reduce overall productivity.
To exempt bridge builders from the requirements of §1926.754(c)(1) at this point would require additional rulemaking. At times there may be unusual instances where a limited reopening of a negotiated rule is necessary. However, in general, I believe that the Agency should avoid revisiting the issues that were addressed in a negotiated rulemaking after the negotiating committee members have debated them, agreed on a proposed rule, and the rulemaking process has been completed.
In this case, all interested parties had an opportunity to consider the data and issues associated with the points that you have raised. This was done during the SENRAC meetings and through public comment and testimony on the proposed rule. It does not appear that there is any new information involved. In these circumstances, I do not think that it would be appropriate to reopen the rulemaking. I would, of course, be happy to meet with NSBA and any of its members to discuss concerns about the steel erection standard as they apply to bridge builders.
As you know, OSHA recently issued a delay in the effective date of the final rule until January 18, 2002. The new effective date gives additional time to the industry to become familiar with the final rule's requirements and to provide necessary training to its employees. Included in the delay is a phase-in, which provides that the component requirements will not be applied to certain projects where the building permit was granted before January 18, 2001 or where steel erection began before September 16, 2001.
You recommend that, while we review ARTBA's petition, OSHA allow bridge projects to be exempt from the component requirements of the standard if the bid or contract date, whichever is earlier, is after October 31, 2001. In support of the need for this extended time, you state that the average storage time for steel on bridge projects is 15 weeks.
Following publication of the final rule, employers expressed concerns about their ability to comply with the new standard by July 18, 2001, particularly with regard to provisions that address construction safety design aspects of structural components.
In evaluating these concerns, the Agency determined that, while the design of structural components can be changed, some time is necessary to make changes needed to conform to the final rule's requirements. Components are typically fabricated 2 or 3 months prior to being erected. Not only would it be very costly to have to re-fabricate components that were already made, such re-fabrication would cause serious delays to the project, affecting all the trades involved. The new effective date will give an additional 6 months to facilitate these changes.
We have studied your request. We understand that permits are not normally issued for bridge projects, and so bridge projects do not have the full benefit of the phase-in exemption that we issued previously. Therefore, to be consistent with the delay afforded to building construction, OSHA will exempt a bridge project from the component requirements of the new steel erection standard if: (1) the project has a contract date before January 18, 2001; or (2) steel erection began before September 16, 2001. It does not appear that more phase-in time is appropriate for bridge construction than other steel erection projects.
In addition, while we are not further postponing the effective date of the standard, I do believe that it is very important that we provide opportunity for both OSHA field personnel and employers and employees to become familiar with the new requirements of the Steel Erection Standard. For that reason, we have posted on the OSHA website notice that OSHA will not conduct general schedule inspections on the standard for 60 days (until March 19, 2002), in order that we can focus our efforts on education, training, and outreach.
John L. Henshaw