Regulations (Preambles to Final Rules) - Table of Contents Regulations (Preambles to Final Rules) - Table of Contents
• Record Type: Safety Standards for Fall Protection in the Construction Industry
• Section: 1
• Title: Section 1 - I. Background

I. Background

Congress amended the Contract Work Hours Standards Act (40 U.S.C. 327 et seq.) in 1969 by adding a new section 107 (40 U.S.C. 333) to provide employees in the construction industry with a safer work environment and to reduce the frequency and severity of construction accidents and injuries. The amendment, commonly known as the Construction Safety Act (CSA) [P.L. 91-54; August 9, 1969], significantly strengthened employee protection by requiring the promulgation of occupational safety and health standards for employees of the building trades and construction industry working on Federally-financed or Federally-assisted construction projects. Accordingly, the Secretary of Labor issued Safety and Health Regulations for Construction in 29 CFR Part 1518 (36 FR 7340, April 17, 1971) pursuant to section 107 of the Contract Work Hours and Safety Standards Act.

The Occupational Safety and Health Act (OSH Act) (84 Stat. 1590; 29 U.S.C. 651 et seq.), was enacted by Congress in 1970 and authorized the Secretary of Labor to adopt established Federal standards issued under other statutes, including the Construction Safety Act, as occupational safety and health standards. Accordingly, the Secretary of Labor adopted those Construction Standards, which had been issued under the Construction Safety Act in 29 CFR Part 1518, as OSHA standards in accordance with section 6(a) of the OSH Act (36 FR 10466, May 29, 1971). The Safety and Health Regulations for Construction were redesignated as Part 1926 later in 1971 (36 FR 25232, December 30, 1971).

OSHA adopted several regulations related to fall protection under section 6(a) of the OSH Act. In particular, the Agency adopted the standards which currently appear in subpart E, Personal Protective Equipment, (including Sec. 1926.104 -- Safety Belts, Lifelines, and Lanyards and Sec. 1926.105 -- Safety Nets) and in subpart M, Floor and Wall Openings and Stairways. Subpart M has been amended several times under section 6(b) of the OSH Act.

As part of OSHA's continuing standards evaluation program, and in response to public comments, a complete review of subpart M was begun in 1977. Since then, the Advisory Committee on Construction Safety and Health (ACCSH) has reviewed draft revisions of subpart M a number of times and has made many suggestions regarding the draft regulatory language. The transcripts of the ACCSH meetings where draft revisions to subpart M were discussed are part of the public record (Exhibit 1). The ACCSH recommendations, and those of other interested parties, have been carefully analyzed in connection with the present rulemaking. Many of the changes in the revised standard reflect the suggestions of the ACCSH and other interested persons. Specific ACCSH recommendations are discussed in the appropriate sections of the Summary and Explanation, below. Committee discussions that either were inconclusive or did not produce a specific recommendation have also been considered, but are not discussed in this preamble.

On November 25, 1986, OSHA proposed to revise virtually all of the fall protection provisions of the construction industry standards and to consolidate those requirements, except where specifically provided otherwise, in subpart M [51 FR 42718]. The proposal set a period, ending February 23, 1987, during which interested parties could submit written comments and request a hearing. The Agency twice granted commenters' requests for more time to submit comments and hearing requests. OSHA first extended the comment and hearing request period to June 1, 1987 [52 FR 5790, February 26, 1987] and then extended that period to August 14, 1987 [52 FR 20616, June 2, 1987]. The Agency received 162 comments on the proposal and several requests for a hearing.

On January 26, 1988, OSHA announced that it would convene an informal public hearing beginning on March 22, 1988, to elicit additional information on specific issues related to fall protection, scaffolds and stairways and ladders [53 FR 2048]. The hearing notice also reopened the comment period regarding proposed subpart M until March 8, 1988, for the limited purpose of obtaining additional information on appropriate fall protection coverage for employees engaged in steel erection activities. The Agency noted that the information obtained would be used in development of a separate proposed rule covering steel erection. OSHA received 22 comments in response to the limited reopening of the comment period.

The informal public hearings were conducted on March 22-23, 1988, with Administrative Law Judge Joel Williams presiding. At the close of the hearings, Judge Williams set a period, ending May 9, 1988, for hearing participants to submit additional comments and information. OSHA received 15 submissions, including testimony and documentary evidence, at the hearing. On August 11, 1989, Judge Williams certified the rulemaking record, including the hearing transcript and all written submissions to the docket, there by closing the record for this proceeding.

