Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems)

 
CONTENT

Federal Register, Volume 81 Issue 223 (Friday, November 18, 2016)

Federal Register Volume 81, Number 223 (Friday, November 18, 2016)

Rules and Regulations

Pages 82494-83006

From the Federal Register Online via the Government Publishing Office www.gpo.gov

FR Doc No: 2016-24557

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Vol. 81

Friday,

No. 223

November 18, 2016

Part VII

Book 3 of 3 Books

Pages 82493-83106

Department of Labor

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Occupational Safety and Health Administration

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29 CFR Part 1910

Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems); Final Rule

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

Docket No. OSHA-2007-0072

RIN 1218dashAB80

Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems)

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Final rule.

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SUMMARY: OSHA is revising and updating its general industry standards on walking-working surfaces to prevent and reduce workplace slips, trips, and falls, as well as other injuries and fatalities associated with walking-working surface hazards. The final rule includes revised and new provisions addressing, for example, fixed ladders; rope descent systems; fall protection systems and criteria, including personal fall protection systems; and training on fall hazards and fall protection systems. In addition, the final rule adds requirements on the design, performance, and use of personal fall protection systems.

The final rule increases consistency between the general industry and construction standards, which will make compliance easier for employers who conduct operations in both industry sectors. Similarly, the final rule updates requirements to reflect advances in technology and to make them consistent with more recent OSHA standards and national consensus standards. OSHA has also reorganized the requirements and incorporated plain language in order to make the final rule easier to understand and follow. The final rule also uses performance-based language whenever possible to give employers greater compliance flexibility.

DATES: Effective date: This final rule becomes effective on January 17, 2017. Some requirements in the final rule have compliance dates after the effective date. For further information on those compliance dates, see Section XI of the SUPPLEMENTARY INFORMATION section. In addition, this final rule contains information collections subject to the Office of Management and Budget (OMB) approval under the Paperwork Reduction Act, and the Department is submitting requests to OMB to obtain that approval. The information collections will not take effect until the date OMB approves the information collection request or the date the requirement would take effect as explained elsewhere in this document. The Department will publish a document in the Federal Register to announce OMB's disposition of the information collection requests.

ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), OSHA designates Ms. Ann Rosenthal, Associate Solicitor of Labor for Occupational Safety and Health, Office of the Solicitor, U.S. Department of Labor, Room S-4004, 200 Constitution Avenue NW., Washington, DC 20210, to receive petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT: Press inquiries: Mr. Frank Meilinger, Director, Office of Communications, OSHA, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-

1999; email meilinger.francis2@dol.gov.

General information and technical inquiries: Mr. Mark Hagemann, Director, Office of Safety Systems, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2255, email hagemann.mark@dol.gov.

Copies of this Federal Register document: Copies of this Federal Register document are available at http://www.regulations.gov, the Federal eRulemaking Portal. Copies also are available at OSHA Office of Publications, U.S. Department of Labor, Room N-3101, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1888 (OSHA's TTY (887) 889-5627). This document, as well as news releases and other relevant documents, are available on OSHA's website at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

The following table of contents identifies the major sections of the preamble to the final rule:

  1. Background

    A. References and Exhibits

    B. Introduction and Basis for Agency Action

    C. Summary of the Final Economic Analysis

    D. Events Leading to the Final Rule

  2. Analysis of Risk

    A. Introduction

    B. Nature of the Risk

    C. Fatality and Injury Data

  3. Pertinent Legal Authority

  4. Summary and Explanation of the Final Rule

    A. Final Subpart D

    B. Final Sec. 1910.140

    C. Other Revisions to 29 CFR Part 1910

  5. Final Economic and Final Regulatory Flexibility Screening Analysis

    A. Introduction

    B. Assessing the Need for Regulation

    C. Profile of Affected Industries, Firms, and Workers

    D. Benefits, Net Benefits, Cost Effectiveness, and Sensitivity Analysis

    E. Technological Feasibility

    F. Costs of Compliance

    G. Economic Feasibility and Regulatory Flexibility Screening Analysis

    H. Regulatory Flexibility Screening Analysis

  6. Sensitivity Analyses

    J. References

  7. Federalism

  8. State-Plan Requirements

  9. Unfunded Mandates Reform Act

  10. Consultation and Coordination With Indian Tribal Governments

  11. Office of Management and Budget Review Under the Paperwork Reduction Act of 1995

  12. Dates

  13. Background

    A. References and Exhibits

    This Federal Register document references materials in Docket No. OSHA-2007-0072, which is the docket for this rulemaking. OSHA also references documents in the following dockets, which the Agency incorporates by reference into this rulemaking:

    1990 proposed rule on Walking and Working Surfaces (29 CFR 1910, subpart D)--Docket No. OSHA-S041-2006-0666 (formerly Docket No. S-041);

    1990 proposed rule on Personal Protective Equipment--Fall Protection--Docket No. OSHA-S057-2006-0680 (formerly Docket No. S-057);

    2003 reopening of the rulemaking record--Docket No. OSHA-

    S029-2006-0662 (formerly Docket No. S-029);

    1994 final rule on Fall Protection in the Construction Industry--Docket No. OSHA-S206-2006-0699 (formerly Docket No. S-206);

    1983 and 1985 proposed rules on Powered Platforms for Building Maintenance--Docket Nos. OSHA-S700-2006-0722 and OSHA-S700A-

    2006-0723 (formerly Dockets Nos. S-700 and S-700A, respectively); and

    2014 final rule on Electric Power Generation, Transmission, and Distribution; Electrical Protective Equipment--Docket No. OSHA-S215-2006-0063 (Formerly Docket No. S-215).

    All of these dockets are available for viewing at http://www.regulations.gov, the Federal eRulemaking Portal.

    Citations to documents in Docket No. OSHA-2007-0072: This document references exhibits in this rulemaking record, Docket No. OSHA-2007-

    0072, as ``Ex.,'' followed by the last sequence

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    of numbers in the document identification (ID) number. For example, ``Ex. 44'' is a reference to document ID number OSHA-2007-0072-0044 in this rulemaking docket.

    Citations to the transcripts of the rulemaking hearing: This document includes citations to the informal public hearing on the proposed rule. All of the hearing transcripts are included in exhibit 329. Thus, ``Ex. 329 (1/19/2011, p. 75)'' refers to page 75 of the January 19, 2011, hearing transcript.

    Citations to other dockets: This document also references other OSHA dockets. Documents in those dockets are cited as the docket number followed by the last sequence of numbers in the document ID number. For example, ``Ex. OSHA-S029-2006-0662-0014'' refers to ``Docket No. OSHA-

    S029-2006-0662, Ex. 14'' in the 2003 reopening of the rulemaking record on subparts D and I (formerly Docket No. S-029).

    Docket: The exhibits in this rulemaking docket (Docket No. OSHA-

    2007-0072), as well as the dockets OSHA incorporated by reference in this rulemaking, are available to read and download by searching the docket number or document ID number at http://www.regulations.gov. Each docket index lists all documents and exhibits in that docket, including public comments, supporting materials, hearing transcripts, and other documents. However, some documents (e.g., copyrighted material) in those dockets are not available to read or download from that website. All documents are available for inspection and copying at the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone number (202) 693-2350 (OSHA TTY (887) 889-5627).

    B. Introduction and Basis for Agency Action

    Workers in many diverse general industry workplaces are exposed to walking-working surface hazards that can result in slips, trips, falls and other injuries or fatalities. According to the Bureau of Labor Statistics (BLS) data, slips, trips, and falls are a leading cause of workplace fatalities and injuries in general industry, which indicates that workers regularly encounter these hazards (see Section II below).

    The final rule covers all general industry walking-working surfaces, including but not limited to, floors, ladders, stairways, runways, dockboards, roofs, scaffolds, and elevated work surfaces and walkways. To protect workers from hazards associated with those surfaces, particularly hazards related to falls from elevations, the final rule updates and revises the general industry Walking-Working Surfaces standards (29 CFR part 1910, subpart D). The final rule includes revised and new provisions that address, for example, fixed ladders; rope descent systems; fall protection systems and criteria, including personal fall protection systems; and training on fall hazards and fall protection systems. In addition, the final rule adds new requirements on the design, performance, and use of personal fall protection systems to the general industry Personal Protective Equipment (PPE) standards (29 CFR part 1910, subpart I). These and other measures the final rule incorporates reflect advances in technology and industry best practices that have been developed since OSHA adopted subpart D in 1971.

    The final rule also gives employers greater flexibility to prevent and eliminate walking-working surface hazards. For example, the final rule, like the construction Fall Protection Standards (29 CFR part 1926, subpart M), gives employers flexibility to protect workers from falling to a lower level by using personal fall protection systems, including personal fall arrest, travel restraint, and work positioning systems; instead of requiring the use of guardrail systems, which the existing rule mandates. In addition, consistent with section 6(b)(5) of the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651, 655(b)(5)) the final rule uses performance-based language in place of specification language, where possible, to increase compliance flexibility for employers. OSHA believes the flexibility the final rule provides will allow employers to select and provide the controls they determine will be most effective in the particular workplace operation or situation to protect their workers and prevent injuries and fatalities from occurring.

    The final rule also increases harmonization between OSHA standards, which many stakeholders requested. Of particular importance, OSHA increased consistency between the final rule and OSHA's construction Scaffolds, Fall Protection, and Stairway and Ladder standards (29 CFR part 1926, subparts L, M, and X), which makes compliance easier for employers who conduct operations in both industry sectors. The revisions in and additions to the final rule will allow employers to use the same fall protection systems and equipment and follow the same practices when they perform either general industry or construction activities.

    The final rule also increases consistency by incorporating provisions from other standards OSHA adopted more recently, including Powered Platforms for Building Maintenance (29 CFR 1910.66) and Scaffolds, Ladders and Other Working Surfaces in Shipyard Employment (29 CFR part 1915, subpart E).\1\ In particular, Sec. 1910.140 drew personal fall arrest system requirements from Appendix C (Mandatory) of the Powered Platform standard (Sec. 1910.66). The experience OSHA gained on that standard shows that those requirements are effective in protecting workers from fall hazards.

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    \1\ Where necessary, the final rule also revises provisions in some current general industry standards (e.g., 29 CFR part 1910, subparts F, N, and R) to ensure that they are consistent with the final rule (See Section IV(C) below).

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    OSHA also drew many provisions in the final rule from national consensus standards, including ANSI/ASSE A1264.1-2007, Safety Requirements for Workplace Walking/Working Surfaces and Their Access; Workplace, Floor, Wall and Roof Openings; Stairs and Guardrail Systems; ANSI/ASSE Z359.1-2007, Safety Requirements for Personal Fall Arrest Systems, Subsystems and Components; and ANSI/IWCA I-14.1-2001, Window Cleaning Safety Standard. Many stakeholders recommended that OSHA incorporate the requirements in those standards into the final rule. OSHA agrees with stakeholders that national consensus standards represent industry best practices and reflect advancements in technology, methods, and practices developed in the years since the Agency adopted the existing rule.

    OSHA also has made the final rule easier to understand and follow by reorganizing and consolidating provisions, using plain language, and adding informational tables, illustrations, and appendices. For example, the final rule adds two non-mandatory appendices to final Sec. 1910.140 that address planning for, selecting, using, and inspecting personal fall protection systems (appendix C) and test methods and procedures for personal fall arrest work positioning systems (appendix D).

    OSHA's efforts to revise and update the existing walking-working surfaces standards have been ongoing since 1973. Over that time, OSHA has gathered and analyzed a large body of data and information on walking-working surface hazards and methods to prevent and eliminate them. After careful examination and analysis of the rulemaking record as a whole, OSHA has determined that the requirements in this final rule will significantly reduce

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    the number of worker deaths and injuries that occur each year due to these hazards, particularly workplace slip, trip, and fall fatalities and injuries. OSHA estimates that final standard rule will prevent 29 fatalities and 5,842 injuries annually (See Sections II and V).

    OSHA believes that many employers already are in compliance with many provisions in the final rule; therefore, they should not have significant problems implementing it. OSHA also has included measures to make implementation of the final rule easier for employers. The final rule provides extended compliance dates for implementing some requirements and applies other requirements only prospectively. For example, the final rule gives employers as much as 20 years to equip fixed ladders with personal fall arrest or ladder safety systems. Moreover, since the final rule incorporates requirements from national consensus standards, most equipment manufacturers already provide equipment and systems that meet the requirements of the final rule.

    C. Summary of the Final Economic Analysis

    The OSH Act requires OSHA to make certain findings with respect to standards. One of these findings, specified by Section 3(8) of the OSH Act, requires an OSHA standard to address a significant risk and to reduce this risk significantly. (See Industrial Union Dep't v. American Petroleum Institute, 448 U.S. 607 (1980).) As discussed in Section II of this preamble, OSHA finds that slips, trips, and falls constitute a significant risk, and estimates that the final standard will prevent 29 fatalities and 5,842 injuries annually. Section 6(b) of the OSH Act requires OSHA to determine if its standards are technologically and economically feasible. As discussed in Section V of this preamble, OSHA finds that this final standard is economically and technologically feasible. The table below summarizes OSHA's findings with respect to the estimated costs, benefits, and net benefits of this standard. The annual benefits are significantly in excess of the annual costs. However, it should be noted that under the OSH Act, OSHA does not use the magnitude of net benefits as the decision-making criterion in determining what standards to promulgate.

    The Regulatory Flexibility Act (5 U.S.C. 601, as amended) requires that OSHA determine whether a standard will have a significant economic impact on a substantial number of small firms. As discussed in Section V, the Assistant Secretary examined the small firms affected by this final rule and certifies that these provisions will not have a significant impact on a substantial number of small firms.

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    D. Events Leading to the Final Rule

    Existing standards. In 1971, OSHA adopted the existing general industry standards on Walking-Working Surfaces (29 CFR part 1910, subpart D) and Personal Protective Equipment (PPE) (29 CFR part 1910, subpart I) pursuant to Section 6(a) of the OSH Act (29 U.S.C. 655(a)). Section 6(a) permitted OSHA, during the first two years following the effective date of the OSH Act, to adopt as occupational safety and health standards any established Federal and national consensus standards. OSHA adopted the subpart D and I standards from national consensus standards in existence at the time. Since then, those national consensus standards have been updated and revised, some several times, to incorporate advancements in technology and industry best practices. OSHA's existing walking-working surfaces standards have not kept pace with those advancements.

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    Early rulemaking efforts. In 1973, OSHA published a proposed rule to revise the subpart D standards (38 FR 24300 (9/6/1973)), but withdrew the proposal in 1976, saying it was outdated (41 FR 17227 (4/

    23/1976)). That year OSHA conducted stakeholder meetings around the country to obtain public comment on revising subpart D. After reviewing information gathered from those meetings, OSHA determined that it needed to gather additional scientific and technical data, research, and information to support effective revisions to subpart D.

    From 1976 through the 1980s, OSHA gathered a large body of scientific and technical research and information, including:

    Recommendations for fall prevention, ladders, scaffolds, slip resistance, and handrails from the University of Michigan;

    Studies on guardrails, slip resistance, scaffolds, and fall prevention from the National Bureau of Standards (now the National Institute of Standards and Technology);

    Analysis of various walking-working surfaces by Texas Tech University;

    Accident, injury, and fatality data from the Bureau of Labor Statistics (BLS); and

    National consensus standards from the American National Standards Institute (ANSI), American Society of Testing and Materials (ASTM), and the American Society of Mechanical Engineers (ASME).

    1990 proposed rules. The data, research, and information OSHA gathered provided the basis for OSHA's 1990 companion proposals to revise and update the walking-working surfaces standards in subpart D (55 FR 13360 (4/10/1990)) and add personal fall protection system requirements to subpart I (55 FR 13423 (4/10/1990)). The two proposals were interdependent with respect to personal fall protection systems. That is, the subpart D proposal would have established a ``duty to provide'' fall protection, including personal fall protection systems while the subpart I proposal would have established design, performance, and use criteria for personal fall protection systems.

    OSHA received comments and held an informal public hearing on the two proposals (55 FR 29224), but did not finalize either.

    1994 final rule revising subpart I. In 1994, OSHA published a final rule updating the general industry PPE standards (59 FR 16334 (4/6/

    1994)). The final rule added new general provisions requiring that employers conduct hazard assessments; select proper PPE; remove defective or damaged PPE from service; and provide worker training in the proper use, care, and disposal of PPE (Sec. 1910.132). It also revised design, selection, and use requirements for specific types of PPE. However, the final rule did not apply the new general provisions to personal fall protection systems or include specific requirements addressing such systems.

    2003 record reopening. On May 2, 2003, OSHA published a notice reopening the record on the subpart D and I rulemakings to refresh the record, which had grown stale in the years since OSHA published the 1990 proposed rules (68 FR 23528). Based on comments and information OSHA received, including information on significant technological advances in fall protection, particularly personal fall protection systems, OSHA determined that a new proposed rule was needed.

    2010 proposed rule. On May 24, 2010, OSHA published a consolidated proposed rule on subparts D and I (75 FR 28862). The Agency provided 90 days, until August 23, 2010, for stakeholders to submit comments on the proposed rule, the preliminary economic analysis, and the issues the Agency raised in the proposal. The Agency received 272 comments, including comments from workers, employers, trade associations, occupational safety and health consultants, manufacturers, labor representatives, and government agencies (Exs. 52 through 326).

    Several stakeholders requested an informal public hearing on the proposed rule (Exs. 172; 178; 180; 201; 256). OSHA granted the requests for a public hearing (75 FR 69369 (11/10/2010)), and convened the hearing on January 18, 2011, in Washington, DC (Ex. 329). Administrative Law Judge John M. Vittone presided over the four-day hearing during which 39 stakeholders presented testimony (Ex. 329). At the close of the hearing on January 21, 2011, Judge Vittone ordered that the hearing record remain open for an additional 45 days, until March 7, 2011, for the submission of new factual information and data relevant to the hearing (Exs. 327; 330; 328). He also ordered that the record remain open until April 6, 2011, for the submission of final written comments, arguments, summations, and briefs (Exs. 327; 331-

    370). On June 13, 2011, Judge Vittone issued an order closing the hearing record and certifying it to the Assistant Secretary of Labor for Occupational Safety and Health (Ex. 373).

  14. Analysis of Risk

    A. Introduction

    To promulgate a standard that regulates exposure to workplace hazards, OSHA must demonstrate that exposure to those hazards poses a ``significant risk'' of death or serious physical harm to workers, and that the standard will substantially reduce that risk. The Agency's burden to establish significant risk derives from the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651 et seq.).

    Section 3(8) of the OSH Act requires that workplace safety and health standards be ``reasonably necessary or appropriate to provide safe or healthful employment and places of employment'' (29 U.S.C. 652(8)). A standard is reasonably necessary and appropriate within the meaning of section 3(8) if it materially reduces a significant risk of harm to workers. The Supreme Court, in the ``Benzene'' decision, stated that section 3(8) ``implies that, before promulgating any standard, the Secretary must make a finding that the workplaces in question are not safe'' (Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. (Benzene), 448 U.S. 607, 642 (1980)). Examining section 3(8) more closely, the Court described OSHA's obligation to demonstrate significant risk:

    ``Safe'' is not the equivalent of ``risk-free.'' . . . A workplace can hardly be considered ``unsafe'' unless it threatens the workers with a significant risk of harm.

    Therefore, before the Secretary can promulgate any permanent health or safety standard, the Secretary is required to make a threshold finding that the place of employment is unsafe--in the sense that significant risks are present and can be eliminated or lessened by a change in practices. (Id. (Emphasis in original)).

    Relying on the U.S. Census' Statistics of U.S. Businesses for 2007, OSHA estimates that 6.9 million general industry establishments employing 112.3 million employees will be affected by the final standard. For the industries affected by the final standard, OSHA examined fatalities and lost-workday injuries for falls to a lower level.

    In the proposed rule, the Agency preliminarily concluded that falls constitute a significant risk and that the proposed standards would substantially reduce the risk of falls to employees (75 FR 28861, 28865-28866 (5/24/2010)). The analysis of U.S. Bureau of Labor Statistics (BLS) data from 1992 to 2004 identified an annual average of 300 fatal falls, 213 (71 percent) of which resulted from falls to a lower level and an annual average of 299,404 non-fatal falls resulting in lost-workday injuries,

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    79,593 (26 percent) of which were as a result of falls to a lower level. The Agency's analysis also estimated that compliance with the proposed requirements in subparts D and I annually would prevent 20 fatal to a lower level and 3,706 lost-workday injuries due to falls to a lower level.

    Based on the analysis presented in this section, which OSHA updated with more recent data, and in the Final Economic and Final Regulatory Flexibility Screening Analysis (FEA) (Section V), OSHA determines that workplace exposure to hazards associated with walking-working surfaces, particularly the hazards of falling to a lower level, poses a significant risk of serious physical harm or death to workers in general industry. BLS data from 2006-2012 show that an average of 261 fatal falls to a lower level occurred annually in general industry. In addition, BLS data for 2006-2012 indicate that an average of 48,379 lost-workday (LWD) injuries from falls to a lower level occurred annually in general industry.

    OSHA also concludes, based on this section and the FEA, that the ``practices, means, methods, operations, or processes'' the final rule requires will substantially reduce that risk. Specifically, the Agency estimates that full compliance with the final rule will prevent 29 fatalities from falls to a lower level and 5,842 lost-workday injuries from falls to a lower level annually in general industry.

    B. Nature of the Risk

    Every year many workers in general industry experience slips, trips, falls and other injuries associated with walking-working surface hazards. These walking-working surface hazards result in worker fatalities and serious injuries, including lost-workday injuries. Slips, trips, and falls, including falls on the same level, can result in injuries such as fractures, contusions, lacerations, and sprains, and may even be fatal. Falls to lower levels can increase the severity of injuries as well as the likelihood of death. Falls on the same level can also result in strains and sprains when employees try to ``catch'' themselves to prevent falling.

    There are many walking-working surface hazards that can cause slips, trips, and falls. These hazards include damaged or worn components on personal fall protection systems and rope descent systems; portable ladders used for purposes for which they were not designed; fixed ladders that are not equipped with fall protection; damaged stair treads; snow, ice, water, or grease on walking-working surfaces such as floors; and dockboards that are not properly secured or anchored.

    Identifying walking-working surface hazards and deciding how best to protect employees is the first step in reducing or eliminating the hazards. To that end, the final rule requires that employers regularly inspect walking-working surfaces. It also requires that employers assess walking-working surfaces to determine if hazards are present, or likely to be, that necessitate the use of personal fall protection systems (Sec. Sec. 1910.132(d); 1910.28(b)(1)(v)). In addition, employers must train employees on fall hazards and equipment plus the proper use of personal fall protection systems (Sec. Sec. 1910.30, 1910.132(f)). After employers have assessed the workplace and identified fall hazards, final Sec. 1910.28 requires employers to provide fall protection to protect their employees from falls. Final Sec. Sec. 1910.29 and 1910.140 specify the criteria fall protection systems must meet, such as strength and performance requirements. Section A of the FEA provides detailed information on the incidents the final rule will prevent.

    C. Fatality and Injury Data

    Fatalities. The BLS Census of Fatal Occupational Injuries (CFOI) has listed falls as one of the leading causes of workplace fatalities for many years. From 1999 to 2010, falls were second only to highway incidents in terms of fatal injuries. In 2011, slips, trips, and falls were the third leading cause of fatal occupational injuries and in 2012, the fourth leading cause of these types of injuries. Many fatal falls occur in general industry. From 2006-2012, approximately one-

    third of all fatal falls in private industry were falls to a lower level in general industry.

    OSHA examined fall fatalities for 2006 to 2012 in industries covered by the final standard using data from the BLS Census of Fatal Occupational Injuries (CFOI). Table II-1, summarizing the data in Table V-6 of the FEA, shows the total number of fatal falls to a lower level from 2006 to 2012.

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    As described in Table V-6 of the FEA, over the seven-year period, the Professional, Scientific, and Technical Services industry and the Administrative and Support Services industry (NAICS codes 541 and 561, respectively) accounted for 27 percent of the fatal falls, while the Manufacturing (NAICS 31-33) and Transportation (NAICS 48) sectors accounted for 9.6 and 7.1 percent of the fatal falls, respectively. Among all three-digit NAICS codes affected by the standard, BLS reported the highest number of fatal falls in NAICS code 561,

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    Administrative and Support Services. Although not shown in the table, a large majority of the fatalities for Administrative and Support Services--86 percent for the seven-year period 2006-2012--occurred in the industry concerned with services to buildings and dwellings (NAICS 5617). Based on these data, OSHA estimates that, on average, 261 deaths per year resulted from falls to a lower level and would be directly affected by the final standard.

    Table V-7 of the FEA also includes data on fatal falls. That table displays the number of fatal falls by type of fall and industry sector for 2006-2010. These data indicate that during this period, there were, on average, 255 fatal falls to a lower level in general industry establishments when fatal falls are summed across all affected two-

    digit NAICS industries. While the annual number of fatal falls decreased and then rose since 2006, the average annual number of fatal falls to a lower level from 2006-2010 (255 fatal falls to a lower level) and 2011-2012 (274 fatal falls to a lower level) \2\ remains at approximately the same level. In addition, falls remained one of the leading causes of workplace fatalities throughout this time, as discussed above.

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    \2\ Reference year 2011 is the first year in which the Injuries, Illnesses, and Fatalities (IIF) program used the Occupational Injury and Illness Classification System (OIICS), version 2.01, when classifying Event or Exposure, Primary Source, Secondary Source, Nature, and Part of Body. Due to substantial differences between OIICS 2.01 and the original OIICS structure, which was used from 1992 to 2010, data for these case characteristics from 2011 forward should not be compared to prior years.

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    Injuries. OSHA examined lost-workday injuries using data from BLS's Survey of Occupational Injuries and Illnesses. Falls have been one of the leading causes of lost-workday injuries for the last several years. From 2006-2010, falls were consistently the third leading cause of injuries and illnesses, behind overexertion and contact with objects and equipment. From 2011-2012, slips, trips, and falls were the second leading cause of injuries and illnesses, behind only overexertion.

    In addition to being a major source of lost-workday injuries, falls to a lower level were also some of the most severe. Falls to a lower level had the second highest median days away from work, a key measure of the severity of an injury or illness, every year from 2006-2012, except 2010 (where it was the third highest). BLS data also demonstrate that the majority of lost-workday falls to a lower level that occurred in private industry occurred in general industry. More specifically, for 2006-2012, approximately three-quarters of the lost-workday falls to a lower level in private industry occurred in general industry.

    Table V-8 of the FEA shows the average number of lost-workday injuries due to falls in general industry, by type of fall, for 2006-

    2012. Based on these data, OSHA estimates that, on average, approximately 48,379 serious (lost-workday) injuries per year resulted from falls to a lower level and would be directly affected by the final standard.

    Table II-2, based on BLS's Survey of Occupational Injuries and Illnesses, provides additional information about the median number of days away from work for lost-workday falls to a lower level from 2006-

    2012. Table II-2 displays the median number of days away from work attributed to falls to a lower level for each industry sector and private industry as a whole. In 2012, for example, the number of median days away from work for falls to a lower level in private industry as a whole was 18, while the median days away from work for all lost-workday injuries and illnesses in private industry as a whole was 8. Similarly, in 2012, the median days away from work for falls to a lower level in nearly every general industry sector was higher, and in many cases, much higher, than the median days away from work for all lost-workday injuries and illnesses in those sectors. This suggests that falls to a lower level are among the most severe lost-workday injuries.

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    Based on the number of fatalities and lost-workday injuries reported by BLS for falls to a lower level, and evidence that non-fatal injuries are among the most severe work-related injuries, OSHA finds that workers exposed to fall hazards are at a significant risk of death or serious injury.

    Several stakeholders agreed that fall hazards present a significant risk of injury and death (Exs. 63; 121; 158; 189; 363; OSHA-S029-2006-

    0662-0177; OSHA-S029-2006-0662-0350). For example, Bill Kojola of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) asserted:

    Fall hazards remain one of the most serious problems faced by millions of workers. We are convinced that the proposed changes, when implemented as a result of promulgating a final rule, will prevent fatalities and reduce injuries from fall hazards (Ex. 363).

    Similarly, in his written comments, Robert Miller of Ameren Corporation stated that the proposed rule is a positive approach towards eliminating at-risk conditions and events (Ex. 189).

    Charles Lankford, of Rios and Lankford Consulting International, challenged OSHA's preliminary finding that falls present a significant risk and that revising the general industry fall protection standards is necessary to address the problem. Mr. Lankford used NIOSH and BLS data to argue, respectively, that the final rule is not necessary because the rate of fall fatalities decreased from 1980-1994 and ``held steady'' from 1992 to 1997 (Ex. 368). OSHA is not persuaded by Mr. Lankford's argument because, as discussed above, current BLS data from 2006-2012 show that an average of 261 fatal falls to a lower level occurred annually and these falls continue to be a leading cause of fatal occupational injuries in general industry. OSHA believes this shows that a significant risk of death from falls to a lower level still exists in general industry workplaces. With regard to Mr. Lankford's claim that fall fatalities held ``steady'' from 1992-1997, according to the BLS data, the number of fatal falls increased each year during that period (with the exception of 1995), and reached a 6-

    year high in 1997.

    In addition, Mr. Lankford argued that:

    Historical incident rates for non-fatal falls also do not display an increasing fall problem. The all-industries non-fatal fall incidence rate has declined every year since 2003 (the oldest year in the BLS Table I consulted), so the decline in rates is not attributable to the current recession. If we exclude 2008 and 2009 data, manufacturing did not show a change. Yet 2006 and 2007 showed lower injury incidence rates than 2003 and 2004 (Ex. 368).

    A review of 2003-2009 BLS data on the incidence rates of nonfatal occupational injuries and illnesses resulting from falls could not reproduce Mr. Lankford's claims. As previously discussed, falls continue to be one of the leading causes of lost-workday injuries. Falls to a lower level are also some of the most severe lost-workday injuries. In 2012, for example, the number of median days away from work for falls to a lower level in private industry as a whole was 18, while the median days away from work for all lost-workday injuries and illnesses in private industry as a whole was 8.

    Mr. Lankford also suggested that fatal falls are a greater problem in the ``goods producing sector'' than the ``service sector.'' However, this assertion is not supported by the BLS data. As described in Table V-6 of the FEA, from 2006-2012, among all three-digit NAICS codes affected by the standard, BLS reported the highest number of fatal falls in a ``service sector'' (NAICS code 561, Administrative and Support Services). Further, over the seven-year period, the Professional, Scientific, and Technical Services industry and the Administrative, and Support Services industry (NAICS codes 541 and 561, respectively) accounted for 28 percent of the fatal falls.

    Based on the evidence and analysis, OSHA disagrees with Mr. Lankford's comment. As mentioned above, after examining recent BLS data (2006-2012), OSHA finds that the available evidence points to a significant risk. OSHA believes that the risk of injury, combined with the risk of fatalities constitutes a significant safety threat that needs to be addressed by rulemaking--specifically a revision to subparts D and I. OSHA believes that the revisions to subparts D and I are reasonable and necessary to protect affected employees from those risks. Based on the BLS data, the Agency estimates that full compliance with the revised walking-working surfaces standards will prevent 28 fatalities and 4,056 lost-workday injuries due to falls to a lower level annually. OSHA finds that these benefits constitute a substantial reduction of significant risk of harm from these falls.

    Several commenters urged OSHA to expand its analysis to include fatalities and injuries resulting from falls on the same level (Exs. 77; 329 (1/20/2011 pp. 42, 60-61); 329 (1/21/2011, pp. 200-203); 330). However, the Agency finds that, with regard to its significant risk analysis, the data for falls to a lower level constitute the vast majority of the risk that the standard addresses, i.e., falls from elevations. Analysis in the FEA (Section V) demonstrates that fatal falls on the same level made up a small portion of all fatal falls. Table V-7 of the FEA shows that, for the five-year period 2006 to 2010, falls on the same level accounted for about 24 percent of total fall fatalities. For non-fatal injuries, the Agency recognizes that falls on the same level represent a significant portion of lost-workday fall-

    injuries. Table V-8 of the FEA shows that, in general industry, falls on the same level accounted for 68 percent of all falls resulting in lost-workday injuries, while falls to a lower level accounted for only 24 percent.

    However, as discussed in the FEA, the final rule has relatively few new provisions addressing falls on the same level, such as slips and trips from floor obstructions or wet or slippery working surfaces. The requirements expected to yield the largest benefits from preventing falls on the same level are found in final Sec. 1910.22 General requirements. These final provisions will result in safety benefits to workers by controlling worker exposure to fall hazards on walking-

    working surfaces, especially on outdoor surfaces. Tables V-11 and V-13 of the FEA show that OSHA estimates only 1 percent of fatal falls on the same level and 1 percent of lost-workday falls on the same level will be prevented by these provisions.

    Since falls to a lower level constitute the vast majority of the risk the final rule addresses, OSHA's significant risk analysis includes only falls to a lower level. Because of this, OSHA notes the final risk analysis may understate the risk of falls in general industry, since falls on the same level account for 68 percent of falls resulting in a lost-workday injury.

    The U.S. Chamber of Commerce questioned whether OSHA's estimate of the benefits of the proposed standard justified the efforts undertaken to issue the standard:

    We note with some surprise that OSHA's analysis suggests this new regulation will have a relatively minor impact on the total number of fatalities attributed to falls from height. OSHA claims that for the years 1992-2007 there were an average of 300 fatal falls per year from height. OSHA calculates that this standard will result in 20 fewer fatal falls per year. We do not mean to diminish the significance of saving 20 lives, but OSHA seems to be projecting less impact than a standard of this scope would suggest. Indeed, OSHA even admits in the preamble that:

    For the purposes of this analysis, OSHA did not attempt a quantitative analysis of how many fatal falls could be prevented by full and complete compliance with the existing standard. However a qualitative examination

    Page 82501

    of the fatal falls to a lower level shows that a majority, and perhaps a large majority, could be prevented by full compliance with the existing regulations. (Emphasis added)

    This raises questions about whether such a sweeping new standard as this one, which will create confusion and new enforcement exposures, is indeed warranted, or if OSHA would achieve the same or better results by generating more complete compliance with current requirements (Ex. 202).

    First, far from creating confusion, this rulemaking assures that OSHA rules will be in much closer accord with existing consensus standards and practices and that OSHA's general industry fall protection requirements will be better aligned with its construction fall protection standard. There are many situations in which improved enforcement of existing rules would be highly cost beneficial but is not possible. On the other hand, OSHA can enforce new provisions to this rule at minimal marginal costs per inspection since the bulk of the costs of an inspection involves the time to reach the site, walk through the site looking for violations of all OSHA rules, and conduct the necessary closing and enforcement conferences.

  15. Pertinent Legal Authority

    The purpose of the OSH Act is to ``assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources'' (29 U.S.C. 651(b)). To achieve this goal, Congress authorized the Secretary of Labor to issue and to enforce occupational safety and health standards (see 29 U.S.C. 655(a) (authorizing summary adoption of existing consensus and Federal standards within two years of the OSH Act's effective date); 655(b) (authorizing promulgation of standards pursuant to notice and comment); and 654(a)(2) (requiring employers to comply with OSHA standards)).

    A safety or health standard is a standard ``which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment or places of employment'' (29 U.S.C. 652(8)).

    A standard is reasonably necessary or appropriate within the meaning of section 3(8) of the OSH Act if it materially reduces a significant risk to workers; is economically feasible; is technologically feasible; is cost effective; is consistent with prior Agency action or is a justified departure; adequately responds to any contrary evidence and argument in the rulemaking record; and effectuates the Act's purposes at least as well as any national consensus standard it supersedes (see 29 U.S.C. 652; 58 FR 16612, 16616 (3/30/1993)).

    A standard is technologically feasible if the protective measures it requires already exist, can be brought into existence with available technology, or can be created with technology that can reasonably be expected to be developed (Pub. Citizen Health Research Group v. U.S. Dep't of Labor, 557 F.3d 165, 170-71 (3d Cir. 2009); Am. Iron and Steel Inst. v. OSHA (Lead II), 939 F.2d 975, 980 (D.C. Cir. 1991); United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1272 (D.C. Cir. 1980)).

    A standard is economically feasible if industry can absorb or pass on the cost of compliance without threatening its long-term profitability or competitive structure (Am. Textile Mfrs. Inst. v. Donovan (Cotton Dust), 452 U.S. 490, 530 n.55 (1981); Lead II, 939 F.2d at 980). A standard is cost effective if the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection (Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. OSHA (Lockout/

    Tagout II), 37 F.3d 665, 668 (D.C. Cir 1994). See also Cotton Dust, 452 U.S. at 514 n.32 (suggesting that the ``reasonably necessary or appropriate'' language of Section 3(8) of the Act (29 U.S.C. 652(8)) might require OSHA to select the less expensive of two equally effective measures)).

    Section 6(b)(7) of the OSH Act authorizes OSHA to include among a standard's requirements labeling, monitoring, medical testing, and other information-gathering and transmittal provisions (29 U.S.C. 655(b)(7)).

    All safety standards must be highly protective (see 58 FR at 16614-

    16615; Lockout/Tagout II, 37 F.3d at 668). Finally, whenever practicable, standards shall ``be expressed in terms of objective criteria and of the performance desired'' (29 U.S.C. 655(b)(5)).

  16. Summary and Explanation of the Final Rule

    The final rule revises and updates the requirements in the general industry Walking-Working Surfaces standards (29 CFR part 1910, subpart D), including requirements for ladders, stairs, dockboards, and fall and falling object protection; and it adds new requirements on the design, performance, and use of personal fall protection systems (29 CFR part 1910, subpart I). The final rule also makes conforming changes to other standards in part 1910 that reference requirements in subparts D and I.

    A. Final Subpart D

    This part of the preamble discusses the individual requirements in the specific sections of final subpart D; explains the need for and purposes of the requirements; and identifies the data, evidence, and reasons supporting them. This preamble section also discusses issues raised in the proposed rule and by stakeholders, significant comments and testimony submitted to the rulemaking record, and substantive changes from the proposed rule.

    In accordance with section 6(b)(8) of the OSH Act, OSHA drew many of the revisions, new provisions, and technological advancements in the proposed and final rules from various national consensus standards. In the discussion of the specific sections of final subpart D, OSHA identifies the national consensus standards that section references. In the summary and explanation of the proposed rule, OSHA's references to national consensus standards are to the editions that were current at that time. In the time since OSHA published the proposed rule, many of the referenced consensus standards have been revised and updated. In the final preamble, OSHA references the most recent editions of those national consensus standards, where appropriate, after examining and verifying that they are as protective as earlier editions.

    OSHA has taken a number of steps in the final rule, like the proposal, to provide greater compliance flexibility for employers and make the final rule easier to understand and follow, which stakeholders supported (e.g., Exs. 155; 164; 165; 172; 191; 196; 202). For example, consistent with section 6(b)(5) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)(5)), the final rule uses performance-

    based language in place of specification requirements, which gives employers flexibility to select the controls that they determine to be most effective for the particular workplace situation and operation. Like the proposed rule, OSHA increases ``harmonization'' between the final rule and OSHA construction standards (29 CFR part 1926, subparts L, M, and X), which makes compliance easier for employers who perform both general industry and construction operations (e.g., Exs. 164; 165; 172; 191; 202; 226).

    Finally, clarifying provisions and terms, using plain language, and consolidating and reorganizing the requirements also make the final rule easier to understand, thereby, enhancing

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    compliance. The following table lists the sections in final subpart D and the corresponding sections in the existing subpart:

    GRAPHIC TIFF OMITTED TR18NO16.099

    Section 1910.21--Scope and Definitions

    Final Sec. 1910.21 establishes the scope of and defines the terms used in 29 CFR part 1910, subpart D--Walking-Working Surfaces.

    Final Paragraph (a)--Scope

    Final paragraph (a), like the proposed rule, specifies that the subpart applies to all general industry workplaces. It covers all walking-working surfaces unless specifically excluded by an individual section of this subpart. The final rule consolidates the scope requirements for subpart D into one provision and specifies that the final rule applies to all walking-working surfaces in general industry workplaces. The final rule defines ``walking-working surfaces'' as any surface on or through which an employee walks, works, or gains access to a work area or workplace location (Sec. 1910.21(b)). Walking-

    working surfaces include, but are not limited to, floors, ladders, stairways, steps, roofs, ramps, runways, aisles, scaffolds, dockboards, and step bolts. Walking-working surfaces include horizontal, vertical, and inclined or angled surfaces.

    Final paragraph (a) also specifies that subpart D does not apply to general industry walking-working surfaces, including operations and activities occurring on those surfaces, that an individual section or provision specifically excludes. Final subpart D addresses each of these specific exclusions in the relevant individual section or provision. OSHA notes that each exclusion only applies to the specific section or provision in which it appears and not to any other final subpart D section or provision. Existing subpart D does not have a single scope provision that applies to the entire subpart. Rather, it includes separate scope requirements in various sections in the subpart (e.g., Sec. 1910.22--General requirements; Sec. 1910.24(a)--Fixed industrial stairs; Sec. 1910.25(a)--Portable wood ladders; Sec. 1910.27(e)(3)--Fixed ladders; Sec. 1910.29(a)(1)--Manually

    Page 82503

    propelled mobile ladder stands and scaffolds (towers)).

    OSHA believes the consolidated scope provision in final paragraph (a) is clearer and easier to understand than the existing rule. Final paragraph (a) allows employers to determine more easily whether the final rule applies to their particular operations and activities. In addition, the final rule is consistent with OSHA's interpretation and enforcement of subpart D since the Agency adopted the walking-working surfaces standards in 1971. It also is consistent with other OSHA standards, including Agency construction standards (e.g., 29 CFR 1926.450(a); 1926.500(a); 1926.1050(a)).

