Standard meaning can change only through rulemaking

June 2, 2004

John G. Thompson

[Recipient address omitted]

Dear Mr. Thompson:

This is in response to your May 11, 2004 letters to Secretary of Labor Elaine Chao and Assistant Secretary John L. Henshaw of the Occupational Safety and Health Administration (OSHA). You requested that OSHA revisit its May 3, 2004 interpretation of 29 CFR 1926.1053(b)(7).

Under the Occupational Safety and Health Act ("Act"), 29 USC 651, the Secretary of Labor and (through the Secretary's delegating authority) OSHA have the authority to enforce safety and health standards promulgated in accordance with Section 6(b) of the Act. Section 6(b) provides a specific rulemaking process that OSHA must follow when a standard is promulgated, modified, or revoked.

OSHA is therefore not authorized to change the meaning of a standard through a letter of interpretation. While the Agency may use interpretation letters as a way to provide guidance to employers on how particular standards will be enforced by the Agency, interpretations must be consistent both with the purpose and language of the final rule as promulgated pursuant to Section 6(b) of the Act.

In Martin v. OSHRC, 499 U.S. 144 (1991), the U.S. Supreme Court stated that reviewing courts are to give effect to an Agency interpretation only "so long as it is 'reasonable,' [citations omitted] that is, so long as the interpretation 'sensibly conforms to the purpose and wording of the regulations.'" Martin, 499 U.S. at 150 [emphasis added]. The result that you seek would require expanding a slip-resistance requirement that currently applies only to ladder "feet" to other parts of the ladder - such as portions of the railings near the top of the ladder and the top (end-caps) of each railing. That would require a modification to the standard through the rulemaking process described in Section 6(b) of the Act and may not be done through a letter of interpretation. For this reason, Assistant Secretary Henshaw's May 3, 2004, letter indicated that the broader issue of ladder safety in construction, along with your particular proposal regarding slip-resistant railing strips and end-caps, will be considered when the Agency sets its regulatory agenda.

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 B. Swanson, Director

Directorate of Construction