On August 5, 1992, OSHA reopened the rulemaking record (57 FR 34656) to consider new information submitted by the Precast/Prestressed Concrete Institute (PCI) regarding the fall protection needs of employees engaged in precast concrete construction. The PCI submissions (Exs. 25-4 and 25-6) described some characteristic precast concrete construction situations and alternative measures PCI believed employers could take to provide fall protection for their employees in those situations. The Agency solicited input on whether OSHA should allow precast concrete construction employers to protect employees from fall hazards by means other than guardrail systems, personal fall arrest systems or safety net systems. The Agency also sought comments regarding what criteria OSHA should set to determine the appropriateness of using alternative measures and to determine if the alternative measures are effectively minimizing fall hazards. The comment period, which ended November 3, 1992, elicited 14 comments.

On March 29, 1993, the Agency again reopened the rulemaking record (58 FR 16515) to provide additional time for the precast concrete construction industry to comment on the issues raised in the August 5, 1992, notice. The March 29 notice also discussed the fall protection needs of employees involved in residential construction, focusing on the feasibility of protecting employees erecting roof trusses and exterior wall panels with guardrails, personal fall arrest systems or safety net systems. OSHA requested information regarding alternative measures, or safe work practices, residential construction employers can use to minimize fall hazards. The limited comment period, which ended on May 28, 1993, elicited 28 comments.

A wide range of employees, businesses, trade associations, state governments, and other interested parties contributed to the development of this record. The Agency appreciates these efforts to help OSHA develop a rulemaking record that provides a sound basis for the promulgation of this final rule.

The Agency believes that, while the means of providing fall protection are continually improving, there may be circumstances where employers can demonstrate that compliance with certain fall protection requirements would be infeasible; i.e., it would be impossible to accomplish the work using conventional fall protection systems or it is technologically impossible to use conventional fall protection systems, or that those systems would create a greater hazard to employees. OSHA has determined that revised subpart M is needed to address those circumstances, encourage greater compliance by employers and employees, and maximize employee protection from fall hazards. OSHA believes that the clarified and revised language of the final rule will help employers to understand and implement the requirements of subpart M, resulting in improved employee protection. In addition, much of the final rule has been written in more performance-oriented language. This will make it easier for employers to provide the necessary protection for their employees, since they will be able to select fall protection measures which are compatible with the type of work being performed.

This project has been coordinated with other ongoing projects for the revision of related general industry standards in 29 CFR Part 1910, subpart D -- Walking/Working Surfaces, [proposed rule published at 55 FR 13360, April 10, 1990] and 29 CFR Part 1910 subpart I -- Personal Protective Equipment (Fall Protection Systems), [proposed rule published at 55 FR 13423, April 10, 1990] and with the proposed rulemaking for the Shipyard Industry in 29 CFR 1915 subpart M -- Fall Protection [proposed rule published at 53 FR 48168, November 29, 1988]. Where appropriate, the 1910, 1915, and 1926 requirements will use the same language to address similar hazards so employers will have clear and consistent direction as to what is necessary to protect employees from fall hazards.

In developing this final rule, OSHA has focused on requiring employers to provide construction employees with a positive method of protection against fall hazards wherever possible. At the same time, the Agency has taken steps to allow alternatives to traditional, conventional fall protection methods in situations where conventional methods can be shown to be inappropriate or unreasonable. Some of the alternative methods prescribed in revised subpart M represent innovations which are necessary to deal with unique workplace conditions. The record of this rulemaking indicates that these methods have not been used long enough or widely enough to enable the Agency to determine just how effective they will be throughout the construction industry.

In this regard, OSHA intends to monitor the effectiveness of these provisions carefully for the next several years, to make sure that they are providing the necessary protection for construction workers. The Agency will carefully review and examine its enforcement data, together with any investigative reports and other information on accidents which involve fall hazards. In addition, OSHA intends to work closely with NIOSH in performing such data collection and analysis. Should the available data indicate that the alternative methods are not providing adequate fall protection to employees, the Agency will reevaluate the standards and determine what changes, if any, are warranted.

[59 FR 40672, Aug. 9, 1994]

Regulations (Preambles to Final Rules) - Table of Contents Regulations (Preambles to Final Rules) - Table of Contents