    A number of stakeholders commented on the proposed scope provision (e.g., Exs. 73; 96; 109; 187; 189; 190; 198; 201; 202; 251; 254; 323; 340; 370). Some stakeholders urged OSHA to expand the scope to include agricultural operations (Exs. 201; 323; 325; 329 (1/18/2011, pgs. 206-

    08); 329 (1/19/2011, p. 101); 340; 370). Most commenters, however, recommended that OSHA limit the scope or exclude certain workers, work operations, or walking-working surfaces or hazards, such as inspection, investigation, and assessment activities; public safety employees; rolling stock and motor vehicles; and combustible dust (e.g., Exs. 73; 96; 98; 150; 156; 158; 157; 161; 167; 173; 187; 189; 190; 202). (See separate discussions of agricultural operations and rolling stock and motor vehicles below. See final Sec. 1910.22(a) for discussion of combustible dust.)

    Verallia commented that the proposed scope, combined with the proposed definition of ``walking-working surfaces'' (Sec. 1910.21(b)), ``greatly expands the obligation of employers'' and makes some requirements, such as regular inspections, ``unduly burdensome'' (Ex. 171). Verallia recommended that OSHA limit the scope of the final rule by revising the walking-working surfaces definition (see discussion of the definition of walking-working surfaces in final Sec. 1910.21(b)). OSHA disagrees with Verallia's contention. The existing rule covers all of the examples of walking-working surfaces listed in the proposed definition of walking-working surfaces (proposed Sec. 1910.21(b)).

    Several stakeholders urged that OSHA exclude inspection, investigation, and assessment operations performed before the start of work and after work is completed (e.g., Exs. 109; 156; 157; 177; 254). While some of these commenters recommended excluding those operations from fall protection requirements, others said OSHA should add to final Sec. 1910.21(a) the following language from OSHA's construction standard (29 CFR 1926.500(a)(1)):

    Exception: The provisions of this subpart do not apply when employees are making an inspection, investigation, or assessment of workplace conditions prior to the actual start of construction work or after all construction work has been completed.

    Such language would have the effect of excluding these operations from the entirety of subpart D, which OSHA opposes. Although OSHA excludes these operations from the fall protection requirements in final Sec. 1910.28 (see discussion in final Sec. 1910.28(a)(2)), employers performing them must comply with the other requirements in this subpart. For example, those employers must ensure that ladders and stairways their workers use to get to the workplace location are safe; that is, are in compliance with the requirements in final Sec. 1910.23 and final Sec. 1910.25, respectively. Employers also must ensure that the workers performing those operations can safely perform those operations by ensuring they receive the training that final Sec. 1910.30 requires.

    Some stakeholders recommended that OSHA exclude public safety employees from the final rule (Exs. 167; 337; 368). The Public Risk Management Association (PRIMA) offered three reasons for excluding public safety employees from the final rule. First, they said employers do not control the walking-working surfaces where employees perform public safety and emergency response operations (Ex. 167). Second, they said it is ``unreasonable'' to require public safety employees (e.g., SWAT teams) to install and use fall protection systems, since there is only a short time in which emergency response and rescue operations they perform will be effective. Finally, PRIMA said requiring that State Plan States adopt the final rule or an equivalent could result in different rules that could adversely impact interstate multidisciplinary teams and agreements.

    OSHA does not believe excluding public safety employees from the entire final rule is appropriate or necessary. Many general industry employers that the final rule covers perform operations on walking-

    working surfaces that they do not own, thus, in this respect, public safety employers and operations are not unique. Regardless of whether general industry employers own the walking-working surfaces where their workers walk and work, they still must ensure the surfaces are safe for them to use. For example, general industry employers, including public safety employers, must ensure that the walking-working surfaces are able to support their employees as well as the equipment they use. If walking-working surfaces cannot support the maximum intended load, employees and, in the case of public safety employers, the people they are trying to assist or rescue, may be injured or killed.

    OSHA does not believe stakeholders provided convincing evidence showing this and other requirements (e.g., training) provisions in final subpart D are not feasible for public safety employers. However, if an employer, including public safety employers, can demonstrate that it is infeasible or creates a greater hazard to comply with the final rule in a particular situation, they may use other reasonable alternative means to protect their employees. (OSHA notes that final Sec. 1910.23 does not apply to ladders that employers use in emergency operations such as firefighting, rescue, and tactical law enforcement operations (see discussion in final Sec. 1910.23(a)(1))).

    Agricultural operations. The final rule, like the proposal, covers walking-working surfaces in general industry workplaces. In the preamble to the proposed rule OSHA clearly specifies that the proposal does not apply to agricultural operations; 29 CFR part 1928 covers those operations (75 FR 28920 (5/24/2010)).

    Although neither the proposed rule nor OSHA standards define ``agricultural operations,'' the Agency has said they generally include ``any activities involved in the growing and harvesting of crops, plants, vines, fruit trees, nut trees, ornamental plants, egg production, the raising of livestock (including poultry and fish) and livestock products'' (e.g., feed for livestock on the farm) (Field Operations Manual (FOM), Chapter 10, Section B(1)). Agricultural operations include preparation of the ground, sowing, watering and feeding of plants, weeding, spraying, harvesting, raising of livestock, and ``all activity necessary for these operations'' (Memorandum from Patricia Clark, Directorate of Compliance Programs (7/22/1992)).

    OSHA's Appropriations Act uses the term ``farming operations,'' which is similarly defined as ``any operation involved in the growing or harvesting of crops, the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, ranches, orchards, dairy farms or similar farming operations'' (CPL 02-00-51; 42 FR 5356 (1/28/1977); Memorandum for Regional

    Page 82504

    Administrators (7/29/2014)).\3\ Farming operations on small farms also include ``preparing the ground, sowing seeds, watering, weeding, spraying, harvesting, and all related activities necessary for these operations, such as storing, fumigating, and drying crops grown on the farm'' (Memorandum for Regional Administrators (7/29/2014)).

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    \3\ Since 1976, a Congressional appropriations rider has precluded OSHA from expending funds to conduct enforcement activities with respect to any person engaged in farming operations with 10 or fewer non-family employees that has not maintained a temporary labor camp within the preceding 12 months (Consolidated Appropriations Act, 2014, Pub. L. No. 113-76 (2014)).

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    The Occupational Safety and Health Review Commission (OSHRC) has ruled that activities integrally related to these core agricultural operations also are agricultural operations (Darragh Company, 9 BNA OSHC 1205, 1208 (1980) (delivery of chicken feed to farmers that raise chickens is integrally related to agricultural operations)). Determining whether an activity is a core agricultural operation must be made on a case-by-case basis and be based on the nature and character of the specific activity rather the employer's agricultural operation as a whole (J.C. Watson Company, 22 BNA OSHC 1235, 1238, aff'd. 321 Fed. Appx. 9 (April 17, 2009)).

    Under the Darragh test, post-harvesting activities are not integral to core agricultural operations, therefore, they are not covered by part 1928 (J.C. Watson Company, 22 BNA OSHC 1235 (2008)). Post-harvest activities such as receiving, cleaning, sorting, sizing, weighing, inspecting, stacking, packaging and shipping produce are not ``agricultural operations'' (J.C. Watson Company, 22 BNA OSHC at 1238 (employer's packaging of onions (1) grown on land employer owned, leased, or worked; (2) purchased on the ``spot market''; or (3) brought to the shed by other growers; in a shed on the employer's farm was ``not integral to the growing of onions, the true agricultural operation here'')). Post-harvesting activities not on a farm include the processing of agriculture products, which ``can be thought of as changing the character of the product (canning, making cider or sauces, etc.) or a higher degree of packaging versus field sorting in a shed for size'' (FOM, Chapter 10, Section B(4)).

    In addition, activities performed on a farm that ``are not related to farming operations and are not necessary to gain economic value from products produced on the farm'' are general industry activities (Memorandum for Regional Administrators (July 29, 2014) (these activities on a small farm ``are not exempt from OSHA enforcement'' under the appropriations rider)). To illustrate, the memorandum specifies the following activities performed on a farm are general industry activities (``food manufacturing operations'') not farming operations exempt under the appropriations rider:

    Grain handling operation that stores and sells grain grown on other farms;

    Food processing facility that makes cider from apples grown on the farm or processes large carrots into ``baby carrots;'' and

    Grain milling facility and use of milled flour to make baked goods.

    As mentioned, a number of stakeholders urged that OSHA include agricultural operations in the final rule for several reasons (Exs. 201; 323; 325; 340; 370). First, the stakeholders said fall hazards are present throughout agricultural operations. For instance, Farmworker Justice stated:

    Fall hazards exist in all types of farm operations in both crop and animal production, including work in vegetable fields, packing sheds, fruit orchards, tree nurseries, greenhouses, mushroom houses, dairies, poultry farms, cattle feedlots, and other livestock operations (Ex. 325).

    They also said that workers are exposed to fall hazards while working on various types of walking-working surfaces, including ladders, farm machinery, and elevated farm structures (Ex. 325).

    Second, stakeholders said fall hazards are a leading cause of worker fatalities and injuries in agricultural operations. Farmworker Justice said the annual number of fatal falls in agricultural operations accounted for almost 10 percent of all annual occupational fatal falls (Ex. 370). They said a NIOSH analysis of 2005 Bureau of Labor Statistics (BLS) data indicated that fall-related farmworker deaths occurred at a rate of 1.4 per 100,000, ``a rate exceeded in only two other industries: Construction . . . and mining'' (Ex. 325, referring to 2005 Census of Fatal Occupational Injury data). According to Farmworkers Justice, BLS data from 2004-2009 indicated that 157 agricultural workers died due to falls, which they said was an average of over 28 fall deaths per year (Exs. 329 (1/18/2011, pp. 228); 370). California Rural Legal Assistance Foundation (CRLAF) said BLS fatality data from 1992-1997 indicated 166 agricultural workers died as a result of falls from elevations (Ex. 201).

    Farmworker Justice and CRLAF also submitted evidence on the prevalence of fall injuries in agricultural operations. CRLAF said an analysis of 1991 Florida worker compensation records in agricultural operations revealed that falls accounted for nearly 25 percent of all serious, disabling work injuries (Ex. 201). Farmworker Justice reported:

    BLS data indicates that workers in both crop and animal production had among the highest rates of non-fatal fall-related injuries requiring days away from work of all U.S. workers in 2009 (Ex. 370).

    Farmworker Justice stated that fall injuries were particularly frequent among workers harvesting tree fruit and nut crops:

    According to 2009 BLS fall injury data . . . orchard workers suffered ladder-related fall injuries at the rate of 33.6 per 10,000 workers, which would be among the top 20 industry fall rates examined by OSHA (Ex. 370; see also Ex. 325).

    CRLAF reported similar data showing ``nearly one-third (31%) of the 13,068 Workers' Compensation Claims in Washington State orchards between 1996 and 2001 involving compensation for lost work time were for ladder related injuries.''

    Third, stakeholders said the fall protection standards that California, Oregon, and Washington have adopted to protect agricultural workers show that it is feasible to apply the final rule to agriculture operations (Exs. 325; 329 (1/18/2011, pgs. 207-210); 340; 370). Farmworker Justice said that government officials, agricultural orchard employers, and agricultural safety training experts in these states indicated that compliance with those standards have ``significantly reduced injuries among agricultural workers'' (Ex. 370). It also reported that a Washington study of fall injuries among orchard workers over a five-year period (1996-2001) following implementation of the state's fall protection standard found ``statistically significant annual reductions in injuries'' (Ex. 370, discussing Hofmann J, Snyder K, Keifer M. ``A descriptive study of workers claims in Washington State orchards,'' 56 Occupational Medicine 251-257 (2006)).

    OSHA agrees with the stakeholders that walking-working surface hazards, particularly fall hazards, exist in agricultural operations. That said, OSHA has not included agricultural operation in the final rule. The Agency has not gathered and analyzed the type of information on agricultural operations necessary to support a rule. OSHA has not gathered and analyzed information on the number of agricultural workers and establishments the final rule would affect. In addition, OSHA has not determined what percentage of agricultural

    Page 82505

    establishments are farming operations with 10 or fewer non-family employees that have not maintained a temporary labor camp within the preceding 12 months and therefore exempt from enforcement of the final rule.

    OSHA has not gathered and analyzed data and information on the jobs in agricultural operations where walking-working surface hazards are present and worker injuries and fatalities are occurring; the current employer practices to address these hazards; and the availability and cost of controls, such as fall protection systems, to protect workers from those hazards. In addition, OSHA has not conducted the economic and regulatory flexibility analyses necessary to make a feasibility determination. And, because the proposal clearly did not extend to agricultural operations, the public has not had a chance to comment on those issues. These and other steps are necessary before OSHA can issue a final rule that applies to agricultural operations. As such, the final rule applies to general industry and not agricultural operations. However, if an operation performed on a farm is not an ``agricultural operation'' or integrally related to an agricultural operation, such as a food manufacturing or other post-harvesting operations, then the final general industry rule applies.

    Rolling stock and motor vehicles. In this rulemaking OSHA has raised issues and requested comment about whether the final rule should include specific requirements to protect workers from falling off rolling stock and motor vehicles.\4\ The 2010 proposal does not include specific requirements for rolling stock and motor vehicles (75 FR 28862). Instead, in the preamble, OSHA said it would continue gathering information and evidence to determine whether there is a need to propose specific requirements for rolling stock and motor vehicles (75 FR 28867). OSHA also said it needs ``more information about what employers are presently doing and any feasibility and cost concerns associated with a requirement to provide protection'' for rolling stock and motor vehicles. OSHA said it will wait until the record is more fully developed to make a determination about requiring fall protection on rolling stock and motor vehicles. OSHA also stated that if it receives sufficient comments and evidence to warrant additional rulemaking on rolling stock and motor vehicles, the Agency will issue ``a separate proposed rule'' (75 FR 28867) (emphasis in original). The comments the Agency received on the need for specific requirements for rolling stock and motor vehicles are summarized below.

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    \4\ OSHA defines ``rolling stock'' as any locomotive, railcar, or vehicle operated exclusively on a rail or rails, or a trolley bus operated by electric power supplied from an overhead wire. ``Motor vehicle'' means any commercial bus, van, or truck, including tractor trailer, flatbed, tanker, and hopper trucks.

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    Many stakeholders support adding specific fall protection requirements for rolling stock and motor vehicles to the final rule (e.g., Exs. 127; 130; 155; 185; 198; 257; 307; OSHA-S029-2006-0662-

    0195; OSHA-S029-2006-0662-0196; OSHA-S029-2006-0662-0207; OSHA-S029-

    2006-0662-0227; OSHA-S029-2006-0662-0234; OSHA-S029-2006-0662-0247; OSHA-S029-2006-0662-0310; OSHA-S029-2006-0662-0329), while many urge OSHA to exclude rolling stock and motor vehicles from coverage or to limit fall protection requirements to specific situations, such as when vehicles are inside or contiguous to a building (e.g., Exs. 63, 121; 158; 161; 162; 181; 182; 183; 220; 238; 335; OSHA-S029-2006-0662-0202; OSHA-S029-2006-0662-0219; OSHA-S029-2006-0662-0226; OSHA-S029-2006-

    0662-0229; OSHA-S029-2006-0662-0244; OSHA-S029-2006-0662-0252; OSHA-

    S029-2006-0662-0302; OSHA-S029-2006-0662-0306; OSHA-S029-2006-0662-

    0314; OSHA-S029-2006-0662-0320; OSHA-S029-2006-0662-0324).

    Stakeholders who support adding specific fall protection requirements said workers are exposed to fall hazards working on rolling stock and motor vehicles; falls from rolling stock and motor vehicles have resulted in death and serious injury; and feasible, effective fall protection systems exist and are in use to protect employees working on rolling stock and motor vehicles. These stakeholders include safety professional organizations (e.g., American Society of Safety Engineers (ASSE)); fall protection system manufacturers, suppliers, and installers; safety engineers and consultants; and labor organizations.

    Stakeholders who oppose adding specific requirements said requiring fall protection for rolling stock and motor vehicles is not necessary, creates a greater hazard, and is infeasible. Some said OSHA did not have authority to regulate rolling stock and motor vehicles, and, in any event, should leave such regulation to the Federal Railroad Administration (FRA) and Federal Motor Carrier Safety Administration (FMCSA), respectively. Some stakeholders urged OSHA that the final rule limit fall protection requirements to vehicles located inside or contiguous to a building or structure. These stakeholders include employers, small businesses, and industry associations (Exs. 182; 220; OSHA-S029-2006-0662-0226; OSHA-S029-2006-0662-0229; OSHA-S029-2006-

    0662-0231; OSHA-S029-2006-0662-0237; OSHA-S029-2006-0662-0252; OSHA-

    S029-2006-0662-0306; OSHA-S029-2006-0662-0340).

    Need for fall protection. Several stakeholders asserted that fall protection on rolling stock and motor vehicles is not necessary for a variety of reasons. First, stakeholders said no or very few workers climb on rolling stock and motor vehicles (Exs. 124; 183; 187; 220; 238). For example, Minnesota Grain and Feed Association (MGFA) said members load/unload rolling stock and motor vehicles using electronic controls operated from ground-level instead (Ex. 220). Likewise, the Small Business Administration Office of Advocacy (SBA Advocacy) and American Trucking Associations (ATA) said employees load/unload truck trailers through the rear door directly to docks, ramps, and other devices (Exs. 124; 187; 190; 220). Stakeholders who said workers climb on rolling stock and motor vehicles stressed the number of workers doing so is very low. Conoco Phillips Company said, ``The number of employees required to work atop rolling stock is minimal ( Conventional fall protection system such as cable line and retractable lifeline systems; work platforms with railings/guardrails; walkways with railings; and portable access systems with railings or safety cages; ladders with railings (Exs. 63; 124; 148; 158; 162; 169; 181; 335);

    Anti-slip surfaces on motor vehicle walkways (Ex. 158);

    Initial, periodic, and remedial training, which is the only measure some stakeholders use (e.g., Exs. 63; 121; 124; 142; 148; 158; 162; 169; 181; 190);

    Work practices such as site-specific loading/unloading protocols and safe climbing techniques (e.g., 3-point climbing); and loading/unloading trailers from the ground (e.g., bottom-loading tankers, ground-level controls) (Ex. 148; 158; 181; 192; 326; 335; OSHA-S029-2006-0662-0314); and

    Administrative controls, including ``blue-flagging'' rail cars on isolated tracks to prevent moving while employees are on them, prohibiting workers from being on moving rolling stock, and keeping employees off railcars in unsafe weather conditions (e.g., ice, sleet, high winds) (e.g., Ex. 148).

    However, as mentioned, other stakeholders believe requiring fall protection on rolling stock and motor vehicles is necessary because many employers have not implemented readily available controls even though their workers are exposed to fall hazards on rolling stock and motor vehicles and fall injuries and fatalities are occurring in the railroad and truck transportation industries (e.g., Exs. 127; 130; 155; 185; 198; 257; 307; OSHA-S029-2006-0662-0195; OSHA-S029-2006-0662-0196; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0227; OSHA-S029-2006-

    0662-0234; OSHA-S029-2006-0662-0247; OSHA-S029-2006-0662-0310; OSHA-

    S029-2006-0662-0329). FPS, for instance, pointed out that the lost-

    workday injury rates due to falls from elevations in the rail transportation and truck transportation industries are 25.9 and 29.1 lost workdays per 10,000 employees, respectively (Ex. 130).

    Greater hazard. Several stakeholders oppose requiring fall protection on rolling stock and motor vehicles because they say it would expose workers to a ``greater hazard'' than working without any protection (Exs. 121; 124; 181; OSHA-S029-2006-0662-0219; OSHA-S029-

    2006-0662-0232; OSHA-S029-2006-0662-0244). To establish that an OSHA standard creates a greater hazard, an employer must prove, among other things, that the hazards of complying with the standard are greater than those of not complying, and alternative means of employee protection are not available (Bancker Construction Corp., v. Reich, 31 F.2d 32, 34 (2d Cir. 1994); Dole v. Williams Enterprises, Inc., 876 F.2d 186, 188 (D.C. Cir. 1989)). The Occupational

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    Safety and Health Review Commission has held that the employer must establish that complying with a standard would be more dangerous than allowing employees to work without compliance (Secretary of Labor v. Spancrete Northeast, Inc., 16 BNA OSHC 1616, aff. 40 F.3d 1237 (2d Cir. 1994)).

    Stakeholders said that requiring personal fall protection systems on rolling stock and motor vehicles could create a greater risk by causing ``entanglement with moving parts'' (Ex. 124) and creating trip hazards (Exs. 181; OSHA-S029-2006-0662-0244). They also said requiring workers ``to continually tie and untie from a variety of anchorage points when the employee accesses and moves around'' rolling stock or motor vehicles also could create a greater hazard (Ex. 121; OSHA-S029-

    2006-0662-0244). Keller and Heckman explained:

    The worker would first have to climb or otherwise travel to the anchorage location to attach and then detach from the anchorage, which might very well pose a greater hazard than simply working carefully without fall protection (Ex. OSHA-S029-2006-0662-0244).

    However, these stakeholders did not identify instances in which workers were injured while using personal fall protection systems on rolling stock and motor vehicles.

    Also, these stakeholders did not show that there are no alternative fall protection measures or systems available to protect workers. In fact, these and other stakeholders identified various types of fall protection systems that they and other employers are using successfully to protect employees working on rolling stock and motor vehicles (e.g., Exs. 63; 124; 130; 148; 158; 162; 181; 185; 198; 307; 335; OSHA-S029-

    2006-0662-0207; OSHA-S029-2006-0662-0208). In point, although ATD/NADA asserted that requiring fall protection on rolling stock and motor vehicles would create a greater hazard, they also said:

    Dealerships often use railing-equipped metal stairs with lockable casters or other ladder systems to reach the sides and tops of trucks, tractors, or trailers, thereby reducing the need to climb on the vehicles themselves. When and where used, mobile work platforms and scaffolds have adjustable `maximum' heights and are equipped with side rails and toe boards to prevent falling or tripping from the top section. . . . Paint booths often have mobile or stationary stair platforms equipped with railings and safety chains (Ex. 181).

    Technological feasibility. As discussed in Pertinent Legal Authority (Section III), OSHA must prove, by substantial evidence in the rulemaking record that its standards are technologically and economically feasible, which the Supreme Court has defined as ``capable of being done, executed, or effected'' (American Textile Mfrs. Inst. v. Donovan (Cotton Dust), 452 U.S. 490, 506 n. 25 (1981)). A standard is technologically feasible if the protective measures it requires already exist, can be brought into existence with available technology, or can be created with technology that can reasonably be expected to be developed (Cotton Dust, 452 U.S. at 513; United Steelworkers v. Marshall (Lead I), 647 F.2d 1189, 1272 (D.C. Cir, 1980), cert. denied, 453 U.S. 913 (1981)). OSHA is not bound by the ``technological status quo.'' The Agency can be ``technology-forcing,'' that is, giving industry a reasonable amount of time to develop new technologies (Lead I, 647 F.2d at 1264).\5\

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    \5\ A determination of feasibility at the time a standard is promulgated establishes a rebuttable presumption of feasibility. Employers subject to an enforcement action can overcome this presumption by demonstrating that the controls or action the standard requires are not feasible for its operation (Lead I, 647 F.2d at 1272).

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    Stakeholders asserted various reasons why they believe it is not technologically feasible to require fall protection on rolling stock and motor vehicles that are not located in or contiguous to a building or other structure. First, several stakeholders contend that guardrail systems, safety net systems, and personal fall protection system are not feasible in those locations (e.g., Exs. 158; 326; 329 (1/20/2011, pgs. 156-58); OSHA-S029-2006-0662-0314).

    Standfast USA said safety net systems are difficult to deploy and guardrail systems either obstruct loading racks or cannot be raised when the racks are present (Ex. 329 (1/20/2011, pgs. 156-58)).

    Regarding personal fall protection systems, stakeholders stated there is no place to install anchorage points when rolling stock and motor vehicles are not located in or contiguous to a building or structure (e.g., Exs. 121; 124; 126; 187; 192; 326; OSHA-S029-2006-

    0662-0237; OSHA-S029-2006-0662-0244), and attaching them to the rolling stock and motor vehicles is not feasible because the personal fall protection system would compromise the strength or structural integrity of the vehicles, which are made of aluminum, which ``fatigues over time'' (Ex. 158; OSHA-S029-2006-0662-0219).

    However, other stakeholders submitted evidence showing that controls are available and in use on rolling stock and motor vehicles regardless of location (e.g., Exs. 63; 130; 158; 161; 169; 185; 307; 335; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-

    2006-0662-0329; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373). For example, the American Feed Industry Association (AFIA) said members have found guardrail systems (i.e., railed walkways and catwalks; ``pop-up''/collapsible handrails) to be ``very effective'' regardless of where rolling stock and motor vehicles are located (Ex. 158; see also Exs. 161; 169; 335; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-

    0208; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373). In addition, stakeholders submitted evidence showing that personal fall protection systems are available and in use in a broad range of industries, regardless of the location of the rolling stock and motor vehicles (e.g., Exs. 130; 148; 158; 198; 307; 355; OSHA-S029-2006-0662-0208; OSHA-S029-2006-0662-0373). Some of these systems are attached to rolling stock and motor vehicles (e.g., Exs. 307; 355; OSHA-S029-2006-

    0662-0208), while others are stand-alone or portable, wheel-mounted overhead systems that employers can use in open yards and other locations (e.g., Exs. 148; 158; 198; 355-2; OSHA-S029-2006-0662-0373).

    Second, several stakeholders stated that retrofitting rolling stock and motor vehicles with fall protection is not feasible (Exs. 63; 158; 190; 192; 329 (1/20/2011, pgs. 112-13); 335; OSHA-S029-2006-0662-0219). McNeilus Trucking, for instance, said retrofitting could affect the structural integrity or performance of rolling stock and motor vehicles (Ex. OSHA-S029-2006-0662-0219. See also Ex. 158). ILTA testified that although fall protection systems ``are very routinely part of the initial design'' in new equipment, existing rolling stock and motor vehicles ``do not have assets that would readily accept a fall protection system'':

    It's not easy to take these piping manifolds and just simply overlay a superstructure in many cases. . . . When we're looking at older installations that might require retrofitting where . . . retrofit really does require complete bulldoze and start over'' (Ex. 329 (1/20/2011, pgs. 112-13). See also Ex. 335).

    Other stakeholders, including industry associations, commented that rolling stock and motor vehicles have been retrofitted with fall protection systems (e.g., Exs. 307; 335; 355), and pointed out that there are many other types of portable and stand-alone fall protection systems (e.g., overhead

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    trolley rail systems) available and in use instead of retrofitting rolling stock and motor vehicles (e.g., Exs. 130; 198; 307; 329 (1/18/

    2011, pgs. 90-92); 355; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-

    0208; OSHA-S029-2006-0662-0373).

    Third, some stakeholders asserted fall protection on rolling stock and motor vehicles is not feasible because of circumstances beyond their control (Exs. 148; 181; 326). These stakeholders said, for example, they cannot install fall protection systems because they do not own the motor vehicles (i.e., leased fleet, belong to customers, are inventory for sale) or rail carriers prohibit them from modifying rolling stock without prior approval. Some stakeholders said FRA and FMCSA requirements prevent them from using fall protection (Exs. 148; 326). For instance, NGFA stated that members cannot install fall protection on rolling stock because of FRA ``clearance envelope'' requirements (Ex. 148). Similarly, Southeast Transportation Systems (STS) said FMCSA rules on motor vehicle weight, height, width, length, and accessory design (e.g., ladders) ``are just some of the factors preventing the use of conventional fall protection systems'' (Ex. 326. See also Exs. 158; OSHA-S029-2006-0662-0226). AFIA agreed:

    Bulk feed transportation equipment must meet maximum height constraints in order to comply with Department of Transportation regulations. The maximum allowable height of trucks and trailers is 13'6''. Since the top of our equipment is approximately 13' high, the industry is limited in positioning additional structures above this height (Ex. 158).

    Other evidence in the record, however, indicates that there are many portable and stand-alone fall protection systems available and in use today in both the rail and truck transportation industries, including overhead cable line systems, moveable stairs with railings, mobile access platforms with railings and/or safety cages and overhead tarping systems (e.g., Exs. 198; 302; 355; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373). For example, an NGFA survey revealed that nearly 40 percent of their member facilities have installed overhead fall protection systems in railcar loading areas (Ex. 148. See also 63; 182; 335). The truck transportation industry has implemented a number of fall protection systems, including portable and adjustable access platforms/racks with railings or safety cages; pedestal platforms; collapsible outer rails; and walkways with collapsible railings (e.g., Exs. 63; 357). Some stakeholders, including truck transportation industry companies and associations, also pointed to the increasing use of bottom-loading tanks and hoppers, which work even where there are external constraints (e.g., Exs. 63; 158; 329 (1/20/2011, p. 143)).

    Fall protection system manufacturers indicated that, based on their experience, ``it is feasible and practical to provide workers with active or passive means of fall protection for working on rolling stock and motor vehicles in nearly every work situation'' (Ex. 329 (1/

    18/2011, pgs. 82-83); see also Exs. 130; 185; 198; 307; 329 (1/18/2011, pgs. 90-92, 164-66); 329 (1/20/2011) pgs. 144, 149-75); 355-2; 355-12; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-2006-

    0662-0329; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373). For example, FPS, which by 2003 already had provided more than 13,000 fall protection systems to the rail and trucking industries, said they have found ``no technological or economic obstacles'' to prevent employers from providing fall protection equipment for rolling stock and motor vehicles regardless of their location (Ex. 130). For many years, manufacturers have been producing rolling stock and motor vehicle fall protection systems especially designed for use in locations that are not in or contiguous to buildings or other structures (e.g., Exs. 130, 307; 329 (1/18/2011, pgs. 82-83, 90-92); 329 (1/20/2011, pgs. 149-75, 188); 355; OSHA-S029-2006-0662-0208; OSHA-S029-2006-0662-0373). They also have designed, and employers are using, technological advancements that have eliminated the need for workers to climb on rolling stock and motor vehicles (Exs. 302; 329 (1/20/2011, pgs. 144-45, 149-75, 188); 355; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-

    2006-0662-0373). These advancements include tanker and hopper trucks that load/unload from the bottom; automated loading/unloading and tarping systems operated by ground-level controls (Exs. 63; 302; 329 (1/20/2011, pg. 143); see also Ex. 158). Several industry associations said member companies are increasingly purchasing these new technologies (Exs. 63; 158; 302). Safety and engineering consultants confirmed the ready availability, effectiveness, and feasibility of the new fall protection technologies for rolling stock and motor vehicles (Exs. 227; 251; OSHA-S029-2006-0662-0227; OSHA-S029-2006-0662-0350).

    Employers and industry associations submitted information about effective fall protection controls that have been implemented (e.g., Exs. 63; 148; 158; 162; 169; 181; 182; 220; 326; 335; 337; OSHA-S029-

    2006-0662-0177). For example, Ferro Corporation, which installed cable line systems over rail cars and work platforms with railings on the top of bulk trailers for loading/unloading coatings and other materials reported that they have not experienced any falls since installing the systems in 2000 (Ex. OSHA-S029-2006-0662-0177; see also Ex. 329 (1/20/

    2011, pgs. 149-75)).

    As mentioned, AFIA said member companies have installed several types of fall protection systems (e.g., retractable overhead lanyards and harnesses, elevated walkways, ``pop-up handrails,'' ground-level controls for loading/unloading) that ``have proven to be effective'':

    The additional couple of minutes to don a full body harness and attach it to a retractable lanyard are insignificant compared to a lost-time accident (Ex. 158).

    Industry associations also submitted information showing that a significant portion of their member companies already have installed fall protection systems for rolling stock and motor vehicles (Exs. 63; 148; 158; 162; 169; 181; 182; 220; 335; 357). For example, NGFA reported that nearly 40 percent of all member facilities already have installed overhead fall protection systems in railcar loading areas (Ex. 148). Even ``country elevators,'' which generally load only one- to three-railcar units, already have installed retractable safety lines and electronic systems operated from ground level (Ex. 148; see also, Ex. 220). CTRMC submitted photographs showing fall protection systems already in use on cargo tank trucks in their industry, including tank trucks located ``in the field'' (Ex. 63).

    OSHA believes the evidence employers and industry associations submitted shows it is technologically feasible in many cases for employers to provide fall protection for rolling stock and motor vehicles regardless of their location.

    Jurisdiction. Several stakeholders oppose covering rolling stock and motor vehicles in the final rule because they contend that OSHA either lacks authority to require employers to provide fall protection for employees who work on rolling stock and motor vehicles, or should allow the FRA or FMCSA to exercise complete authority for regulating rolling stock and motor vehicles, respectively (Exs. 124; 187; 326; OSHA-S029-2006-0662-0202; OSHA-S029-2006-0662-0232).

    Regarding rolling stock, FRA said the Federal Railroad Safety Act (FRSA) grants them broad authority to regulate

    Page 82509

    railroad safety and they have promulgated regulations to protect railroad employees from falling off of rolling stock (OSHA-S029-2006-

    0662-0232. See also OSHA-S029-2006-0662-0206). Therefore, they contend that Section 4(b)(1) of the OSH Act (29 U.S.C. 653(b)(1)) \6\ ``displaces OSHA'' from regulating rolling stock. FRA also pointed out that its ``Railroad Occupational Safety and Health Standards'' Policy Statement states that FRA exercises complete authority for ``railroad operations,'' which is the movement of equipment over the rails. FRA said this authority includes design of ``rolling equipment used on a railroad, since working conditions related to such surfaces are regulated by FRA as major aspects of railroad operations'' (43 FR 10583, 10587 (3/14/1978)).

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    \6\ Section 4(b)(1) specifies: Nothing in this chapter shall apply to working conditions of employers with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health (29 U.S.C. 653(b)(1)).

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    In the preamble to the proposed rule, OSHA acknowledged that FRA has authority to regulate ``railroad operations'' (75 FR 28867). At the same time, OSHA noted that the FRA Policy Statement also recognizes that OSHA has authority for certain ``occupational safety and health'' issues in the railroad industry:

    FRA recognizes that OSHA currently is not precluded from exercising jurisdiction with respect to conditions not rooted in railroad operations nor so closely related to railroad operations as to require regulation by FRA in the interest of controlling predominant operational hazards (43 FR 10587).

    Consistent with the Policy Statement, OSHA has authority over working conditions that do not constitute ``railroad operations,'' such as loading/unloading rolling stock by non-railroad employees off railroad property.

    The American Railroad Association (ARA) said OSHA should allow the FRA to exercise authority over rolling stock for two reasons. First, they said rolling stock presents ``special concerns, such as clearance issues in rail tunnels and the unique configuration of rolling stock.'' Second, they said FRA, not OSHA, has ``expertise to determine when regulations on rolling stock are necessary and the content of those regulations'' (Ex. OSHA-S029-2006-0662-0202). OSHA believes it also has the expertise to address fall hazards on rolling stock. That said, ``in the past, FRA and OSHA have closely coordinated their mutual efforts to improve workplace safety in the rail industry'' and OSHA ``is committed to continuing working cooperatively'' with FRA to maintain and further develop its expertise in rail industry safety (Ex. OSHA-S029-2006-0662-0232).

    With regard to commercial motor vehicles, stakeholders asserted that, under Section 4(b)(1), the Motor Carrier Safety Act (MCSA) preempts OSHA from regulating commercial motor vehicles (Exs. 124; 187; 326). The MCSA defines ``commercial motor vehicle'' as a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle:

    Has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater;

    Is designed or used to transport more than 8 passengers (including the driver) for compensation;

    Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or

    Is used in transporting material found by the Secretary of Transportation to be hazardous under section 5103 of this title and transported in a quantity requiring placarding under regulations prescribed by the Secretary under section 5103 (49 U.S.C. 31132).

    However, as interpreted by the courts and the Occupational Safety and Health Review Commission, section 4(b)(1) does not create an industry-wide exemption. Rather, it preempts OSHA regulation of a particular workplace hazard addressed by the regulation of another agency. Thus, an OSHA standard is preempted by the MCSA only to the extent that the FMCSA has adopted a regulation for commercial motor vehicles addressing the hazard. For example, FMCSA addresses fall hazards for certain commercial motor vehicles in 49 CFR part 399. Since the Agency did not propose any specific fall protection requirements for rolling stock or motor vehicles, OSHA has not included any in this final rule. However, it will continue to consider the comments it has received, and in the future the Agency may determine whether it is appropriate to pursue any action on this issue.

    Construction vs. Maintenance. Some stakeholders expressed concerns that OSHA does not clearly delineate what activities are maintenance that the proposed general industry rule covers and what are construction that fall under OSHA's construction standards (Exs. 124; 150; 196; 202). For example, SBA Advocacy said participants in their small business roundtable were ``confused about which standard applies under what circumstances'':

    Participants noted that two employees could be working side by side on similar tasks, but one could be covered by the general industry standard and the other by the construction standard. Representatives expressing these concerns included residential construction and remodeling, painting, heating and air conditioning, chimney sweeping, and others (Ex. 124).

    In 1994, OSHA clarified the definitions of maintenance v. construction activities:

    OSHA's regulations define construction work as ``construction, alteration, and/or repair, including painting and decorating.'' They further provide that OSHA's construction industry standards apply ``to every employment and place of employment of every employee engaged in construction work.'' . . . In order for work to be construction work, the employer need not itself be a construction company. . . . Further, construction work is not limited to new construction. It includes the repair of existing facilities. The replacement of structures and their components is also considered construction. . . .

    There is no specified definition for ``maintenance,'' nor is there a clear distinction between terms such as ``maintenance,'' ``repair,'' or ``refurbishment.'' ``Maintenance activities'' can be defined by OSHA as making or keeping a structure, fixture or foundation (substrates) in proper condition in a routine, scheduled, or anticipated fashion. This definition implies ``keeping equipment working in its existing state, i.e., preventing its failure or decline.'' . . . Determinations of whether an employer is engaged in maintenance operations rather than construction activities must be made on a case-by-case basis (Memorandum for Regional Administrators (8/11/1994)).\7\

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    \7\ OSHA letter to Regional Administrators is available on OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21569.

    In subsequent letters of interpretation, OSHA identified factors the Agency considers in determining whether the activity is maintenance or construction and applied them to specific examples (Letter to Randall Tindell (2/1/1999); \8\ Letter to J. Nigel Ellis (5/11/1999)); \9\ Letter to Raymond Knobbs (11/18/2003) \10\). Those factors include:

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    \8\ OSHA letter to Mr. Tindall is available on OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22687.

    \9\ OSHA letter to Mr. Ellis is available on OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=23328.

    \10\ OSHA letter to Mr. Raymond Knobbs is available on OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24789.

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    Nature of the work. Equipment reinstalled or replaced with identical equipment is generally maintenance.

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    Replacement with improved equipment is construction;

    Whether the work is scheduled. Activity that is an anticipated, routine, and periodic event to keep equipment from degrading and maintain it in its existing state is suggestive of maintenance. As long as the activity continues to be a scheduled activity, the passage of time between the activity, even 10 to 20 years, normally does not alter the characterization of the activity as maintenance;

    The scale and complexity of the activity; which also takes into consideration the amount of time and material required to complete it. Although a project may not necessarily be large in terms of scale, a complex activity in terms of steps involved and tools and equipment needed to complete is likely to be construction; and

    The physical size of the object being worked on. Physical size can be a factor if, because of its size, the process of removal and replacement involves significantly altering the structure or equipment that the object is in. Significant alterations of the structure or equipment will likely be construction.

    OSHA believes these factors and examples outlined in the letters of interpretation provide useful guidance to help employers determine whether a particular activity is maintenance or construction. If there is an instance where an employer may not be able to easily classify an activity as maintenance or construction, when measured against the above factors, following the more protective standard will ensure compliance.

    In any event, since one of the primary goals of this rulemaking is to harmonize the general industry and construction walking-working surface standards, OSHA believes the distinction between maintenance and construction is of much less significance. As discussed in the introduction to the Summary and Explanation (Section IV), in updating and revising the walking-working surface standards in subpart D and adding new personal fall protection requirements to subpart I, OSHA made requirements consistent with construction standards, where possible. For example, in final Sec. Sec. 1910.28 and 1910.140, OSHA adopts the flexible approach to providing fall protection systems that the construction standard codified in 1994. Thus, whether performing general industry or construction operations, employers may provide personal fall protection systems to protect their workers. OSHA notes that in the discussion of provisions in subparts D and I the Agency identifies the corresponding construction standards the final rule incorporates. As a result, OSHA believes that in most cases employers will be able to use the same controls, particularly fall protection systems, and follow the same work practices regardless of whether they are performing general industry or construction activities.

