June 25, 1997

Stuart M. Kurtzer, P.A.
Attorney at Law
87 Franklin Avenue
Nutley, New Jersey 07110

Dear Mr. Kurtzer:

This is in further response to your second request letter of April 21, to the Department of Labor regarding the interpretation of the Occupational Safety and Health Administration (OSHA) standard 29 CFR 1910.27(d)(1)(ii), Fixed Ladders and Safety Cages.

You asked whether a 24-foot vertical ladder, described as follows, requires a safety cage, and you also asked the four following questions:

Description: The ladder is located in a warehouse and provides access from the concrete warehouse floor through a roof scuttle to the air conditioning system on the roof. The ladder, of steel construction, is exactly 24 feet in height, 18 inches in width, and terminated at the roof scuttle. The ladder contains no safety cage or other means of fall prevention. The 3/4 inch diameter ladder rungs are spaced 12 inches on center and welded to the 2.5 inch wide side rails. Four steel brackets bolted to the masonry wall are welded to each ladder side rail. Clearance of 6.75 inches exists between the rung centerline and the masonry wall.

Question #1: Does 29 CFR 1910.27(d)(1)(ii) require a safety cage on this ladder?

Answer: The standard states that safety cages or wells shall be provided on ladders of more than 20 feet to a maximum unbroken length of 30 feet. Literal compliance with OSHA's standard, therefore, would require a safety cage or well, but see the answer to Question #4, below, for the current status of this standard.

Question #2 and Question #3: Did the standard require a safety cage in 1988, and did the standard require a safety cage in 1974?

Answer: The standard as currently written is the same as it was when originally adopted in 1971. It has never been amended. See the Federal Register dated May 29, 1971, 36 FR 10466 at 10485.

Question #4: Does the fact that ANSI A14.3 was changed in 1979 to require a safety cage on a ladder over 24 feet long, instead of the former 20 feet, mean that 29 CFR 1910.27(d)(1)(ii) automatically changed to require safety cages only on those ladders over 24 feet?

Answer: OSHA's standards do not automatically change, but how they are enforced by OSHA may change. Generally, when OSHA has adopted an ANSI standard (or other industry consensus standard) as its own, if that standard is later amended by ANSI, and if the amended standard is as, or more, protective than it was before its amendment, an employer will be considered in compliance with OSHA's standard if the employer follows the amended industry consensus standard.

On April 10, 1990, OSHA published in the Federal Register (see 55 FR 13360 at 13399 paragraph (14)) a notice of proposed rulemaking, which, in addition to other standards, proposed to amend §1910.27(d)(1)(ii) to reflect the current ANSI standard of 24 feet. It should be noted that §1910.27(d)(1)(ii) is in the proposed rule as §1910.23(c)(14).

In the preamble (page 13368) of the Federal Register notice it is stated that:

The Agency [OSHA] proposes raising the threshold to 24 feet so that employees may climb without fall protection to the roof of a two story building that has a parapet. OSHA believes that the four-foot increase, which is consistent with ANSI 14.3-1984, sections 4.1.1 and 4.1.2 ... would not reduce employee protection. This provision reflects the Agency belief, based on the ANSI standard and its review of the record, that employees can safely climb a fixed ladder for up to 24 feet above a lower level without relying on a cage, well or ladder safety device as long as the ladder complies with §1910.23 [proposed] and the other pertinent provisions of proposed subpart D....

The preamble also states that questions have arisen regarding the effectiveness of cages and wells in protecting employees and OSHA by this notice solicits comments, supported by information and data, regarding the extent to which reliance on cages or wells either protects or endangers employees. A copy of this Federal Register notice is attached.

Also, the OSHA Field Inspection Reference Manual (FIRM) states that the following would be a criterion for a de minimis condition, which would not generate a citation, a penalty, or require the employer to abate:

An employer complies with a proposed standard or amendment or a consensus standard rather than with the standard in effect at the time of the inspection and the employer's action clearly provides equal or greater employee protection.

Pertinent pages from the FIRM are enclosed.

If an employer is in compliance with the ANSI standard after it was amended in 1979, OSHA would probably consider it a de minimis condition. Also, even though OSHA has not issued a revised standard based on the April 10, 1990 proposal, it is unlikely that OSHA would issue a citation after the proposal was published in the Federal Register to an employer who had a 24-foot vertical fixed ladder as described above.

If you have any questions, contact Helen Hoban Rogers at (202) 219-8031 x121.

Sincerely,

John B. Miles, Jr., Director
Directorate of Compliance Programs