March 17, 1992

The Honorable Michael A. Andrews
House of Representatives
Washington, D.C. 20515

Dear Congressman Andrews:

This in response to your February 11 letter on behalf of your constituent, Mr. Henry V. Radoff, regarding the applicability of Occupational Safety and Health Administration (OSHA) construction regulations to single family dwelling construction. Mr. Radoff believes that Sections 29 CFR 1926.11 and 1926.12(c) exclude this type of construction from OSHA regulations. However, OSHA's construction regulations do apply to such activities.

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), significantly strengthened employee protection by authorizing the promulgation of construction safety and health standards for employees of the building trades and construction industry working on federal and 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). The provisions of paragraphs .11 and .12(c) were part of these regulations.

However, the Occupational Safety and Health Act (the Act) (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 CSA, as occupational safety and health standards. Accordingly, the Secretary of Labor adopted the Construction Standards, which had been issued under the CSA, as OSHA standards (36 FR 10466, May 29, 1971). (Note: the Safety and Health Regulations for Construction were subsequently redesignated as part 1926 (36 FR 25232, December 30, 1971)

The adoption of the CSA provisions as OSHA regulations is set forth in 29 CFR 1910. Paragraph 1910.11 states the following:

(a) The provisions of this subpart B adopt and extend the applicability of established Federal standards in effect on April 28, 1971, to every employer, employee, and employment covered by the Act.

(b) It bears emphasis that only standards (i.e., substantive rules) relating to safety or health are adopted by any incorporations by reference of standards prescribed elsewhere in this chapter or this title. Other materials contained in the referenced parties are not adopted ... the incorporation by reference of part 1926 in §1910.12 is not intended to include references to interpretative rules having relevance to the application of the Construction Safety Act, but having no relevance to the application to the Occupational Safety and Health Act.

Paragraph 1910.12 clarifies the adoption:

(a) Standards. The standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.

(b) Definition. For purposes of this section, Construction work means work for construction, alteration, and/or repair, including painting and decorating. See discussion of these terms in 1926.13 of this title.

(c) Construction Safety Act distinguished. This section adopts as occupational safety and health standards under section 6 of the Act the standards which are prescribed in part 1926 of this chapter. Thus, the standards (substantive rules) published in subpart C and the following subparts of part 1926 of this chapter are applied. This section does not incorporate subparts A and B of part 1926 of this chapter. Subparts A and B have pertinence only to the application of section 107 of the Contract Work Hours and Safety Standards Act (the Construction Safety Act).

Therefore, 29 CFR 1926.11 and 1926.12, as a part of Subpart B (General Interpretation), have pertinence only to the application of section 107 of the Contract Work Hours and Safety Standards Act and have no direct significance in the enforcement of the OSH Act.

If we can be of further assistance, please do not hesitate to contact us again.

Sincerely,



Dorothy L. Strunk
Acting Assistant Secretary


Enclosures