    Paragraph (b)--Definitions

    Final paragraph (b) defines terms that are applicable to all sections of final subpart D. For the most part, OSHA drew the final definitions from the existing rule (existing Sec. 1910.21(a) through (g)), other OSHA standards (e.g., 29 CFR 1926.450, 1926.500, 1926.1050), and national consensus standards. For example, the Agency adopted several definitions from the construction fall protection standard (Sec. 1926.500(b)) and revised the language of other definitions to make them consistent with definitions in OSHA construction standards. The Agency also drew a number of definitions from the following national consensus standards, all of which have been revised and updated or issued since OSHA adopted existing Sec. 1910.21(b) in 1971:

    American National Standard Institute (ANSI) A14.1-2007, American National Standard for Safety Requirements for Portable Wood Ladders (ANSI A14.1-2007) (Ex. 376);

    American National Standard Institute (ANSI) A14.2-2007, American National Standard for Safety Requirements for Portable Metal Ladders (ANSI A14.2-2007) (Ex. 377);

    American National Standard Institute (ANSI) A14.3-2008, American National Standard for Ladders--Fixed--Safety Requirements (ANSI A14.3-2008) (Ex. 378);

    American National Standard Institute (ANSI) A14.5-2007, American National Standard for Safety Requirements for Portable Reinforced Plastic Ladders (ANSI A14.5-2007) (Ex. 391);

    American National Standard Institute (ANSI) A14.7-2011, Safety Requirements for Mobile Ladder Stands and Mobile Ladder Stand Platforms (ANSI A14.7-2011) (Ex. 379);

    American National Standard Institute/American Society of Safety Engineers (ANSI/ASSE) A10.18-2012, Safety Requirements for Temporary Roof and Floor Holes, Wall Openings, Stairways, and Other Unprotected Edges in Construction and Demolition Operations (ANSI/ASSE A10.18-2012) (Ex. 388);

    American National Standard Institute/American Society of Safety Engineers (ANSI/ASSE) A10.32-2012, Fall Protection Systems--

    American National Standard for Construction and Demolition Operations (Ex. 390);

    American National Standard Institute/American Society of Safety Engineers (ANSI/ASSE) A1264.1-2007, Safety Requirements for Workplace Walking/Working Surfaces and Their Access; Workplace, Floor, Wall and Roof Openings; Stairs and Guardrail Systems (ANSI/ASSE A1264.1-2007) (Ex. 13);

    American National Standard Institute/American Society of Safety Engineers (ANSI/ASSE) Z359.0-2012, Definitions and Nomenclature Used for Fall Protection and Fall Arrest (ANSI/ASSE Z359.0-2012) (Ex. 389);

    American National Standard Institute/International Window Cleaning Association (ANSI/IWCA) I-14.1-2001, Window Cleaning Safety (ANSI/IWCA I-14.1-2001) (Ex. 14);

    American National Standard Institute (ANSI) MH30.2-2005, Portable Dock Leveling Devices: Safety, Performance and Testing (ANSI MH30.2-2005) (Ex. 20);

    National Fire Protection Association (NFPA) 101-2012, Life Safety Code (NFPA 101-2012) (Ex. 385); and

    International Code Council (ICC) International Building Code-2012 (IBC-2012) (Ex. 386).

    Final paragraph (b) differs from the existing and proposed rules in several respects. First, the final rule eliminates a number of terms the regulatory text no longer uses. The final rule does not retain the proposed definitions for the following terms because OSHA did not use these terms in final subpart D: ``qualified climber,'' ``safety factor,'' and ``single-point adjustable suspension scaffold.''

    Second, in addition to the definitions in the proposed rule, final paragraph (b) adds a number of new definitions, including ``anchorage,'' ``dangerous equipment,'' ``low-slope roof,'' ``personal fall arrest system,'' ``personal fall protection system,'' ``positioning system (work-positioning system),'' ``stairway (stairs),'' ``travel restraint system,'' and ``warning line.'' Most of the definitions are commonly used terms that pertain to new control methods that the final rule allows employers to use to protect workers from falling. For example, several definitions relate to personal fall protection systems, which the final rule allows employers to use instead of guardrails, cages, and wells specified by the existing rule.

    Third, final paragraph (b) revises existing definitions to make them consistent with OSHA's construction

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    standards (e.g., Sec. Sec. 1926.450, 1926.500, 1926.1050). OSHA is aware that many employers and workers perform both general industry and construction activities, and the Agency believes that making the standards, including terminology, consistent will help those employers better understand and fully comply with the final rule.

    Fourth, final paragraph (b), like the proposed rule, reorganizes the terms and definitions and clarifies that they are applicable to every section of subpart D. By contrast, the existing rule in Sec. 1910.21 lists the terms and definitions for each section of subpart D separately. Consequently, because the existing rule uses some terms in more than one section of subpart D, it defines those terms multiple times. Final paragraph (b) eliminates this unnecessary repetition, thereby making the final rule easier to understand.

    Fifth, and finally, in revising final paragraph (b), OSHA used plain and performance-based language. The Agency believes these types of revisions make the terms and definitions easy for employers and workers to understand, and clarifies several issues raised by stakeholders (discussed below).

    The following paragraphs discuss the terms and definitions included in final paragraph (b).

    Alternating tread-type stair. The final rule, similar to the proposal, defines this term as a type of stairway that consists of a series of treads usually attached to a center support in an alternating manner, such that a worker typically does not have both feet on the same level while using the stairway. The limited width of the treads makes it difficult or impossible for workers to place both feet on a single tread. OSHA does not consider alternating tread-type stairs to be ``standard stairs'' as defined in final Sec. 1910.21(b).

    The existing rule did not specifically address or define alternating tread-type stairs. The definition in the final rule is consistent with ANSI/ASSE A1264.1-2007. OSHA received no comments on the proposed definition and adopts it as discussed.

    Anchorage. This is a new term added to the final rule. An anchorage is defined as a secure point of attachment for equipment such as lifelines, lanyards, deceleration devices and rope descent systems. Anchorages can also be a component of a fall protection system. An anchorage may be installed to serve such purpose or may be a fixed structural member such as a post, beam, girder, column, floor, or wall that is an integral part of a structure. An anchorage must be capable of safely supporting the impact forces applied by a fall protection system.

    OSHA drew the term and definition for ``anchorage'' from the Sec. 1910.140, Personal fall protection systems. The definition is consistent with the construction fall protection (Sec. 1926.500(b)), the general industry powered platforms (Sec. Sec. 1910.66, appendix C, Section I(b)), and the shipyard-employment fall protection standards (Sec. 1915.151(b)). It also is consistent with the ``anchorage'' definition in ANSI/ASSE A10.32-2012 (Section 2.4) and ANSI/ASSE Z359.0-

    2012 (Section 2.5). See Sec. 1910.140 for additional information and discussion of stakeholder comments on the definition of ``anchorage.''

    Authorized. This final term, like the proposal, refers to a worker who the employer assigns to perform a specific type of duty, or be in a specific location or area in the workplace. The work that authorized employees perform and the work locations where they work often involve situations or conditions where fall hazards are present, such as the working side of teeming or slaughtering platforms, and open/unguarded repair pits.

    OSHA notes that once the employer assigns an authorized employee to perform certain work tasks or to be in a certain location, the worker may continue to perform those tasks or be in such work locations without further approval. OSHA did not receive any comments on the proposed definition and adopts it as discussed.

    Cage. This term in the final rule, like the proposal, means an enclosure mounted on the side rails of a fixed ladder or fastened to a structure behind the fixed ladder. The final definition also specifies that a cage surrounds the climbing space of the ladder. This will contain the worker and direct a falling worker to a lower landing. A cage may also be called a ``cage guard'' or ``basket guard.''

    This definition is essentially the same as the definition for ``cage'' found in existing Sec. 1910.21(e)(11); it also is consistent with ANSI A14.3-2008, American National Standard for Ladders--Fixed--

    Safety Requirements. OSHA did not receive any comments on the proposed definition and adopts it with only minor revisions for clarity.

    Carrier. Final paragraph (b), similar to the proposed rule, defines a carrier as the track of a ladder safety system that consists of a flexible cable or rigid rail attached to the fixed ladder or immediately adjacent to it. The final definition is consistent with ANSI A14.3-2008 (Section 3). The final rule clarifies that fixed ladders may have carriers mounted to them, usually onto the ladder face or immediately adjacent to the ladder. OSHA received no comments on the proposed definition and adopts it with the clarifications discussed.

    Combination ladder. Final paragraph (b), like the proposed rule, defines a combination ladder as a portable ladder that an employer can use as a stepladder, extension ladder, trestle ladder, or a stairway ladder. The final definition also specifies that employers may use the components of a combination ladder separately as a single ladder.

    The final definition is consistent with ANSI A14.1-2007, ANSI A14.2-2007, and ANSI A14.5-2007. OSHA did not receive any comments on the proposed definition and adopts it with only minor revisions for clarity.

    Dangerous equipment. The final rule adds this term and defines it as equipment, such as vats, tanks, electrical equipment, machinery, equipment or machinery with protruding parts, or other similar units that, because of their function or form, may harm an employee who falls into or onto it.

    This new definition was added in response to a recommendation from Northrop Grumman Shipbuilding that OSHA define ``dangerous equipment'' in the final rule (Ex. 180). OSHA drew the new definition from the construction fall protection standard (Sec. 1926.500(b)).

    Designated area. This term means a distinct portion of a walking-

    working surface delineated by a warning line in which work may be performed without additional fall protection. Examples of additional fall protection include guardrails, safety nets, and personal fall protection systems. As mentioned in the proposed rule and in the discussion of final Sec. 1910.28(b)(13), a designated area is a non-

    conventional fall protection method.

    The final rule allows employers to use designated areas for work on low-slope roofs (final Sec. 1910.28(b)(13)). The concept of a designated area in the final rule is similar to controlled access zones and warning line systems in OSHA's construction fall protection standards (Sec. Sec. 1926.500(b) and 1916.502(g) and (h)), which also do not require the use of conventional fall protection in specified situations.

    The final definition differs from the proposal in that the proposed definition included the term ``temporary'' work, while the final does not. OSHA continues to believe that employers need to limit use of designated areas to short and brief tasks, such as equipment repair or annual maintenance, that

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    workers perform on infrequent occasions; i.e., employers are not to use designated areas for lengthy or routine jobs that involve frequent exposure to fall hazards. However, including ``temporary'' in the definition is unnecessary because final Sec. 1910.28(b)(13)(ii) already limits the use of designated areas to work that is both temporary and infrequent. OSHA did not receive any comments on the proposed definition and adopts it as discussed.

    Dockboard. In the final rule, dockboard means a portable or fixed device that spans a gap or compensates for the difference in elevation between a loading platform and a transport vehicle. The definition also specifies that dockboards include, but are not limited to, bridge plates, dock plates, and dock levelers. Examples of transport vehicles include motor vehicles, trucks, trailers, rail cars, and other vehicles.

    The final rule uses the term ``transport vehicle'' in place of the proposed term ``carrier.'' OSHA believes ``transport vehicle'' is clear and familiar to employers as it is a commonly used term for a cargo-

    carrying vehicle. The Agency drew the term from ANSI MH30.2-2005.

    The final rule adds examples of devices that OSHA includes within the definition of dockboards, including bridge plates, dock plates, and dock levelers. The Agency believes that providing these examples will help employers and workers better understand whether devices manufactured under other names are ``dockboards.'' OSHA notes that the list of dockboard examples is not exhaustive. That is, any device that employers use to span a gap or compensate for the difference in levels between a loading platform and transport vehicle is a dockboard for the purposes of final subpart D.

    OSHA did not receive any comments on the proposed definition and adopts the definition with the changes discussed above.

    Equivalent. In the final rule, this term means alternative designs, equipment, materials, or methods that the employer can demonstrate will provide an equal or greater degree of safety for workers compared to the designs, equipment, materials, or methods specified in this subpart.

    OSHA proposed revising the definition of ``equivalent'' in existing Sec. 1910.23(g)(6) to incorporate language from the construction standards for fall protection, stairways, and ladders standards (Sec. Sec. 1926.450(b); 1926.500(b); and 1926.1050(b)). These standards specify that the employer has the burden to demonstrate that the alternate designs, materials, methods, or items will provide an equal or greater degree of safety for workers than the designs, materials, methods, or items the final rule specifies or requires. OSHA did not receive any comments on the proposed definition and finalizes the term so it is consistent with OSHA construction standards.

    Extension ladder. Final paragraph (b), like the proposed rule, defines this term as a portable ladder that is non-self-supporting and is adjustable in length. The final rule consolidates into one term, and simplifies the language in, the definitions in existing Sec. 1910.23(c)(4) and (d)(4); this existing provision states that an extension ladder ``consists of one or more sections traveling in guides or brackets so arranged as to permit length adjustment.'' OSHA believes that the concise, plain language in the final definition will enhance understanding of requirements involving extension ladders; moving the specifications currently in the existing standards to final Sec. 1910.23 also should improve understanding of these requirements.

    The final definition generally is consistent with ANSI A14.1-2007, ANSI A14.2-2007, and ANSI A14.5-2007. OSHA did not receive any comments on the proposed definition and adopts it as proposed.

    Failure. Final paragraph (b), similar to the proposed rule and construction standards (Sec. Sec. 1926.450(b); 1926.500(b); and 1926.1050(b)), defines ``failure'' as a load refusal, breakage, or separation of component parts. The final definition explains that a ``load refusal'' is the point at which the ultimate strength of a component or object is exceeded. To illustrate, if the load exceeds the ultimate strength of a walking-working surface, such as an elevated work platform, the platform likely will collapse.

    For the purpose of this definition, load refusal includes permanent deformation of a component part, which is consistent with ANSI/ASSE A1264.1-2007 (Section 2.3). For example, elongation of a connector that causes the connector to lose its strength is the type of permanent deformation OSHA intends the final definition to cover. Similarly, damage to a guardrail system that weakens the bolts or other fasteners so the system cannot support a worker's weight is the type of permanent deformation the final definition intends to covers.

    OSHA did not receive any comments on the proposed term and definition and adopts the definition with minor editorial changes for clarity.

    Fall hazard. This term, in the final rule, means any condition on a walking-working surface that exposes a worker to a risk of harm from a fall on the same level or to a lower level. The final definition is almost identical to the proposal; however, the final rule uses ``risk of harm'' in place of ``injury.'' It is clear from the Analysis of Risk (Section II) section and the Final Economic Analysis (FEA) (Section V) that worker exposure to fall hazards can result in death as well as injury. OSHA believes the language in the final definition more accurately and fully captures the range of adverse outcomes that can result from falls.

    In response to the proposal, OSHA received one comment from Mr. David Hoberg of DBM Corporations, recommending that OSHA add a specific height to the definition of fall hazard (Ex. 206). He said that a specific height is needed for enforcement purposes. OSHA disagrees. The risk of a fall or other harm exists at any height, including on the same level. That said, OSHA has established specific heights that trigger fall protection requirements in final Sec. 1910.28. The final definition is adopted as proposed.

    Fall protection. The final rule, like the proposed rule, defines ``fall protection'' as any equipment, device, or system that prevents a worker from falling from an elevation or that mitigates the effect of such a fall. For the purposes of the final rule, ``mitigates the effect'' means that the fall protection prevents the worker from coming into contact with a lower level if a fall occurs. As noted in the preamble to the proposed standard, examples of fall protection include guardrail systems, safety net systems, ladder safety systems, personal fall arrest systems, and similar fall protection systems. OSHA did not receive any comments on the proposed definition and adopts it with minor revisions for clarity.

    Fixed ladder. The final definition of fixed ladder, which is generally consistent with existing Sec. 1910.21(e)(2) and the proposed rule, means a ladder with rails or individual rungs that is permanently attached to a structure, building, or equipment. The definition also states that fixed ladders include individual-rung ladders, but do not include ship stairs, step bolts, or manhole steps.

    The final definition differs from the existing and proposed rules by clarifying what OSHA does not consider to be fixed ladders. Accordingly, the final definition specifies that fixed ladders do not include ship stairs (ship ladders), step bolts, and manhole steps. Although these devices share some of

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    the same characteristics of fixed ladders, such as a vertical or steep slope, the final rule clarifies that they are not fixed ladders, and therefore, are covered under separate provisions of the final rule.

    While fixed ladders include ladders attached to equipment, OSHA notes ladders that are designed into or are an integral part of machines or equipment are excluded from coverage by final Sec. 1910.23(a)(2).

    The final definition, as revised, is consistent with OSHA's stairways and ladders standard for construction (Sec. 1926.1050(b)) and ANSI A14.3-2008 (Section 3). OSHA received no comments on the proposed definition and finalizes it with the revisions discussed.

    Grab bar. This term means an individual horizontal or vertical handhold installed to provide workers with access above the height of a ladder. The final definition revises the existing and proposed rules in two respects. First, the final definition adds language indicating that employers can use grab bars installed either horizontally or vertically. OSHA received one comment about the orientation of grab bars. Nigel Ellis, of Ellis Fall Safety Solutions, recommended OSHA require employers to use only horizontal grab bars when the length of the bars exceeds six inches because it would be impossible to stop workers' hands from sliding down the vertical grab bar during a fall (Ex. 155). He also cited a University of Michigan study that recommended using only horizontally oriented grab bars (Ex. 155, discussing Young J, et al. ``Hand-Handhold Coupling: Effective Handle Shape, Orientation, and Friction on Breakaway Strength,'' 51 Human Factors 705-717 (2009)). OSHA is not adopting Mr. Ellis' recommendations because the customary industry practice, as specified by the ANSI fixed ladder standard (ANSI A-14.3-2008 (Section 5.3.3.1)), is to allow the use of either horizontal or vertical grab bars and not to limit the length of vertical grab bars.

    Second, the final definition deletes language in existing Sec. 1910.21(e)(14) and the proposed rule specifying that employers use only grab bars placed adjacent to a ladder or used as an extension of a ladder. The final definition revises this language to ensure that employers use only grab bars installed above the height of the ladder, not adjacent to it. When grab bars are also in a vertical orientation relative to a ladder, they are not an extension of the ladder; therefore, the final definition removed the language from the proposal referring to grab bars as an extension of a ladder.

    Guardrail system. In the final rule, similar to the proposal, this term means a barrier erected along an unprotected or exposed side, edge, or other area of a walking-working surface to prevent workers from falling to a lower level. A guardrail system generally consists of vertical, horizontal, or inclined supports; top rails; midrails; screens; mesh or solid panels; intermediate vertical members; or other equivalent structural members. Guardrail systems can be either permanent or removable. The final definition generally is consistent with the scaffold and fall protection standards for construction (Sec. Sec. 1926.450(b) and 1926.500(b)).

    The proposed and final definition simplify the existing definitions in Sec. 1910.21(a)(6) and (g)(7) by consolidating the terms ``guardrail'' and ``standard railing'' into the single term ``guardrail system.'' The existing definitions are similar to, and included within, the final definition. As a result, there is no need to include both terms and definitions in the final rule since the single term ``guardrail system'' adequately covers both terms.

    The final rule clarifies the proposed definition by specifying that guardrails are barriers that employers may erect on a side, edge, or other area of a walking-working surface (e.g., hole). The barrier may be a framework or system of individual units used together to provide protection. For example, a guardrail system may consist of several barriers surrounding a hole.

    OSHA did not receive any comments on the proposed definition and, therefore, adopts it as explained.

    Handrail. The final rule, like the proposed rule and the construction stairways standard (Sec. 1926.1050(b)), defines a handrail as a rail used to provide workers with a handhold for support. Handrails may be horizontal, vertical, or sloping. According to ANSI/

    ASSE A1264.1-2007 (Sections 2.6 and 2.7), handrails also may be part of a stair rail or stair rail system (i.e., the top rail).

    The proposed and final definition simplify and consolidate into one term the three definitions for ``handrail'' in the existing rule in Sec. Sec. 1910.21(a)(3), (b)(1), and (g)(8). Specifically, the final definition deletes existing specifications for the materials (e.g., pipe, bar) that employers must use for handrails, which makes the final definition consistent with final Sec. 1910.29, Fall protection systems criteria and practices. The final definition also is consistent with ANSI/ASSE A1264.1-2007 (Section 2.7). OSHA did not receive any comments on the proposed definition and adopts the final definition as proposed.

    Hoist area. In the final rule, like the proposal, a hoist area is defined as any elevated access opening to a walking-working surface through which equipment or materials are loaded or received. The final definition deletes the term ``hoisted'' before the phrase ``equipment or material'' in the proposed definition because the definition covers any means of loading, passing, or receiving equipment or materials through the hoist area. OSHA did not receive any comments on the proposed definition and finalizes it with the revisions discussed.

    Hole. The final rule, similar to the proposed rule, defines a hole as a gap or open space in a floor, roof, horizontal walking-working surface, or similar surfaces that is at least two inches in its least dimension. Similar surfaces include runways, dockboards, stair treads, and other low-slope or inclined surfaces where employees walk or work. The existing rule contains four different terms for holes and openings in walking-working surfaces: Floor hole (existing Sec. 1910.21(a)(1)), floor opening (existing Sec. 1910.21(a)(2)), wall hole (existing Sec. 1910.21(a)(10)), and wall opening (existing Sec. 1910.21(a)(11)). Each of the terms has a separate definition. ANSI/ASSE A1264.1-2007 contains the same four terms and definitions.

    The final definition consolidates and simplifies the existing rule in two respects. First, the final rule designates a ``hole'' as a gap or open space in ``horizontal walking-working surfaces,'' (e.g., floor, roof, similar surfaces) and an ``opening'' as a gap or space in ``vertical walking-working surfaces'' (e.g., wall or partition). The final definition of ``hole'' revises the proposed definition by adding ``horizontal'' and ``similar surfaces'' so employers know holes are not limited to floors or roofs.

    Designating the term ``hole'' to refer to gaps in horizontal or similar walking-working surfaces allows OSHA to simplify and consolidate the existing definitions for ``floor hole'' and ``floor opening'' into a single term: ``hole.'' The existing rule in Sec. 1910.21(a)(1) defines a ``floor hole'' as a gap that is more than one inch but less than 12 inches at its least dimension, while existing Sec. 1910.21(a)(2) defines a ``floor opening'' as a gap that is 12 inches or more at its least dimension. Combining the two terms also makes the final definition consistent with the definition in the construction fall protection standard in Sec. 1926.500(b). The final rule, like the proposal, also expands the term ``hole'' to cover gaps in roofs and similar horizontal walking-working surfaces, as well as floors.

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    Second, consistent with the Plain Writing Act of 2010, the final definition substitutes ``open space'' for ``void'' to make the term easier to understand.

    OSHA received one comment on the proposed rule. Mark Damon, of Damon, Inc., questioned the need for a definition of hole in a fall protection standard, asserting that workers could not fall through a two-inch or larger gap (Ex. 251). OSHA disagrees with Mr. Damon's assertion. Although a worker cannot fall through a narrow (2-inch) hole in a walking-working surface, such holes can cause workers to trip and fall on the same level or to a lower level. Such falls can result in worker injury or death. As such, OSHA is retaining the definition with the changes discussed above.

    Individual-rung ladder. This is a type of fixed ladder that has rungs individually attached to a building or structure. It does not include manhole steps. The proposed rule also excluded manhole steps.

    Although manhole steps have individual rungs, they involve unique conditions, and OSHA addresses these conditions in a separate section of final subpart D (Sec. 1910.24). Therefore, the final definition excludes manhole steps from the individual-rung ladder definition to prevent any confusion and emphasize that final Sec. 1910.24, not final Sec. 1910.23 applies to manhole steps.

    The proposed rule also included ladders consisting of rungs individually attached to a piece of equipment. Because final rule Sec. 1910.23(a)(2) excludes ladders designed into or integral to a piece of equipment, there was no need to include such ladders within the definition of individual rung ladders.

    OSHA did not receive any comments on the proposed definition and adopts it with the revisions discussed above.

    Ladder. This term means a device with rungs, steps, or cleats used to gain access to a different elevation. The final rule simplifies and consolidates into one definition the three definitions of ``ladder'' in the existing rule in Sec. 1910.21(c)(1), (d)(1), and (e)(1). The final definition also eliminates references to ladder specifications (e.g., ``joined at regular intervals'') since they simply repeat requirements addressed by final Sec. 1910.23.

    OSHA received one comment on the proposed ``ladder'' definition. Steve Smith, of Verallia, recommended that OSHA clarify the term because he said that the phrase ``a device with steps'' is ambiguous and could include stairs as well as a ladder (Ex. 171). OSHA does not agree that stakeholders might mistakenly think the term ``ladder'' includes stairs. The proposed and final definitions of ``ladder'' are essentially the same as the one that all of the ANSI A14 ladder standards use: ``Ladder. A device incorporating or employing steps, rungs, or cleats on which a person may step to ascend or descend'' (see, e.g., ANSI A14.1-2007 (Section 4); ANSI A14.2-2007 (Section 4); ANSI A14.3-2008 (Section 3); ANSI A14.5-2007 (Section 4)). The ANSI A14 ladder standards have been in place for years, and OSHA believes employers, workers, and manufacturers clearly understand the term ``ladder,'' as defined in the ANSI standards, and will not confuse the term with stairs. However, to ensure the final rule is understandable, the final rule clarifies the definitions of ``rung, step, or cleat'' and ``tread'' to specify that a ``step'' is a cross-piece of a ladder and ``tread'' refers to the horizontal part of ``stairways (stair).''

    Ladder safety system. In the final rule, a ladder safety system is a system designed to eliminate or reduce the possibility of falling from a ladder. The final definition explains that a ladder safety system usually consists of a carrier; a safety sleeve, which is a moving component that travels on the carrier; a lanyard; connectors; and a body harness. The final definition also specifies that cages and wells are not ladder safety systems.

    The existing rule in Sec. 1910.21(e)(13) uses a similar term, ``ladder safety device,'' which also excludes ladder cages and wells. OSHA's construction ladder standard in Sec. 1926.1053 uses the same term, but does not include a definition of the term. The final definition is consistent with the ANSI fixed-ladder standard (ANSI A14.3-2008; Section 3).

    OSHA received one comment on the definition of ladder safety system. Darryl Hill, of the American Society of Safety Engineers (ASSE), urged OSHA to prohibit the use of body belts in ladder safety systems as the Agency did with personal fall arrest systems:

    ASSE opposes the use of body belts. There are good ``safety reasons'' . . . for supporting OSHA's decision in 1998 to ban the use of body belts as part of a personal fall arrest system. OSHA needs to take this opportunity to ban their use entirely for the same reasons it banned them in 1998. A full body harness distributes arresting forces over larger areas of the workers body and provides better suspension support, as research has repeatedly confirmed (Ex. 127).

    OSHA agrees with ASSE that full-body harnesses provide better suspension support precisely because they distribute arresting/impact forces over a larger area of a worker's body than body belts. To that end, the final rule in Sec. 1910.140(d)(3) retains OSHA's 1998 prohibition on the use of body belts as part of a personal fall arrest system. OSHA believes this requirement in final Sec. 1910.140 addresses ASSE's concern and the Agency encourages employers to provide, and require that their workers use body harnesses when using any type of personal fall protection equipment.

    Low-slope roof. This is a new term that OSHA added to the final rule. Low-slope roof is defined as a roof with a slope less than or equal to a ratio of 4 in 12. A ratio of 4 in 12 means a vertical rise of 4 units (e.g., inches, feet, meters) to every 12 units of horizontal run. The final definition is almost identical to the definition of ``low-slope roof'' found in the construction fall protection standard in Sec. 1926.500(b).

    OSHA added this term to final paragraph (b) because the final rule includes a new provision on controlling fall hazards on low-slope roofs (final Sec. 1910.28(b)(13)), which is consistent with the construction fall protection standard in Sec. 1926.501(b)(10). OSHA is aware that low-slope roofs also are referred to as ``flat roofs.'' However, even a so-called ``flat roof'' has some slope to allow for drainage. As such, OSHA believes that the term ``low-slope roof'' more accurately represents these roofing configurations.

    Lower level. The final rule, similar to the proposal, defines this term as a surface or area to which workers could fall. The final definition lists examples of lower levels including, but not limited to, ground levels, floors, roofs, ramps, runways, excavations, pits, tanks, materials, water, equipment, and similar surfaces and structures, or portions thereof. The final rule adds to the proposed definition of lower level ``surface'' and ``structures, or portions thereof,'' which make the final definition consistent with the definition of ``lower level'' in the construction fall protection standard in Sec. 1926.500(b). The construction standards for scaffolds, and stairways and ladders, also have similar definitions (Sec. Sec. 1926.450(b); 1926.1050(b)). OSHA did not receive any comments on the proposed definition and adopts it with the changes discussed above.

    Manhole steps. The final rule, similar to the proposal, defines these as steps that are individually attached to, or set into the walls of a manhole structure. Although the steps are individually set into or attached to the walls, manhole steps are not considered ``individual-

    rung ladders'' as stated in the final definition of ``fixed ladders.'' Manhole steps also do not include manhole entry

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    ladders which are portable and are covered in final Sec. 1910.23, Ladders.

    OSHA did not receive any comments on the proposed definition and adopts it with minor editorial changes.

    Maximum intended load. The final rule, similar to the proposal, defines this term as the total load (weight and force) of all employees, equipment, vehicles, tools, materials, and other loads the employer reasonably anticipates to be applied to a walking-working surface at any one time. The existing rule in Sec. 1910.21(f)(19) and the construction standards for scaffolds, and stairways and ladders in Sec. Sec. 1926.450(b) and 1926.1050(b) have similar definitions.

    OSHA clarified the final definition in several ways. First, the proposed rule indicated that ``maximum intended load'' was also known as ``designed working load.'' OSHA is aware that ``designed working load'' is an outdated term; thus, the final definition deletes it. Second, the final definition adds language clarifying that the maximum intended load includes the combined total weight of the load, as well as the force of the load.

    Third, the final definition adds ``vehicles'' to the list of potential components of a total load. Vehicles are found on many types of walking-working surfaces, and determinations of the maximum intended load must include the weight of vehicles, and the load being carried by the vehicles, applied to the walking-working surface.

    Fourth, the final definition adds language clarifying that employers are responsible for determining the maximum load in terms of all equipment, vehicles, materials, workers, and other items they reasonably anticipate applying to a walking-working surface. Requiring that an employer know the maximum weight and force a walking-working surface can support and the total weight and force of the loads they reasonably anticipate applying to that surface is essential in safeguarding workers from harm, e.g., falls from elevated surfaces and being struck by falling objects. OSHA believes the language added to the final definition clarifies the employers' responsibility.

    Fifth and finally, the final definition adds the language ``at any time'' to make the definition consistent with other OSHA standards (e.g., existing Sec. Sec. 1910.21(f)(19); 1926.450(b); 1926.1050(b)).

    OSHA did not receive any comments on the proposed definition and adopts it with the revisions discussed above.

    Mobile. The final rule, like the proposed rule, defines ``mobile'' as being manually propelled or movable. The existing rule defines ``mobile'' as manually propelled (existing Sec. 1910.21(g)(12)). The proposed and final definitions update the existing rule to make it consistent with ANSI A14.7-2011 (Section 3), which specifies that ``mobile'' also means ``moveable.'' OSHA believes that the final definition also clarifies the definitions of ``mobile ladder stand'' and ``mobile ladder stand platform.''

    In the proposal, OSHA asked for comment on whether it is necessary to define a common term like ``mobile,'' but the Agency did not receive any comments. Therefore, OSHA adopts the proposed definition with one editorial clarification (replacing ``and/or'' with ``or'').

    Mobile ladder stand. This term (also known as ``ladder stand'') means a mobile, fixed-height, self-supporting ladder usually consisting of wheels or casters on a rigid base and steps that leads to a top step. The final definition explains that a mobile ladder stand also may have handrails and is designed for use by one worker at a time. A parenthetical in the definition refers to ``ladder stand'' as another name for mobile ladder stands; ``ladder stand'' is the term used for mobile ladder stands in existing Sec. Sec. 1910.21(g)(9), 1926.450(b), and 1926.1050(b), and ANSI A14.7-2011 (Section 3).

    The final definition clarifies the proposed rule and OSHA's existing definition for ladder stand in several ways. First, the final definition adds language clarifying that mobile ladder stands usually consist of wheels or casters on a rigid base, in addition to steps. This addition clearly distinguishes ladder stands from other types of ladders. Second, the final rule simplifies and clarifies the definition by using the term ``steps'' in place of ``treads in the form of steps,'' which is in the existing and proposed definitions. The term ``step,'' which final paragraph (b) also defines, is clear and well understood, and does not require further elaboration.

    Third, the final definition deletes the proposed term ``flat'' used to describe ladder stand steps because it is not necessary. Final Sec. 1910.23 establishes requirements for ladder stand steps (final Sec. Sec. 1910.23(b)(1) and (b)(4)). OSHA did not receive any comments on the proposed definition and adopts it with the clarifications discussed above.

    Mobile ladder stand platform. The final rule defines this term as a mobile, fixed-height, self-supporting unit having one or more standing platforms that are provided with means of access or egress. Existing OSHA standards do not include or define the term ``mobile ladder stand platforms.'' \11\ Frequently employers use mobile ladder stand platforms to provide elevated standing or working surfaces for one or more employees.

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    \11\ OSHA notes that the existing general industry rule includes the terms ``platform ladder'' and ``mobile work platform.'' Existing Sec. 1910.21(d)(5) defines ``platform ladder'' as a ``self-

    supporting ladder of fixed steps with a platform provided at the working level.'' Existing Sec. 1910.21(g)(13) defines ``mobile work platform'' as ``a fixed work level one frame high on casters or wheels, with bracing diagonally from platform to vertical frame.'' Both terms include elements of the final definition of ``mobile ladder stand platform.'' In the proposed rule, OSHA consolidated and simplified existing terms into one term: Mobile ladder stand platform.

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    The final definition is consistent with ANSI A14.7-2011, although the ANSI standard, like the proposed rule, includes the definition of mobile ladder stand. OSHA did not receive any comments on the proposed definition and finalizes the definition with minor clarifications.

    Open riser. The final rule, which is similar to existing Sec. 1910.21(b)(3) and the proposed rule, defines ``open riser'' as a gap or space between treads of stairways that do not have upright (vertical) or inclined members (risers).

    OSHA clarified the proposed definition slightly by adding terminology to the final definition that it used in the final definition of ``riser.'' This terminology specifies that, in addition to not having upright (vertical) members, stairways with open risers do not have inclined members. This revision makes the final definition consistent with ANSI/ASSE A1264.1-2007 (Section 2.11).

    OSHA did not receive any comments on the proposed definition and adopts it with the clarifications discussed above.

    Opening. The final rule, similar to the proposed rule, defines this term as a gap or open space in a wall, partition, vertical walking-

    working surface, or similar surface that is at least 30 inches high and at least 18 inches wide, through which a worker can fall to a lower level.

    As discussed in the definition of ``hole,'' the final rule simplifies and consolidates four terms in the existing rule that distinguish between openings and holes in walking-working surfaces. As mentioned, the term ``opening'' in the final rule refers to gaps or open spaces in areas that are generally vertical, such as walls and partitions. The final definition consolidates into one term the definitions of ``wall hole'' and ``wall opening'' in existing Sec. 1910.21(a)(10) and (a)(11). This consolidation makes the final definition of ``opening'' consistent with the construction fall protection standard

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    (Sec. 1926.500(b)), one of OSHA's stated goals of the final rule. OSHA believes that having consistent general industry and construction definitions will facilitate compliance with the final rule. The final definition also is nearly identical to the definition of ``opening'' in ANSI/ASSE A10.18-2012 (Section 2.9).

    Consistent with the Plain Writing Act of 2010, the final definition substitutes ``open space'' for ``void'' to make the term easier to understand.

    OSHA did not receive any comments on the proposed definition and adopts the term as discussed above.

    Personal fall arrest system. This is a new term OSHA added to subpart D in the final rule and means a system used to arrest a worker's fall from a walking-working surface if one occurs. The final definition explains that a personal fall arrest system consists of a body harness,\12\ anchorage, connector, and a means of connecting the body harness and anchorage, such as a lanyard, deceleration device, lifeline, or a suitable combination of these. A definition for personal fall arrest systems was provided in proposed subpart I in Sec. 1910.140 (75 FR 29147). Because the term is used in final subpart D, and OSHA believes the term is integral to understanding the final rule, the Agency decided to include the same definition in subpart D.

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    \12\ OSHA notes the final rule prohibits the use a body belt as part of a personal fall arrest system (final Sec. 1910.140(d)(3)).

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    The final definition is consistent with OSHA's construction standards for scaffolds and fall protection in Sec. Sec. 1926.450(b) and 1926.500(b), respectively, and ANSI/ASSE Z359.0-2012 (Section 2.98). See the preamble to final Sec. 1910.140 for further discussion and comments on personal fall arrest systems.

    Personal fall protection system. This is a new term OSHA added to subpart D in the final rule and means a system (including all components) an employer uses to provide protection from falling or to safely arrest a worker's fall if one occurs. The final definition identifies examples of personal fall protection systems, including personal fall arrest systems, travel restraint systems, and positioning systems.

    Personal fall protection systems have the following components in common: An anchorage, body support (i.e., body harness or body belt), and connectors (i.e., means of connecting the anchorage and body support).

    A definition for personal fall protection systems was provided in the proposed rule, in proposed Sec. 1910.140 (75 FR 29147). Because the term is used in final subpart D, and OSHA believes the term is integral to understanding the final rule, the Agency decided to include the same definition in subpart D. The requirements for, and comments on, personal fall protection systems are in final Sec. 1910.140, Personal fall protection systems.

    Platform. In the final rule, like the proposal, a platform is defined as a walking-working surface that is elevated above the surrounding area. OSHA drew the proposed and final definitions from existing Sec. 1910.21(a)(4) and the construction scaffold standard in Sec. 1926.450(b). The final rule is consistent with the definition in ANSI/ASSE A1264.1-2007.1-2007 (Section 2.14).

    OSHA did not receive any comments on the proposed definition and adopts it as proposed with a minor editorial revision.

    Portable ladder. The final rule, like the proposal, defines this term as a ladder that can readily be moved or carried, and usually consists of side rails joined at intervals by steps, rungs, or cleats. The definition in the final rule is consistent with the definition of portable ladder in ANSI A14.1-2007 (Section 4), ANSI A14.2-2007 (Section 4), and ANSI A14.5-2007 (Section 4).

    The final rule clarifies the definition by deleting the language ``rear braces'' from the proposed definition to eliminate any confusion about what constitutes a portable ladder for the purposes of the final rule. Rear braces are a structural component of self-supporting portable ladders; however, as mentioned above, the final definition of portable ladder is not limited to those types of ladders.

    OSHA notes that portable ladders include, but are not limited to, self-supporting, non-self-supporting, articulated, sectional, extension, special purpose, and orchard ladders. OSHA believes that the term portable ladders should be widely understood by employers.

    OSHA received one comment on the proposed definition. Virginia Ruiz, representing California Rural Legal Assistance Foundation and Farmworker Justice, urged OSHA to cover agriculture operations in the final rule (Ex. 201). In her comment, Ms. Ruiz pointed out that proposed revisions to the California general industry portable-ladder standards (Title 8 CCR, Sections 3276, 3277, 3278, 3287, and 3413) cover special-purpose orchard and fruitpickers' ladders (Ex. 201). For further discussion on the inclusion of agriculture operations in subpart D, see the discussion above in final paragraph (a), Scope.

    Positioning system (work-positioning system). This is a new definition OSHA added to subpart D in the final rule. It means a system of equipment and connectors that, when used with a body harness or body belt, allows an employee to be supported on an elevated vertical surface, such as a wall or window sill, and work with both hands free. Positioning systems also are called ``positioning system devices'' and ``work-positioning equipment.''

    The definition is the same as the definition in Sec. 1910.140(b). The newly revised electric power generation, transmission, and distribution standard in Sec. 1910.269, and the construction standard for fall protection in Sec. 1926.500(b), also contain similar terms and definitions. The final definition also is consistent with ANSI/ASSE Z359.0-2012 (Section 2.120).

    Although the proposed rule for subpart D used the term work-

    positioning system, the proposal did not define it. The Agency believes it is important to define positioning systems in final subpart D to ensure that employers and workers understand the meaning of this term as used in this subpart, most importantly that such systems do not arrest falls from elevated walking-working surfaces.

    Qualified. In the final rule, like in the proposal, ``qualified'' describes a person who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience has successfully demonstrated the ability to solve or resolve problems relating to the subject matter, the work, or the project. This definition is the same as the definition in the proposed rule and final Sec. 1910.140(b), as well as several construction standards (Sec. Sec. 1926.32(m); 1926.450(b)) and ANSI A10.32-2012 (Section 2.41).

    The final definition, however, differs from the definition of ``qualified person'' in the general industry powered platforms standard (Sec. 1910.66, Appendix C, Section I(b)) and ANSI/ASSE Z359.0-2012. The Sec. 1910.66 definition, for instance, requires that qualified persons have a degree or professional certificate, not only professional standing, plus extensive knowledge, training, and experience. OSHA explained in the proposed rule that to require qualified persons to meet the definition in the powered platforms standard would mean that the qualified person ``would most likely need to be an engineer'' (75 FR 28905).

    Two stakeholders recommended that the Agency adopt the definition in

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    Sec. 1910.66 (Exs. 155; 206). Mr. Ellis urged OSHA to adopt the Sec. 1910.66 definition at least as it pertains to certification of anchorages. He also said:

    After investing 40 years in industrial fall protection it is important to feed back my experiences from hundreds of site visits and contacts over that time. I am strongly recommending that the word ``or'' be replaced with ``and''. Both are critically important and the anchorage must be documented with at least a sketch or engineering drawing which presently it rarely is except for 1910.66 App. C. In America, anchorages are mostly guesswork and this does not do justice to ``the personal fall arrest system'' term that OSHA is seeking to establish unless the engineering background is added. Furthermore the design of anchorages can easily be incorporated into architects and engineers drawings but is presently not because there is no requirement for an engineer. This simple change may result in saving over one half the lives lost from falls in the USA in my opinion (Ex. 155).

    Mr. Hoberg, of DBM, Inc., said that defining qualified ``has been a struggle for decades'' and that the Sec. 1910.66 definition ``is a good one'':

    Two things have become commonly accepted--a competent person is one who has enough experience and knowledge to know when to call a qualified person. A qualified person is one who knows the technical and working practice aspects of the problem.

    The problem we have had was how to limit the `I know, therefore I am a qualified person' (Ex. 206).

    The final rule does not adopt the definition of ``qualified person'' in Sec. 1910.66 appendix C. The definition of ``qualified'' in the final rule has been in use for years in the referenced construction standards. OSHA believes the definition is clear and employers understand it. In addition, OSHA believes that employers understand and can distinguish between qualified and competent persons.

