August 27, 2008

Mr. Bryan Cobb
500 Industrial Drive, NE
White, GA 30184

Dear Mr. Cobb:

Thank you for your January 23, 2008, fax to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs (DEP). You had specific questions regarding the OSHA standards for fixed industrial stairs. Your paraphrased questions and our responses are below. This letter constitutes OSHA‹s interpretation only of the requirements discussed and may not be applicable to any questions not delineated within your original correspondence.

Question: The enclosed drawing depicts different versions of fixed industrial stairs to be fabricated. Which of these stair and platform railing heights are compliant with §1910.23, and which are most preferred?

Response: While OSHA cannot fully judge the compliance of these railings from the drawings, the second and third drawings appear to comply with the height requirements of §1910.23(e). There is no preference between these two stair railings.

The first drawing would not be compliant with the height requirements in §1910.23(e) because the height of the standard railing on the stair landing is less than 42 inches nominal. However, OSHA would consider the 36- to 37-inch height of the railing in the first drawing as a de minimis violation of the standard. De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Under OSHA's de minimis policy, an employer may comply with a proposed standard or amendment or a consensus standard, rather than with the standard in effect at the time of the inspection. With de minimis violations, OSHA does not issue citations, or require abatement.

On April 10, 1990, OSHA published a proposed rule on Walking and Working Surfaces and Personal Protective Equipment (Fall Protection Systems) (55 FR 13360). Proposed §1910.28(b)(3)(ii) would allow guardrails installed prior to 60 days from the publication date of the final standard to have a guardrail height of a minimum of 36 inches. The purpose of this exemption was to grandfather in guardrails installed prior to OSHA's adoption of the existing 42-inch requirement for guardrail height (see the April 10, 1990 proposed standard preamble discussion, 55 FR 13373). In May 2003, OSHA republished the same proposals (68 FR 23528, May 2, 2003).¹

Our understanding is that your question relates to federal OSHA requirements. However, because you are a manufacturer of railings that might be installed in different States, you should be aware that there are States that administer their own OSHA-approved State plan. Such States are required by law to have a program of standards and enforcement that is at least as effective as the Federal OSHA requirements. However, those States may enact more stringent requirements. An employer in such a State is required to follow the State's more stringent requirements. This letter does not address the issue of whether your designs would comply with any State plan. If you are interested in information on this issue as it pertains to a State that administers its own OSHA-approved State plan, please contact that State for specific information on its interpretation and enforcement policy with regard to this issue.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. 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

¹ However, please note that the proposed standard for Walking and Working surfaces is undergoing revision. The guardrails in the first drawing may not be in compliance with OSHA standards, and not covered by the de minimis policy, should OSHA eliminate the grandfather provision from the final rule or if the guardrails are installed 60 days or more after the publication of the final rule in the Federal Register. Additionally, the guardrails shown in the second and third drawings would not comply with the proposed standard for guardrails because the midrail and post arrangement does not create an opening that measures a maximum of 19 inches in the least dimension, as required by proposed §1910.28(b)(2)(iii). (See 68 FR 23543, May 2, 2003; and 55 FR 13401, April 10, 1990.) This could mean that the guardrails manufactured using these designs would not be in compliance, if the proposed standard is published without changes. [ back to text ]