March 4, 2002

Ms. Jennifer LeFevre
Director of Government Relations
National Ready Mixed Concrete Association
900 Spring Street
Silver Spring, MD 20910

Dear Ms. LeFevre:

Thank you for your August 14,2001 letter to the Occupational Safety and Health Administration's (OSHA's) [Directorate of Enforcement Programs (DEP)]. Please accept our apology for the delay in responding. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence. You wanted to know if the general industry fall protection standards apply to your industry, specifically to ready mixed concrete trucks. You also asked whether OSHA or DOT (Department of Transportation) has the authority to regulate these trucks.

Question: Do general industry fall protection standards apply to ready mixed concrete trucks?

Reply: The October 18, 1996 Memorandum for Regional Administrators from John B. Miles (copy enclosed) states that falls from rolling stock would not be cited under Subpart D, Walking-Working Surfaces. However, there could be instances where 29 CFR 1910.132 (general industry personal protective equipment standard) or the General Duty Clause [Section 5(a)(1)) of the Occupational Safety and Health Act] could apply.

At this time, [DEP] is developing a compliance directive which will provide enforcement guidance for rolling stock fall hazards and walking/working surfaces not otherwise addressed in General Industry. We anticipate it will be completed in the near future. When the compliance directive is issued, it will be posted on OSHA's website at http://www.osha.gov.

Question: Who has the authority to regulate ready mixed concrete trucks?

Reply: The U.S. Department of Transportation has the authority to regulate "commercial motor vehicles" which include, among others, vehicles with a gross vehicle weight rating of 10,001 pounds (49 USC §31132). Ready mixed concrete trucks are generally "commercial motor vehicles" covered by DOT. However, pursuant to section 4(b)(1) of the OSH Act, OSHA's authority is precluded only if another Federal agency prescribes or enforces a regulation dealing with the working condition, i.e., danger, in question.

Federal Motor Carrier Safety Administration (FMCSA) staff confirmed during a conference call that their regulations at 49 C.F.R. Part 399 address fall protection for persons entering or exiting the cabs of trucks/truck tractors having a high profile cab-over-engine configuration or accessing the back of the truck/truck tractor cab portion. Since most ready mix concrete trucks do not have high profile cab-over-engine configurations, they are not covered by Part 399. Even if the trucks fall within the scope of Part 399, those regulations do not address falls from other areas of the vehicle. Therefore, FMCSA agrees that the OSH Act would apply to such falls. See FMCSA regulation at 49 CFR 399.207.

Thank you for your interest in occupational safety and health. We hope this provides the clarification you were seeking. As this letter demonstrates, OSHA's re-examination of an issue may result in the clarification or correction of previously stated enforcement guidance. 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. If you have any further questions, please feel free to contact the [Office of General Industry Enforcement] at (202) 693-1850.

Sincerely,



Richard E. Fairfax, Director
[Directorate of Enforcement Programs]

Enclosures