    With regard to the certification of anchorages, OSHA believes that the anchorage requirements in final Sec. Sec. 1910.27 and 1910.140, combined with the final definition of ``qualified'' person, are adequate to ensure worker safety. OSHA notes that building owners are free to have their building anchorages certified by professional engineers. Therefore, OSHA finalizes the definition of ``qualified'' as proposed.

    Ramp. The final rule defines ramp as an inclined walking-working surface that is used to gain access to another level. Employers use ramps to move workers, equipment, materials, supplies, and vehicles from one level to another. Ramps also allow workers to access another level when stairs are not available or workers cannot use them (such as for workers who use wheelchairs). Ramps generally are permanent devices or structures, although some ramps may be portable, such as ramps that employers use temporarily for accessing a different level where moving equipment or materials up or down stair risers or curbs is impractical.

    The proposed rule, similar to the 1990 proposal, defines ramp as an inclined surface between different elevations that is used for the passage of employees, vehicles, or both. The final rule revises the proposed definition for two reasons. First, the proposed definition only refers to the passage of employees and vehicles, but not other things that may be moved across ramps, such as materials, supplies, and equipment. The final definition does not limit the use of ramps as passageways. Second, the final rule simplifies the proposed definition to make it consistent with the definition in ANSI/ASSE A1264.1-2007 (Section 2.16).

    OSHA did not receive any comments on the proposed definition and adopts it as discussed above.

    Riser. In the final rule, this term means an upright (vertical) or inclined member of a stair located at the back of a stair tread or platform that connects close to the front edge of the next higher tread, platform, or landing. The final definition is consistent with ANSI/ASSE A1264.1-2007 (Section 2.17).

    The final rule differs from the proposed definition in that the final definition clarifies that risers may also be inclined (nearly vertical), as well as vertical, members of a stair, and connect treads to the next higher tread, platform or landing. The height of a riser is measured as the vertical distance from the tread (horizontal surface) of one step to the top of the leading edge of the tread above it (see Figure D-8.). OSHA did not receive any comments on the proposed definition and adopts it with the clarification discussed above.

    Rope descent system. In the final rule, a rope descent system (RDS) is defined as a suspension system that allows a worker to descend in a controlled manner and, as needed, to stop at any time during the descent. The final definition adds language to the proposed definition explaining that the RDS usually consists of a roof anchorage, support rope, a descent device, carabiner(s) or shackle(s), and a chair (seatboard). The final definition also states that an RDS may also be called controlled descent equipment or apparatus; and does not include industrial rope access systems. OSHA based the final definition of ``rope descent system'' on the definition of the term in ANSI/IWCA I-

    14.1-2001, since the existing rule does not include the term.

    OSHA revised the final definition in several ways. First, the ANSI/

    ASSE Z359.0-2012 (Sections 2.13 and 2.100) defines both ``automatic descent control device'' and ``manual descent control device.'' However, neither definition encompasses the entire system. The Agency's final definition, like ANSI/IWCA I-14.1-2001, covers the entire system, not just the descent control device. In light of the ANSI/ASSE Z359.0-

    2012 definitions, OSHA believes that stating, as in the proposal, that another name for an RDS is ``controlled descent device'' may be confusing. Therefore, OSHA removed that statement in the final definition. To further clarify the final definition and distinguish it from the terms in ANSI/ASSE Z359.0-2012, OSHA added language identifying components of a typical RDS.

    Second, OSHA added language to the final rule specifically excluding industrial rope-access systems from the final definition of ``rope descent system.'' OSHA received several comments recommending that the term ``rope descent system'' include industrial rope access systems, either as part of rope descent systems or as a new section (e.g., Exs. 129; 205; 355-7; 347). One commenter said that rope descent systems are a type of industrial rope access system (Ex. 362). However, some commenters believe the definition of ``rope descent system'' already includes industrial rope access systems (Exs. 69; 72; 122; 168; 178). For example, the American Wind Energy Association (AWEA) said they use industrial rope access systems as rope descent systems for repair and maintenance of wind turbines (Ex. 178). AWEA recommended that the definition of, and requirements for, rope descent systems should incorporate and reference the Society of Professional Rope Access Technicians (SPRAT) and the International Rope Access Technicians Association standards, which AWEA said ``are much more developed'' than the ANSI/IWCA I-14.1-2001 standard.

    In light of the comments, not only does the final definition clarify that rope descent systems do not include industrial rope access systems, but also final Sec. 1910.27, Scaffolds and rope descent systems, explains that the final rule does not cover industrial rope access systems. OSHA agrees, as SPRAT pointed out, that while industrial rope access systems may use equipment similar to rope descent systems (e.g.,

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    anchorages, body harnesses, lifelines), they are ``different in key ways'' from rope descent systems (Ex. 355-7). For example, industrial rope access systems are suspension systems that allow the worker to go up or down, while rope descent systems only go down. Also, industrial rope access systems have sit harnesses instead of seatboards or chairs.

    Third, OSHA received several comments that opposed OSHA's characterization of a rope descent system in the proposal as a ``variation of the single-point adjustable suspension scaffold'' (Exs. 62; 168; 205). For example, Brian Gartner, of Weatherguard Service, Inc., said, ``A rope descent system is not a variation of the single point adjustable scaffold. The scaffold has the capability of being raised as well as being lowered, rope descent systems only travel downward, and a scaffold has an area, a platform, to store tools and supplies, stand, etc.'' (Ex. 168). OSHA agrees with the commenters and deleted that comparison from the final definition.

    Rung, step, or cleat. Similar to the proposal, the final rule defines ``rung, step, or cleat'' as the cross-piece of a ladder on which a worker steps to climb up and down the ladder. OSHA notes that in the final definition, ``steps'' only refer to the cross-pieces of ladders. The final definition is consistent with ANSI A14.1-2007 (Section 4), ANSI A14.2-2007 (Section 4), and ANSI A14.5-2007 (Section 4).

    The final definition consolidates and simplifies the existing definitions into one term that identifies their common characteristics and purpose (see existing Sec. 1910.21(e)(8), (9), and (10)). The final definition also incorporates plain language (``climb up and down'') to explain that workers use rungs, steps, or cleats to ascend or descend ladders.

    OSHA received one comment on the proposed definition. Nigel Ellis said OSHA should retain the separate definitions in the existing rule ``to explain a rung is designed for holding and stepping but that a step cannot be held since it is only for the feet (shoes)'' (Ex. 155). OSHA does not agree that including such language is necessary.

    First, the final definition is consistent with ANSI portable ladder standards (ANSI A14.1-2007, ANSI A14.2-2007, and ANSI A14.5-2007). Rungs, steps, and cleats are all horizontal surfaces for climbing ladders, even if their specifications vary. (Rungs are circular or oval, cleats are rectangular, and steps are flat). Instead of focusing on the differences in the specification, the final rule and the ANSI standards identify, and focus on, the primary purpose of rungs, steps, and cleats; to provide a place to step to climb up and down the ladder.

    Second, OSHA believes it is not accurate to say that ``a step cannot be held'' (Ex. 155). Although side rails provide handholds for climbing ladders, especially those with steps, neither the final rule nor the ANSI standards prohibit workers for holding onto steps, either while climbing or standing on a ladder. As such, OSHA believes the language Mr. Ellis suggests may cause confusion; therefore, OSHA is not adopting it.

    Runway. In the final rule, similar to the proposal, this term means an elevated walking-working surface, such as a catwalk, a foot walk along shafting, or an elevated walkway between buildings. The final definition is consistent with ANSI/ASSE A1264.1-2007 (Section 2.19).

    OSHA added three clarifications to the final ``runway'' definition. First, the final definition substitutes ``walking-working surface'' for ``passageway.'' This change makes the definition consistent with the definitions of other terms in final subpart D. Second, the final definition also more clearly indicates that employees use runways to perform work as well as to gain access to other areas in the workplace. Third, the final rule simplifies the definition by substituting plain language (i.e., ``elevated'') in place of ``elevated above the surrounding floor or ground level'' used in the proposed definition.

    OSHA did not receive any comments on the proposed definition and adopts it with the clarifications discussed above.

    Scaffold. In the final rule, like the proposal and consistent with the construction scaffold standard (Sec. 1926.450(b)), this term means any temporary elevated or suspended platform and its supporting structure, including anchorage points, used to support workers, equipment, materials, and other items. The final rule also states that, for purposes of final subpart D, ``scaffold'' does not include crane-

    suspended or derrick-suspended personnel platforms or rope descent systems.

    The final rule consolidates into a single term the two definitions in the existing rule in Sec. 1910.21(f)(27) and (g)(15). The final definition also adds two clarifications to the proposed definition. First, it adds ``equipment'' to the list of items a scaffold must be capable of supporting. Second, it also clarifies that the final definition of scaffold, including suspension scaffolds, does not include rope descent systems. As discussed above, a number of commenters opposed characterizing rope descent systems as a type of single-point adjustable scaffold (Ex. 62; 168; 205). One commenter, David Hoberg, with DBM Consultants, said rope descent systems differ in many ways from scaffolds. For instance, he said the stabilization required for rope descent systems over a height of 130 feet differs from the stabilization required for scaffolds (Ex. 206). Consequently, OSHA added to the definition of scaffold that the term does not apply to rope descent systems.

    Ship stair (ship ladder). In the final rule, like the proposal, a ship stair, also known as a ship ladder, is a stairway that is equipped with treads, stair rails, and open risers, and has a slope that is between 50 and 70 degrees from the horizontal. The final definition is consistent with ANSI/ASSE A1264.1-2007 (Section 2.22).

    Ship stairs are not standard stairs within the meaning of this section. Generally, ship stairs are a type of stairway found in buildings and structures that have limited space, and are used for accessing special use areas, such as but not limited to, attics, roofs, mechanical equipment spaces, etc.

    OSHA notes that ship stair is a term of art and use of the term in this subpart is not intended to infer applicability to the shipyard employment, marine terminal, or longshoring industries.

    OSHA did not receive any comments on this definition and adopts it with minor editorial revisions for clarity.

    Side-step ladder. This term means a type of fixed ladder that requires a worker to step sideways from it to reach a walking-working surface, such as a landing. The final definition is consistent with ANSI A14.3-2008 (Section 3). In the final rule, OSHA revised the proposed definition to emphasize that side-step ladders are a type of fixed ladder (see final Sec. 1910.23(d)(4), (d)(6), and (d)(12)(ii)). The final rule also clarifies that when a worker steps off a side-step ladder onto a walking-working surface, it may be a landing or another type of surface (e.g., roof). The proposed definition, on the other hand, only mentions stepping onto a landing.

    OSHA did not receive any comments on the proposed definition and finalizes with the clarifications discussed above.

    Spiral stairs. The final rule, similar to the proposal, defines this term as a series of treads attached to a vertical pole in a winding fashion that is usually within a cylindrical space. For clarity, the Agency substituted the language ``stairway having a helical (spiral) structure attached to a supporting pole'' in the proposal with ``treads attached to

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    a vertical pole in a winding fashion within a cylindrical space.'' OSHA drew the definition from the construction standards for stairways and ladders (see Sec. 1926.1050(b)); it also is consistent with the definition of the term in ANSI/ASSE A1264.1-2007 (Section 2.23).

    Additionally, in the final rule, OSHA replaced the proposed term ``steps'' with ``treads.'' As noted above in the definition for rungs, steps or cleats, in the final rule, OSHA clarifies that steps are a component of ladders whereas treads are components of stairs.

    Spiral stairs are not standard stairs within the meaning of this section, and the final rule limits their use in general industry workplaces (see final Sec. 1910.25(b)(8)). Employers generally use spiral stairs generally in workplaces that have limited space.

    OSHA did not receive any comments on the proposed definition and adopts it as discussed above.

    Stair rail or stair rail system. This term means a barrier erected along the exposed or open side of stairways to prevent workers from falling to a lower level. Stair rail and stair rail systems include, but are not limited to, vertical, horizontal, or inclined rails; grillwork or panels, and mesh. In addition, the top rail of a stair rail system may serve as a handrail. The final definition is consistent with the construction standards for stairways and ladders (see Sec. 1926.1050(b)). The ANSI/ASSE A1264.1-2007 (Section 2.6) standard includes a definition covering ``guardrail/railing system/stair railing system'' that is applicable to stairways, ramps, landings, portable ladders, hatchway, manholes, and floor openings; the final definition is generally consistent with this ANSI/ASSE standard.

    The final definition eliminates ``vertical'' from the term barriers in order to make the definition consistent with final Sec. 1910.29(f). That provision does not require barriers to be vertical; for example, barriers may be horizontal rails.

    OSHA did not receive any comments on the proposed definitions and adopts it with the revision discussed.

    Stairway (stairs). The final rule defines stairway (stairs) as risers and treads that connect one level with another. Stairways also include any landings and platforms between those levels. In addition, the final rule specifies that stairway includes standard, spiral, ship, and alternating tread-type stairs.

    The existing rule defines stairways as a series of steps leading from one level or floor to another, or leading to platforms, pits, boiler rooms, crossovers, or around machinery tanks and other equipment that are used more or less continuously or routinely by employees, or only occasionally by specific individuals. A series of steps and landings having three or more risers constitutes stairs or stairway (existing Sec. 1910.21(b)(8)). OSHA did not propose a definition of stairway; however, the Agency decided to retain and revise the existing definition.

    The final definition revises the existing definition in several ways. First, the final rule simplifies the definition considerably. OSHA believes the term ``stairway'' (``stairs'') is commonly understood and does not require a long explanation. Therefore, OSHA limits the final definition to identifying the specific aspects of the stairways the final rule covers.

    Second, the final rule removes language in the existing definition that limits stairways to stairs that have ``three or more risers'' (existing Sec. 1910.28(b)(8)). The proposed rule did not retain the existing definition of stairway, which limited covered stairs to those that have three or more risers. Including a definition in the final rule clarifies the Agency's intent to cover stairways that have fewer risers.

    OSHA adopted the existing definition from national consensus standards in effect in 1971 and those standards have been revised and updated. In particular, the current versions of ANSI/ASSE A1264.1-2007 (Section E6.1) and IBC-2012 (Section 202) specify that a stair has one or more risers. The revision makes the final rule consist with those national consensus standards, which OSHA believes that most employers already follow.

    Finally, OSHA adds language to the final definition explaining that stairways include standard, spiral, alternating tread-type, and ship stairs (ship ladders). The existing rule did not include that language.

    OSHA did not receive any comments about a definition for ``stairway (stairs)'' and adopts the definition as discussed.

    Standard stairs. The final rule, like the proposal, defines standard stairs as stairways that are fixed or permanently installed. In the preamble to the proposed rule OSHA explained that ``permanently installed'' standard stairs are interchangeable with the term ``fixed'' standard stairs. To further clarify the definition, OSHA added this concept.

    Existing OSHA standards do not define ``standard stairs.'' The ANSI/ASSE A1264.1-2007 (Section 6) standard uses the terms ``fixed stairs'' and ``conventional stair designs,'' but does not define either term.

    Although ship stairs, spiral stairs, and alternating tread-type stairs are fixed or permanently installed stairs, the final definition specifies that they are not considered standard stairs under this subpart.

    OSHA did not receive any comments on the proposed definition and finalizes it as discussed above.

    Step bolt (pole step). This term means a bolt or rung attached at intervals along a structural member and used for foot placement and as a handhold when climbing or standing. The final definition, like the proposal, also refers to step bolts as ``pole steps.'' Existing subpart D does not specifically define or address step bolts.

    OSHA did not receive any comments on the proposed definition and adopts it as discussed.

    Stepladder. This term means a self-supporting, portable ladder that has a fixed height, flat steps, and a hinged back. The final definition consolidates into one term the two existing definitions in existing Sec. 1910.21(c)(2) and (d)(2). The final definition also simplifies the proposed definition by incorporating plain language (fixed height) in place of ``non-adjustable in length.''

    OSHA did not receive any comments on the proposed definition and adopts it with the clarification discussed above.

    Stepstool. This term means a self-supporting, portable ladder that has flat steps and side rails. Similar to the proposed definition, the final rule defines the term ``stepstool'' to include only those ladders that have a fixed height, do not have a pail shelf, and do not exceed 32 inches in overall height to the top cap, although the side rails may extend above the top cap. The definition goes on to clarify that a stepstool is designed so an employee can climb and stand on all of the steps as well as the top cap. OSHA drew the definition from the construction stairways and ladders standard (Sec. 1926.1050(b)), ANSI A14.2-2007 (Section 4), and ANSI A14.5-2007 (Section 4), which are similar. The final definition simplifies the proposed term by incorporating plain language ``fixed height'' in place of ``non-

    adjustable in length,'' and reorganizing the definition to make it easier to understand.

    OSHA did not receive any comments on the proposed definition and finalizes it with the revisions discussed above.

    Through ladder. The final rule, similar to the proposed rule, defines a through ladder as a type of fixed ladder that allows workers to step through the side rails at the top of the ladder to reach a walking-working surface, such as a landing. The final definition is

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    consistent with the construction standards for stairways and ladders (see Sec. 1926.1050(b)) and ANSI A14.3-2008 (Section 3).

    The final definition clarifies the existing rule in Sec. 1910.21(e)(15) and the proposed rule by stating that, at the top of a through ladder, a worker steps off the ladder onto a ``walking-working surface,'' which may be a landing or another type of surface (e.g., roof); the existing and proposed rules specify stepping onto a landing only.

    OSHA did not receive any comments on the proposed definition and adopts it with the clarification discussed above.

    Tieback. Similar to the proposed definition, this term means an attachment between an anchorage (e.g., structural member) and a supporting device. The final definition adds language to the proposed definition clarifying that supporting devices include, but are not limited to, parapet clamps or cornice hooks.

    According to the International Safety Equipment Association (ISEA), manufacturers provide a number of choices for tieback applications, such as tieback lines or lanyards, and tieback anchors (Ex. 185). ISEA said manufacturers design tieback lanyards for wrapping around a suitable anchor structure (e.g., a beam or structural member), and have the advantage of eliminating a separate component for anchorage connection. ISEA explained that employers typically use tieback lanyards in personal fall arrest systems (Ex. 185).

    ANSI/IWCA I-14.1-2001 (Sections 5.7.17, 17.4, and 17.6) notes that the exclusive use of tieback anchors is with tieback lines, not lifelines. The final rule requires that tieback lines and lifelines have separate anchors.

    Existing OSHA standards do not define ``tieback.'' OSHA drew the definition from ANSI A10.8-2011, American National Standard for Construction and Demolition Operations--Safety Requirements for Scaffolding. OSHA believes that adding a definition for ``tieback'' clarifies the use of the term elsewhere in this subpart. Mr. Hoberg, of DBM Consultants, stated clarification is necessary because various parts of the country use the term differently, and that ``each area swears adamantly that theirs is the right one and keeps trying to change the other'' (Ex. 206).

    The definition is finalized with the clarifying revisions noted above.

    Toeboard. The final rule, similar to the proposal, defines this term as a low protective barrier that is designed to prevent materials, tools, and equipment from falling to a lower level, and protect workers from falling. Typically, employers erect toeboards on platforms, dockboards, catwalks, gridirons, and other elevated or exposed floor level edges. Toeboards, also are referred to as toeplates or kickplates, and may be part of a guardrail system.

    The final rule consolidates into one term the three definitions in the existing rule in Sec. 1910.21(a)(9), (f)(31), and (g)(16), all of which are consistent with the final definition. The final rule clarifies that toeboards prevent tools, as well as materials and other equipment, from falling on workers who may be below the elevated walking-working surface.

    Finally, and most importantly, OSHA clarifies expressly that toeboards serve two purposes: Preventing materials, tools, and equipment from falling on and injuring workers on a lower level; and protecting workers from falling off elevated walking-working surfaces. The final definition is consistent with OSHA's construction standard for fall protection in Sec. 1926.500(b) and ANSI/ASSE A10.18-2012 (Section 2.18).

    OSHA did not receive any comments on the proposed definition and adopts it with the clarifications discussed above.

    Travel restraint system. This definition is new in the final rule. This system is a combination of an anchorage, an anchorage connector, lanyard (or other means of connection), and body support that an employer uses to eliminate the possibility of a worker going over the edge of a walking-working surface.

    OSHA drew the definition from final Sec. 1910.140(b). The definition also is consistent with the definition in ANSI/ASSE Z359.0-

    2012 (Section 2.204), and the definition of the term ``restraint (tether) system'' in ANSI/ASSE A10.32-2012 (Sections 2.53).

    OSHA did not receive any comments on the proposed definition in Sec. 1910.140 and, therefore, adopts a definition as described above for final subpart D. For further discussion about the definition of ``travel restraint system,'' see the preamble discussion for final Sec. 1910.140.

    Tread. The final rule, similar to the proposal rule, defines this term as a horizontal member of a stair or stairway, but does not include landings or platforms. OSHA added clarifying language in the final rule, that landings and platforms, which are horizontal members of stairways, are not considered treads.

    The final definition revises the existing and proposed rules by using ``stairways or stair'' in place of ``step.'' This revision clarifies that treads describe horizontal members of stairways. In the existing and proposed rules, treads and steps refer to horizontal members of both ladders and stairways, which OSHA believes may cause confusion. By limiting the term ``tread'' to stairways or stairs, and the term ``step'' to ladders, the final rule should resolve any potential confusion.

    Treads are measured by their width (side to side) and depth (front to back). OSHA notes that tread depth is measured horizontally between the vertical planes of the foremost projection of adjacent treads, and at a right angle to the tread's leading edge. This method of measurement is consistent with the NFPA 101-2012 (Section 7.2.2.3.5) and the IBC-2012 (Section 1009.7.2).

    The final definition is consistent with ANSI/ASSE A1264.1-2007.1 (Section 2.26). OSHA did not receive any comments on the proposed definition and adopts it as discussed.

    Unprotected sides and edges. This term means any side or edge of a walking-working surface, (except at entrances and other points of access) where there is no wall, guardrail system, or stair rail system to protect workers from falling to a lower level. The final definition, which replaces the language ``open-sided floors, platforms, and runways'' in the existing rule in Sec. 1910.23(c)(1), is consistent with the definition of the term in OSHA construction standards (see Sec. Sec. 1926.500(b) and 1926.1050(b)).

    The final rule revises the proposed definition in two respects. First, it states that a walking-working surface is unprotected if it does not have a stair rail system, in addition to not having a wall or guardrail system as specified in the proposed definition, to protect workers from falling.

    Second, OSHA deleted the height-specification language in the proposed rule. This language is not necessary because final Sec. 1910.29, Fall protection systems and falling object protection--

    criteria and practices, already addresses these height requirements.

    OSHA did not receive any comments on the proposed definition and finalizes it with the revisions discussed above.

    Walking-working surface. The final rule, similar to the proposal, defines this term as a horizontal or vertical surface on or through which workers walk, work, or gain access to work areas or workplace locations. Walking-working surfaces include floors, stairways, roofs, ladders, runways, ramps, walkways, dockboards, aisles, platforms, manhole steps, step bolts, equipment, trailers, and other surfaces. The existing rule does not define ``walking-working

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    surfaces,'' but the final definition is similar to the definition for ``walking-working surface'' in the construction standard for fall protection in Sec. 1926.500(b), ANSI/ASSE A10.18-2012 (Section 2.20), and ANSI/ASSE A1264.1-2007 (Section 2.28). OSHA notes that, unlike the construction standard for fall protection, the final definition does not exclude ``ladders, vehicles, or trailers, on which employees must be located in order to perform their job duties.''

    The final rule makes two revisions to the proposed walking-working surface definition. First, the final definition adds ``work area'' as a location to which a worker may gain access. This revision means that walking-working surfaces include those areas where employees perform their job duties, as well as other locations in the workplace, such as hallways and supply and change rooms. OSHA notes that, for some work and occupations, including equipment service and repair, delivery of materials and supplies, and landscaping, the ``work area'' may be at various locations. OSHA believes that adding ``work area'' to the final definition makes it clear what the term covers. The revision also makes the final definition consistent with ANSI/ASSE A1264.1-2007 (Section 2.28).

    Second, also consistent with ANSI/ASSE A1264.1-2007, the final rule deletes the list of examples of walking-working surfaces from the proposal. Accordingly, the regulated community is to broadly construe the final definition of ``walking-working surface'' to cover any surface on or through which employees walk, work, or gain access to a work area or workplace location. Since the final definition does not exclude any walking-working surface, OSHA does not believe that identifying a partial list of surfaces the final rule covers is helpful, necessary, or definitive.

    OSHA received several comments addressing the scope of the definition of ``walking-working surface,'' which it discusses above in the preamble to Sec. 1910.21(a), Scope.

    Warning line. This is a new definition OSHA added to the final rule. The term describes a barrier that is erected on a roof to warn workers they are approaching an unprotected side or edge, and which designates an area in which work may take place without using other means of fall protection. The warning line is a component of a designated area, which is an alternative method for preventing falls that the final rule allows employers to use to protect workers on low-

    slope roofs (see final Sec. Sec. 1910.28(b)(13) and 1910.29(d)). A warning line alerts workers that the space marked off by the line is an area where they may work without conventional or additional fall protection (e.g., guardrail, safety net, or personal fall protection system).

    Workers may enter the demarcated area only if the employer provides them with the required fall hazard training (see final Sec. 1910.30) and assigns them to work in the demarcated area. In large part, OSHA drew the definition in the final rule from the definition of ``warning line system'' in the construction standard for fall protection (see Sec. 1926.500(b)).

    Although the proposed rule used the term ``warning line,'' the proposal did not define it. The final rule corrects this oversight. The Agency believes it is important to define the term so that employers and workers understand the new fall prevention method, and so employers may comply with the new warning line requirements.

    OSHA did not receive any comments and adopts the definition as discussed above.

    Well. Similar to existing Sec. 1910.21(e)(12) and the proposed rule, this term means a permanent, complete enclosure around a fixed ladder. A well surrounding a fixed ladder must provide sufficient clearance to enable the employee to climb the ladder. The terms ``well'' and ``cage'' typically are used together because the structures serve the same purpose, i.e., to enclose the climbing area of a fixed ladder. In the event of a fall, wells and cages contain workers within the enclosure and direct them to a lower landing (Ex. 198). ANSI A14.3-2008 (Section 3) also contains a similar definition.

    The final rule deletes proposed language stating that ``proper clearances for a well provide the person climbing the ladder the same protection as a cage'' to prevent employers and workers from mistakenly believing that wells and cages provide fall protection. Information in the record indicates that wells and cages do not protect workers from falling (see, e.g., Ex. 198); as a result, the final rule in Sec. 1910.28(b)(9) phases out their use as fall protection systems.

    OSHA did not receive any comments on the proposed definition and adopts the term with the revision discussed above.

    Other issues. Two commenters suggested that OSHA include additional definitions in the final rule. First, Nigel Ellis recommended that OSHA add a definition for the term ``cover'' to the final rule, stating:

    The word Cover is not presently defined as to adequacy and walkability in the May 2010 standard proposal. A cover may be a plywood board or perhaps OSB or temporarily and more dangerously a section of drywall to keep out dust and weakens when wet. The new to America Platform Nets should be accommodated for maintenance work to allow walkable fabric covers to be used for walking across holes and open spaces.

    * * * * *

    The term cover should be defined on a structural level applicable to any unit skylight, including plastic, light transmitting pane and smoke vent and where it is either a board, fabric, fall protection net, walkable net, skylight with structural members impervious to the effects of UV sunlight, screen, grill and should be tested for impacts with humans (Ex. 155).

    OSHA believes employers understand the meaning of cover; therefore, it is not necessary to add a definition to the final rule.

    Second, Mercer ORC requested that OSHA define the term ``chain gate'' and identify how it differs from the term ``swinging gate'' (Ex. 254). The reference to chain gate in proposed Sec. 1910.29(b)(10) was a typographical error that inadvertently omitted the comma between chain and gate. Given that, there is no need to add a definition for either chain gate or swinging gate.

    Section 1910.22--General Requirements

    Final Sec. 1910.22 revises and updates the existing requirements that apply to surfaces in general industry. These provisions address:

    Surface conditions and housekeeping (paragraph (a));

    Application of loads on walking-working surfaces (paragraph (b));

    Access to and egress from walking-working surfaces (paragraph (c)); and

    Inspection, maintenance, and repair of walking-working surfaces (paragraph (d)).

    In general, the final rule revises the existing requirements in several ways. First, final Sec. 1910.22, as well as all other sections of final subpart D, uses the term ``walking-working surface.'' Final Sec. 1910.21(b) defines walking-working surface as any horizontal or vertical surface on or through which an employee walks, works, or gains access to a workplace location. Walking-working surfaces include, but are not limited to, floors, stairways, roofs, ladders, runways, walkways, dockboards, aisles, and step bolts.

    In final Sec. 1910.22, as in other sections of final subpart D, OSHA revised the existing language so it is performance-based and easier to understand, consistent with the OSH Act (29 U.S.C. 655(b)(5)), and the Plain Language Act of 2010 (Pub. L. 111-274; see also E.O. 13568 (1/18/2011)), respectively. OSHA

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    believes the revised language provides greater flexibility for employers, and makes it easier for them to comply with the final rule.

    OSHA also moved or deleted provisions in existing Sec. 1910.22 that address specific issues or hazards rather than general conditions. For example, OSHA moved the existing guardrail and covers requirements (existing Sec. 1910.22(c)) to final Sec. Sec. 1910.28 (Duty to have fall protection), and 1910.29 (Fall protection systems criteria and practices). OSHA believes that the existing provision, which addresses two specific types of fall protection measures, is more appropriately grouped with the other fall protection measures. In addition, OSHA deleted the requirements on mechanical-handling equipment in existing paragraph (b) because Sec. 1910.176(a) addresses that issue.

    Paragraph (a)--Walking-Working Surfaces

    Final paragraph (a), like the existing and proposed rules, contains general requirements on housekeeping and walking-working surface conditions. Pursuant to section 6(a) of the OSH Act (29 U.S.C. 655(a)), OSHA adopted most of the requirements in existing paragraph (a) from the ANSI standard in effect in the early 1970s (ANSI Z4.1-1968, Requirement for Sanitation in Places of Employment (Z4.1-1968)). Although ANSI updated the Z4.1 standard several times since 1968 (see ANSI Z4.1-1986 (R2005) (Z4.1-R2005)), OSHA did not update the requirements until this rulemaking.

    Final paragraph (a)(1), consistent with the existing and proposed rules, requires that employers ensure surfaces are kept in a clean, orderly, and sanitary condition in ``all places of employment, passageways, storerooms, service rooms, and walking-working surfaces.'' Final paragraph (a)(1) also is consistent with Z4.1-R2005 (Section 3.1.1). OSHA adds the term ``walking-working surfaces'' to the provision to eliminate any confusion about the surfaces the final rule is intended to cover.

    In the preamble to the proposed rule, OSHA explained its longstanding position that Sec. 1910.22(a), especially Sec. 1910.22(a)(1), covers hazards other than slips, trips, and falls, and includes fire and explosion resulting from combustible dust accumulations (see 75 FR 28874). Prior court decisions uphold OSHA's interpretation, saying ``the housekeeping Sec. 1910.22(a) standard is not limited to tripping and falling hazards, but may be applied to significant accumulation of combustible dust'' (Con Agra, Inc. v. Occupational Safety and Health Review Commission, 672 F.2d 699, 702 (8th Cir. 1982), citing Bunge Corp. v. Secretary of Labor, 638 F.2d 831, 834 (5th Cir. 1981)). In Pratt & Whitney Aircraft (9 O.S.H. Cas. (BNA) 1653, 1981 O.S.H.D. (CCH) P 25359, 1981 WL 18894 (O.S.H.R.C.), the Occupational Safety and Health Review Commission (Review Commission) reached the same conclusion on a converse set of facts. Pratt & Whitney argued that Sec. 1910.22(a)(1) only covered ``sanitation and the prevention of disease,'' not trip hazards. The Review Commission rejected that argument, saying the standard's requirement that employers keep places of employment ``in a sanitary condition'' is ``in addition to the requirement that workplaces be `clean and orderly,' thus demonstrating that the standard is directed not merely to sanitation but to all hazards arising from poor housekeeping, including tripping hazards.'' (See also, Farmer's Co-op, 1982 WL 2222661 (O.S.H.R.C.); CTA Acoustics (KY 2003), CSB Report No. 2003-09-I-KY (February 2005); Hayes Lemmerz International (Indiana 2003), CSB Report No. 2004-01-I-IN (September 2005).)

    As these cases show, Sec. 1910.22(a)(1) serves as an important enforcement tool for preventing hazardous combustible dust accumulations on walking-working surfaces. Moreover, in essentially every document addressing combustible dust that OSHA released since Bunge, the Agency affirmed that its combustible dust enforcement strategy includes citing housekeeping violations (i.e., failure to control combustible dust accumulations) under Sec. 1910.22(a)(1). (See e.g., ``Combustible Dust in Industry: Preventing and Mitigating the Effects of Fire and Explosion,'' OSHA Safety and Health Information Bulletin (SHIB) 07-31-2005, (2005, July 31) \13\; ``Hazard Alert: Combustible Dust Explosions,'' OSHA Fact Sheet (March 2008) \14\; OSHA Compliance Directive CPL-03-00-008, ``Combustible Dust National Emphasis Program,'' (March 11, 2008) (replacing CPL 03-00-006, ``Combustible Dust National Emphasis Program,'' October 18, 2007) \15\; and ``Status Report on Combustible Dust National Emphasis Program,'' (October 2009)).\16\

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    \13\ Combustible Dust in Industry: Preventing and Mitigating the Effects of Fire and Explosion available from OSHA's Web site at: http://www.osha.gov/dts/shib/shib073105.html.

    \14\ Hazard Alert: Combustible Dust Explosions available from OSHA's Web site at: http://www.osha.gov/OshDoc/data_General_Facts/OSHAcombustibledust.pdf.

    \15\ Combustible Dust National Emphasis Program available from OSHA's Web site at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=3830.

    \16\ Status Report on Combustible Dust National Emphasis Program available from OSHA's Web site at: http://www.osha.gov/dep/combustible_dust/combustible_dust_nep_rpt_102009.html.

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    In the proposed rule, OSHA requested comment on whether the Agency should include a specific reference to combustible dust or other types of dust or materials in final Sec. 1910.22(a) to clarify explicitly that the provision does, and will continue to, cover combustible dust hazards. OSHA received many comments. Two commenters, United Food and Commercial Workers (UFCW) (Ex. 159) and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) (Exs. 172; 329 (1/20/2011, p. 219); 363) supported including a specific reference in both final Sec. 1910.22(a)(1) and (a)(2). Bill Kojola of the AFL-CIO said: ``While agency interpretations to include combustible dust have proven useful to address this hazard, we believe an explicit referencing of combustible dust within each of these paragraphs is necessary to * * * let employers know with explicit certainty that combustible dust is covered by these provisions'' (Ex. 172). UFCW, which said it represents food plants, including sugar, corn, flour-

    milling, and cocoa plants, explained: ``The food dusts in these plants can be combustible. Housekeeping--keeping combustible dust from accumulating on floors and other surfaces and keeping surfaces as free from dust as possible--is a critical aspect to mitigating and preventing combustible dust explosions'' (Ex. 159).

    However, most commenters, for various reasons, opposed including a specific reference to combustible dust in final Sec. 1910.22(a) (Exs. 73; 96; 124; 148; 158; 166; 173; 186; 189; 190; 202; 207; 254). First, many commenters seemed to think that existing Sec. 1910.22(a)(1) does not cover combustible dust, and that OSHA is aiming to add it to the final rule as part of this rulemaking (Exs. 73; 96; 124; 148; 158; 166; 202). For example, several commenters said that Sec. 1910.22(a) and this rulemaking focus, and should focus, on preventing slips, trips, and falls, which is not the primary hazard of combustible dust (Exs. 73; 96; 124; 158; 166; 190; 207; 254). The United States Beet Sugar Association (USBSA) and National Grain and Feed Association (NGFA), citing a 1978 OSHA Memorandum, also argued that OSHA is uncertain whether Sec. 1910.22(a) applies to combustible dust because the Agency instructed its compliance officers to cite Sec. 1910.22(a)(1) and

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    Section 5(a)(1) of the OSH Act, in the alternative, for grain-dust accumulations (Exs. 148; 166).

    These commenters are mistaken. As described in detail above, OSHA has for more than 30 years interpreted Sec. 1910.22(a)(1) as applying to combustible dust hazards, and the courts have upheld this interpretation. In the 2009 ``Status Report on Combustible Dust National Emphasis Program,'' OSHA noted that housekeeping violations (Sec. 1910.22(a)(1)) accounted for 20 percent of the violations involving combustible dust, second only to hazard communication violations. In the Advance Notice of Proposed Rulemaking on combustible dust, OSHA also stated that existing Sec. 1910.22(a) covers ``accumulation of dust, including dust that may be combustible'' (74 FR 54334, 54335 (October 21, 2009)). Therefore, regardless of whether OSHA includes a specific reference to combustible dust in final Sec. 1910.22(a)(1), OSHA's enforcement policy remains the same.

    With regard to USBSA's and NGFA's ``uncertainty'' argument, the 1978 memorandum they cite has not been OSHA's policy since 1981, when the courts and the Review Commission upheld OSHA's interpretation that Sec. 1910.22(a)(1) covers combustible dust.

    Second, a number of commenters cited OSHA's ongoing combustible dust rulemaking as a reason why the Agency should not reference combustible dust in final Sec. 1910.22(a)(1) (Exs. 73; 96; 124; 158; 189; 190; 202; 207; 254). The National Federation of Independent Business (NFIB) said that including a reference to combustible dust in final Sec. 1910.22(a) would ``create confusion for small businesses when the combustible dust rule is finalized'' (Ex. 173). The Small Business Administration Office of Advocacy (SBA Advocacy) said that Sec. 1910.22(a) is so vague that ``it would undo any specificity in any forthcoming combustible dust standard'' (Ex. 124). USBSA agreed, stating that including a reference to combustible dust in Sec. 1910.22(a)(1) ``would significantly undermine the usefulness of a combustible dust rule'' and ``would swallow up and nullify whatever specificity is provided by a comprehensive combustible dust standard'' (Ex. 166).

    The National Cotton Ginners' Association (NCGA), the Texas Cotton Ginners Association (TCGA), and American Feed Industry Association (AFIA) said including combustible dust in Sec. 1910.22(a)(1) would be ``redundant and possibly conflicting'' when OSHA ``re-regulates these same dusts in the future under the combustible dust rule'' (Exs. 73; 96; 158).

    OSHA believes these arguments are premature since OSHA's Spring 2016 Unified Agenda of Regulatory and Deregulatory Actions (Reg Agenda) states that combustible dust is in the Prerule Stage.\17\ However, as OSHA proceeds with a rulemaking on combustible dust, the Agency will evaluate carefully the relationship between Sec. 1910.22(a)(1) and a combustible dust rule to avoid any conflicts.

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    \17\ See OSHA's Spring 2016 Reg Agenda on Combustible Dust at: http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201604&RIN=1218-AC41.

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    Third, on a related issue, some commenters contend that OSHA must regulate combustible dust in a separate rulemaking. The United States Chamber of Commerce (USCC) said a separate rulemaking is necessary because combustible dust is a complex, multi-variable hazard that is ``not amenable to a simple characterization'' and does not have a consensus definition: ``Merely telling employers that the walking/

    working surfaces are not to have a level of dust that would be combustible gives them no guidance, serves no workplace safety purpose, and will only lead to OSHA having another source for citations'' (Ex. 202).

    USBSA said a separate standard was necessary because Sec. 1910.22(a)(1) and (2) do not address issues such as ``how much combustible dust is too much?''; ``what must an employer do at what dust level?''; and ``should all combustible dusts be treated the same?'' (Ex. 166).

    NFIB also said a separate rulemaking on combustible dust is necessary because OSHA ``does not understand the implications of final Sec. 1910.22(a)(1) on small businesses'' (Ex. 173). NFIB said that OSHA incorrectly certified in the proposed rule that the rulemaking would not have a significant economic impact on small businesses, thereby avoiding the requirement to convene a Small Business Advisory Review (SBAR) panel. As a result, NFIB said OSHA underestimated the proposed compliance costs, and that regulating combustible dust in a separate rulemaking would allow OSHA to hear from a SBAR panel and ``fully grasp the burden'' that a combustible dust rule will impose on small business (Ex. 173).

    OSHA disagrees with the commenters. As noted above, for more than 30 years, OSHA has used Sec. 1910.22(a)(1) as an effective enforcement tool in general industry establishments of all sizes to address fire and explosion hazards related to combustible dust accumulations. This earlier discussion also mentioned that the 2009 Status Report on the Combustible Dust NEP determined that 20 percent of all combustible dust-related violations pertained to housekeeping (Sec. 1910.22(a)(1)). This history indicates that combustible dust is not too complex to enforce under existing rules.

    With regard to NFIB's contention that the proposed rule underestimated compliance costs, OSHA points out that Sec. 1910.22(a)(1) already covers combustible dust. Accordingly, in the proposed economic analysis, OSHA did not have to include any costs for the combustible dust requirement or any other existing applicable requirement.

