December 8, 2003

Mr. Dennis Vance
Dennis Vance, LLC
711 Low Gap Road
Princeton, WV 24740

Re: residential fall protection, [STD 03-00-001], §1926.501(b)(13)

Dear Mr. Vance:

This is in response to your letter dated July 20, 2003, to the Occupational Safety and Health Administration (OSHA). You ask several questions about the applicability of [STD 03-00-001 (formerly STD 3-0.1A)] to particular structures, construction methods, and construction materials. Your letter was forwarded to this office for handling on August 20, 2003. We apologize for the delay in responding.

We have paraphrased your questions as follows:

Question 1: Where employees are engaged in certain residential construction activities, [STD 03-00-001 (formerly STD 3-0.1A)] permits employers to use alternative procedures without having to show the infeasibility of conventional fall protection. Are structures designed for particular uses such as a bank building, a single family house, and a deck attached to a house considered "residential construction" for purposes of STD 3-0.1A?

Answer: STD 3-0.1A, the plain language rewrite of STD 3-1, defines residential construction as follows:

Definition of "residential construction."

1. For purposes of this instruction, an employer is engaged in residential construction where the working environment, materials, methods and procedures are essentially the same as those used in building a typical single-family home or townhouse.
2. Residential construction is characterized by:
   • Materials: Wood framing (not steel or concrete); wooden floor joists and roof structures.
   • Methods: Traditional wood frame construction techniques.
3. In addition, the construction of a discrete part of a large commercial building (not the entire building), such as a wood frame, shingled entranceway to a mall, may fit within the definition of residential construction. Such discrete parts of a commercial building would qualify as residential construction where the characteristics listed above are present.

Residential construction is not determined by the structure's ultimate use (commercial vs. residential), the classification of the worker (roofer vs. carpenter), or employer's line of business (roofing contractor vs. framing contractor). Instead, residential construction is determined by the working environment, methods, materials, and procedures used. Where the working environment, methods, materials, and procedures are essentially the same as those used in typical stick frame home construction, the test for residential construction is met and STD 3-0.1A applies.

Question 2: You ask us to address 28 examples of various combinations of materials, methods, and end uses of structures. In each case, you ask whether the particular combination meets the definition of "residential construction" for purposes of STD 3-0.1A.

Answer: We will address some of your examples here and others in the questions and answers that follow.

To help clarify the policy regarding residential construction, STD 3-0.1A includes examples of residential construction building materials:

Definition of "residential construction."

1. For purposes of this instruction, an employer is engaged in residential construction where the working environment, materials, methods and procedures are essentially the same as those used in building a typical single-family home or townhouse.
2. Residential construction is characterized by:
   1. Materials: Wood framing (not steel or concrete); wooden floor joists and roof structures.
   2. Methods: Traditional wood frame construction techniques.

If the working environment, construction materials, methods, and procedures meet the test for "residential construction," the alternative procedures in STD 3-0.1A apply. Residential construction is characterized by the methods and materials typically used in building single family houses or townhouses. Single family home construction traditionally employs the methods and materials of stick frame construction, such as raising stick framed walls, installing wood rafters or trusses, wood floor joists, etc. A structure with precast concrete floors, structural steel (other than an I-beam for first floor support), or other structural materials not traditionally used in stick frame home construction is not considered residential construction and is beyond the scope of STD 3-0.1A

The basis for allowing alternative procedures is that the industry claimed that stick-built framing is not sufficiently strong to anchor fall protection systems and that other means of providing protection (such as by using scaffolds) are not feasible. Since the basis for allowing the procedures in STD 3-0.1A was the asserted inadequacy of stick-built construction for anchoring fall protection systems, and in light of the specific reference to stick-built framing construction in the directive, STD 3-0.1A does not apply to homes built with masonry walls or structural construction materials and methods atypical to stick-built housing construction (see, for example, our June 30, 2003, letter to Mr. Torres; copy attached).

Note that in an earlier letter to [Mrs. McMichael (August 10, 2000)], OSHA recognized steel studs as the equivalent for these purposes as 2-x-4 wooden studs in modern residential construction. Where a building is constructed with steel studs, the building qualifies as residential construction where it meets all other criteria for residential construction. The use of any of the following alone would not exclude a home from the scope of STD 3-0.1A: one steel I-beam in the main floor structure, poured concrete (or cinder block) foundation walls, a stucco exterior, or, as noted above, metal-stud framing instead of wood-stud framing.

