Final Approval Date: August 4, 1999

MEMORANDUM FOR:      RICHARD SOLTAN

FROM:                RUSSELL B. SWANSON, DIRECTOR
                     DIRECTORATE OF CONSTRUCTION

SUBJECT:             OSHA's Position on Deviations from the Manufacturer's
                     Guidelines on Scaffold

This is in response to your memoranda, dated April 12 and June 11, 1999 concerning deviations from manufacturers' guidelines on scaffolds. Specifically, you ask whether (1) it is permissible for an employer to deviate from a manufacturer's guidelines on the basis of a "competent person's" determination that it is safe to do so, and (2) if it is acceptable to deviate based on a competent person's determination, is it acceptable only where the competent person is an engineer or a "qualified" person?

You pose two specific scenarios in which this question arises: first, where the employer repairs the scaffold in a manner contrary to the manufacturer's guidelines, and second, where an employer uses a scaffold as an anchorage for a personal fall arrest system contrary to the manufacturer's guidelines.

The standard does not specify particular training requirements for competent persons. Instead, it defines a competent person in terms of capability. Section 1926.450(b) defines a competent person as "one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them." The preamble to the standard further defines the training of the competent person (bottom of the right paragraph on page 46,059 of Volume 61, Number 170 of the Federal Register) by stating:

"For example, a 'competent person' for the purposes of this provision must have had specific training in and be knowledgeable about the structural integrity of scaffolds and the degree of maintenance needed to maintain them. The competent person must also be able to evaluate the effects of occurrences such as a dropped load, or a truck backing into a support leg that could damage a scaffold. In addition, the competent person must be knowledgeable about the requirements of this standard. A competent person must have training or knowledge in these areas in order to identify and correct hazards encountered in scaffold work."

The competent person must be able to carry out the tasks specified in the standard. For example, to be able to carry out the tasks required in §1926.451(f)(3) -- inspecting for visual defects and structural integrity -- the competent person needs to have knowledge in the issues relating to the strength and structural integrity of the scaffold. In many cases the competent person will use a manufacturer's guidelines in carrying out these duties.

The manufacturer normally uses engineering calculations, testing results and other considerations in preparing its guidelines on procedures and limitations. The standard itself does not mandate compliance with those guidelines. However, to deviate from them and still meet the requirements of a competent person, that person would need to have a very high level of knowledge - a level that would enable him or her to understand the concerns the guidelines are meant to address and to determine that the deviation would not result in a hazardous condition. Mere "experience" that the scaffold had previously been used in a way that deviates from the guidelines with no apparent failure is not a basis on which a competent person (or an employer) could proceed; such "experience" could be purely a product of luck.

In the repair scenario you describe, the competent person must be able to assess whether the structural integrity of the scaffold will be compromised by the repair. While an engineering degree is not a prerequisite, that assessment normally requires some engineering skills, and the competent person making that determination would have to have those skills. If that person lacked those skills and deviated from the manufacturer's guidelines, a citation under the relevant provision of the standard, such as §1926.451 (f)(3)(inspection by a competent person) or (f)(7)(competent person must supervise and direct the erecting, moving and dismantling of scaffolds).

With respect to your question regarding the use of a scaffold as an anchor for a personal fall arrest system, the employer can comply with the requirements of 29 CFR 1926.502(d)(15) where the competent person determines that the scaffold can withstand an arresting force of 5,000 pounds. As in the previous scenario, where this use contravenes a manufacture's guidelines, the competent person would have to make an assessment that normally requires some engineering skills. Consequently, that person would be required to have those skills.

Alternatively, the employer can comply by using a "qualified person" to meet the requirements in §1926.502(d)(15)(i) and (ii). A qualified person is "one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience, has successfully demonstrated his/her ability to solve or resolve problems related to the subject matter, the work, or the project."