    Fourth, some commenters said including a reference to combustible dust in final Sec. 1910.22(a)(1) is invalid because the national consensus standard (ANSI Z4.1-1968) from which OSHA adopted Sec. 1910.22(a)(1), pursuant to section 6(a) of the OSH Act, applied only to ``sanitation'' and sanitary conditions (i.e., ``the physical condition of working quarters which will tend to prevent the incidence and spread of disease'' (ANSI Z4.1-1968 (Section 2)) and, therefore, did not apply to combustible dust (Exs. 124; 166; 190). USBSA pointed out that a statement in ANSI Z4.1-1968 described the purpose of the standard as follows: ``The purpose of this standard is to prescribe minimum sanitary requirements for the protection of the health of employees in establishments covered by this standard'' (ANSI Z4.1-1968 (Section 1.2)). USBSA contends that OSHA's omission of this ANSI purpose statement was ``unlawful'' (Ex. 166). As such, USBSA maintains that OSHA is bound by the scope and purpose of the 1968 ANSI standard, and the only permissible way OSHA could add combustible dust to Sec. 1910.22(a)(1) was by notice-and-comment rulemaking. To bolster its argument, USBSA also includes in its comments a declaration from William Carroll, Executive Director of the Portable Sanitation Association International, which was the sponsoring organization for ANSI Z4.1-1968; Mr. Carrol stated that ANSI did not develop Z4.1-1968 to cover fire and explosion from combustible dust.

    OSHA does not agree with USBSA's arguments. Under section 6(a), OSHA ``is not bound to adopt all provisions of national consensus standards,'' and that not adopting the scope and purpose provisions ``does not constitute impermissible modification'' of the requirements of a national consensus

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    standard (Secretary of Labor v. C.R. Burnett and Sons, 9 O.S.H. Cas. (BNA) (O.S.H.R.C. (October 31, 1980) (the Review Commission rejected the employer's argument that OSHA was bound by the scope of another ANSI sanitation standard (ANSI Z4.4-1968, Sanitation--In Fields and Temporary Labor Camps--Minimum Requirements) adopted pursuant to section 6(a)).

    Accepting USBSA's position that Sec. 1910.22(a)(1) only addresses sanitation hazards would mean that OSHA could not use Sec. 1910.22(a)(1) to cite slip, trip, and fall hazards because they are not sanitation hazards. USBSA does not mention that incongruous outcome in its comments, but instead selectively addresses a specific hazard it does not want OSHA to cite under the final rule.

    However, previous decisions by the Review Commission and courts of appeal broadly construe Sec. 1910.22(a)(1) (Whirlpool Corp. v. Marshall, 445 U.S. 1, 13, 100 S.Ct. 883, 891, 63 L.Ed.2d 154 (1980) (``To promote this remedial purpose of the statute, the Act and regulations must be liberally construed so as to afford workers the broadest possible protection''); National Eng'g & Contracting Co. v. OSHA, 928 F.2d 762, 767 (6th Cir. 1991)). In Bunge (638 F.2d at 834), the court opined: ``The type of hazard . . . is irrelevant to whether some condition or practice constitutes a violation of Sec. 1910.22(a)(1). Unless the general standard incorporates a hazard as a violative element, the prescribed condition or practice is all that the Secretary must show.''

    In Whitney & Pratt Aircraft (1981 W-L 18894), the Review Commission said:

    We reject Pratt & Whitney's contention that the scope of Sec. 1910.22(a)(1) is limited to disease prevention and does not encompass tripping hazards. The standard's requirement that places of employment be kept `in a sanitary condition' is in addition to the requirement that workplaces be `clean and orderly', thus demonstrating that the standard is directed not merely to sanitation but to all hazards arising from poor housekeeping, including tripping hazards.

    OSHA notes that, contrary to Mr. Carroll's declaration, ANSI Z4.1-

    1968, on its face, covers hazards other than sanitation hazards. The standard contains several provisions that do not relate to sanitation, including lighting; keeping workplaces in an orderly condition; and maintaining workplaces free from protruding nails, holes, and loose boards.

    Fifth, NGFA (Ex. 148) and AFIA (Ex. 158) recommended that OSHA not include a reference to combustible dust in Sec. 1910.22(a)(1) because it would subject their industry to ``duplicative and unnecessary requirements'' that OSHA's Grain Handling Facilities standard (Sec. 1910.272) already addresses and, therefore, would cause confusion. They said Sec. 1910.272, along with section 5(a)(1) (29 U.S.C. 654(a)(1)), is working effectively in controlling grain dust hazards, which obviates the need for additional regulation.

    AFIA pointed out that the number of fatalities from explosions involving combustible dust declined dramatically in the industry since 1980 (Ex. 158). AFIA maintains that a number of factors contributed to reducing the frequency and severity of these occurrences, including widespread voluntary efforts by industry and trade organizations to increase awareness, research into and implementation of new engineering controls, employee training, and automation that reduces workforce exposure to explosion hazards from combustible dust. Although the Grain Handling Facilities standard issued by OSHA in 1987 (Sec. 1910.272) may account for some of the reduction in explosions, notably grain-

    mediated combustible-dust explosions, it was not in effect in the early 1980s, the initial explosion reduction timeframe AFIA cites. Only the court and the Review Commission decisions affirming OSHA's interpretation that Sec. 1910.22(a)(1) applies to combustible dust hazards were in effect in 1981 and 1982. Given that, OSHA believes that it is reasonable to infer that Sec. 1910.22(a)(1) contributed to reducing the number of explosions and fires involving combustible dust during the early 1980s. For all these reasons, OSHA continues to apply Sec. 1910.22(a)(1) to grain-handling facilities.

    Finally, USBSA explained that referencing combustible dust in Sec. 1910.22(a)(1) could conflict with Sec. Sec. 1910.307 (Electrical-

    Hazardous (classified) locations) and 1910.178 (Powered industrial trucks), stating:

    Applying those provisions with a reference to combustible dust would undermine what little specificity already exists in the current standards addressing combustible dust. For example, applying them would significantly undermine the existing distinctions between unclassified, Class II, Division 1, and Class II, Division 2, areas in 29 C.F.R. 1910.307 and 1910.178, which specify where and under what circumstances approved electrical equipment and forklift trucks are required in dusty conditions. There is no point in specifying what electrical equipment and forklift trucks are required under dusty conditions if those conditions are illegal in the first place under Sec. 1910.22(a) (Ex. 166).

    In response, OSHA reiterates that Sec. 1910.22(a)(1) already applies to combustible dust. Existing Sec. 1910.22(a) generally addresses combustible dust hazards on walking-working surfaces, while Sec. Sec. 1910.307 and 1910.178 address more specific combustible dust hazards related to electric equipment and powered industrial trucks, respectively, and OSHA finds no indication that they conflict with each other. Moreover, the Agency has not experienced any conflicts enforcing those requirements.

    Final paragraph (a)(2), like the existing and proposed rules, requires that employers ensure the floor of each workroom is maintained in a clean and, to the extent feasible, in a dry condition. The final rule is similar to OSHA's housekeeping requirements in its Shipyard Employment standards (Sec. 1915.81(c)(3)) and Z4.1-R2005 (section 3.1.2). OSHA believes it is important for employers to maintain walking-working surfaces in a clean and dry condition to protect workers from possible injury from slips, trips, and falls and other hazards.

    Final paragraph (a)(2) also requires that employers take additional action if they cannot keep workroom floors in a dry condition. OSHA notes this provision only requires employers to take additional actions when they are using ``wet processes.'' When wet processes are used, the final rule requires that drainage is maintained and, to the extent feasible, dry standing places are provided, such as false floors, platforms, and mats. Final paragraph (a)(2) provides examples of measures employers can use to provide workers with dry standing places, such as false floors, platforms, and mats, but gives employers flexibility to select other measures that are effective in providing dry standing places. OSHA believes this provision is necessary to protect workers from slips, trips, falls, and other hazards on wet surfaces.

    The American Meat Institute (AMI) commented on the proposed rule:

    In the meat industry, as in several others, there is simply no possible way to maintain floors in a ``dry condition'' in areas such as slaughter departments, vat/bin washing rooms, during sanitation operations, etc. And, providing false floors, mats, platforms, etc., though done where possible, is not practical in all areas. Stated simply, there are many cases where floors in operating areas will be ``wet'' throughout the working shift. However, it should be recognized that ``wet'' is a relative term; there is significant difference between standing water of some depth as opposed to simply damp surfaces (Ex. 110).

    AMI recommended that the final rule make a distinction between wet floors where there is standing water and floors that are ``continuously damp'' because of periodic cleaning or rinsing, stating:

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    ``We . . . submit that while wet floors may pose potentially unique and specific hazards, damp floors typically pose minimal hazard and do not require additional, specific regulation'' (Ex. 110). OSHA disagrees with AMI's recommendation that the final rule should make a distinction between working in ``standing water,'' which AMI defines as greater than one inch deep, and working on wet surfaces. Accordingly, OSHA believes that both working on wet surfaces and working in standing water are hazardous and pose a risk of slips, trips, falls, or other harm (e.g., electrocution, prolonged standing in water). Final paragraph (a)(2) gives employers a great deal of flexibility to tailor their control measures to the type of wet conditions present in the particular workplace, thereby making it easier for employers to comply with the requirement.

    In the proposed rule, OSHA requested comment on whether final paragraph (a)(2) should include a provision, similar to that in Shipyard Employment (29 CFR 1915.81(c)(3)), requiring that, in wet processes, employers provide appropriate waterproof footwear, such as overboots, when it is not practicable to maintain drainage and dry standing areas (75 FR 28874). OSHA received three comments in response to this request, all of which opposed adding that provision to the final rule. Edison Electric Institute (EEI) (Ex. 207) and the American Wind Energy Association (AWEA) (Ex. 178) both said that employers should determine whether a hazard exists that necessitates use of personal protective equipment (PPE) and select the best method to prevent slips, trips, and falls on wet surfaces. UFCW raised concerns that allowing the use of PPE would cause employers to use PPE instead of following the hierarchy of controls:

    By specifically offering the employer the option of providing PPE, OSHA will have the unintended effect of negating the original requirement to eliminate the hazard or control it through engineering controls. We have seen a similar unfortunate dynamic in the implementation and enforcement of 1910.95(b)(1) which supposedly allows the use of PPE only after the implementation of feasible administrative and engineering controls. Our experience with the noise standard has been that once excessive sound levels have been determined, most employers embrace the use of hearing protection, and the implementation of engineering controls is perfunctory or ignored altogether (Ex. 159).

    UFCW also noted, correctly, that it was not necessary for OSHA to reference PPE in the final rule because, under Sec. 1910.132(a), employers already must provide PPE for hazards that they cannot eliminate or control by other methods (Ex. 159).

    OSHA finds the commenters' arguments convincing and, therefore, did not add the language in Sec. 1915.81(c)(3) to the final rule. In particular, OSHA agrees with the concerns UFCW raised about the hierarchy of controls, and reaffirms that employers must provide dry standing places, and maintain drainage using engineering controls, to the extent such controls are feasible.

    Final paragraph (a)(3), which OSHA revised significantly from the proposed rule, requires employers to ensure walking-working surfaces are maintained free of hazards such as loose boards, corrosion, leaks, spills, snow, ice, and sharp or protruding objects.

    In general, OSHA revised the language in final paragraph (a)(3) to more clearly and specifically reflect the type and nature of the hazards the Agency intended to address in this provision. The revisions serve two purposes. First, the revisions clarify that a major focus of final subpart D is to protect workers from walking-working surface hazards that could cause or exacerbate the severity of a slip, trip, or fall. For example, if employers do not maintain walking-working surfaces free of leaks, spills, and ice workers could slip and fall and be seriously injured. Similarly, if unused tools (e.g., saws, shears), materials (e.g., unused pallets, bailing wire), or solid waste or debris (e.g., scrap metal) are left on surfaces where employees work or walk, workers could be seriously hurt if they fell on any of those objects. In addition, in some situations, corrosion may be so severe or significant that it may weaken the walking-working surface to the point that the surface can no longer support a worker, equipped with tools, materials, and equipment, who walks or works on it.

    Second, it emphasizes OSHA's longstanding position, supported by the court decisions noted previously, that the scope of Sec. 1910.22, and paragraph (a)(3) specifically, also covers walking-working surface hazards other than slips, trips, and falls. For example, a nail protruding from a wall may not cause a slip, trip, or fall, but could cause a serious laceration or puncture wound if a worker walks into or bumps into it. Similarly, if employers do not ensure the immediate removal of caustic chemicals or substances spilled onto a walking-

    working surface, workers may be at risk of adverse effects, such as chemical burns, if they accidentally touch the substance.

    The existing rule, which OSHA adopted from the Z4.1-1968 standard, requires that employers, to facilitate cleaning, keep every floor, working place, and passageway free from ``protruding nails, splinters, holes, or loose boards.'' In the proposed rule, OSHA decided to revise existing paragraph (a)(3) to emphasize that the examples of the hazards listed can result in more than slips, trips, and falls, and are present in more than cleaning operations. Therefore, OSHA replaced the existing examples of specific hazards with performance-based language, stating, ``Employers must ensure that all surfaces are designed, constructed, and maintained free of recognized hazards that can result in injury or death to employees,'' and deleted the existing ``to facilitate cleaning'' language.

    Many commenters opposed proposed paragraph (a)(3). Most argued that the performance-based language ``free of recognized hazards'' was vague, overly broad, and appeared to duplicate the General Duty Clause of the OSH Act (Exs. 124; 150; 165; 173; 190; 196; 236). For example, the Sheet Metal and Air Conditioning Contractors National Association (SMACNA) said: ``Proposed section 1910.22(a)(3) . . . appears to be a `General Duty Clause' specific to this standard . . . and does not offer any logical means of compliance. . . . The proposed requirement is open-ended and provides very little guidance to address any particular hazard'' (Ex. 165). The Mechanical Contractors Association of America (MCAA) expressed similar concerns about the language and how OSHA would enforce it:

    The general duty clause-like language proposed . . . as 29 CFR 1910.22(a)(3) would allow compliance officers to issue general duty clause-like citations without having to meet the extensive and elaborate criteria established by the agency for issuing general duty clause citations. MCAA believes that this language would cause confusion, dissention and controversy without enhancing worker protection (Ex. 236).

    The American Foundry Society (AFS) said the provision was ``so vague and open-ended that it could leave employers vulnerable to OSHA citations based on the subjective assessment of OSHA inspectors as to what is acceptable,'' and would place ``an impossible obligation on employers by short-circuiting the requirements'' of the General Duty Clause (Ex. 190).

    NFIB raised three concerns about proposed paragraph (a)(3). First, NFIB pointed out that the proposed rule does not define ``recognized hazards,'' saying ``the term may have a different meaning to a small business owner than it does to an OSHA inspector'' (Ex. 173).

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    Second, they said the proposed rule is ``impossible to meet'' and ``virtually meaningless for compliance purposes,'' noting:

    This standard, as written, is so broad that it could be inferred by an inspector or judge that if any injury occurs--for any reason--

    the employer can be cited for failure to comply. The presumption is that a small business owner should foresee all possibilities of injuries, even in the most remote of circumstances (Ex. 173).

    Finally, NFIB said the proposed requirement could result in a small business being ``cited twice for the same violation--opening the business up to excessive fines and penalties'' (Ex. 173).

    According to SBA Office of Advocacy, small businesses attending their forum on the proposed rule expressed concerns that OSHA would use the proposed rule to impose a `` `de facto' Safety and Health Program (S&HP) or Injury and Illness Prevention Program (I2P2) requirement on employers'' (Ex. 124). Therefore, SBA Office of Advocacy and Associated Builders and Contractors (ABC), who raised similar concerns, recommended that OSHA clarify the regulatory language, as well as the purpose of the requirement in the final rule (Exs. 124; 196).

    The commenters raise valid concerns. The purpose of the proposed requirement was not to codify the General Duty Clause as a standard or reduce OSHA's burdens in proving a General Duty Clause violation. Rather, as explained above, the purpose was to use performance-based language to point out that failure to adequately clean and maintain walking-working surfaces: (1) Can make slips, trips, and falls more severe, and (2) can result in adverse effects other than slips, trips, and falls (e.g., burns from exposure to corrosive materials). The revised language in final paragraph (a)(3) ensures that stakeholders understand that the final rule covers both types of hazards. Also, adding specific examples, such as those in the existing rule, ensures stakeholders that the final rule focuses on the types of hazards associated with walking-working surfaces instead of all ``recognized hazards that can result in injury or death'' as the proposed rule specified. Therefore, the final rule stresses that employers' housekeeping efforts must take into account walking-working surface hazards other than simply those associated with slips, trips, and falls.

    Mr. Lankford recommended removing the design and construction requirements in proposed paragraph (a)(3) because they would impose ``significant responsibility on employers'' in the many instances when ``there is no connection between the designer/builder and the current employer'' (Ex. 368). In the hearing, Mr. Lankford said OSHA should allow employers to comply with the requirement by confirming that the walking-working surfaces ``were built according to the standard or local building code'' (Ex. 329 (1/20/2011, p. 297)). OSHA agrees, and removed the design and construction requirements in final paragraph (a)(3).

    On a separate issue, Ellis Fall Safety Solutions suggested that OSHA add a requirement to Sec. 1910.22(a) that walking-working surfaces be ``walkable from a body space point of view,'' meaning an employee in the 95th height percentile should be able to walk upright without encountering head or other obstructions (Ex. 155). OSHA believes the performance-based requirements in final paragraph (a)(3) takes this issue into account in an effective way. Paragraph (a)(3) requires that employers maintain walking-working surfaces free of protruding objects that could harm workers, regardless whether the worker is tall or large.

    Michael Bell of Joneric Products, a footwear manufacturer, objected to the scope of OSHA's benefits policy:

    This Proposed Rule virtually ignores fatalities and injuries that occur not from heights. There are some easy solutions to remedy these fatalities and injuries.

    1. Recognize that workers whose primary job is to wash, wax or maintain floors are at high risk of slips and falls. There are companies that manufacture specialized footwear for these activities.

    2. Recognize that many workers primarily work outdoors. Most of them must work on Public Property. Even though OSHA has no authority to tell a private citizen how to maintain their properties at least admit that many injuries do occur outdoors and they are reportable to OSHA.

    3. Recognize that inclement weather is the cause of a good many of these injuries.

    4. Know that this is serious enough that many companies are proactive in attempting to reduce these weather related injuries. But, they do not make up for the companies that ignore the situation because there is sic no OSHA regulations.

    5. Companies have a wide range of products to choose from many manufacturers (Ex. 77).

    OSHA agrees with Mr. Bell's statement and notes that the provisions in Sec. 1910.22(a)(1)-(3) address slips and falls to the same level. In particular, OSHA notes that these final provisions will require employers to control worker exposure to fall hazards on outdoor surfaces.

    Final Paragraph (b)--Loads

    Final paragraph (b) requires that employers ensure each walking-

    working surface can support the ``maximum intended load'' for that surface. The final rule, like the proposal defines maximum intended load as the total weight of all employees, equipment, machines, vehicles, tools, materials, and loads that employers reasonably anticipate they may be apply to that walking-working surface. The existing rule includes a similar provision requiring that employers not place on a floor or roof any load weighing more than the building official has approved for the surface (existing Sec. 1910.22(d)(2)). The construction fall protection standard also requires that employers ``determine if walking/working surfaces on which its employees are to work have the strength and integrity to support employees safely'' and only allow employees to work on surfaces that meet the requirement (29 CFR 1926.501(a)(2)).

    Final paragraph (b), like the proposal, specifies that it covers all walking-working surfaces; that is, ``any horizontal or vertical surface on or through which an employee walks, works, or gains access to a workplace location'' (see final Sec. 1910.21(b)). Accordingly, employers must ensure that all walking-working surfaces, which include, but are not limited to, floors, roofs, stairs, ladders, and ramps; can support the maximum intended load. The existing rule specifies it applies to ``any floor or roof'' of a building or other structure (existing Sec. 1910.22(d)(2)). Final paragraph (b) also replaces the specification requirements in existing Sec. 1910.22(d)(1) with performance-based language. The existing rule specifies that the loads the building official approves for a specific walking-working surface ``shall be marked on plates of approved design . . . and securely affixed . . . in a conspicuous place in the space to which they relate.''

    In the proposed rule, OSHA said the existing specification requirement was not necessary for two reasons: (1) Load-limit information is available in building plans, and (2) engineers take maximum loads into consideration when they design industrial surfaces. OSHA proposed to replace the existing rule with provisions requiring that employers ensure that walking-working surfaces are ``designed, constructed, and maintained to support their maximum intended load'' (proposed paragraph (b)(1)), and ``not loaded beyond their maximum intended load'' (proposed paragraph (b)(2)).

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    OSHA received three comments on the proposal. The first commenter, AFSCME, recommended requiring that employers ensure all walking and working surfaces have the ``structural integrity'' to support the workers, their tools and equipment. OSHA believes that requiring employers to ensure each surface is capable of supporting the maximum intended load, as defined in final Sec. 1910.22(b), achieves the result AFSCME advocates. The definition of ``maximum intended load'' in final Sec. 1910.21(b) includes the total weight of all employees, equipment, machines, vehicles, tools, materials, and loads that the employer reasonably anticipates may be applied to the walking-working surface.

    The second commenter, Charles Lankford, objected to the proposed requirement that employers ensure walking-working surfaces are ``designed and constructed'' to support their maximum intended load (proposed paragraph (b)(1)):

    Employers will be unable in most cases to ensure positively that existing or newly purchased walking and working surfaces were ``designed and constructed'' (perhaps decades earlier) to comply with this standard.

    Employers will for practical purposes be limited to relying on third party certification, testing, listing, and/or labeling of platforms and surfaces such as scaffold planks, floors of crane cabs, runways, etc. However, OSHA did not state in the proposed rule that reliance on third party certifications would be a method of compliance or could be a valid defense from citations (Ex. 368; see also Ex. 329 (1/20/2011, p. 295)).

    OSHA disagrees with Mr. Lankford's contention. The existing rule makes it easy for employers to know for certain whether a walking-

    working surface on an existing building or structure can support the maximum intended loads employers anticipate placing on that surface. The existing rule requires that load limits for buildings and structures used for mercantile, business, industrial, or storage purposes: (1) Be approved by the building official; and (2) be posted in the area of the walking-working surface (existing Sec. 1910.22(d)(1)). The existing rule also prohibits employers from putting any load on a walking-working surface that exceeds the weight the building official has approved. Under the final rule, employers can readily obtain information about walking-working surfaces in those buildings and structures from the plates required to be posted in accordance with the existing rule. For new buildings and structures, employers can obtain information on load limits from building plans, local codes, and third party certification or conduct their own evaluation.

    Mr. Lankford is correct that the proposed rule, as well as the final rule, does not state specifically how employers must obtain information about load limits for a walking-working surface. However, OSHA believes there are many ways employers can obtain such information. Mr. Lankford provided examples of several methods employers may use, including obtaining load limits from the plates posted in the area; relying on third party certification; and testing or evaluating walking-working surfaces. Instead of codifying the methods Mr. Lankford mentioned, OSHA has used performance-based language in the final rule to give employers greater flexibility in selecting the method they want to use to identify whether the walking-

    working surface can support the maximum intended load employers will place on it.

    Finally, the National Chimney Sweep Guild (NCSG) contended the requirement that employers ensure each walking-working surface can support the maximum intended load they will apply to it is not feasible and, as proposed, go beyond what is reasonably necessary or appropriate (Exs. 150; 240; 365; 329 (1/18/2011, p. 254-348)). First, NCSG said that chimney sweeps are not able to determine the ``maximum intended load'' \18\ for a roof:

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    \18\ NCSG is mistaken about the meaning and use of the term ``maximum intended load.'' The term refers to the maximum weight of ``all employees, equipment, tools, materials, transmitted loads, and other loads'' the employer reasonably anticipates putting on a walking-working surface, such as a roof. It does not mean the maximum weight building codes require or the builder designed and constructed a roof to tolerate, although the maximum intended load employers place on the surface must not exceed that maximum load limit for the surface.

    The sweep would have no practical means of determining the maximum intended load for a roof, and no way of determining whether the roof was designed, constructed, and maintained to support the unknown maximum intended load. Only when a job would require a significant load on a roof or under other highly unusual circumstances would a sweep attempt to access the attic below a roof to check the structural integrity of the roof. We doubt most trades would be able to determine whether a roof could safely support its maximum intended load (as established by the builder and/or local ---------------------------------------------------------------------------

    code) (Ex. 150).

    The final rule, like the construction fall protection standard, requires that employers are responsible for taking the steps necessary to ensure that each walking-working surface employee's access has the strength and structural integrity to safely support the maximum intended load employers will place on the surface. NCSG agreed that assessing hazards and inspecting roof surfaces is necessary before workers step on roofs to perform chimney sweep work:

    We recognize that the employer of a sweep must implement reasonable measures designed to determine whether a roof or other walking-working surface can be safely utilized by the employee to perform the pre-assigned task and any additional tasks that may be identified after the sweep arrives at the site (Ex. 150).

    Where workers perform single-person jobs, which NCSG said are the majority of jobs their members perform, employers are responsible for ensuring that workers know how to assess and determine whether the walking-working surface they will access will support the loads reasonably anticipated to be placed on it. For example, employers must ensure that their employees (e.g., chimney sweeps) know how to visually inspect or examine the roof for possible damage, decay, and other problems and look in attics to assess the strength and structural integrity of the roof. Employers also must ensure that workers actually do such visual assessments before they access a surface or perform a job. Finally, if there is a potential problem with the roof or if workers cannot determine whether the roof is safe for use, employers must ensure that workers know they must not step onto the roof. Although NCSG contends that it is infeasible for workers to determine if roof will support the loads they will place on it, their comments indicate that member companies and their workers already are doing this:

    Once we actually get to the job, we are making a hazard assessment . . . of . . . electrical lines, the slope of the roof, the condition of the roof, is there adequate places for our ladders, can we safely access the roof with ladders, is the roof wet, ice covered, snow covered, and ultimately we use all of that information to formulate a go or no go roof decision, whether we are actually going to access the roof (Ex. 329 (1/18/2011, p. 276-303)).

    In addition, NCSG said member employers also periodically go to jobs sites to discuss and observe workers performing tasks, further indicating that assessments and determinations of the strength and structural of roofs are being done (Ex. 150).

    Finally, not only did NCSG say it is not feasible for its members to comply with final paragraph (b), they also said:

    We doubt most trades would be able to determine whether a roof could safely support its maximum intended load (as established by the builder and/or local code) (Ex. 150).

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    Since 1994, the current construction fall protection standard has required employers performing construction activities to ``determine if the walking-working surfaces on which its employees are to work have the strength and structural integrity to support employees safely'' (Sec. 1926.501(a)(2)). According to NCSG, 20 percent of the work chimney sweep companies perform are significant and major installations and repairs and covered by the construction fall protection standard (Ex. 150). These operations involve a substantial quantity of equipment, tools and materials being used and placed on the roof. OSHA has not received any reports that chimney sweep companies have experienced difficulty assessing whether the roof has the ``strength and structural integrity'' to support workers and the equipment, materials, and tools they are using to make those installations and repairs. Because the final rule is consistent with the construction standard, OSHA believes NCSG members will not have difficulty visually assessing whether the roof can support chimney cleaning, inspections, and minor repair work, which do not require the quantities of equipment, tools, and materials of substantial and major installations/

    repair jobs. For these reasons, OSHA does not find NCSG's infeasibility contention to be convincing.

    Second, NCSG expressed concern that the final rule will require member companies to hire ``a structural engineer or someone with significant advanced training'' to make a ``technical determination'' that the walking-working surface has the necessary structural integrity, and that it would be infeasible for small companies to have a structural engineer or similar expert person on staff to assess the walking-working surfaces at each worksite (Ex. 150).

    The final rule, like the construction fall protection standard, does not require that employers hire engineers or other experts to make a technical determination about whether a walking-working surface has the strength and structural integrity to support the maximum intended load employers reasonably anticipate placing on that surface. OSHA agrees with NCSG that employers may comply with final paragraph (b) by making ``a visual examination of the condition of the roof and the rest of the structure'' (Ex. 150). As OSHA discussed in the preamble to the proposed rule, if conditions warrant or if employers cannot confirm from the visual examination that the walking-working surface can support the load they will place on it, OSHA believes employers need to conduct a more involved or detailed inspection to ensure the surface is safe for employees (75 FR 28888). OSHA does not believe NCSG members will have difficulty complying with this requirement. NCSG said member companies already conduct visual examinations and hazard assessments to determine whether roofs can support the total load their workers will place on them (Ex. 150). Moreover, NCSG said employers periodically come to job sites to observe how workers are performing tasks, which presumably include observing tasks such as hazard assessments and visual examinations of roofs.

    Final paragraph (c)--Access and Egress

    Final paragraph (c), like the proposal, requires that employers provide, and ensure that each worker uses, a safe means of access and egress to and from walking-working surfaces. For purposes of the final rule, the term ``safe'' means that no condition (for example, an obstruction, lock, damage) could prevent or endanger a worker trying to access or egress a walking-working surface. Thus, employers must ensure that means of access and egress remain clear and in good repair so workers can safely move about walking-working surfaces.

    Final paragraph (c), like the proposal, replaces the specifications in the existing rule (Sec. 1910.22(b)) with performance-based language. The existing rule requires that aisles and passageways be kept in good repair, with no obstructions across or in aisles that could create a hazard. Where mechanical handling equipment is used, the existing rule requires that sufficient safe clearances be allowed for aisles, at loading docks, through doorways, and wherever turns or passage must be made. The revision ensures that final paragraph (c) applies to all walking-working surfaces the final rule covers, which means that employers must provide safe access to and egress from ``any horizontal or vertical surface on or through which an employee walks, works, or gains access to a workplace location'' (final Sec. 1910.21(b)). Examples of walking-working surfaces that require safe access and egress include floors, stairways, ladders, roofs, ramps, and aisles. The final rule, by using the term ``walking-working surface,'' requires that employers ensure means of access and egress are safe regardless of whether the walking-working surfaces are on the same or different levels. The final rule also applies to both temporary and permanent walking-working surfaces.

    OSHA notes that the final rule does not retain the specification language in existing Sec. 1910.22(b)(2) that requires appropriate marking of ``permanent aisles and passageways.'' The performance-based language in final paragraph (c) requires that an employer provide and ensure workers use a safe means of access and egress to and from walking-working surfaces. One way employers can meet the performance language is by appropriately marking passageways and permanent aisles as a means of identifying safe access and egress.

    OSHA did not receive any comments on proposed paragraph (c) and finalizes the proposed provision, as discussed, with minor editorial changes for clarity.

    Final paragraph (d)--Inspection, maintenance, and repair

    Final paragraph (d), like the proposed rule, specifies general inspection, maintenance, and repair requirements for walking-working surfaces. Final paragraph (d)(1) requires that employers inspect and maintain walking-working surfaces in a safe condition. OSHA believes that inspecting walking-working surfaces is necessary to ensure they are maintained in a safe condition. To ensure they are in a safe condition, the final rule specifies that employers must inspect walking-working surfaces both (1) regularly and (2) as necessary.

    The term ``regular inspection'' means that the employer has some type of schedule, formal or informal, for inspecting walking-working surfaces that is adequate enough to identify hazards and address them in a timely manner. The final rule uses a performance-based approach instead of mandating a specific frequency for regular inspections. OSHA believes that employers need to consider variables unique to each workplace that may affect the appropriate frequency for workplace inspections. Therefore, OSHA believes that employers are in the best position to evaluate those variables and determine what inspection frequency is adequate to identify and address hazards associated with walking-working surfaces. Once employers make that determination, the final rule requires that they conduct inspections of walking-working surface according to that frequency.

    Adding a general requirement in the final rule for regular inspections of walking-working surfaces makes the rule consistent with OSHA's construction standards. Section 1926.20(b)(2) requires employers to have a program that ``provides for frequent and regular inspections of job sites, materials, and equipment.''

    In addition to regular inspections, final paragraph (d)(1) also requires

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    employers to conduct inspections ``as necessary.'' For purposes of final paragraph (d)(1), inspecting workplaces ``as necessary'' means that employers must conduct inspections when particular workplace conditions, circumstances, or events occur that warrant an additional check of walking-working surfaces to ensure that they are safe for workers to use (i.e., that the walking-working surface does not increase the risk of a slip, trip, or fall). For example, an additional inspection may be necessary to ensure that a significant leak or spill did not create a slip, trip, or fall hazard on walking-working surfaces. Similarly, employers may need to inspect outdoor workplaces after a major storm to ensure that walking-working surfaces are free from storm debris, downed power lines, and other related hazards.

    The proposed rule specified that employers conduct ``periodic'' inspections, in addition to regular inspections. The purpose of the proposed requirement to conduct periodic inspections was to address specific workplace events, conditions, or situations that trigger slip, trip, or fall hazards not addressed by regular inspections, which are conducted at fixed times. However, OSHA believes that the language ``as necessary'' more accurately describes the purpose of the proposed requirement. Moreover, OSHA believes that the revised language clarifies when employers need to check walking-working surfaces and, thus, will enable employers to use their resources efficiently. Therefore, OSHA specified in final paragraph (d)(1) that employers must conduct inspections as necessary, in addition to regular inspections. Accordingly, employers must check the workplace when events, conditions, or situations arise that could put workers at risk of harm due to slips, trips, or falls, regardless of whether the workplace is due for a regular inspection. Thus, the final rule, as revised, fulfills the interpretation given to paragraph (d) in the proposal, that the employer ``ensure that inspections are conducted frequently enough so that hazards are corrected in a timely manner'' (75 FR 28862, 28875).

    AFSCME recommended that Sec. 1910.22 also require that employers perform a hazard assessment (Ex. 226). OSHA believes that requiring employers to inspect walking-working surfaces regularly and as necessary enables employers to determine the hazards that are present in those areas; therefore, additional language is not necessary.

    NCSG objected to paragraph (d)(1)'s requirement that walking-

    working surfaces be maintained in a ``safe'' condition as again incorporating the General Duty Clause (Ex. 150). That is not OSHA's intent, and the Agency incorporates its response to the that objection, discussed in final paragraph (a)(3), here. The same hazards are addressed by final paragraphs (a)(3) and (d)(1); (a)(3) requires that the surface be maintained free of those hazards, while (d)(1) requires inspection for and correction of those hazards when found.

    Final paragraph (d)(2) requires that employers correct or repair hazardous conditions on walking-working surfaces before allowing workers to use those surfaces again. The final rule also requires that if employers cannot fix the hazard immediately, they must guard the hazard to prevent workers from using the walking-working surface until they correct or repair it. Taking immediate corrective action or guarding the hazard is important for the safety of workers; delaying either action can put workers at risk of injury or death. OSHA notes that corrective action may include removal of the hazard.

    When employers cannot fix the hazard immediately and need to guard the hazard area, the final rule gives employers flexibility in selecting the type of guarding to use (e.g., erecting barricades, demarcating no-entry zones). However, whatever method employers use, they must ensure it is effective in preventing workers from accessing or using the surface.

    NCSG contended that proposed paragraph (d)(2) is a redundant provision, since proposed paragraph (a)(3) would already contain language requiring that walking-working surfaces be free of hazards (Ex. 150).

    OSHA disagrees. First, as discussed, OSHA revised final paragraph (a)(3) so it more clearly identifies examples of walking-working surface hazards that could cause slips, trips, and falls. For example, if employers do not maintain walking-working surfaces free of leaks and spills, workers could slip and fall and be seriously injured. Corrosion can weaken walking-working surfaces and render them unable to support loads placed on them. In addition, examples of walking-working surface hazards incorporated in final paragraph (a)(3), stress that final Sec. 1910.22, like the existing rule, covers more than slip, trip, or fall hazards.

    Second, OSHA does not believe final paragraphs (a)(3) and (d)(2) are redundant because they serve different purposes and objectives. The purpose of final paragraph (a)(3) is to ensure employers have procedures or programs in place to maintain walking-working surfaces so workers are not exposed to hazards that may cause injuries such as slips, trips, and falls. OSHA believes that if employers establish good housekeeping and maintenance procedures and programs they can prevent worker exposure to such hazards. However, even when employers establish rigorous housekeeping and maintenance programs, hazardous conditions may still arise. When they occur, final paragraph (d)(2) specifies what employers must do to correct or repair those hazards before they allow workers to use the surface.

    Final paragraph (d)(3) requires that when any correction or repair involves the structural integrity of the walking-working surface, a qualified person must perform or supervise that correction or repair. For purposes of the final rule, OSHA defines a qualified person as ``a person who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience has successfully demonstrated the ability to solve or resolve problems relating to the subject matter, the work, or the project'' (see Sec. 1910.21(b)). The definition in the final rule is the same as other OSHA standards (e.g., Sec. Sec. 1910.66, appendix C, Section I; 1910.269; 1915.35; 1926.32(l)).

    Structural integrity generally addresses a structure's uncompromised ability to safely resist the loads placed on it. Deficiencies in the structural integrity of a walking-working surface can be extremely hazardous. OSHA believes corrections and repairs involving the structural integrity of a walking-working surface require the skill of a qualified person to ensure that affected surfaces are safe during and after repair or correction.

    OSHA received three comments that raised concerns about the requirement in proposed paragraph (d)(3). Steven Smith of Verallia stated:

    The duty to inspect, to guard, or take out of use certain areas, and to require `qualified persons' be present for all repairs is duplicative of other OSHA requirements and adds additional layers of procedure and cost to employers that are unduly burdensome and unnecessary (Ex. 171).

    Robert Miller of Ameren Corporation said:

    Oft times repairs to facility equipment is performed by contractors and their employees or supervisors would be considered qualified. As paragraph (d)(3) reads, this may be interpreted to mean that the employer is responsible to staff qualified employees for all structural repairs to walking and working surfaces. Clarity of expectations needs to be taken into consideration in the final version (Ex. 189).

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    Charles Lankford commented:

    I believe it is excessive to ask of someone assigned to sand or scrape excessive rust off the metal treads of stairways and then paint them, to possess a degree or demonstrated `extensive knowledge training, and experience' . . . . The more appropriate option here would be to require a qualified person for those applications where he/she is specifically required, and allow for a `competent' person to apply his/her competency for the broad scope of tasks which he/

    she is well-suited to perform (Ex. 368).

    OSHA believes the commenters have misinterpreted proposed paragraph (d)(3) as requiring qualified persons to conduct all correction and repair tasks. To the contrary, final paragraph (d)(3) is narrowly drawn. The final rule only requires that a qualified person perform or supervise the correction or repair of a walking-working surface if the correction or repair affects the structural integrity of the walking-

    working surface. If the correction or repair task does not rise to that level, the final rule does not require the employer to have a qualified person perform or supervise the task. Thus, using Mr. Lankford's example, final paragraph (d)(3) does not require employers to have a qualified person, as defined in this rule, perform or supervise sanding or scraping rust off of stairway treads. However, for example, a qualified person may have to perform or supervise welding a broken rung on a metal ladder.

    To ensure that employers clearly understand the limited scope of final paragraph (d)(3), OSHA revised and reorganized the provision. For example, OSHA revised the language in the final rule to clarify that it only applies to repairs and corrections that affect the structural integrity of a walking-working surface, and not to the general maintenance of walking-working surfaces.

    Mr. Smith generally commented that the requirements in proposed paragraph (d) were subjective and vague; however, he did not provide any explanation or examples to substantiate these comments (Ex. 171). OSHA disagrees with these comments. Pursuant to the OSH Act (29 U.S.C. 655(b)(5)), OSHA used performance-oriented language in paragraph (d) to provide employers with greater flexibility in complying with the requirements. As discussed above, OSHA also revised the language in paragraph (d) to provide greater clarity. In addition, this preamble explains in detail what employers must do to comply with the inspection, maintenance, and repair requirements in final paragraph (d).

    Section 1910.23--Ladders

    Final Sec. 1910.23 revises and consolidates into one section the existing ladder requirements in Sec. Sec. 1910.25 (Portable wooden ladders), 1910.26 (Portable metal ladders), 1910.27 (Fixed ladders), and 1910.29 (Mobile ladder stands and scaffolds (tower)). The final rule retains many of the existing requirements because OSHA believes they continue to provide an appropriate level of worker safety.

    The final rule also updates and revises the existing OSHA general industry ladder rules to increase safety, clarity, consistency, and flexibility. To illustrate, the final rule revises the existing ladder requirements to make them consistent with OSHA's construction ladder standard (29 CFR 1926.1053). This action will make compliance easier for employers engaged in both general industry and construction operations.

    Similarly, the final rule updates existing ladder requirements to make them consistent with current national consensus standards addressing ladders, including:

    American National Standards Institute (ANSI) A14.1-2007, American National Standard for Ladders--Wooden--Safety Requirements (A14.1-2007) (Ex. 376);

    ANSI A14.2-2007, American National Standard for Ladders--

    Portable Metal--Safety Requirements (A14.2-2007) (Ex. 377);

    ANSI A14.3-2008, American National Standard for Ladders--

    Fixed--Safety Requirements (A14.3-2008) (Ex. 378);

    ANSI A14.5-2007, American National Standard for Ladders--

    Portable Reinforced Plastic--Safety Requirements (A14.5-2007) (Ex. 391); and

    ANSI A14.7-2011, American National Standard for Mobile Ladder Stands and Mobile Ladder Stand Platforms (A14.7-2011) (Ex. 379).

    Throughout the summary and explanation of final Sec. 1910.23, OSHA identifies which provisions are consistent with these national consensus standards. OSHA believes this is important because national consensus standards represent accepted industry practices, and thus are technologically and economically feasible. Moreover, since most of those national consensus standards have been in place for years, OSHA believes that virtually all ladders this section covers that are manufactured today meet the requirements in those standards. As such, employers should not have problems complying with the requirements in the final rule that OSHA drew from those standards.

    OSHA notes that final Sec. 1910.23 incorporates a number of revisions to make the final rule easier for employers and workers to understand and follow. First, as mentioned, OSHA has consolidated all of the general industry ladder provisions into this section. Second, within this section, OSHA has consolidated into a single paragraph the general requirements that are common to, and apply to, all types of ladders. These revisions eliminate unnecessary repetition, and make the section easier to follow. The organization of the consolidated final ladder requirements is:

    Paragraph (a) Application--This paragraph specifies the types of ladders the final rule covers or exempts;

    Paragraph (b) General requirements for all ladders--This paragraph specifies the requirements that are common to, and apply to, all types of ladders the final rule covers;

    Paragraph (c) Portable ladders--This paragraph specifies the requirements that apply to portable ladders, including wood, metal, and fiberglass or composite material portable ladders;

    Paragraph (d) Fixed ladders--This paragraph covers the provisions that apply to fixed ladders, including individual-rung ladders; and

    Paragraph (e) Mobile ladder stands and mobile ladder stand platforms--This paragraph updates existing OSHA requirements for mobile ladder stands, and adds requirements for mobile ladder stand platforms.