Based upon the above reasoning, the following would not qualify for alternative fall protection procedures under STD 3-0.1A:

(1) Building a wood frame structure with concrete floors that are not on-grade.
(2) Building a residential structure with masonry walls (even if it has wood floors and wood roof trusses).
(3) Installing wood trusses on a 12-x-24 foot masonry garage.

Where all other criteria are met, the following would qualify under STD 3-0.1A:

(1) Building an all stick-framed structure that will be used as a bank with an on-grade concrete slab that serves as the ground floor.
(2) Building a stick-frame house that has metal stud frame roof trusses instead of wood frame roof trusses.
(3) Building a stick-frame structure that will be used as a bank with wood floors and both wood and metal studs.

Question 3: When determining whether to use STD 3-0.1A for residential construction, do you consider the structure as a whole or only the part associated with the particular construction activity?

Answer: Residential construction activities must be looked at with respect to the whole structure. STD 3-0.1A states that the working environment, materials, methods, and procedures determine what is or is not residential construction. Under this definition and as explained in the August 16, 2001 David King letter, the compliance directive applies where the structure as a whole — not just the part associated with a particular construction activity — is typical of residential construction.

By its terms, the directive recognizes one exception where a discrete adjunct to a larger structure — such as a mall entrance - may be viewed as a whole structure for purposes of determining whether to apply STD 3-0.1A(VIII)(a)(3):

3. In addition, the construction of a discrete part of a large commercial building (not the entire building), such as a wood frame, shingled entranceway to a mall, may fit within the definition of residential construction. Such discrete parts of a commercial building would qualify as residential construction where the characteristics listed above are present.

Under this paragraph, where the construction of the entire entranceway of a large commercial building is characteristic of residential construction, it may be covered by the directive. However, where only one part of the entranceway is built with residential-type materials and methods, such as the roof, the directive is inapplicable.

Based upon the above reasoning, building a 12-x-24-foot stand-alone stick-frame garage would qualify for STD 3-0.1A, provided all other criteria were met.

Question 4(a): Is the construction of a stick-framed outdoor deck attached to a stick-framed house within the scope of STD 3-0.1A?

Answer: Yes; the stick-framed deck is part of the stick-framed house.

Question 4(b): Is the construction of a stick-framed outdoor deck attached to a structure constructed of masonry walls within the scope of STD 3-0.1A?

Answer: Yes; the stick-framed deck is a discrete part of the building and falls within the exception in STD 3-0.1A(VIII)(a)(3).

Question 5: Is timber-frame construction within the scope of STD 3-0.1A?

Answer: No. The materials and methods differ from those described in the directive. Timber frame construction is typified by post and beam construction. Timber-frame methods and materials are dissimilar to the typical stick-frame construction of a single-family house or townhouse and therefore are not within the scope of STD 3-0.1A.

Question 6: You ask how to determine whether to use the alternative fall protection procedures set out in STD 3-0.1A or a conventional fall protection plan as required by §1926.501 in the following situations:

1. Where a roofing contractor is replacing a roof;
2. Where a phone or computer technician is running lines in the roof trusses;
3. Where a carpenter is making a repair to a dormer on a stick-frame structure.

Answer: In regard to the application of alternative procedures, STD 3-0.1A states:

AVAILABILITY OF ALTERNATIVE PROCEDURES: Alternative procedures are available to employers who are (1) engaged in residential construction, and (2) doing one of the listed activities.

Determining whether an activity is within the scope of STD 3-0.1A is essentially a three prong test. First, the employer must be doing residential construction. Second, it must be doing one of the activities listed in the four groups in STD 3-0.1A. Third, the procedures and requirements set out in STD 3-0.1A for each group must be followed. STD 3-0.1A(VIII)(B) lists the four groups of residential construction activities for which alternative fall protection plans are available.

1. GROUP 1. Installation of floor joists, floor sheathing, and roof sheathing; erecting exterior walls; setting and bracing roof trusses and rafters.
2. GROUP 2. Working on concrete and block foundation walls and related formwork.
3. GROUP 3. The group consists of the following activities when performed in attics and on roofs: installing drywall, insulation, HVAC systems, electrical systems (including alarms, telephone lines, and cable TV), plumbing and carpentry.
4. GROUP 4: Roofing work (removal, repair, or installation of weatherproofing roofing materials such as shingles, tile, and tar paper).