    Third, in the final rule OSHA revises existing provisions to make them performance-based, whenever appropriate. Performance-based language gives employers maximum flexibility to comply with the requirements in the final rule by using the measures that best fit the individual workplace.

    Finally, when possible, OSHA drafted final Sec. 1910.23 in plain language, which also makes the final rule easier to understand than the existing rules. For example, the final rule uses the term ``access'' instead of ``access and egress,'' which OSHA used in the existing and proposed rules. OSHA believes this revision makes the final rule easier to understand than the existing and proposed rules. Moreover, using ``access'' alone eliminates potential confusion since the term ``egress'' is often linked, and used interchangeably with, the term ``means of egress,'' or ``exit routes,'' which 29 CFR part 1910, subpart E (Exit Routes and Emergency Planning), addresses. The purpose of

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    that subpart is to establish requirements that provide workers with safe means of exit from workplaces, particularly in emergencies. That subpart does not address access to, and egress from, walking-working surfaces to perform normal and regular work operations. OSHA notes this rulemaking on walking-working surfaces does not affect subpart E.

    OSHA believes the need for the vast majority of the provisions in final Sec. 1910.23 is well settled. Pursuant to section 6(a) of the OSH Act (29 U.S.C. 655(a)), OSHA adopted most of them in 1971 from existing national consensus standards. Furthermore, all of the ANSI ladder standards, with the exception of A14.7-2011, Mobile Ladder Stands, derive from the original A14, American National Standard Safety Code for Construction, Care, and Use of Ladders, which ANSI first adopted in 1923. ANSI also revised and updated those standards regularly since then to incorporate generally accepted industry best practices.

    With the revision of OSHA's ladder requirements for general industry, OSHA also revised the ladder requirements in other general industry standards. For example, OSHA replaced the ladder requirements in 29 CFR 1910.268 (Telecommunications) with the requirement that ladders used in telecommunications meet the requirements in 29 CFR part 1910, subpart D, including Sec. 1910.23.

    Paragraph (a)--Application

    Final paragraph (a), similar to the proposal, requires that employers ensure that each ladder used in general industry, except those ladders the final rule specifically excepts, meets the requirements in final Sec. 1910.23. Final paragraph (a) consolidates and replaces the application requirements in each of the existing OSHA ladder rules with a uniform application provision applicable to all ladders; Sec. 1910.21(b) defines ``ladder'' as ``a device with rungs, steps, or cleats used to gain access to a different elevation.''

    Final paragraph (a) includes two exceptions. First, final paragraph (a)(1) specifies that Sec. 1910.23 excepts ladders used in emergency operations such as firefighting, rescue, and tactical law enforcement operations or training for these operations. The proposed rule limited the exception to firefighting and rescue operations, but the final rule expanded that exception to cover all emergency operations and training, including tactical law enforcement operations. OSHA believes this exception is appropriate because of the exigent conditions under which emergency responders perform those operations and training.

    OSHA based the expansion of the exception for all emergency operations in part on comments from David Parker, manager of the risk-

    management section for the Pima County (Tucson, AZ) Sheriff's Office and Public Risk Management Association (PRIMA) board member, which represents 1,500 public-sector members, including the following comment:

    The impact of the proposed rulemaking on public entities is particularly important in view of the fact that some of the requirements within the proposed rule may well be reasonable, necessary, cost effective and technologically feasible in common industrial environments. But they can create significant challenges and greater hazard when extended to certain public entity activities such as police tactical operations and training (Ex. 329, 01/20/

    2011, p. 7).

    Mr. Parker also said that applying the ladder requirements to emergency operations, specifically law enforcement tactical situations, and their training exercises, was impractical because those operations require ladders designed for fast placement and access.

    Second, final paragraph (a)(2), like the proposed rule, exempts ladders that are designed into or are an integral part of machines or equipment. OSHA notes this exemption applies to vehicles that the Department of Transportation (DOT) regulates (e.g., commercial motor vehicles). In particular, the Federal Motor Carrier Safety Administration (FMCSA) regulates the design of ladders on commercial motor vehicles. Section 4(b)(1) of the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 653(b)(1)) specifies that OSHA regulations do not apply where another Federal Agency ``exercises statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.''

    Final paragraph (a)(2) is consistent with OSHA's ladder requirements for marine terminals (29 CFR 1917.118(a)(1)), which excepts ladders that are an integral part of transportation-carrier equipment (e.g., cargo containers, highway carriers, railway cars).

    The exceptions in final paragraph (a) differ from the exceptions in the existing OSHA ladder rules (i.e., Sec. Sec. 1910.25 (Portable wood ladders) and 1910.29 (Manually propelled mobile ladder stands and scaffold (towers))). Existing Sec. 1910.25 notes that it does not specifically cover the following ladders: Other specialty ladders, fruitpicker's ladders, combination step and extension ladders, stockroom step ladders, aisle-way step ladders, shelf ladders, and library ladders. This final rule does not carry forward those exceptions. Thus, if an orchard ladder (formerly a fruitpicker's ladder) meets the definition of ladder in this final rule (i.e., ``a device with rungs, steps, or cleats used to gain access to a different elevation'') and is used in general industry, the employer must ensure that it meets the requirements in the final rule. However, OSHA notes that the final rule does not apply to an orchard ladder used solely in agricultural activities covered by 29 CFR part 1928.

    Existing Sec. 1910.29(a) specifies that it does not cover ``aerial ladders;'' however, the existing rule does not define this term. Section 1910.67 (Vehicle-mounted elevating and rotating work platforms) defines ``aerial ladder'' as a ``device consisting of a single- or multiple-section extension ladder'' mounted on a vehicle (Sec. 1910.67(a)(2)). Although the final rule does not specifically except aerial ladders, OSHA believes that aerial ladders come within the exception for ladders designed into, or that are an integral part of, a machine or equipment, which includes vehicles.

    OSHA did not receive any comments on paragraph (a) of the proposed rule and, therefore, adopted it as revised.

    Paragraph (b)--General Requirements for All Ladders

    Final paragraph (b), like the proposed rule, establishes general requirements that apply to all ladders this section covers, including wood, metal, and fiberglass or composite ladders, portable and fixed ladders, stepladders and stepstools, mobile ladder stands and mobile ladder stand platforms, and other ladders such as job-made ones. The final rule draws most of the provisions in this paragraph from the existing OSHA ladder standards for general industry and construction with the goal of making these standards consistent. OSHA also draws a number of provisions from the national consensus standards listed above.

    Final paragraph (b)(1), like the proposed rule, requires that employers ensure ladder rungs, steps, and cleats are parallel, level, and uniformly spaced when the ladder is in position for use. The final provision is consistent with OSHA's other ladder requirements in general industry, marine terminals, longshoring, and construction (see Sec. Sec. 1910.25(c)(2)(i)(B), 1910.27(b)(1)(ii), 1910.268(h)(2) and (6), 1917.118(d)(2)(i), 1917.119(b)(2), 1918.24(f)(2), 1926.1053(a)(2)). Final paragraph (b)(1) also is consistent with the ANSI ladder standards (A14.1-2007, Sections 6.2.1.2, 6.3.1.2, 6.4, and 6.5.4; A14.2-2007, Section 5.3; A14.3-2008, Sections 5.1.1,

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    and 5.1.3(e); and A14.7-2011, Section 4.3.3). As mentioned, OSHA believes the need for this ladder requirement is well settled. Most of OSHA's existing ladder requirements include this provision, as do all of the ANSI ladder standards.

    Final paragraph (b)(1) adds the word ``cleats,'' which is common terminology for a type of ladder cross-piece. OSHA added the term, which is interchangeable with ``rungs'' and ``steps,'' to make final paragraph (b)(1) consistent with other Agency ladder standards and national consensus standards. OSHA did not receive any comments on the proposed provision.

    Final paragraphs (b)(2) and (3) establish requirements for spacing between rungs, steps, and cleats on different types of ladders. With the exception of ladders in elevator shafts, the final rule requires that employers measure spacing between the centerlines (midpoint) of the rungs, steps, or cleats. Measuring the spacing at the centerline of the rung, step, or cleat ensures that measurements are done consistently throughout the length of the ladder and variations between different steps are minimal.

    Like the proposed rule, final paragraph (b)(2) requires that, except for ladders in elevator shafts and telecommunication towers, employers ensure ladder rungs, steps, and cleats are spaced not less than 10 inches and not more than 14 inches apart. OSHA drew the proposed and final requirement from its construction ladder standard (Sec. 1926.1053(a)(3)(i)), which OSHA updated in 1990 (55 FR 47660 (11/14/1990)). Final paragraph (b)(2) is consistent with OSHA standards that have flexible vertical-spacing requirements. For example, OSHA's Telecommunications standard at 29 CFR 1910.268 specifies that vertical spacing on fixed ladders on communication towers not exceed 18 inches (Sec. 1910.268(h)(2)), and vertical spacing of rungs on climbing devices be not less than 12 inches and not more than 16 inches apart (Sec. 1910.268(h)(6)). In addition, three maritime standards specify that rungs be spaced between 9 to 16.5 inches apart (Sec. Sec. 1917.118(d)(2)(1); 1917.119(b)(2); 1918.24(f)(2)).

    Final paragraph (b)(2) provides greater flexibility than ANSI's ladder standards, most of which require that vertical spacing be 12 inches (A14.1-2007, Sections 6.2.1.2 and 6.3.1.2; A14.2-2007, Section 5.3; and A14.3-2008, Section 5.1.1), but the A14.7-2011 standard incorporates flexible vertical spacing on mobile ladder stands by specifying that vertical spacing not exceed 10 inches (Section 4.3.3).

    Although OSHA believes that both the final rule and existing OSHA and national consensus ladder standards provide adequate protection, the Agency also believes it is important that the final rule be consistent with the construction ladder requirements (Sec. 1926.1053). OSHA recognizes that some employers and workers perform both general industry and construction work. Increasing consistency between OSHA's general industry and construction standards will assist those employers and workers in complying with the OSHA requirements, and also will minimize the potential for confusion. In addition, providing greater flexibility will give employers more options to tailor ladders to specific work operations. There were no comments on the proposed provision.

    The final rule, like the proposal, adds two exceptions to paragraph (b)(2). Final paragraph (b)(2)(i) specifies that employers must ensure rungs and steps on ladders in elevator shafts are spaced not less than 6 inches and not more than 16.5 inches apart, as measured along the ladder side rails.

    Final paragraph (b)(2)(ii) specifies that employers ensure that vertical spacing on fixed ladder rungs and steps on telecommunication towers not exceed 18 inches, which is consistent with the existing requirement in OSHA's Telecommunications standard in Sec. 1910.268(h)(2). Final paragraph (b)(2)(ii) also adds the phrase ``measured between the centerlines of the rungs or steps.'' This addition clarifies the provision, and makes it consistent with final paragraphs (b)(2) and (3), which also requires vertical spacing to be measured between rung or step centerlines. OSHA did not receive any comments on the proposed exceptions.

    Final paragraph (b)(3), like the proposed rule, addresses vertical spacing for stepstool steps. The final rule requires that employers ensure stepstool steps are spaced not less than 8 inches, and not more than 12 inches, apart, as measured between centerlines of the steps. The final paragraph (b)(3) deleted the terms ``rungs'' and ``cleats'' from the proposal because stepstools do not have them.

    OSHA proposed requirements for stepstools in recognition that employers use stepstools routinely in general industry. However, stepstools differ from stepladders and other portable ladders, and OSHA does not believe that some of the requirements applicable to stepladders are appropriate for stepstools. The final rule defines a stepstool as a self-supporting, portable ladder with flat steps and side rails that is designed so an employee can climb on all of the steps and the top cap. A stepstool is limited to those ladders that are not height adjustable, do not have a pail shelf, and do not exceed 32 inches (81 cm) in overall height to the top cap, except that side rails may continue above the top cap (Sec. 1910.21(b)).

    Stepladders and other portable ladders, by contrast, do not have height limits, and the final rule requires that employers ensure workers do not stand on the top step or cap of those ladders.

    OSHA drew final paragraph (b)(3) from its construction ladder standards (Sec. 1926.1053(a)(3)(ii)), and the final rule is consistent with the ANSI ladder standards that address stepstools (A14.1-2007, Section 6.5.4; and A14.2-2007, Section 6.6.4). These standards also address stepstools differently from step ladders and other portable ladders.

    OSHA believes that employers should not have any difficulty complying with final paragraph (b)(3). The A14.1-2007 and A14.2-2007 standards have been available for years, so OSHA believes that almost all stepstools currently in use already meet the requirements in the final rule. OSHA did not receive any comments on proposed paragraph (b)(3).

    Final paragraph (b)(4) consolidates OSHA's existing requirements on the minimum clear width for rungs, steps, and cleats on portable and fixed ladders (Sec. Sec. 1910.25, 1910.26, 1910.27). The final rule requires employers to ensure that ladder rungs, steps, and cleats on portable and fixed ladders have a minimum ``clear width'' of 11.5 inches and 16 inches, respectively. ``Clear width'' is the space between ladder side rails, but does not include the width of the side rail. OSHA also incorporates as paragraph (b)(4) the proposed note informing employers that the clear width measurement on fixed ladders is done before installation of any ladder safety system.

    Generally, the final rule is consistent with OSHA's existing ladder standards, notably OSHA's standards for portable wood ladders, fixed ladders, mobile ladder stands and platforms, and construction ladders (existing Sec. Sec. 1910.25(c)(2)(i)(c)); 1910.27(b)(1)(iii); 1910.29; and current Sec. 1926.1053(a)(4)). The final rule differs slightly from the existing rule for portable metal ladders, which required a minimum clear width of 12 inches (Sec. 1910.26(a)(2)(i)). However, the final rule will not require employers to take any action since the existing portable metal ladder rules already meet the minimum 11.5-inch clear-width requirement of the final rule. In addition, OSHA removed the term ``individual-rung ladder'' from

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    final paragraph (b)(4) because these ladders are a type of fixed ladder and, therefore, do not need a separate listing.

    The final rule also is consistent with the ANSI ladder standards (A14.1-2007, Sections 6.2.1.3, 6.3.2.4, 6.3.3.8, 6.3.4.3, 6.3.5.4, and 6.4.1.3; A14.2-2007, Sections 6.1.3, 6.2.1, and 6.2.2; and A14.3-2008, Section 5.1.2). Although the minimum clear widths in the ANSI standards differ depending on the type of portable or fixed ladder used, virtually all of these standards require the minimum clear width specified by the final rule.

    Final paragraph (b)(4) contains four exceptions to the minimum clear-width requirement. First, final paragraph (b)(4)(i), like the proposal, includes an exception for ladders with narrow rungs that are not designed to be stepped on, such as those located on the tapered end of orchard ladders and similar ladders. This exception recognizes that manufacturers did not design the narrow rungs at the tapered end of the ladder to be foot holds, but rather designed them to allow the worker to establish the best work position. For example, tapered ladders allow workers to safely position the ladder for activities such as pruning tree branches. Since workers will not use the narrow rungs on the tapered end of orchard and other similar ladders for stepping, OSHA believes that it is not necessary to apply the clear width requirements in the final rule to the narrow rungs on these ladders. However, OSHA stresses that the exception only applies to the narrow rungs on the tapered end; the remainder of the ladder rungs where workers may step must meet the requirements in the final rule. Moreover, employers are responsible for ensuring that workers do not step on the narrow rungs.

    Second, final paragraph (b)(4)(ii) retains the proposed rule's exception for portable manhole entry ladders supported by manhole openings. The final rule only requires that the rungs and steps of those ladders have a minimum clear width of 9 inches. Southern New England Telephone Co. said the revision was necessary because the ladder supported at the manhole opening reduces clearance for workers climbing through the manhole opening (Ex. OSHA-S041-2006-0666-0785). The commenter also said that using a narrower ladder provides more space for workers to negotiate the manhole opening, which makes it less likely that space restrictions could cause the worker to fall.

    Third, final paragraph (b)(4)(iii), like the proposal, incorporates the exception in OSHA's Telecommunications rule (Sec. 1910.268(h)(5)) for rolling ladders used in telecommunications centers. That standard only requires that rungs and steps on rolling ladders used in telecommunication centers have a minimum clear width of 8 inches. OSHA notes that the final rule deletes the existing requirements in Sec. 1910.268(h), and specifies that ladders used in telecommunications must meet the requirements in revised subpart D.

    Final paragraph (b)(4)(iv) is a new requirement that addresses the minimum clear width for stepstools, which OSHA defines as a type of portable ladder (Sec. 1910.21(b)). The final rule specifies that stepstools must have a minimum clear width of at least 10.5 inches instead of the 11.5-inch minimum clear width that the final rule requires for other portable ladders. Although OSHA did not receive any comments on this issue, in accordance with section 6(b)(8) of the OSH Act (29 U.S.C. 655(b)(8)), the Agency added this provision to make the rule consistent with ANSI/ALI national consensus standards for wood and metal portable ladders (A14.1-2007 and A14.2-2007).

    As mentioned above, final paragraph (b)(4) incorporates into this provision the language from a note in the proposal specifying the minimum clear width on fixed ladders is to be measured before installing ladder safety systems. OSHA included the information to help employers understand how OSHA measures clear width on fixed ladders for compliance purposes and has determined that the information may better serve employers in the actual provision, instead of in a note. OSHA did not receive any comments on the proposed provision.

    Final paragraph (b)(5), like the proposal, adds a new requirement that employers ensure wooden ladders are not coated with any material that may obscure structural defects. Such defects, if hidden by coating or paint, could injure or kill workers if the defected ladder they step on breaks or collapses. OSHA drew the final rule from its construction ladder standard, which prohibits coating wood ladders with any ``opaque covering'' (Sec. 1926.1053(a)(12)), but adds language identifying the hazard that the provision will prevent (i.e., workers using defective ladders with obscured ``structural defects''). The final rule is consistent with A14.1-2007, which specifies that wood ladders may have transparent, non-conductive finishes (e.g., shellac, varnish, clear preservative) but not with opaque finishes (see A14.1-2007, Section 8.4.6.3). The A14.3-2008 standard includes the same requirement for fixed wood ladders (Section 9.3.8). OSHA believes that A14.1-2007 and A14.3-2008 provide helpful examples of the types of coatings that the final rule prohibits. OSHA did not receive any comments on the proposed provision.

    Final paragraph (b)(5) does not carry forward the language in the construction and ANSI ladder standards that allows identification or warning labels to be placed on one face of the side rails. OSHA does not believe the language is necessary for two reasons. First, for purposes of final paragraph (b)(5), OSHA does not consider manufacturer-applied warning and information labels to be ``coatings,'' therefore, final paragraph (b)(5) does not prohibit placing labels on one side of side rails. Second, OSHA believes that the requirements in final paragraph (b)(9) to inspect ladders before initial use each workshift to identify defects, and the requirement in final paragraph (b)(10) to remove defective ladders from service, will ensure that employers do not use ladders with structural defects, even structural defects covered up by labels placed on the face of side rails. OSHA did not receive any comments on the proposed provision.

    Final paragraph (b)(6) requires that employers ensure metal ladders are made with corrosion-resistant material or are protected against corrosion. For example, metal ladders coated or treated with material that resists corrosion will meet this requirement. Alternatively, employers may use metal ladders made with material that is inherently corrosion-resistant, such as aluminum. OSHA believes this provision is necessary to protect workers because rusty metal ladders can become weak or fragile, and can break when a worker steps on them. To illustrate, untreated metal ladders exposed to certain acids may experience chemical corrosion that could reduce the strength of the metal.

    Final paragraph (b)(6) carries forward the language in OSHA's existing portable metal ladders standard (Sec. 1910.26(a)(1)), and is consistent with a similar provision in the existing fixed ladder standard (Sec. 1910.27(b)(7)(i)). The final rule also retains the language in the existing rule that employers do not have to protect metal ladders that are inherently corrosion resistant. In the proposed rule, OSHA preliminarily determined that this language was not necessary because ladders ``protected against corrosion'' included ladders made of inherently corrosion-resistant material. However, upon further analysis, OSHA believes that retaining the existing language (Sec. 1910.26(a)(i)) makes the final rule clearer and better reflects the purpose of this provision.

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    OSHA did not receive any comments on the proposed provision.

    Final paragraph (b)(7), like the proposed rule, specifies that employers must ensure ladder surfaces are free of puncture and laceration hazards. Workers can suffer cuts and puncture wounds if a ladder has sharp edges or projections, splinters, or burrs. The final rule consolidates and simplifies OSHA's existing ladder requirements addressing puncture and laceration hazards (see Sec. Sec. 1910.25(b)(1)(i) and (c)(2)(i)(f); 1910.26(a)(1) and (a)(3)(viii); and 1910.27(b)(1)(iv) and (b)(2)). Although final Sec. 1910.22(a)(3) contains a similar general requirement, OSHA believes it is important to include language in final paragraph (b)(7) to emphasize the need to keep ladders free of such hazards to prevent injuries and falls. For example, a worker's instantaneous reaction to getting cut on a sharp projection could be to release his or her grip on the ladder, which could cause the worker to fall. OSHA did not receive any comments on the proposed provision.

    Final paragraph (b)(8), like the proposed rule, requires that employers ensure ladders are used only for the purposes for which they were designed. OSHA believes, as the ANSI standards states, that ``proper use of ladders will contribute significantly to safety'' (A14.1-2007, Section 8.1.5; A14.2-2007, Section 8.1.5; and A14.3-2008, Section 9.1.2). Improper use of a ladder can cause workers to fall.

    Final paragraph (b)(8) revises the existing general industry ladder rules. Using performance-based language, final paragraph (b)(8) consolidates the existing general industry requirements on permitted and prohibited uses of ladders (Sec. Sec. 1910.25(d)(2) and 1910.26(c)(3)(vii)). Those standards specify a number of uses that are clearly unsafe and, thus, prohibited, such as using ladders for scaffold planks, platforms, gangways, material hoists, braces, or gin poles. However, the existing rules do not, and could not, provide an exhaustive list of all unsafe uses. For example, the existing rules do not specifically prohibit self-supporting portable metal ladders to be used as a scaffold plank support system, yet such practices are clearly dangerous and an improper use of ladders. Therefore, final paragraph (b)(8) revises the existing rules to specify how employers must use ladders, instead of specifying a longer, but still incomplete, list of prohibitions. OSHA's approach to final paragraph (b)(8) is consistent with A14.3-2008, which states, ``The guidelines discussed in this section do not constitute every proper or improper procedure for the maintenance and use of ladders (Section 9.1.1.).'' Accordingly, the prohibited uses listed in the existing rules continue to be improper procedures for the use of ladders, which this final rule continues to prohibit.

    Final paragraph (b)(8) is virtually identical to OSHA's construction ladder standard (Sec. 1926.1053(b)(4)), and is consistent with the ANSI ladder standards (A14.1-2007, Section 8.3; A14.2-2007, Section 8.3; and A14.3-2008, Section 9.1.2). Final paragraph (b)(8) does not carry forward the language in existing Sec. 1910.26(c)(3)(vii), which prohibits employers from using ladders for certain purposes ``unless specifically recommended for use by the manufacturer.'' OSHA believes that requiring employers to use ladders ``only for the purposes for which they were designed emphasis added'' achieves the same purpose. In addition, the revised language in the final rule ensures that the revised requirement also covers job-made ladders the employer designs. OSHA did not receive any comments on the proposed provision.

    Final paragraph (b)(9) requires that employers ensure ladders are inspected before initial use in each work shift, as well as more frequently as necessary. The purpose of this inspection is to identify visible defects that could affect the safe use and condition of the ladder and remove unsafe and damaged ladders from service before a worker is hurt. Employers may accomplish the visual inspection as part of the worker's regular procedures at the start of the work shift. The final rule differs in two respects from the existing and proposed standards. First, the final rule states more explicitly than the existing and proposed rules when the inspection of each ladder must be done: before using the ladder for the first time in a work shift. Two of OSHA's existing general industry rules require that employers inspect ladders ``frequently'' and ``regularly'' (Sec. Sec. 1910.25(d)(1)(x) and 1910.27(f)). OSHA's construction ladder standard requires employers to inspect ladders ``on a periodic basis'' (Sec. 1926.1053(b)(15)).

    In the proposed rule, OSHA sought to clarify the frequency of ladder inspections. OSHA drew on the language in its longshoring ladder standard (Sec. 1918.24(i)(2)) and A14.1-2007 and A14.2-2007. OSHA's longshoring standard requires that employers inspect ladders ``before each day's use'' (Sec. 1918.24(i)(2)), and the ANSI standards require that employers inspect ladders periodically, ``preferably before each use'' (A14.1-2007, Section 8.4.1.; and A14.2-2007, Section 8.4.1). Based on those standards, OSHA proposed that employers inspect ladders ``before use.'' OSHA intended the proposed language to mean that employers must ensure ladders are inspected before workers use them for the first time during a work shift. OSHA believes the language in final paragraph (b)(9) more clearly and directly states the Agency's intention.

    Second, final paragraph (b)(9) adds language specifying that, in addition to inspecting ladders before they are used for the first time during the work shift, employers also must inspect ladders ``as necessary'' to identify defects or damage that may occur during a work shift after the initial check. OSHA believes that situations may arise or occur during a work shift that necessitate employers conducting additional inspections of ladders to ensure that they continue to remain safe for workers to use. For example, if a ladder tips over, falls off a structure (e.g., roof) or vehicle, is struck by an object (e.g., vehicle or machine), or used in a corrosive environment, it needs to be inspected to ensure damage has not occurred and the ladder is still safe to use. The final rule is consistent with the existing requirement for portable metal ladders Sec. 1910.26(c)(2)(vi), which specifies that employers must inspect ladders ``immediately'' if they tip over or are exposed to oil or grease. Similarly, OSHA's marine terminal and longshoring standards require that employers inspect ladders ``after any occurrence, such as a fall, which could damage the ladder'' (29 CFR 1917.119(e)(2) and 1918.24(i)(2)). OSHA believes the addition to final paragraph (b)(9) will help employers implement a proactive approach that ensures ladders are safe at the start of, and throughout, each work shift. The final rule better articulates OSHA's intent in the proposal for the frequency of inspections. (See 75 FR 28876, noting that workers need not inspect ladders multiple times per shift ``unless there is a reason to believe the ladder has been damaged due to an event such as being dropped.'')

    Final paragraph (b)(9) provides employers with flexibility to tailor ladder inspections to the situations requiring them. For example, inspections conducted at the start of the work shift may include checking the ladder to ensure the footing is firm and stable, engaging spreader or locking devices to see if they work, and identifying whether there are missing or damaged components. If a ladder tips over, the employer may focus the inspection on identifying whether footing problems may have caused the

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    tip-over or examining whether rungs are still firmly attached. On the other hand, the existing rule does not provide this flexibility and requires that all inspections conducted after a tip over must include the following:

    Side rails for dents or bends;

    Rungs for excessive dents;

    All rung-to-side-rail connections;

    Hardware connections; and

    Rivets for shear (existing Sec. 1910.26(c)(2)(vi)(a)).

    OSHA believes this list of inspection procedures may be both over-

    inclusive and under-inclusive. For example, the existing rule does not specify that the inspection cover the ladder footing. OSHA believes that using performance-based language will allow employers to determine the scope of the inspection that may be necessary.

    Finally, OSHA notes that the revisions simplifying final paragraphs (b)(8) and (9) are consistent with the goals of the Plain Language Act of 2010. OSHA did not receive any comments on these proposed provisions.

    Final paragraph (b)(10), which is almost identical to the proposed rule, requires that employers immediately tag ladders with structural or other defects ``Dangerous: Do Not Use'' or similar language that is in accordance with Sec. 1910.145. In addition, final paragraph (b)(10) requires that employers remove defective ladders from service until the employer repairs them in accordance with Sec. 1910.22(d) or replaces them. Final Sec. 1910.22(d)(2) contains a general requirement that employers correct, repair, or guard against ``hazardous conditions on walking-working surface surfaces,'' including ladders. However, OSHA believes it is important to also include a specific requirement in this section because falling from a defective ladder could seriously injure or kill workers. Final paragraph (b)(10) clearly instructs employers of the minimum procedures (i.e., tagging, removing, and repairing or replacing) that they must take when an inspection reveals a ladder to be defective. Final paragraph (b)(10), like final Sec. 1910.22(d)(2), is a companion, and logical extension, to the requirements that employers maintain walking-working surfaces, including ladders, in a safe and serviceable condition, and inspect them as required (Sec. Sec. 1910.22(d)(1); 1910.23(b)(9)).

    Final paragraph (b)(10) is a performance-based consolidation of the existing general industry, maritime, and construction requirements (Sec. Sec. 1910.25(d)(1)(iii), (d)(1)(x), and (d)(2)(viii); 1910.26(c)(2)(vii); 1915.72(a)(1); 1917.119(e)(1); 1918.24(i)(1); and 1926.1053(b)(16)). Some of these standards are similar to the final rule, while other standards specify particular ladder defects that necessitate removing the ladder from service. For example, the construction ladder standard requires removal of ladders that have defects such as broken or missing rungs, cleats, or steps; broken rails; or corroded ladder components (Sec. 1926.1053(b)(16)), and the existing general industry portable wood ladders standard requires employers to replace frayed rope (Sec. 1910.25(d)(i)(iii)). The final rule simplifies the existing requirements by specifying that employers remove ladders that have ``structural or other defects.'' OSHA believes this approach will make the final rule easier to understand. As noted above, the defects listed in the existing rules in Sec. Sec. 1910.25(d)(2)(viii) and 1910.26(c)(2)(vii)) continue to warrant removal of the ladder from service.

    Final paragraph (b)(10) retains the key signal warning word ``Dangerous'' in existing Sec. 1910.25(d)(1)(x). OSHA proposed to remove the word from the regulatory text and include it in guidance material. After further analysis, OSHA believes that retaining the signal word is necessary to get workers' attention to provide them with basic information that a hazard exists and they must not use the ladder. OSHA did not receive any comments on proposed paragraph (b)(10).

    Final paragraphs (b)(11), (12), and (13), like the proposed rule, are companion provisions that establish safe work practices for climbing ladders. The final paragraphs are almost identical to OSHA's construction ladder standard (see Sec. 1926.1053(b)(20), (21), and (22)). OSHA notes that final paragraphs (b)(11), (12), and (13) apply to all ladders this section covers, including mobile ladder stands and mobile ladder stand platforms.

    Final paragraph (b)(11), like the existing (Sec. 1910.26(c)(3)(v)) and proposed rules, requires that employers ensure workers face the ladder when climbing up and down it. The final rule also is almost identical to OSHA's construction ladder standard (Sec. 1926.1053(b)(20)) and the ANSI ladder standards (A14.1-2007, Section 8.3.7; A14.2-2007, Section 8.3.7; and A14.3-2008, Section 9.2.1). Facing the ladder while climbing ensures that workers are able to maintain a firm grip on the ladder and also identify possible defects before climbing any higher. Accordingly, workers are to face the steps, not away from them, when climbing up and down mobile units.

    To make final paragraph (b)(11) easier to understand, OSHA replaced the existing and proposed language ``ascending or descending'' with plain language: Climbing up and down. This revision is consistent with general comments recommending that OSHA make the final rule easier to read and understand (Exs. 53; 175). OSHA did not receive any comments on the proposed provision.

    Final paragraph (b)(12), like the proposed rule, adds a new provision requiring that employers ensure workers use ``at least one hand to grasp the ladder at all times when climbing up and down it.'' \19\ As stated in the proposal, the intent of this provision is for employers to ensure their workers maintain ``three-point contact'' (i.e., three points of control) with the ladder at all times while climbing. The A14.3-2008 standard requires three-point contact and defines the term as consisting of ``two feet and one hand or two hands and one foot which is safely supporting users weight when ascending/

    descending a ladder'' (Section 9.2.1). OSHA drew final paragraph (b)(12) from its construction ladder standard (Sec. 1926.1053(b)(21)). The final provision also is consistent with ANSI ladder standards.

    ---------------------------------------------------------------------------

    \19\ OSHA notes paragraph (b)(12) pertains only to the process of climbing up and down the ladder, not working on the ladder once the worker reaches the correct level.

    ---------------------------------------------------------------------------

    The final rule requires that employees ``grasp'' the ladder with at least one hand when climbing, which is equivalent to the requirement in A14.1-2007 and A14.2-2007 to ``maintain a firm hold on the ladder'' (A14.1-2007, Section 8.3.7.; A14.2-2007, Section 8.3.7). At the hearing, Ellis explained the importance of maintaining a firm grasp on the ladder at all times, ``Falls happen very suddenly and unless you have your hand on something or your foot on something that's horizontal and flat or round * * * you're going to be surprised. And once you get to a few inches away the speed of the fall is such you can't reach--you can't grab, that's why you can't stop a fall'' (Ex. 329 (1/21/2011), p.277). Many stakeholders said employers already train workers to use three-point contact when climbing ladders (e.g., Exs. 148; 158; 181).

    NCSG contended that an employer can comply with this requirement if its employees slide one hand along the rail of the ladder while climbing so that the other hand is free to carry an object (Ex. 150). It claimed that merely maintaining ``contact'' between the hand and the ladder at all times was sufficient (see Ex. 329 (1/18/2011), p. 289). OSHA does not agree that this technique is grasping the ladder within the meaning of paragraph (b)(12). It is important that a climber have a firm hold on the ladder

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    with at least one hand to help ensure that the climber maintains his or her balance. Moreover, as Ellis noted, when a climber starts to lose balance, the climber needs ``the grip available to stabilize the body'' (Ex. 329 (1/21/2011), p. 275-76). OSHA notes that it rejected NCSG's ``sliding hand'' technique as unsafe when it adopted the construction standard; in fact, the construction standard uses the term ``grasp'' precisely because OSHA intended to forbid the practice (55 FR 47682).

    OSHA notes that the requirement that a worker maintain a firm grasp of the ladder with at least one hand at all times while climbing does not prohibit workers from carrying certain objects while they climb. However, any object a worker does carry must be of a size and shape that still allows the worker to firmly grasp the ladder with that hand while climbing.

    OSHA received one comment on proposed paragraph (b)(12). Ellis Fall Safety Solutions (Ex. 344) recommended OSHA require that workers hold onto horizontal rungs and not side rails or ladder extensions. Ellis submitted a study showing that climbers cannot hold onto side rails or ladder extensions effectively if they begin to fall off the ladder. OSHA agrees with Ellis that grasping the ladder on horizontal rungs is preferable and encourages employers to follow this practice. However, OSHA also recognizes there may be times when it is necessary for employees to hold the side rails. OSHA is not aware of any reports that holding the side rails of ladders creates a problem when workers maintain three points of contact while climbing. In addition, OSHA notes that neither the construction ladder standard (Sec. 1926.1053(b)(21)) nor the ANSI/ALI consensus standards (A14.1-2007 and A14.2-2007) prohibit workers from holding onto ladder side rails while climbing.

    Final paragraph (b)(13), like the proposed and construction ladder rules (Sec. 1926.1053(b)(22)), requires that employers ensure workers climbing ladders do not carry any objects or loads that could cause them to lose their balance and fall. As OSHA stated in the preamble to the construction ladder standard, the purpose of this provision is to emphasize the importance of proper and careful use of ladders when workers need to carry items to and from work spaces:

    It is OSHA's belief that the employee's focus and attention while climbing up and/or down a ladder should be on making a safe ascent or descent and not on transporting items up and down the ladder (55 FR 47682).

    As explained above, neither the final rule nor the construction ladder standard prohibit workers from carrying an object while climbing a ladder. The final rule allows workers to carry an object, provided they:

    Face the ladder while climbing (final paragraph (b)(11));

    Grasp the ladder with at least one hand at all times when climbing up and down the ladder, which will ensure workers maintain at least three points of contact (final paragraph (b)(12)); and

    Do not carry an object(s) that could cause them to lose their balance and fall (final paragraph (b)(13)).

    Similarly, in the preamble to the construction ladder standard, OSHA said:

    Although OSHA believes that small items such as hammers, pliers, measuring tapes, nails, paint brushes, and similar items should be carried in pouches, holsters, or belt loops, the language in the final rule would not preclude an employee from carrying such items while climbing a ladder so long as the items don't impede the employee's ability to maintain full control while climbing or descending the ladder (55 FR 47682).

    Under both the final and construction rules, employers are responsible for ensuring that workers are able to maintain full control and balance while they are climbing. Employers also must ensure that carrying an object does not impede workers' control and balance, such as struggling to maintain their control or balance on the ladder. To that end, employers need to evaluate whether the weight and size of tools and other items workers use for jobs are such that workers can maintain their balance and grasp on the ladder while carrying the item in that hand or whether workers need to use other methods to get the items to the roof safely, such as using backpacks, making multiple climbs, or lifting items attached to ropes. NCSG said their members conduct evaluations (i.e., hazard assessments) at each job site, which include whether workers ``can . . . safely access the roof with ladders'' (Ex. 329 (1/18/2011), p. 276).

    Employers also need to ensure workers know what items they can and cannot carry while climbing ladders. NCSG agreed, saying they train workers so they ``understand what items they are permitted to carry and how they should be carried so that they maintain a stable position while ascending and descending the ladder(s)'' (Ex. 150). For example, OSHA does not believe workers can maintain the required balance and control if they must carry a heavy or bulky object in one hand while climbing.

    NCSG raised several objections to proposed paragraphs (b)(12) and (13). NCSG said the requirements ``would make it technically and economically infeasible for chimney sweeps to perform their work'' because it would be impossible for workers to get items up to the roof if they cannot carry them in one hand and slide their other hand up the ladder rail while climbing (Ex. 150). OSHA does not believe the record supports NCSG's infeasibility contentions.

    First, as stated above, final paragraphs (b)(12) and (13) do not prohibit workers from carrying an item when they climb a ladder. Workers can carry an object while climbing a ladder, provided they also can grasp the ladder with that hand during the climb. Some of the objects NCSG said their members carry are small enough that it would be possible for workers to hold them and grasp the ladder with the same hand.

    Second, even if a worker cannot carry a particular object and still maintain a firm grasp on the ladder with that hand, there are a variety of other methods they can use to transport the object(s) to the roof and still allow the worker to firmly grasp the ladder with their hands. According to NCSG, member companies already use them. For example, NCSG said workers get tools and equipment, such as flashlights, mirrors, screwdrivers, wrenches, cameras, tape measures, and cleaning rods and brushes, up to the roof using backpacks, tool belts, and quivers (Ex. 150). For one story homes, NCSG said workers lean roof hook ladders against the eaves and pull the ladder up once they have climbed up on the roof (Ex. 329 (1/18/2011), p. 342).

    If the job is a major repair (e.g., relining or rebuilding chimneys), which according to NCSG accounts for 20 to 25 percent of chimney sweep work, employers use scaffolds or aerial lifts (Ex. 329 (1/18/2011), p. 327). According to NCSG, not only do scaffolds allow employers to get materials to the roof without carrying them on a portable ladder, they provide workers with ``a nice flat platform to stand on'' (Ex. 329 (1/18/2011), p. 325).

    OSHA believes that chimney sweep companies also can use handlines and ropes to pull heavy or bulky items up on the roof. OSHA believes this method will work particularly well for getting chimney caps and roof hook ladders to the roof, both of which NCSG said do not fit into backpacks. Pulling up materials to the roof is a common practice in the construction industry. In the preamble to the construction ladder standard, OSHA said workers take ``large or heavy'' items to the roof by

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    ``pulling the object up or lowering it with a handline'' (55 FR 47682). NCSG, however, said that ``it is unlikely lifting items to the roof with a handline can be done without risking damage to the home or item.'' NCSG did not explain or provide any evidence to support their claim. In addition, NCSG did not provide any evidence that it is not possible to prevent damage by using appropriate techniques or padding. OSHA has not received any reports and is not aware of any problems in the construction industry using handlines to pull up items to residential or commercial roofs.

    NCSG claimed that using handlines to lift items to roofs would be ``economically infeasible'' because it could not be done without the assistance of a second person, which they claim would increase job costs by about 30 percent. OSHA finds this claim unsupported by the record. NCSG did not explain or provide evidence about why a second worker would be necessary in such instances. In addition, NCSG did not provide any support for its claim that costs would increase by 30 percent.

    Finally, NCSG contended that complying with final paragraphs (b)(12) and (13) would create a greater hazard for workers than allowing them to carrying objects up ladders with one hand while sliding the other hand up the ladder rails (Ex. 150). In particular, they said that attaching work tools and other items to a rope and lifting them to the roof would create a greater fall hazard because workers must be ``right at the roof's edge to keep the item in view and lift it onto the roof'' (Ex. 150). To establish that an OSHA standard creates a greater hazard an employer must prove, among other things, that the hazards of complying with the standard are greater than those of not complying, and alternative means of employee protection are not available (Bancker Construction Corp., v. Reich, 31 F.2d 32, 34 (2d Cir. 1994); Dole v. Williams Enterprises, Inc., 876 F.2d 186, 188 (D.C. Cir. 1989)).

    NCSG has not provided any evidence to establish that complying with final paragraphs (b)(12) and (13) or using other methods to get objects up to the roof is more dangerous than allowing employees to carry objects, regardless of their weight and size, in one hand while sliding the other hand up ladder rails while they climb the ladders. In fact, an NCSG witness testified that the greatest fall hazard is the ``ladder-to-roof transition'' (Ex. 329 (1/18/2011), p. 333). The transition is made even more hazardous if workers are carrying heavy or bulky objects in one hand and trying to get onto the roof by sliding the other hand along the ladder rail.

    NCSG also maintained that pulling items up to the roof with handlines would require workers to be at the roof's edge, where they will be at risk of falling. NCSG did not provide any evidence to support that claim. OSHA notes that the final rule requires workers to use fall protection while working at the edge of a roof.

    Finally, although NCSG said they were ``not aware of any feasible alternatives to carrying items in one hand and sliding the other hand up the ladder rail, NCSG identified several alternatives that they currently are using. NCSG said workers put tools and other items in backpacks, tool belts, and quivers so they can climb ladders with both hands free, instead of carrying the objects in their hands (Ex. 150). With the exception of roof hook ladders and chimney caps, NCSG said they are able to get all items up to the roof in backpacks, tool belts, and quivers. OSHA also believes that handlines and ropes are feasible to safely lift chimney caps and roof hook ladders.

    Paragraph (c)--Portable Ladders

    Final paragraph (c), like the proposed rule, sets forth requirements for portable ladders. The requirements in final paragraph (c) are in addition to the requirements in final paragraph (b) that apply to all ladders this section covers. The final rule defines ``portable ladder'' as a ladder that can be readily moved or carried, and usually consists of side rails joined at intervals by steps, rungs, or cleats (Sec. 1910.21(b)).

    To further OSHA's goal of making the final rule clearer and easier to read, final paragraph (c) replaces existing detailed design and construction specifications with more flexible performance-based language. By doing so, OSHA was able to make other revisions that will increase employers' and workers' understanding of the final rule. First, using performance-based language allowed OSHA to combine the existing requirements for portable wood (existing Sec. 1910.25) and portable metal ladders (existing Sec. 1910.26), thereby eliminating unnecessary repetition. Second, it allowed OSHA to remove the exceptions in existing Sec. 1910.25(a) for ``special'' types of ladders, including orchard ladders, stock room step ladders, and library ladders. Final paragraph (c) covers all of those ladders to the extent that employers use them in general industry operations. Finally, it also allows OSHA to remove the separate requirements for certain types of portable ladders such as painter's stepladders, mason's ladders, and trolley and side-rolling ladders.

    Final paragraph (c)(1), like the existing and proposed rules, requires that employers minimize slipping hazards on portable metal ladders. Accordingly, the final rule specifies that employers must ensure rungs and steps of portable metal ladders are corrugated, knurled, dimpled, coated with skid-resistant material, or otherwise treated to minimize the possibility of slipping. Final paragraph (c)(1) is the same as OSHA's construction ladder standard (Sec. 1926.1053(a)(6)(ii)), and is consistent with A14.2-2007 (Section 5.5). Ellis (Ex. 155) supported skid-resistance on ladder steps. There were no opposing comments on the provision.

    Final paragraph (c)(2), like the proposal, retains existing requirements (Sec. Sec. 1910.25(c)(2)(i)(f) and 1910.26(a)(3)(viii)) that employers ensure each stepladder, or combination ladder used in a stepladder mode, is equipped with a metal spreader or locking device. The final rule also requires that the spreader or locking device securely holds the front and back sections of the ladder in an open position while the ladder is in use. The term ``stepladder mode'' as used in final paragraph (c)(2) means that the configuration of the combination ladder is such that the ladder is self-supporting and functions as stepladder.

    The OSHA construction ladder standard also requires that stepladders have spreaders or locking devices (Sec. 1926.1053(a)(8)). In addition, the A14.1-2007 and A14.2-2007 standards require spreaders or locking devices for stepladders, and A14.2-2007 requires that combination ladders and trestle ladders also have those devices (A14.1-

    2007, Section 6.2.1.6; and A14.2-2007, Sections 6.1.9, 6.5.8, 6.6.8). The proposed rule would have required that stepladders be ``designed'' with spreaders or locking devices; the final rule clarifies that the stepladder must be ``equipped'' with those devices when used by an employee.

    Final paragraph (c)(2) does not retain language in the existing rules requiring that employers remove or cover sharp points or edges on spreaders (Sec. Sec. 1910.25(c)(2)(i)(f) and 1910.26(a)(3)(viii)). OSHA believes that final Sec. 1910.23(b)(7), which requires employers to ensure ladder surfaces are free of puncture and laceration hazards adequately addresses that issue. Thus, OSHA believes that it is not necessary to repeat that requirement in final paragraph (c)(2). OSHA did not receive any comments on the proposed deletion.

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    Final paragraph (c)(3) requires that employers not load portable ladders beyond their maximum intended load. A note to final paragraph (c)(3) reminds employers that maximum intended load includes the weight and force of workers and the tools, equipment, and materials workers are carrying, which is consistent with the definition of ``maximum intended load'' in final Sec. 1910.21(b).

    The final rule differs from both the existing and proposed rules. The existing rule requires that portable ladders be capable of withstanding a 200-pound load. In the proposed rule, OSHA required that employers ensure that the weight on portable ladders not exceed the weight ``for which they were designed and tested, or beyond the manufacturer's rated capacity.''

    After further analysis, OSHA removed the proposed language from final paragraph (c)(3) for the following reasons. First, OSHA believes that requiring employers to ensure each ladder supports its maximum intended load is comprehensive, and the additional language in the proposed rule is not necessary. OSHA believes that the language in the ``maximum intended load'' definition (i.e., ``loads reasonably anticipated to be applied to a walking-working surface'') will ensure that the load on a ladder will not exceed the weight for which the ladder was designed or tested, or the manufacturer's rated capacity.

    Second, removing the additional language in the proposal makes final paragraph (c)(3) consistent with final Sec. 1910.22(b), and easier to understand. Third, OSHA believes that including the proposed language ``manufacturer's rated capacity'' in the final rule may cause confusion about whether the provision applies to both job-made ladders and manufactured ones. The language in the final standard clearly reads that the requirement applies to all types of portable ladders.

    OSHA notes that, unlike the performance-based language in final paragraph (c)(3), the construction ladder standard requires that portable ladders meet specific load requirements (Sec. 1926.1053(a)(1)). As discussed above, one of the goals of this rulemaking is to make the final rule consistent with the construction standard. Accordingly, OSHA will consider employers who ensure their portable ladders meet the load requirements in Sec. 1926.1053(a)(1) as being in compliance with final paragraph (c)(3). OSHA did not receive any comments on the proposed provision and finalizes the provision as discussed.

    Final paragraph (c)(4), like the proposed rule, requires that employers ensure portable ladders are used only on stable and level surfaces unless they are secured or stabilized to prevent accidental displacement. When the footing of ladders is not stable or level and the ladder is not secure, the ladder can slip out of place or tip over because of workplace activities, traffic, and weather conditions (e.g., high winds). According to the A14.1-2007 standard, lack of stability and sliding of the ladder are the major causes of falls from self-

    supporting ladders, while lateral sliding at the top of the ladder and outward sliding of the ladder at the lower base support are major causes of falls from non-self-supporting portable ladders (A14.1-2007, Section 8.1.3).

    The final rule consolidates and revises the existing portable ladder rules, which requires placing portable ladders so they have ``secure footing'' (Sec. Sec. 1910.25(d)(2)(iii) and 1910.26(c)(3)(iii)). The final rule further clarifies that employers can ensure secure footing for portable ladders either by (1) placing them on a stable and level surface, or (2) securing or stabilizing them.

    Depending on the type of ladder and the conditions of use, securing or stabilizing portable ladders may be as simple as using swivel or rubber ladder feet, or may involve more complex procedures such as using ladder levelers to equalize side rail support. The A14.1-2007 and A14.2-2007 standards provide useful guidance about methods employers can use to secure portable ladders, including foot ladder boards and similar devices.

    Final paragraph (c)(4) does not carry forward language in existing Sec. 1910.25(d)(2)(iii) requiring that the top rest for portable ladders be reasonably rigid and have ample strength to support the supplied load. OSHA believes final paragraph (c)(10) adequately addresses the hazard, so the language in the existing rule is no longer needed. The final rule requires placing the bottom and top of ladder side rails on a stable and level surface, or securing and stabilizing the ladder. Unless the employer addresses the stability of both ends of the ladder, the ladder is not safe for workers to use.

    Final paragraph (c)(4) is almost identical to OSHA's construction ladder standard (Sec. 1926.1053(b)(6)), and is consistent with OSHA's maritime ladder standards (Sec. Sec. 1915.72(a)(3); 1917.119(f)(8); and 1918.24(j)(1) and (2)). The final rule also is consistent the A14 portable ladder standards (A14.1-2007, Section 8.3.4; and A14.2-2007, Section 8.3.4). OSHA did not receive any comments on the proposed provision.

    Final paragraph (c)(5), like the existing and proposed rules, requires that employers ensure workers do not use portable single-rail ladders. OSHA's construction ladder standard (Sec. 1926.1053(b)(19)), which also prohibits using single-rail ladders, defines them as ``a portable ladder with rungs, cleats, or steps mounted on a single rail instead of the normal two rails used on most other ladders'' (Sec. 1926.1050(b)). In the preamble to the final construction ladder rule, OSHA said, ``Single-rail ladders are inherently difficult to use because of their instability'' (55 FR 47681). OSHA believes that use of single-rail ladders in general industry also poses the same hazards. OSHA notes the prohibition in the existing rule has been in place since OSHA adopted it in 1971 from national consensus standards available at the time.

    Although the A14.1-2007 standard does not contain the prohibition on single-rail ladders that was in A14.1-1968, OSHA believes it is clear that A14.1-2007 and A14.2-2007 do not cover or endorse their use. The definition of portable ladder in both of these standards indicates that they consist of ``side rails, joined at intervals by rungs, steps, cleats or rear braces'' (A14.1-2007, Section 4; and A14.2-2007, Section 4). OSHA notes that A14.1-2007 and A14.2-2007 do not address single-

    rail ladders, which indicates that their use is not generally accepted industry practice.

    Mr. Robert Miller, a senior safety supervisor with Ameren, opposed the prohibition on single-rail ladders, arguing:

    I don't feel it is necessary to eliminate what for an employer may be the safest most feasible method of accessing another level of the work area if that employer can show by training, performance and history that the single rail ladder poses no greater hazard than another method (Ex. 189).

    Mr. Miller recommended that OSHA allow employers to demonstrate by training, performance, and history that the single-rail ladder poses no greater hazard than any other method (Ex. 189). However, Mr. Miller did not provide a single example of when using a single-rail ladder would be as safe, or safer, than using portable ladders with two side rails. Accordingly, Mr. Miller did not convince OSHA to remove from the final standard the prohibition on using single-rail ladders.

    OSHA notes that, in an enforcement action, employers may raise the affirmative defense of greater hazard. Employers raising this defense have the

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    burden of proving that complying with the OSHA standard poses a greater hazard to employees than complying with the standard and no alternative means of employee protection are available. OSHA observes that Ameren did not present any information or evidence that would meet this burden.

    Final paragraph (c)(6), like the proposal, adds a new requirement that employers ensure a ladder is not moved, shifted, or extended while a worker is on it. Moving, shifting, or extending an occupied ladder is dangerous to workers, whether it is the worker on the ladder who moves (``hops'') it or a worker on the ground who moves the ladder while a worker is on the ladder. Moving, shifting, or extending an occupied ladder could cause the worker to fall off the ladder or cause the ladder to tip over. According to the A14.1-2007 standard, a leading factor contributing to falls from portable ladders is movement of the ladder (A14.1-2007, Section 8.1.5).

    OSHA drew this provision from the construction ladder standard (Sec. 1926.1053(b)(11)). The A14.1-2007 and A14.2-2007 standards also prohibit ``relocating'' a ladder while a worker is on it (A14.1-2007, Section 8.3.15; and A14.2-2007, Section 8.3.15). OSHA did not receive any comments on the proposed provision.

    Final paragraph (c)(7), consistent with the proposed rule, requires that employers ensure ladders placed in locations where other activities or traffic can displace them (e.g., passageways, doorways, and driveways) are:

    Secured to prevent accidental displacement (final paragraph (c)(7)(i)); or

    Guarded by a temporary barricade, such as a row of traffic cones or caution tape, to keep activities or traffic away from the ladder (final paragraph (c)(7)(ii)).

    Final paragraph (c)(7) is consistent with the existing rule, which requires that employers must not place ladders in front of doors unless the door is blocked, locked, or guarded (Sec. 1910.25(d)(2)(iv)). OSHA believes the final rule retains the flexibility of the existing rule and identifies additional measures employers can use to prevent activities and traffic from striking ladders that are near passageways, doorways, or driveways, which may cause workers located on the ladders in those areas to fall. For example, to prevent injury to workers while they work on ladders by a doorway, employers can ``secure'' the area by simply locking the door so no one can open it and strike the ladder, or ``guard'' the door using a temporary barricade of traffic cones or caution tape. If the doorway is a required exit route (see 29 CFR part 1910, subpart E) that cannot be locked or blocked, the final rule allows employers the flexibility to ``guard'' the doorway by posting a monitor to control passage through the door.

    Final paragraph (c)(7) is almost identical to OSHA's construction ladder standard (Sec. 1926.1053(b)(8)). It also is consistent with A14.1-2007 (Section 8.3.12) and A14.2-2007 (Section 8.3.12).

    Final paragraph (c)(8) requires that employers ensure that employees do not use the cap, if equipped, and the top step of a stepladder as steps. The purpose of final paragraph (c)(8) is to clarify that the existing and proposed rules, which state that employers must not use the ``top of a stepladder,'' includes both the top step of the stepladder and top cap of the stepladder. Using either surface as a step may decrease the ladder's stability and cause it to fall over, injuring the worker.

    Final paragraph (c)(8) is almost identical to OSHA's construction ladder standard (Sec. 1926.1053(b)(13)), and is consistent with both A14.1-2007 (Section 8.3.2(1)) and A14.2-2007 (Section 8.3.2(1)). OSHA did not receive any comments on the proposed provision.

    Final paragraph (c)(9) requires that employers ensure portable ladders used on slippery surfaces are secured and stabilized. For the purposes of this paragraph, slippery surfaces include, but are not limited to, environmental (e.g., rain, snow, ice) and workplace conditions (e.g., oil, grease, solvents). When any of these conditions make walking-working surfaces slippery, it is important that employers secure and stabilize ladders to prevent displacement, which could cause workers to fall. Final paragraph (c)(9) is a companion provision to final paragraph (c)(4), which requires that employers ensure portable ladders are used only on stable and level surfaces unless they are secured or stabilized to prevent displacement.

    The final rule gives employers flexibility in selecting measures to secure or stabilize ladders that they use. Consistent with OSHA's construction ladder standard (Sec. 1926.1053(b)(7)), in appropriate situations employers may use ladders equipped with slip-resistant feet to secure and stabilize them on slippery surfaces. However, employers may not be able to rely on the use of ladders with slip-resistant feet in all cases where surfaces are slippery. In some conditions it may be necessary for employers to take additional or other measures, such as lashing, to secure and stabilize portable ladders. For example, the construction ladder standard specifies that slip-resistant feet shall not be used as a substitute for holding a ladder that is used upon slippery surfaces including, but not limited to, flat metal or concrete surfaces that are constructed so they cannot be prevented from becoming slippery (Sec. 1926.1053(b)(7)).

    OSHA notes the final rule covers all portable ladders while the proposed rule only would have applied the requirement to portable ladders that are not self-supporting. OSHA revised the final rule for two reasons. First, although under final paragraph (c)(4) OSHA considers slippery surfaces to be unstable for all types of portable ladders, the Agency is expressly applying final paragraph (c)(9) to all portable ladders to make sure the hazard is clearly addressed. For example, self-supporting ladders that are not equipped with slip-

    resistant feet can move or slide in slippery conditions, which can cause the worker to fall off the ladder. The revision ensures that the final rule protects workers from this hazard.

    Second, the revision of final paragraph (c)(9) makes the provision consistent with the construction ladder standard, which applies to all ladders (Sec. 1926.1053(b)(7)). Applying final paragraph (c)(9) to all portable ladders also makes the final rule consistent with A14.1-2007 (Section 8.3.4) and A14.2-2007 (Section 8.3.4), which address all wood and metal portable ladders, as well as Section 6(b)(8) of the OSH Act (29 U.S.C. 655(b)(8)). Section 6(b)(8) specifies that whenever an OSHA standard differs substantially from an existing national consensus standard, the Agency must explain why the adopted rule better effectuates the purposes of the OSH Act. OSHA believes the revised provision will protect all workers using any type of portable ladder, and therefore best effectuates the OSH Act. OSHA did not receive any comments on the proposed provision.

    Final paragraph (c)(10), like both the existing and proposed rules, requires that employers ensure that employees place the top of non-

    self-supporting ladders so that both side rails are supported, unless the ladders are equipped with single support attachments. Final paragraph (c)(10) revises the existing rule (Sec. 1910.26(c)(3)(iv)) by adding the term ``non-self-supporting'' to clarify that it is non-

    self-supporting ladders that need to be supported before workers attempt to use them. Self-supporting ladders must not be used as non-

    self-supporting

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    ladders (see final paragraph (b)(8); see also, A14.1-2007, Section 8.3.5)). The final rule is identical to OSHA's construction ladder standard (Sec. 1926.1053(b)(10)), and is consistent with both A14.1-

    2007 (Section 8.3.5) and A14.2-2007 (Section 8.3.5). OSHA did not receive any comments on the proposed provision.

    Final paragraph (c)(11), like the existing and proposed rules, requires that employers ensure portable ladders used to gain access to an upper landing surface have side rails that extend at least 3 feet above the upper landing surface. OSHA believes that retaining the existing requirement is important because transitioning from ladders to upper landing surfaces is hazardous to workers. Requiring the ladder side rails to extend 3 feet above the upper landing surface ensures that workers have adequate support and hand holds so they can access the upper landing surface safely. OSHA's construction ladder standard (Sec. 1926.1053(b)(1)), A14.1-2007 (Section 8.3.10), and A14.2-2007 (Section 8.3.10) also require that portable ladders extend 3 feet above the upper landing surface.

    OSHA received one comment on the proposal. Ellis Fall Safety Solutions (Ex. 329 (1/21/2011, p. 260)) said OSHA should recognize attaching extensions onto the end of side rails as an acceptable means to comply with the 3-foot extension requirement. In the proposal, OSHA noted that employers may use after-market ladder extensions to increase the length of a ladder to meet proposed paragraph (c)(11), provided:

    The after-market rail extensions ``are securely attached (that is, secured to the extent necessary to stabilize the extension and not expose the employee to a falling hazard from the extension's displacement)''; and

    The ladder to which the after-market rail extensions is attached is ``specifically designed for the application'' in accordance with proposed paragraph (c)(14).

    OSHA said that side-rail extensions that meet these requirements ``would be considered part of the ladder itself'' (75 FR 28877). In 2005, OSHA permitted use of after-market rail extensions under the construction ladder standard if the ladders meet the requirements above (see letter to Mr. Bruce Clark, president of American Innovations Corporation, December 22, 2005).\20\ Based on the record as a whole, OSHA concludes that employers may use after-market rail extensions to meet the requirement of final paragraph (c)(11), provided that the ladders meet these requirements.

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    \20\ OSHA letter to Mr. Bruce Clark available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25177.

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    Final paragraph (c)(12), like proposed paragraph (c)(13), requires that employers not use ladders and ladder sections tied or fastened together to provide added length unless the ladder design specifically permits such use. The purpose of the final paragraph is to prevent the use of unsafe rigging methods and to use ladders only as they were intended. Ladders gerry-rigged to provide longer lengths are not likely to be as strong and stable as ladders designed to reach such heights.

    Limiting fastening together ladders and ladder sections to those ``specifically designed for such use'' means that the designer developed both the ladders and any mechanism used to connect them specifically to achieve greater length. The final rule revises existing Sec. 1910.26(c)(3)(v), which specifies that the manufacturer must equip the ladders and ladder sections with necessary hardware fittings, if the manufacturer endorses allowing such ladder extensions, to ensure that the requirement covers both manufactured and job-made ladders and ladder sections. Therefore, under the final rule the ladder designer, regardless of whether employed by the employer, a manufacturer, or other company, must develop the ladder or ladder section specifically for the purpose of fastening them together to extend the length of the ladder or the employer must not fasten the ladder or ladder sections together. Final paragraph (c)(12) is consistent with existing Sec. 1910.25(d)(2)(ix), A14.1-2007 (Section 8.3.11), and A14.2-2007 (Section 8.3.11).

    Final paragraph (c)(13) retains the language in existing Sec. 1910.25(d)(2)(v), which prohibits placing ladders on boxes, barrels, or other unstable bases to obtain additional height. The proposed rule (proposed paragraph (c)(14)) prohibited employers from increasing the reach of ladders and ladder sections by any means not permitted specifically by the design of the ladders. After further analysis, OSHA believes the language in the existing rule is clearer and easier to understand than the proposed language. The language also is the same as A14.1-2007 (Section 8.3.4) and A14.2-2007 (Section 8.3.4).

    For the purposes of final paragraph (c)(13), unstable bases include surfaces such as vehicles, truck flatbeds, scaffolds, and stairs. OSHA received one comment on the proposed provision. Southern Company (Ex. 192) asked whether paragraph (c)(13) prohibited the use of ladder-

    leveling devices that extend the reach of the ladder. Final paragraph (c)(12) addresses fastening together ladders and ladders sections. However, OSHA does not consider ladder-leveling devices to be ladders or ladder sections. Rather they are devices attached to ladder side rails and allow for independent adjustment of the rails to ensure the ladder is level. Like the A14 standards, OSHA considers ladder-leveling devices to be ``ladder accessories . . . that may be installed on or used in conjunction with ladders'' (A14.1-2007, Section 1.1; and A14.2-

    2007, Section 1.1). Although ladder-leveling devices may be temporary or permanent attachments to the ladder, OSHA does not consider ladder-

    leveling devices to be ``part of the ladder itself'' (75 FR 28877). Therefore, final paragraph (c)(13) does not apply to ladder-leveling devices, even if they increase the length of the ladder.

    That said, other provisions in Sec. Sec. 1910.22 and 1910.23 (e.g., final paragraphs (b)(8) and (c)(4)) are applicable when employers use ladder-leveling devices. For example, paragraph (b)(8) mandates that employers use ladders only for their intended purpose. OSHA believes that employers are using ladders for their intended purpose only when the design of the accessories attached to, or used in conjunction with, the ladders permit such use. OSHA notes that there are many after-market ladder devices that employers may attach to, or use in conjunction with, ladders. Many of these devices, including ladder-leveling devices, can help to make ladders safer for workers to use. OSHA is not prohibiting the use of ladder accessories that can make ladders safer for workers to use. However, after-market add-ons must meet the standard's requirements. That is, when in use, the additional device must not reduce the ladder's strength or stability, and employers must use them only for their designed purpose. Although allowed, OSHA cautions employers against using job-made devices unless a professional engineer designed and certified them. OSHA notes that the Agency does not approve or endorse specific products.

    Paragraph (d)--Fixed Ladders

    Final paragraph (d) establishes requirements that apply to fixed ladders, in addition to the requirements in final paragraph (b). The final rule defines ``fixed ladder'' as a ladder, with side rails or individual rungs, that is permanently attached to a structure, building or equipment (Sec. 1910.21(b)). Fixed ladders do not include ship stairs, stepbolts, or manhole steps.

    Final paragraph (d)(1), like the proposed rule, establishes a

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    performance-based provision requiring that employers ensure any fixed ladder a worker uses is capable of supporting the maximum intended load. As discussed in Sec. 1910.22, and above in this section, ``maximum intended load'' means ``the total load (weight and force) of all employees, equipment, vehicles, tools, materials, and loads the employer reasonably anticipates to be applied to a walking-working surface'' (Sec. 1910.21(b)).

    The performance-based language in final (d)(1) replaces the detailed specification requirements in the existing rules (Sec. 1910.27(a)(1)(i) through (iv) and (a)(2)). OSHA requested comment on whether the Agency should retain the specification requirements in existing Sec. 1910.27(a)(1), but did not receive any comments.

    OSHA did not adopt proposed paragraph (d)(2) as a companion to proposed paragraph (d)(1). Proposed paragraph (d)(2) required that employers ensure fixed ladders installed on or after 150 days after issuing the final rule meet specific design, construction, and maintenance requirements, including supporting two 250-pound live loads. The existing rule requires that fixed ladders support a single concentrated 200-pound load (Sec. 1910.27(a)(1)). After additional analysis, OSHA decided to adopt proposed paragraph (d)(1), and not retain existing Sec. 1910.27(a) or adopt proposed paragraph (d)(2). First, OSHA believes the maximum load requirement in final paragraph (d)(1) is as safe as, or more protective than, the existing and proposed rules. Final paragraph (d)(1) requires that employers ensure that a fixed ladder meets the maximum load that the designer specifically established for that particular fixed ladder. OSHA believes that following the load requirement established for a particular ladder is at least as safe as a general specification (200 or 250 pounds) applied to all fixed ladders.

    Second, OSHA believes the performance-based approach in final paragraph (d)(1) is easier to understand and follow than the minimum weight specifications in the existing and proposed rules. In addition, the final rule gives employers greater flexibility in selecting and using fixed ladders. OSHA notes that Ameren (Ex. 189), among other commenters, supported the use of performance-based language for this and other provisions in the final rule.

    Third and finally, not adopting the proposed rule, which had an effective date 150 days after publication of the final rule, addresses commenters' concerns that that OSHA failed to give adequate lead-in time to come into compliance with the new requirement (Exs. 189; 192).

    Final paragraph (d)(2), like proposed paragraph (d)(3), requires that employers ensure the minimum perpendicular distance from the ladder to the nearest permanent object in back of the ladder is 7 inches. The final rule requires that this distance be measured from the centerline of the fixed ladder steps and rungs or grab bars, or both, to the object in back of the ladder (e.g. wall). OSHA believes the 7-

    inch minimum will ensure that workers have adequate space to get a safe foothold on fixed ladders. Final paragraph (d)(2) also includes an exception for elevator pit ladders. For these ladders, the employer must ensure that the minimum perpendicular distance is 4.5 inches.

    Final paragraph (d)(2), like the proposal, revises the existing rule (Sec. 1910.27(c)(4) and (5)) in several ways. First, the final rule replaces the existing 4-inch minimum perpendicular distance for grab bars with a 7-inch minimum clearance. To ensure worker safety while they climb fixed ladders and transition to upper landing surfaces, OSHA believes that the minimum perpendicular distance for grab bars needs to be the same as the minimum perpendicular distance specified for ladder rungs and steps.

    Second, final paragraph (d)(2) eliminates an exception from the 7-

    inch clearance requirement for ``unavoidable obstructions'' (Sec. 1910.27). OSHA stated in the preamble to the final construction ladder standard that ``the minimum clearance requirement is necessary, regardless of any obstructions, so that employees can get safe footholds on ladders'' (55 FR 47675).

    Third, final paragraph (d)(2) adds a new exception that reduces the minimum perpendicular clearance in elevator pits to 4.5 inches. OSHA drew this exception from the construction ladder standard (Sec. 1926.1053(a)(13)). The exception is consistent with the ANSI/ASME A17.1-2010, Safety Code for Elevators and Escalators (Section 2.2.4.2.4) (Ex. 380). Generally, space in elevator pits is restricted, and it may not be possible to have a 7-inch clearance. In the preamble to the construction ladder standard, OSHA said the exception for elevator pit ladders was appropriate because elevator shafts generally are secure from unauthorized access (55 FR 47675). As such, only workers who have the required equipment and fall protection training would be accessing the elevator pit (55 FR 47675). Under the final rule, employers must train each worker in the proper use of equipment, including fixed ladders, before permitting any worker to use the equipment (Sec. 1910.30(b)(1)).

    One of OSHA's goals in revising the existing rule (Sec. 1910.27(c)(4)) was to make the final rule consistent with OSHA's construction ladder standard, and final paragraph (d)(2) is almost the same as that rule (Sec. 1926.1053(a)(13)). The construction standard also contains language specifically indicating that the required 7-inch clearance also applies to obstructions. In addition, the final rule is consistent with the 7-inch minimum perpendicular distance in existing Sec. 1910.27(c)(4) and A14.3-2008 (Section 5.4.2.1).

    OSHA received one comment from Southern Company (Ex. 192). They asked to grandfather in the existing requirement because they have many fixed ladders and ``redesigning or moving any of these ladders to avoid these obstructions could be expensive or in some cases infeasible.'' OSHA does not believe that grandfathering is necessary. The Agency believes the vast majority of fixed ladders currently in use comply with the final requirement because the final rule reflects requirements in place under ANSI A14.3 since 1974. In addition, OSHA's construction standard has required the same clearance since the Agency adopted it in 1994.

    Final paragraphs (d)(3) through (8) establish requirements for ladder extension areas to ensure that workers are able to transition safely from the fixed ladder to the landing surface. In particular, several of the provisions apply to through and side-step ladders. The A14.3-2008 standard defines through ladders as rail ladders that require a worker getting off to step through the ladder to reach the landing (A14.3-2008, Section 3). That standard also defines side-step ladders as rail ladders that require workers getting off at the top to step sideways from the ladder to reach the landing (A14.3-2008, Section 3).

    Final paragraph (d)(3), like the existing (Sec. 1910.27(c)(5)) and proposed rules, requires that employers ensure grab bars on the climbing side do not protrude beyond the rungs of the ladder they serve. The final rule defines grab bars as individual vertical or horizontal handholds that provide access above the ladder height (Sec. 1910.21(b)). Grab bars that protrude beyond the rungs of the ladder can be hazardous because they make it more difficult to climb and transition to landing surfaces. To illustrate, having the grab bars protrude further than the ladder would put the worker at an angle greater than 90 degrees and make climbing and holding

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    on more difficult, which makes a fall more likely. OSHA did not receive any comments on the proposed provision.

    Final paragraph (d)(4), like the proposed rule, establishes requirements for through and side-step ladders, including those ladders used on buildings with parapets. The final rule requires that employers ensure the side rails of through or side-step ladders extend 42 inches above the top of the access level or platform served by the ladder.

    Final paragraph (d)(4) also adds language specifying what constitutes the ``access level'' for through and side-step ladders on buildings that have parapets. When a parapet has an opening that permits passage through it (i.e., through ladder), the final rule specifies that the access level is the roof (final paragraph (d)(4)(i)). For parapets without such an opening (i.e., side-step ladders), the final rule specifies the access level is the top of the parapet (final paragraph (d)(4)(ii)). OSHA added this language to clarify the Agency's intent that workers must have sufficient handholds at least 42 inches above the highest level on which they will step when reaching the access level, regardless of the location of the access level (i.e., roof or top of parapet). The language also makes the final rule consistent with Sec. 1926.1053(a)(24) and A14.3-2008 (Section 5.3.2.1). OSHA did not receive any comments on the proposed provision.

    Final paragraph (d)(5), like the existing (Sec. 1910.27(d)(3)) and proposed rules, specifies that employers ensure that there are no steps or rungs on the portion of the through ladder extending above the access level. It is obvious that this requirement is necessary to allow workers to pass the ladder and step onto the upper landing surface. The final rule is the same as OSHA's construction ladder standard (Sec. 1926.1053(a)(25)) and A14.3-2008 (Section 5.3.2.2).

    In addition, final paragraph (d)(5), like the proposed rule, also requires flared extensions of the side rails above the access level to provide clearance of not less than 24 inches and not more than 30 inches. The final rule increases the existing clearance width (from 18 to 24 inches) between the side rails. OSHA believes the additional clearance will help to ensure that workers equipped with personal fall protection systems, tools, and other items have adequate space to negotiate the pass-through area and reach the upper landing safely. The increased clearance width makes the final rule consistent with OSHA's construction standard (Sec. 1926.1053(a)(25)) and A14.3-2008 (Section 5.3.2.2).

    Final paragraph (d)(5) adds a new clearance width requirement for through ladders equipped with ladder safety systems. In those cases, the final rule requires that employers ensure the clearance between side rails of the extensions does not exceed 36 inches. The new provision makes the final rule consistent with OSHA's construction ladder standard (Sec. 1926.1053(a)(25)). OSHA did not receive any comments on the proposed provision.

    Final paragraph (d)(6), like the proposed rule, adopts a performance-based revision of the existing rule for side-step ladders (Sec. 1910.27(d)(3)). Accordingly, the final rule requires that employers ensure the side rails, rungs, and steps of side-step ladders be continuous in the extension. The existing rule, by contrast, specifies that the landings of side-step or off-set fixed ladder sections have side rails and rungs that extend to the next regular rung above or beyond the 42-inch minimum extension. OSHA believes the performance-based revision makes the final rule easier to understand and follow. The final rule is consistent with OSHA's construction standard (Sec. 1926.1053(a)(24)) and A14.3-2008 (Section 5.3.2.3).

    Final paragraphs (d)(7) and (8) specify criteria for grab bars. Final paragraph (d)(7), like the proposed rule, requires that employers ensure grab bars extend 42 inches above the access level or landing platforms of the ladder, which is the same height required for side rails in the extension area of through and side-step ladders (see final paragraph (d)(4)). Final paragraph (d)(7) revises and clarifies the existing rule (Sec. 1910.27(d)(4)), which states that grab bars ``be spaced by a continuation of the rung spacing when they are located in the horizontal position,'' and have the same spacing as ladder side rails when located in the vertical position. The final rule identifies, more clearly and exactly, the required location (i.e., above the access level or platform) and height (i.e., 42 inches) of the grab bars. OSHA believes that employers will find the final rule easier to understand and follow.

    OSHA drew the language in final paragraph (d)(7), in part, from its construction ladder standard (Sec. 1926.1053(a)(27)) and A14.3-2008 (Sections 5.3.3.1 and 5.3.3.2). The final rule expands application to grab bars on all fixed ladders; OSHA's construction ladder standard and A14.3-2008 only apply to individual-rung ladders. Also, the final rule does not include the exception in OSHA's construction standard and A14.3-2008 for manhole steps, covers, and hatches because manhole steps are not considered ladders in this rule and are covered in a separate section (final Sec. 1910.24). OSHA did not receive any comments on the proposed provision.

    Final paragraph (d)(8), like the existing (Sec. 1910.27(d)(4)) and proposed rules, requires that employers ensure the minimum size (i.e., cross-section or diameter) of the grab bars are the same size as the rungs on that ladder. The final rule clarifies the existing rule by specifying that the grab bars and rungs of fixed ladders be the same size (diameter). The final rule is consistent with A14.3-2008 (Section 5.3.3.3).

    OSHA received one comment about grab bars. Nigel Ellis, Ellis Safety Solutions, LLC (Ex. 155), recommended that the final rule require horizontal grab bars, especially if the length of vertical grab bar exceeds 6 inches. He pointed to a study (Young et al., ``Hand-hold Coupling: Effect of Handle Shape, Orientation, and Friction on Breakaway Strength,'' 51 Human Factors 705, October 2009) showing that breakaway strength (i.e., the maximum force that can be exerted on an object before it pulls away or slips from the grasp of the hand) was greatest for fixed horizontal cylindrical-shaped bars (Ex. 344). Based on that study, Mr. Ellis said that it would be more likely that workers could arrest a fall by grabbing a horizontal, rather than a vertical, grab bar. He also said, ``It has been shown that vertical grab bars are a sliding element that prevents an adequate grip to stop a fall,'' and concluded that ``if a vertical grab bar exceeds 6 inches vertically then the hand-sliding fall is unstoppable'' (Ex. 344).

    OSHA agrees that horizontal bars provide the possibility of stronger grips than vertical ones in the event of a fall from a ladder when a ladder safety system or a personal fall protection system is not taken into account. However, horizontal grab bars do not provide the level of protection from falls that ladder safety systems and personal fall protection systems provide. Given that ladder safety systems and personal fall protection systems will increasingly protect workers who climb ladders from falling, OSHA does not believe is it necessary at this point to require installation of horizontal grab bars when any vertical grab bar exceeds 6 inches.

    Final paragraph (d)(9), like the proposed rule, establishes two requirements for ladders that terminate at hatch covers. First, the final rule requires that employers ensure that the hatch cover opens with sufficient clearance to provide easy access to or from the ladder (see final paragraph (d)(9)(i)). Second, the final rule requires

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    that employers ensure counterbalanced hatch covers open at least 70 degrees from the horizontal (see final paragraph (d)(9)(ii)). In essence, this provision defines in objective terms (70 degrees) what constitutes ``sufficient clearance,'' as used in the existing rule (Sec. 1910.27(c)(7)).

    Final paragraph (d)(9), like the proposal, revises the existing rule in two ways. First, the final rule increases to 70 degrees the angle to which counterbalanced hatch covers must open. The existing rule only requires that hatch covers open a minimum of 60 degrees, but also specifies that the minimum distance from the centerline of the top rung be at least 24 inches for ladders with ``offset wells,'' and at least 30 inches for ``straight wells.'' OSHA believes that increasing the opening to 70 degrees will ensure that the space between the top rung and hatch provides adequate clearance regardless of what type of fixed ladder is used.

    Second, the final rule replaces the specification requirement in the existing rule with performance-based language. The performance-

    based language ensures that the final rule provides a level of worker safety that is as great as or greater than the existing rule, but gives employers the flexibility to determine how counterbalanced hatch covers will open to 70 degrees. The performance-based language also makes final paragraph (d)(9) clearer and easier to follow than the existing rule. The final rule is consistent with A14.3-2008 (Section 5.3.4.2). OSHA notes that A14.3-2008 also includes language similar to the specification language in the existing rule, but the language is only advisory. OSHA did not receive any comments on the proposed provision.

    Final paragraph (d)(10), like the existing (Sec. 1910.27(b)(1)(v)) and proposed rules, requires that employers ensure that the construction of individual-rung ladders will prevent the worker's feet from sliding off the ends of the rungs (Figure D-4 in regulatory text illustrates). OSHA believes this requirement is essential because individual-rung ladders do not have side rails to block the worker's feet from sliding off the rung. Final paragraph (d)(10) is the same as OSHA's construction industry standard (Sec. 1926.1053(a)(5)). OSHA did not receive any comments on the proposed provision.

    Final paragraph (d)(11), like the proposed rule, requires that employers ensure workers do not use fixed ladders that have a pitch greater than 90 degrees from the horizontal. A ladder that exceeds a pitch of 90 degrees makes the ladder dangerous to climb because pitch greater than 90 degrees would require climbers to exert considerable extra force to maintain their grip on the ladder against the gravitational force. The final rule revised the specification approach in the existing requirements (Sec. 1910.27(e)(1) through (4)), and replaces it with performance-based language. OSHA believes much of the language in the existing rule continues to provide useful information best included in compliance-assistance documents. OSHA did not receive any comments on the proposed paragraph.

    Final paragraph (d)(12), like the proposed rule, addresses step-

    across distances for through and side-step ladders. Specifically, final paragraph (d)(12)(i) requires that employers ensure the step-across distance for through ladders is not less than 7 inches, and not more than 12 inches, to the nearest edge of the structure, building, or equipment accessed from the ladders, measured from the centerline of the ladder. Final paragraph (d)(12)(ii) requires that employers ensure the step-across for side-step ladders is at least 15 inches, but not more than 20 inches, measured from the centerline of the ladder to the nearest point of access on the platform edge.

    The final rule, like the proposal, revises the existing rule in Sec. 1910.27(c)(6) in several ways. First, the final rule establishes specific step-across distances for each through and side-step ladder (Sec. 1910.27(c)(6)). The existing rule establishes a single step-

    across distance applicable to all fixed ladders. Compared to the existing rule, OSHA believes the final rule more appropriately tailors the step-across distances to the type of ladder used, which improves worker safety.

    Second, final paragraph (d)(12) revises the existing step-across distance (i.e., not less than 2.5 inches and not more than 12 inches) to make transitioning from the ladder to the upper landing surface safer and consistent with other provisions in the final rule. OSHA believes that a 2.5-inch step-across distance could conflict with the 7-inch minimum perpendicular clearance requirement in final paragraph (d)(2). The 7-inch clearance requirement is necessary to ensure that workers will have a safe foothold on the ladder. If the existing rule inadvertently results in workers having an inadequate foothold on the top of the ladder, it could increase the worker's chance of falling.

    Third, the final rule does not retain the companion provision in the existing rule (Sec. 1910.27(d)(1)) that requires employers to provide a landing platform if the step-across distance is greater than 12 inches. OSHA believes that the final rule already addresses this issue; therefore, it is not necessary to retain the requirement.

    Final paragraph (d)(12) requires that employers measure step-across distance from the centerline of the ladder to the ``nearest edge of the structure, building, or equipment.'' Thus, in the final rule, the nearest edge of a structure may be a landing platform. Final paragraph (d)(12) is consistent with OSHA's construction ladder standard (Sec. 1926.1053(a)(16)) and A14.3-2008 (Section 5.4.2.2). OSHA did not receive any comments on the proposed provision.

    Final paragraph (d)(13) addresses fixed ladders that do not have cages or wells. Final paragraph (d)(13)(i), like the existing (Sec. 1910.27(c)(2)) and proposed rules, requires that employers ensure ladders without cages or wells have a clear width of at least 15 inches on each side of the ladder centerline to the nearest object. Having at least a 15-inch minimum clearance on the ladder is necessary to provide adequate clearance to climb the ladder and prevent damage to the ladder. Figure D-2 illustrates this requirement, which is consistent with OSHA's construction ladder standard (Sec. 1926.1053(a)(17)) and A14.3-2008 (Section 5.4.3.1).