For the four groups of activities set out in STD 3-0.1A, conventional fall protection is presumed to be infeasible, and a site-specific, written plan is not required.

It is important to note that the activity of the work (not the trade of the worker) determines which provisions apply. Different alternative procedures are required for each of the four groups of activities listed in STD 3-0.1A. Note that the alternative procedures are not substitutes for requirements in other standards (for example, safety standards for scaffolds, power tools, etc.).

For example, you ask about a roofing contractor doing roof replacements. First, it must be determined that the roofing contractor is engaged in construction activity on a residential structure. Second, the activity must fit within the definition of one of the four groups set out in STD 3-0.1A. Third, the roofing contractor must follow the procedures and requirements set out in STD 3-0.1A pertaining to that activity.

Doing roof replacements on a structure that is within the scope of STD 3-0.1A falls under Group 4. Group 4 deals with "roofing work (removal, repair, or installation of weatherproofing roofing materials such as shingles, tile and tar paper)." This group deals exclusively with the installation, repair and removal of weatherproofing materials. For roofing activities such as those in the Group 4 activities (the removal, repair, or installation of weatherproofing roofing materials like shingles, tile, and tar paper) the structure must also fit within the height limitations of 48 feet and all other requirements of this section.

Assuming the structures involved in your two other scenarios were within the scope of STD 3-0.1A, a carpenter in an attic or on a roof making a repair to a dormer would be a Group 3 activity; a phone/computer technician making a repair in an attic or on a roof would also be a Group 3 activity.

For residential construction that fails to meet the requirements of STD 3-0.1A, §1926.501(b)(13) may apply. Section 1926.501 allows that employer to use alternative fall protection methods where it can demonstrate the infeasibility of conventional fall protection. The alternative procedures must be in a written, site-specific plan that complies with the criteria in §1926.502(k). If an employer is engaged in residential construction and wants to use a plan under §1926.502(k), it may base its plan on the sample residential fall protection plan in Appendix E for work under 48 feet. The plan must be in writing, tailored to the worksite, and conform to the other §1926.502(k) requirements. It can be used only if the employer can demonstrate that conventional fall protection is infeasible or a greater hazard at the site in question. The Appendix E plan is not assumed to be sufficient under §1926.502(k) when this work is performed at or above 48 feet.

Question 7: If an employer uses the procedures in STD 3-0.1A on a structure that is not within the scope of the directive, is it subject to a citation for violating §1926.501(b)(13)? If so, does that mean that the employer has to check to see if the structure falls within the scope of STD 3-0.1A?

Answer: If the employer uses the STD 3-0.1A alternative procedures for work on a structure that is outside the scope of the directive, fails to determine that conventional fall protection is infeasible or a greater hazard, and/or fails to meet the §1926.502(k) requirements for a written, site-specific fall protection plan, it is subject to a citation for violating §1926.501(b)(13). As a practical matter, the employer does have to check to see if the structure falls within the scope of STD 3-0.1A if it wants to use those procedures without meeting the requirements of §§1926.501 and 1926.502(k).

Question 8: Is the type of floor covering material used relevant for determining the scope of STD 3-0.1A?

Answer: As long as the structure of the floor is stick-framed and wood-sheathed and the floor covering is non-structural, such floor covering material is not relevant to the scope of STD 3-0.1A (even if the non-structural material is a concrete-type product).

Question 9: If some structural steel, such as beams and columns (other than a single I-beam in the basement to support the first floor), are used in conjunction with stick-framing, is the structure within the scope of STD 3-0.1A?

Answer: We will address this question after we issue revisions to the Steel Erection Directive, CPL 2-1.34.

If you need additional information, please contact us by fax at: U.S. Department of Labor, OSHA, Directorate of Construction, Office of Construction Standards and Guidance, fax # 202-693-1689. You can also contact us by mail at the above office, Room N3468, 200 Constitution Avenue, N.W., Washington, D.C. 20210, although there will be a delay in our receiving correspondence by mail.

Sincerely,


Russell Swanson, Director
Directorate of Construction


[Corrected 1/5/2004]