    Final paragraph (d)(13)(ii), like the proposed rule, requires that employers ensure there is a minimum perpendicular distance of 30 inches from the centerline of the steps or rungs to the nearest object on the climbing side of the ladder. The final rule, like the proposal, revises the existing requirement in Sec. 1910.27(c)(1) in three ways. First, the final rule replaces the existing requirement that the pitch of the ladder be the basis of the minimum perpendicular distance (i.e., 36 inches for 75-degree pitch ladder and 30 inches for 90-degree pitch ladders) with a single, minimum clearance, regardless of the ladder pitch. OSHA believes that the revised rule will not pose problems for employers because the pitch of virtually all fixed ladders is 90 degrees. As such, the final rule is consistent with the existing rule. The revision in the minimum perpendicular clearance makes the final rule consistent with OSHA's construction ladder standard (Sec. 1926.1053(a)(14)) and A14.3-2008 (Section 5.4.1.1).

    Second, the final rule provides an exception to the minimum perpendicular clearance requirement ``when unavoidable obstructions are encountered.'' The final rule allows a reduction of the minimum clearance to 24 inches in those cases, provided that

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    employers install deflector plates. The deflectors will protect workers on fixed ladders by guiding them around unavoidable obstructions. Adding this exception makes the final rule consistent with OSHA's construction ladder standard (Sec. 1926.1053(a)(15)) and A14.3-2008 (Section 5.4.1.3).

    Third, final paragraph (d)(13) recasts the existing rule so it is more performance-based. OSHA believes this change makes the final rule easier to understand and follow than the existing rule.

    OSHA received one comment on the proposed provision. Ameren Corporation stated:

    As long as the fixed ladders in any facility comply with the current ``inches clearance per pitch'' requirements, they should be grandfathered in due to the potential financial impact and minimum difference in clearance as well as any history of no apparent difficulties with head clearance by way of reviewing incident reporting trends (Ex. 189).

    OSHA does not agree with Ameren that the revisions to the minimum perpendicular clearance on the climbing side of fixed ladders will have any significant financial impact on employers who are in compliance with the existing rule. As mentioned earlier, almost all fixed ladders have a 90-degree pitch, which means that they must already meet the 30-

    inch clearance requirement of the existing rule. Therefore, the vast majority of employers would not have to replace their ladders since they are in compliance with the existing provision.

    Final paragraph (d) includes an informational note stating that Sec. Sec. 1910.28 and 1910.29 establish, respectively, the duty to provide fall protection for workers using fixed ladders and the mandatory criteria for that fall protection.

    Paragraph (e)--Mobile Ladder Stands and Mobile Ladder Stand Platforms

    Final paragraph (e) establishes requirements that apply to mobile ladder stands and mobile ladder stand platforms (mobile ladder stands and platforms). These requirements apply to mobile ladder stands and platforms in addition to the requirements specified by paragraph (b) of this section that cover all ladders.

    Final paragraph (e) is a performance-based revision of the design and use requirements in the existing rule (Sec. 1910.29(a) and (f)), and consistent with the design requirements in the ANSI standard (A14.7-2011). Therefore, consistent with the requirement in the OSH Act that OSHA express standards ``in terms of objective criteria and of the performance desired,'' final paragraph (e) does not incorporate the testing requirements in either the existing OSHA rule or ANSI standard (e.g., Sec. 1910.29(f)(5); A14.7-2011 (Section 5)).

    For purposes of the final rule, final Sec. 1910.21(b) defines a ``mobile ladder stand'' as a ladder that:

    Is mobile;

    Has a fixed height;

    Is self-supporting; and

    Is designed for use by one worker at a time.

    This paragraph of the final rule also specifies that mobile ladder stands generally consist of:

    Wheels or casters on a rigid base;

    Steps (treads); and

    A top step.

    Mobile ladder stands also may have handrails. This definition is consistent with both the existing OSHA rule and ANSI standard (Sec. 1910.21(g); A14.7-2011, Section 3). Although the final rule does not identify what constitutes a ``top step,'' the ANSI standard defines the term ``top step'' as ``the uppermost flat surface of a ladder stand upon which a person may stand and that has a front to back dimension of not less than 9.5 inches or more than 32 inches and does not exceed 6.7 square feet in area'' (A14.7-2011, Section 3).

    A ``mobile ladder stand platform,'' as defined in the final rule (Sec. 1910.21(b)), is a mobile ladder stand with treads leading to one or more platforms. Unlike the definition of mobile ladder stands, some mobile ladder stand platforms may be designed for use by more than one worker at a time.

    Although the existing OSHA ladder rules for general industry do not define or specifically address mobile ladder stand platforms, the final definition is consistent with the ANSI standard (A14.7-2011, Section 3). The ANSI standard also defines a ``platform'' as ``an elevated surface for standing or working that is more than 6.7 square feet in area, or more than 32 inches in depth and may be occupied by more than one person'' (A14.7-2011, Section 3).

    While the existing OSHA rule does not specifically address mobile ladder stand platforms, many of the provisions in the existing rule provide effective worker protection regardless of whether employees are working on mobile ladder stands or mobile ladder stand platforms. Thus, when appropriate, in the final rule OSHA applied provisions in the existing rules to mobile ladder stand platforms as well as mobile ladder stands.

    One commenter raised general concerns about the design requirements for mobile ladder stands and platforms:

    Nearly all requirements are design and construction requirements over which an employer would have minimal or no control.

    Again, an employer would be relying primarily on third party certification without any assurance that such reliance would be recognized as a legitimate defense against OSHA citations (Ex. 368).

    The commenter is correct that most of the general provisions in proposed and final paragraph (e)(1) are equipment-design requirements. This also applies to the existing OSHA rules, which have been in place since 1973. Many other OSHA standards also require that employers provide equipment designed, constructed, and maintained so it is safe for their workers to use. In the years since OSHA adopted the existing rules, no employers have raised concerns about being able to comply with the design requirements. OSHA also believes that today, more than 40 years after it adopted the existing rules, virtually all mobile ladder stands and platforms manufactured meet the design requirements of the existing rules, as well as the ANSI standard.

    OSHA, however, does not agree that employers have minimal or no control over whether mobile ladder stands and platforms meet the design requirements in the final rule. Employers are free to design and construct their own equipment to the design requirements in OSHA standards, and some employers do. For example, employers may build their own mobile ladder stands and platforms if they need the units for special purposes, or if the ladders must fit into unusual locations.

    Employers also have control over the equipment they purchase. They can evaluate, investigate, and even test potential equipment to ensure that it meets OSHA requirements. They also can select equipment that a recognized third party (e.g., Underwriters Laboratories) tests and certifies as meeting the OSHA requirements. In addition, employers can obtain the third-party testing information or reports to reassure themselves that the equipment meets the requirements in the final rule.

    Final paragraph (e)(1) establishes general design and use requirements that apply to both mobile ladder stands and mobile ladder stand platforms. OSHA drew these general requirements from two sources: (1) The existing rule (Sec. 1910.29); and (2) A14.7-2011.

    Final paragraph (e)(1)(i), like the existing (Sec. 1910.29(a)(3)(ii)) and proposed rules, requires that employers ensure that the minimum width of steps on mobile ladder stands and platforms is 16 inches. This minimum-width requirement applies regardless of the

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    length (depth) of the top step of mobile ladder stands, which, pursuant to A14.7-2011, may be up to 32 inches in depth or 6.7 square feet in area. OSHA believes that this approach is generally consistent with the ANSI standard, which requires that steps, including the top step, on mobile ladder stands have a minimum width of 16 inches (A14.7-2011, Section 4.3.1); for mobile ladder stand platforms, section 4.4.1 of A-

    14.7-2011 requires a minimum step width of 16 inches.

    OSHA believes that employers should not have any problem complying with final paragraph (e)(1)(i). The existing OSHA and ANSI standards have been in place for many years and OSHA believes the width of steps on virtually all mobile ladder stands and platforms meet the ANSI requirements, and, therefore, are in compliance with the final rule. OSHA did not receive any comments on the proposal, and adopts the provision as discussed.

    Final paragraph (e)(1)(ii), like the existing (Sec. 1910.29(a)(3)(iv)) and proposed rules, requires that employers ensure that steps and platforms of mobile ladder stands and platforms be slip resistant. The final rule includes language, drawn from A14.7-2011, that gives employers greater flexibility in complying with the slip-

    resistance requirement. Final paragraph (e)(1)(ii) provides that employers may meet the slip-resistance requirement by providing mobile ladder stands and platforms where the slip-resistant surfaces either are (1) an integral part of the design and construction of the mobile ladder stand and platform, or (2) provided by a secondary process or operation. For the purposes of this final rule, secondary processes include things such as dimpling, knurling, shotblasting, coating, spraying the walking-working surfaces, or adding durable slip-resistant tape to steps and platforms.

    In addition to providing more flexibility than the existing OSHA requirements for meeting the slip-resistance requirement, OSHA believes the final paragraph will help to ensure a level of protection that is equivalent to or greater than the existing requirements. First, it allows employers to select the types of slip resistance that will provide the most effective protection for workers in the particular workplace conditions in which employers use the unit. For example, in outdoor, icy conditions, grated steps and platforms may provide better slip resistance than steps and platforms with a sprayed-on finish.

    Second, the new language also indicates that employers have both an initial and continuing obligation to ensure that steps and platforms on mobile ladder stands and platforms remain slip resistant (i.e., ``the steps . . . are slip resistant''). Accordingly, while the manufacturer may apply the secondary slip resistance process initially, if the slip resistance on steps of stands or platforms wears down or is in need of repair, the final rule requires that employers treat those surfaces with additional processes to restore their slip resistance. For example, if slip-resistant tape comes off, the employer must replace it. OSHA believes that employers should not have problems complying with the final provision since slip-resistance processes and materials are readily available in the marketplace. OSHA did not receive any comments on the proposed provision, and adopts it as proposed.

    Final paragraphs (e)(1)(iii) and (iv) establish strength and stability requirements for mobile ladder stands and platforms to ensure units are safe for workers to use. Final paragraph (e)(1)(iii), which is almost identical to proposed paragraph (e)(1)(vi), requires that employers ensure mobile ladder stands and platforms are capable of supporting at least four times their maximum intended load. The existing OSHA rule and ANSI standard also require that mobile ladder stands be capable of supporting at least four times the ``design working load'' or ``rated load,'' respectively (Sec. 1910.29(a)(2)(ii)(b); A14.7-2011, Section 4.2.1). Both standards have been in place for many years, so OSHA believes that virtually all mobile ladder stands and platforms manufactured and currently in use already comply with the final rule.

    Final paragraph (e)(1)(iv), which also is almost identical to proposed paragraph (e)(1)(iii), requires that employers ensure wheels and casters of mobile ladder stands and platforms under load are capable of supporting: (1) their proportional share of four times the maximum intended load, plus (2) their proportional share of the unit's weight. OSHA believes this requirement is necessary to ensure that mobile ladder stands and platforms are safe for workers to use. Unless the wheels and casters can support both the proportional weight of the mobile ladder stand or platform and the weight of the maximum intended load placed on that unit, failure of the wheel(s) or caster(s) may occur. If that happens, the stand or platform could become unstable and the worker could fall off the unit and be injured or killed.

    Final paragraph (e)(1)(iv) provides greater protection than the existing OSHA rule in Sec. 1910.29(a)(4). The existing rule does not require that wheels or casters be capable of supporting the weight of the mobile ladder stand or mobile ladder stand platform, as well as the weight of the load (e.g., worker, tools, equipment, and materials) placed on it (Sec. 1910.29(a)(4)(i)). However, OSHA notes that the final rule is almost identical to the ANSI standard (A14.7-2011, Sections 4.3.7 and 4.4.8). As discussed above, the ANSI standard has been in place for many years, so OSHA believes that virtually all mobile ladder stand and platform wheels and casters manufactured and currently in use already comply with the final rule.

    In final paragraphs (e)(1)(iii) and (iv), OSHA replaced the term ``design working load'' in the existing OSHA rule with ``maximum intended load'' (i.e., the total load of all employees, equipment, tools, materials, and other loads the employer reasonably anticipates to be applied to the mobile ladder stand or platform). While the definition of ``maximum intended load'' in this final rule (see Sec. 1910.21(b)) is similar to the definition of ``design working load'' in the existing rule (see Sec. 1910.21(g)(5)), using the term ``maximum intended load'' in final paragraphs (e)(1)(iii) and (iv) makes these paragraphs consistent with other provisions in the final rule that use the term.

    Finally, consistent with OSHA's goal to make the final rule performance based, final paragraphs (e)(1)(iii) and (iv) do not incorporate the testing requirements in either the existing OSHA rule (Sec. 1910.29(f)(5)) or A14.7-2011 (Section 5). OSHA did not receive any comments on either of the proposed requirements, and adopts final paragraphs (e)(1)(iii) and (iv) as discussed above.

    Final paragraph (e)(1)(v) establishes general requirements for handrails on mobile ladder stand and platform steps (except for handrails on top steps when paragraph (e)(2)(ii) applies). Final paragraph (e)(1)(v) requires that employers ensure mobile ladder stands and platforms have handrails when the height of the top step or platform is 4 feet or higher above lower levels. Where handrails are required, employers must ensure that the handrails have a vertical height of at least 29.5 inches but not more than 37 inches, as measured from the front edge of the step, unless specified elsewhere in the section.

    The purpose of the final paragraph (e)(1)(v) is to protect workers from falling when they are climbing or standing on mobile ladder stands and platforms. OSHA believes handrails are necessary to assist workers as they are

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    climbing mobile ladder stands and platforms, and also provide a handhold they can grab to steady themselves if they slip or start to fall off the unit. In addition, handrails provide a necessary barrier to prevent workers from falling off the side of steps and off the top step or platform. To ensure that the barrier provides adequate protection, OSHA notes that stands and platforms must have handrails on both sides of the steps, including the top step and platform. On mobile ladder stands, the handrail also must extend across the open back of the top step.

    The existing OSHA rule requires that mobile ladder stand steps have handrails (a minimum of 29 inches high, measured vertically from the center of the step) if the height of the top step was more than 5 feet or 5 steps (Sec. 1910.29(f)(4)). However, the existing rule does not specify the maximum height allowed for the handrails. In addition, the existing rule does not contain a specific provision covering handrails on mobile ladder stand platforms. The proposed rule, on the other hand, included specific and separate handrails provisions for mobile ladder stands and mobile ladder stand platforms (proposed paragraphs (e)(2)(ii) and (e)(3)(ii)). In the final rule, OSHA consolidated those proposed provisions into the general requirement in paragraph (e)(1)(v) to reduce repetition and simplify the final rule.

    The final rule provides greater protection than the existing OSHA rule. The final rule requires that mobile ladder stands and platforms have handrails where the top step height is at least 4 feet compared to more than 5 feet or 5 steps in the existing rule. OSHA notes that the ANSI standard (A14.7-2011, Sections 4.3.5 and 4.4.5) also requires that handrails provide the same level of protection as the final rule.

    Final paragraph (e)(1)(v), like the proposal (a note to proposed paragraphs (e)(2)(ii) and (e)(3)(ii)), also allows alternatives to the handrails requirement for ``special-use applications.'' In such situations, the final rule permits employers to use removable gates or non-rigid members (such as chains) instead of handrails on the top step of mobile ladder stands and platforms. The alternative means of compliance allows employers to remove the gates or chains when a work task involves special-use application; however, employers must replace the gates or chains (i.e., comply with the handrail requirement) when they complete the special-use task. In a special use application, it is important that the mobile ladder stand or platform is placed to minimize the risk of falls. For example, when a gate needs to be removed to place or remove objects from a shelf, the employer needs to ensure that the unit is placed so there is no gap between the unit and shelf that could result in a worker falling while performing the task. OSHA believes this alternative method provides flexibility for employers while reducing the exposure of workers to fall hazards under these conditions. For the purposes of this provision, a special-use application may include a situation in which permanent handrails block or impede the movement of boxes, products, or materials from the ladder stand or platform to shelves or other storage areas. The ANSI standard also includes this alternative method (A14.7-2011, Sections 4.3.5, 4.3.6, 4.4.5, and 4.4.6). OSHA did not receive any comments on the proposed provisions, and adopts them as consolidated and revised.

    Final paragraph (e)(1)(vi), like the existing OSHA and proposed rules (Sec. 1910.29(a)(3)(i) and (f)(2); proposed paragraph (e)(1)(v)), requires that employers ensure the maximum work-surface height of mobile ladder stands and platforms does not exceed four times the shortest dimension of the base, without additional support. OSHA believes this requirement is necessary to prevent units from tipping over and injuring workers. Also consistent with the existing and proposed rules, the final rule specifies that when mobile ladder stands and platforms need to reach greater heights, the employer must provide additional support such as outriggers, counterweights, or comparable means to stabilize the base and prevent the unit from overturning. The ANSI standard includes the same requirement (A14.7-2011, Section 5.2).

    Final paragraph (e)(1)(vi) differs from the existing OSHA rule in one respect: it does not incorporate the testing requirement in existing Sec. 1910.29(f)(2) for calculating the maximum base length, opting instead to adopt a performance-based requirement. Similarly, it does not incorporate the A14.7-2011 testing provisions. OSHA did not receive any comments on the proposal, and adopts it with minor editorial clarifications.

    Final paragraph (e)(1)(vii), like proposed paragraph (e)(1)(iv), requires that employers ensure wheels and casters on mobile ladder stands and platforms are equipped with a system that will impede horizontal movement when a worker is on the unit. OSHA drew the final requirement from the ANSI standard (A14.7-2011, Sections 4.3.8 and 4.4.9); the existing OSHA rule does not contain a similar provision. OSHA believes the requirement in final paragraph (e)(1)(vii) is necessary to prevent accidental or inadvertent movement of a mobile ladder stand or platform. If the stand or platform suddenly moves, it may cause the worker to fall off the unit. Sudden movement also can cause materials, equipment, and tools to fall off a mobile ladder stand or platform and hit employees working in the immediate area. The phrase ``rigid and swivel'' has been removed from the proposed language because it is unnecessary. In addition, OSHA added the phrase ``when an employee is on a stand or platform'' to the proposed text to clarify that it is acceptable that mobile ladder stands move at other times. OSHA did not receive any comments on the proposed rule, and adopts it as discussed.

    Final paragraph (e)(1)(viii), like proposed paragraph (e)(1)(vii), requires that employers ensure mobile ladder stands and platforms do not move while workers are on them. The final rule will prevent workers from falling from mobile ladder stands and platforms. Working on a unit, particularly on the top step or platform, raises the unit's center of gravity, causing the unit to become less stable. If somebody moves the unit, intentionally or not, a worker on the unit could lose his or her balance and experience a serious fall. The same consequences could occur if a worker rides on a mobile ladder stand or platform when somebody moves the unit to a new location in the workplace.

    OSHA also drew this requirement from A14.7-2011 (Section 6.4) because the existing rule does not contain a similar requirement. OSHA did not receive any comments on the proposed rule, and adopted it as proposed with minor editorial changes for clarity.

    Final paragraph (e)(2) establishes design requirements for mobile ladder stands that apply to mobile ladder stands in addition to the general mobile ladder stand and platform requirements in final paragraph (e)(1). As with the general requirements in final paragraph (e)(1), OSHA carried forward most of the provisions in final paragraph (e)(2) from its existing rule (Sec. 1910.29) or from A14.7-2011.

    Final paragraph (e)(2)(i), like proposed paragraph (e)(2)(i), establishes requirements for mobile ladder stand steps. The employer must ensure that these steps:

    Are uniformly spaced and arranged;

    Have a maximum rise of 10 inches; and

    Have a minimum depth of 7 inches.

    The final rule also requires that the employer ensure the slope (angle) of the

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    ``step stringer'' to which the steps are attached is not more than 60 degrees from horizontal. A step stringer (also called a ``stile'' or ``siderail'') is the inclined structural member that supports the steps (treads).

    The requirements in final paragraph (e)(2)(i) are consistent with the general requirements for ladders in final paragraph (b) of this section. Final paragraph (b) also requires that ladder steps be ``parallel, level, and uniformly spaced'' (final paragraph (b)(1)) and have steps spaced ``not less than 10 inches and not more than 14 inches apart'' (final paragraph (b)(2))(see discussion of final paragraph (b) above).

    Final paragraph (e)(2)(i) differs from the existing OSHA rule (Sec. 1910.29(f)(3)) in two respects. The final rule does not carry forward the existing requirements to have (1) a 9-inch minimum rise for mobile ladder stand steps, and (2) a minimum 55-degree slope for step stringers. OSHA believes final paragraph (e)(2)(i) simplifies the rule and provides greater compliance flexibility. Since the final rule is virtually identical to the ANSI standard (A14.7-2011, Section 4.3.3), OSHA also believes the revisions to the final rule do not compromise worker protection. OSHA did not receive any comments on the proposed rule, and adopted it with minor editorial revisions.

    Final paragraph (e)(2)(ii), like proposed paragraph (e)(2)(iii) and the ANSI standard (A14.7-2011, Section 4.3.6), establishes requirements for mobile ladder stands with a top step height more than 10 feet above lower levels. Final paragraph (e)(2)(ii) requires that employers ensure these mobile ladder stands have handrails on three sides of the top step. The employer must ensure that the handrail has a vertical height of at least 36 inches. Also, top steps with a length (depth) of at least 20 inches, front to back, must have midrails and toeboards.

    The requirements in final paragraph (e)(2)(ii) provide additional protection from falls and falling objects that are particularly important when employees work on taller mobile ladder stands. To protect workers from falls, final paragraph (e)(2)(ii) ensures that workers have a handhold to grab onto while they are climbing or located on the top step. In addition, final paragraph (e)(2)(ii) requires top steps that are at least 20 inches in depth to be provided with a midrail and toeboard. This protects adjacent workers from falling objects when the top step becomes large enough for the possibility of materials, tools, equipment, or other objects to be placed on the top step. OSHA drew the requirements in final paragraph (e)(2)(ii) from the ANSI standard (A14.7-2011, Section 4.3.6). The existing OSHA rule (Sec. 1910.29(f)(4)) does not include any of these protections.

    Although final paragraph (e)(2)(ii) is similar to proposed paragraph (e)(2)(iii), it also differs in some respects. OSHA reorganized the final paragraph so it is a plain-language provision. OSHA believes that the reorganized provision in the final rule is easier for employers to understand than the proposed provision.

    Also, final paragraph (e)(2)(ii) contains two clarifications of the proposed provision. First, final (e)(2)(ii) clarifies the handrail, midrail, and toeboard requirements, stating that employers must provide these protective structures on three sides of the top step. Although OSHA believes that most employers understand that locating handrails, midrails, and toeboards on three sides is necessary to provide adequate protection to their workers, the final rule expressly clarifies this requirement.

    Second, a note to final paragraph (e)(2)(ii), like final paragraph (e)(1)(v), incorporates an alternative method from the handrail and midrail requirement for special-use applications. (See the explanation of the exception for special-use applications in paragraph (e)(i)(v) above.) OSHA did not receive any comments on the proposed provision, and adopts it as revised.

    Final paragraph (e)(2)(iii), like proposed paragraph (e)(2)(iv), requires that employers ensure the standing areas of mobile ladder stands are within the base frame. OSHA believes this requirement is necessary to ensure the stability of mobile ladder stands. Keeping the center of gravity within the base frame increases the stability of the mobile ladder stand. This requirement reduces the potential for the mobile ladder stand to tip when a worker is using it.

    OSHA drew final paragraph (e)(2)(iii) from the ANSI standard (A14.7-2011, Section 4.3.9) since the existing OSHA rule does not include this requirement. Consistent with the goal of making the final rule more performance based, OSHA did not adopt the stability-testing requirements in the ANSI rule (A14.7-2011, Section 5). OSHA did not receive any comments on the proposed provision, and adopts it as proposed.

    Employers must comply with the design requirements for mobile ladder stand platforms specified by final paragraph (e)(3), as well as the general requirements for mobile ladder stands and platforms in final paragraph (e)(1). OSHA drew most of these requirements from A14.7-2011. In addition, OSHA expanded the existing requirements on mobile ladder stands in Sec. 1910.29 that apply to mobile ladder stand platforms.

    Final paragraph (e)(3)(i), like the proposed paragraph and final paragraph (e)(2)(i), requires that employers ensure the steps of mobile ladder stand platforms:

    Are uniformly spaced and arranged;

    Have a maximum rise of 10 inches; and

    Have a minimum depth of 7 inches.

    The final rule also requires that the employer ensure the slope (angle) of the ``step stringer'' to which the steps are attached is not more than 60 degrees from horizontal.

    Final paragraph (e)(3)(i) differs from final paragraph (e)(2)(i) in one respect. It includes an exception when the employer demonstrates that the final requirement is not feasible. In that circumstance, the employer may use mobile ladder stand platforms that have steeper slopes or vertical rung ladders, provided the employer stabilizes the alternative unit to prevent it from overturning. The final rule includes this exception because OSHA recognizes that there may be situations or locations where, for example, the slope of the step stringer on a mobile ladder stand platform may need to be greater than the 60-degree limit. To illustrate, there may be a workplace space where the employer needs to use a mobile ladder stand platform, but the unit does not fit. In that situation, OSHA believes it would be appropriate to use an alternative unit with a steeper stringer slope or a vertical rung ladder that takes up less space.

    The ANSI standard also includes a similar exception for mobile ladder stand platforms (A14.7-2011, Section 4.4.3). The exception in the ANSI standard specifically permits employers to use alternative mobile ladder stand platforms that have steps with a slope of 60 to 70 degrees. OSHA notes that some alternative units consist of retractable ship's stairs which, consistent with final Sec. 1910.25(e)(1), have a slope of 60 to 70 degrees. When employers demonstrate the final rule is not feasible, OSHA notes that employers will be in compliance with final paragraph (e)(3)(i) if they use mobile ladder stand platforms with a slope of up to 70 degrees, the limit permitted by A14.7-2011, Section 4.4.3. The exception also requires that employers properly stabilize the alternative unit to reduce the risk of workers falling off the steeper steps. OSHA did not receive any comments on the proposed provision, and adopts it as discussed above.

    Final paragraphs (e)(3)(ii) and (iii) establish requirements addressing the

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    platform area of mobile ladder stand platforms. When the height of the platform is 4 feet to 10 feet, final paragraph (e)(3)(ii) requires that employers ensure the platform areas have handrails and midrails. Employers also must ensure the handrails on the platforms in this height range have a vertical height of at least 36 inches. As discussed in final paragraph (e)(2)(ii), these requirements are necessary to protect workers from falling off walking-working surfaces that are 4 feet or more above a lower level.

    Although the existing OSHA rule contains a requirement for handrails on mobile ladder stands (Sec. 1910.29(f)(4)), it only requires that the vertical of height of the handrails be at least 29 inches, which is not as protective as the ANSI standard. Therefore, OSHA adopted final paragraph (e)(3)(ii) from the ANSI standard (A14.7-

    2011, Section 4.4.4).

    Final paragraph (e)(3)(ii) differs from the proposed rule in that OSHA removed the proposed requirement that mobile ladder stand platforms have handrails on the steps if the top step height is 4 feet to 10 feet. The final rule consolidated that requirement in final paragraph (e)(1)(v), which preserves the step-handrail requirement for both mobile ladder stands and platforms. (See discussion of handrails in the summary of final paragraph (e)(1)(v) above.) OSHA did not receive any comments on the proposed requirement, and adopts it as revised.

    Final paragraph (e)(3)(iii), like the proposal (proposed paragraph (e)(3)(iii)), establishes requirements for mobile ladder stand platforms that are more than 10 feet above a lower level. For these units, the final rule requires that employers must ensure that the exposed sides and ends of the platforms have both guardrails and toeboards. OSHA notes that all fall protection and falling object protection requirements must meet the systems criteria in final Sec. 1910.29.

    OSHA believes it is essential that guardrails on platforms that are more than 10 feet in height comply with the criteria in final Sec. 1910.29(b) to ensure that employers adequately protect workers from falling off the platforms. OSHA also believes that toeboards must meet the criteria in final Sec. 1910.29(k)(1) to ensure workers on the ground are not hit by falling objects. The toeboards must, consistent with the requirements of Sec. 1910.29:

    Have a vertical height of at least 3.5 inches;

    Not have more than a 0.25-inch clearance above the platform surface;

    Be solid or have openings that do not exceed 1-inch at the greatest dimension; and

    Be capable of withstanding a force of at least 50 pounds applied at any downward or outward direction at any point along the toeboard (see final Sec. 1910.29(k)(1)(ii)).

    Lastly, like final paragraphs (e)(1)(v) and (e)(2)(ii), final paragraph (e)(3)(iv) includes language, proposed as a note to this provision, that permits the use of removable gates or non-rigid members instead of handrails and guardrails in special-use applications (see further discussion of special-use applications in final paragraph (e)(1)(v) above). OSHA did not receive any comments on the proposed provisions, and adopts them as revised.

    Section 1910.24--Step Bolts and Manhole Steps

    Final Sec. 1910.24, like the proposed rule, establishes new design, strength, and use requirements for step bolts and manhole steps. The final rule defines a step bolt as ``a bolt or rung attached at intervals along a structural member used for foot placement and as a handhold when climbing or standing'' (Sec. 1910.21(b)). Step bolts, often are used on metal poles or towers, and include pole-steps, commonly used on wooden poles such as utility poles.

    The final rule, like the proposed rule, defines manhole steps as ``steps individually attached to, or set into, the wall of a manhole structure'' (Sec. 1910.21(b)). Manhole steps are cast, mortared, or attached by mechanical means into the walls of the base, riser, and conical top sections of a manhole.

    Telecommunications, gas, and electric utility industries are the industries that most often use step bolts and manhole steps. Manufacturing establishments also use them instead of conventional ladders and stairs, especially in locations where it is infeasible to use ladders and stairs.

    OSHA drew the step bolt and manhole step requirements in the final rule from the following six sources:

    The step bolt, pole step, and manhole ladder requirements in OSHA's Telecommunications standard (29 CFR 1910.268);

    The step bolt and manhole step provisions in OSHA's 1990 proposed Walking and Working Surfaces and Personal Protective Equipment (Fall Protection Systems) standard (55 FR 13360), which drew its requirements from proposed Electric Power Generation, Transmission, and Distribution standard (29 CFR 1910.269) (54 FR 4974 (1/31/1989));

    American National Standards Institute/Telecommunications Industry Association (ANSI/TIA) 222-G-1996, Structural Standard for Antenna Supporting Structures and Antennas (ANSI/TIA 222-G-1996) (Ex. 33);

    American National Standards Institute/Telecommunications Industry Association (ANSI/TIA) 222-G-2005, Structural Standard for Antenna Supporting Structures and Antennas (ANSI/TIA 222-G-2005) (Ex. 27);

    American Society for Testing and Materials (ASTM) C 478-

    13, Standard Specification for Precast Reinforced Concrete Manhole Sections (ASTM C 478-13) (Ex. 381); and

    American Society for Testing and Materials (ASTM) A 394-

    08, Standard Specification for Steel Transmission Tower Bolts, Zinc-

    Coated and Bare (ASTM A 394-08).

    The requirements in final Sec. 1910.24 replace the step bolt, pole step, and manhole step provisions in the existing Telecommunications standard (Sec. 1910.268(h)), and final Sec. 1910.23 replaces the ladder requirements in Sec. 1910.268(h). Thus, the final rule deletes those requirements from Sec. 1910.268(h). Therefore, the telecommunications industry, as well as all other users of ladders, step bolts, and manhole steps in general industry must comply with the ladder, step bolt, and manhole step requirements in revised subpart D.

    Consistent with section 6(b)(5) of the OSH Act (29 U.S.C. 655(b)(5)), the final rule is performance based to the extent possible. For example, final paragraph (a)(2) of this section requires that the employer ensure that step bolts are designed, constructed, and maintained to prevent the worker's foot from slipping off the ends, instead of mandating specific requirements on the size and shape that the step bolt heads must meet.

    OSHA notes that two of the step bolt provisions (final paragraphs (a)(1) and (7)), and all but two of the manhole step requirements (final paragraph (b)(2)), apply only to those steps installed after the effective date of the final rule. OSHA recognizes that many step bolts and manhole steps already in workplaces currently comply with the requirements in final Sec. 1910.24. This high rate of compliance, OSHA believes, is the result of the Agency issuing its Telecommunications standard in 1975 (40 FR 13341 (3/26/1975)), and because the national consensus standards addressing step bolts and manhole steps have been in place for a number of years. That said, OSHA believes the most efficient and least disruptive way

    Page 82549

    to implement the final rule is to require employers to comply with the final rule when they install new step bolts and manhole steps. Employers may install new step bolts and manhole steps when they install new structures (e.g., telecommunications and utility towers), or when they replace damaged step bolts and manhole steps (e.g., broken, missing) that are hazardous for workers to use. Because final paragraphs (a)(8) and (b)(3) of this section require that employers inspect step bolts and manhole steps, respectively, at the start of each work shift, OSHA believes that employers will quickly and readily identify whether hazardous conditions, including damage, are present. If such conditions are present, final Sec. 1910.22(d)(2) and (3) require that employers repair, correct, or replace the step bolts or manhole steps.

    For example, if an inspection of an electric utility tower finds a corroded step bolt that cannot support the required load (final paragraphs (a)(6) and (7)), the final rule requires that the employer replace it with one made of corrosion-resistant materials or with corrosion-resistant coatings (final paragraph (a)(1)). However, if the inspection shows existing step bolts still have useful life, i.e., they can support the required load and meet the other requirements in final paragraph (a), the employer can continue to use the step bolt even if it is not made with corrosion-resistant materials or coatings. OSHA believes that following this type of implementation strategy and schedule, rather than requiring employers to retrofit all existing step bolts not made with corrosion-resistant materials or coatings, will ensure that the final rule does not impose an undue burden on employers, while ensuring that the existing step bolts are safe for workers to use.

    Paragraph (a)--Step Bolts

    Paragraph (a) of the final rule, like the proposal, establishes requirements addressing the design, dimensions, strength, and installation of step bolts. OSHA received a comment recommending that the final rule prohibit the use of step bolts unless it requires that employers provide fall protection, such as ladder safety systems, when workers use step bolts (Ex. 155). Dr. J. Nigel Ellis, of Ellis Fall Safety Solutions, referenced a 1990 Duke Power study he said demonstrated step bolts had a high breaking frequency, and therefore, that fall protection was necessary for workers using step bolts. Dr. Ellis also said fall protection needed to be continuous, and not require the worker to manipulate or handle objects when climbing.

    OSHA addressed in final Sec. 1910.28 Dr. Ellis' concerns about protecting workers using step bolts that break unexpectedly. That section requires that employers provide fall protection for workers on any walking-working surface with an unprotected side or edge that is four feet or more above a lower level (Sec. 1910.28(b)). The final rule is more protective than ANSI/TIA 222-G-2005, which requires that antenna-supporting structures designed for climbing to heights greater than 10 feet must have at least one climbing facility (e.g., step bolts) and a ``safety climb device'' (Section 12.3). The ANSI/TIA 222-

    G-2005 standard defines a ``safety climb device'' as ``a support system that may be a cable or solid rail attached to the structure'' (Section 12.2), and specifies that the device meet the requirements in the A14.3 standard (Section 12.4).

    Final paragraph (a)(1), 1ike the proposed rule, requires that employers ensure step bolts installed in an environment where corrosion may occur are constructed of, or coated with, material that protects against corrosion. The final rule is consistent with 1990 proposed Sec. 1910.24(b)(6) (55 FR 13399). The ANSI/TIA 222-G-2005 standard requires that structural steel members and components must have zinc coating (Section 5.6.1). Although the national consensus standard specifies that hot-dip galvanizing is the preferred method, employers may use other equivalent methods (Section 5.6.1).

    Corrosive environments can cause damage to unprotected metals. For example, corrosion can lead to deterioration and weakening that may cause step bolts to break or fail to support the total required load. OSHA believes that corrosion-resistant materials and coatings will protect step bolts and ensure they are capable of supporting at least four times the maximum intended load.

    Final paragraph (a)(1), like the proposed rule, applies the requirement prospectively to step bolts installed on or after the effective date of the final rule. As noted above, OSHA believes this is the most efficient way to implement this provision while, at the same time, ensuring worker protection. Mr. Robert Miller, of Ameren Corporation, supported OSHA's decision to make the paragraph (a)(1) prospective (Ex. 189). Accordingly, OSHA is adopting paragraph (a)(1) as discussed.

    Final paragraph (a)(2), similar to the proposed rule, requires that employers ensure step bolts are designed, constructed, and maintained to prevent the worker's foot from slipping off the end of it. If a worker's foot slips off the end of the step bolt, the worker could fall or sustain an injury from slipping. Designing the head of the step bolt to prevent the worker's foot from slipping off will provide the requisite protection. Final paragraph (a)(2) also is consistent with the ANSI/TIA 222-G-2005 standard (Section 12.5(f)), as well as 1990 proposed Sec. 1910.24(b)(5).

    The proposed rule specified that step bolts be ``designed to prevent slipping or sliding off the end of the bolt,'' but the proposal also required step bolts to be ``designed, constructed, and maintained'' free of recognized hazards (proposed Sec. 1910.22(a)(3)). Only properly designed, constructed, and maintained step bolts will be effective in preventing the worker's foot from slipping off the end, therefore the Agency added ``constructed and maintained'' to final paragraph (a)(2) to emphasize that step bolts must meet these requirements as well. OSHA did not receive any comments on the proposed provision and has adopted paragraph (a)(2) with the revisions discussed.

    Final paragraph (a)(3), like the proposed rule, requires that employers ensure step bolts are uniformly spaced at a vertical distance of not less than 12 inches and not more than 18 inches apart, measured center to center. The final paragraph also notes that the spacing from the entry and exit surface to the first step bolt may differ from the spacing between other step bolts. This requirement means that the maximum uniform spacing between alternating step bolts is 18 inches, resulting in a maximum spacing between step bolts on the same side of 36 inches. OSHA believes that uniform spacing helps to ensure safe climbing when using step bolts. (Figure D-6 illustrates the vertical spacing requirements in the final rule.)

    The final rule generally is consistent with the proposed rule and the existing Telecommunications standard (Sec. 1910.268(h)(2)), which limit the maximum vertical spacing between step bolts (alternating) to 18 inches. OSHA adopted the Telecommunications standard in 1975 based on recommendations of a voluntary committee of representatives from telephone companies and communication unions (40 FR 13341 (3/26/1975)). The 1990 proposal specified that the spacing between step bolts be between 6 and 18 inches (Sec. 1910.24(b)(1)). The ANSI/TIA 222-G-2005 standard requires that the spacing between step bolts be between 10 to 16 inches, with a tolerance of 1 inch (Section 12.5).

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    In the proposed rule, OSHA requested, but did not receive, comments on whether the Agency should adopt the proposed requirement or the spacing that the ANSI/TIA 222-G-2005 standard specifies. OSHA believes that adopting the maximum 18-inch uniform vertical spacing requirement in final paragraph (a)(3) is appropriate for two reasons. First, as mentioned earlier, the step bolt requirement in the Telecommunications standard has been in place for more than 35 years. During that period, the telecommunications industry constructed many towers that have step bolts spaced no more than 18 inches apart. OSHA has no data showing that the maximum 18-inch vertical step bolt spacing requirement in the Telecommunications standard poses any safety problems or resulted in any injury in that industry. Moreover, OSHA believes that most of the telecommunications industry already is in compliance with Sec. 1910.268, and that final paragraph (a)(3) would not impose a financial burden on employers.

    Second, if the 1-inch tolerance allowed in the ANSI/TIA 222-G-2005 standard is taken into account, there is, at most, only a 1-

    inch difference in the maximum vertical spacing in final paragraph (a)(3) and the ANSI/TIA 222-G-2005 standard. OSHA does not consider this difference to be significant in this provision. Therefore, OSHA is adopting in the final provision, the step bolt spacing requirement (between 12 and 18 inches) that is consistent with OSHA's Telecommunications standard.

    Final paragraph (a)(3), like the proposed rule, allows the spacing of step bolts at the entry and exit surface to the first step bolt to differ from the uniform spacing between the other step bolts. For example, the first step bolt on a monopole may be 10 feet above the ground. Having a higher first step bolt on a structure is not unusual; in many cases, this configuration limits unauthorized access to the structure's hazardous heights, communication devices, or electrical wiring.

    OSHA's Telecommunications standard also allows the spacing of the initial step bolt to differ from the other steps, ``except where working, standing, or access steps are required'' (existing Sec. 1910.268(h)(2)). The 1990 proposal did not specifically address spacing of the initial step bolt. Section 12.5(a) of ANSI/TIA 222-G-2005 requires that ``spacing shall remain uniform over a continuous length of climb,'' but does not address entry and exit spacing. OSHA believes that allowing a variation in spacing from the entry surface to the first step bolt or from the last step bolt to the exit surface will make it easier and safer for workers to establish their foothold. Once again, since the Telecommunication standard allows the spacing on the first and exit step bolt to differ and OSHA is not aware of any injuries or problems occurring as a result, the Agency is adopting paragraph (a)(3) as proposed, with minor editorial revisions.

    Final paragraph (a)(4), like the proposed rule, requires that employers ensure step bolts have a minimum clear width of 4.5 inches. The final rule is the same as OSHA's Telecommunications standard (Sec. 1910.268(h)(2)); 1990 proposed Sec. 1910.24(b)(2); and the ANSI/TIA 222-G (2005) standard (Section 12.5(f)).

    OSHA believes it is necessary that workers have an adequate space on which to step and secure their foothold while climbing or they could slip and fall. OSHA believes the telecommunications industry supports the 4.5-inch minimum clear-step width in the Telecommunications and ANSI/TIA 222-G-2005 standards. In addition, since both standards have been in place for many years, OSHA believes the industry already is in compliance with the minimum clear width requirement.

    Mr. Larry Halprin, of Keller and Heckman, said that OSHA should only apply the vertical spacing distance (final paragraph (a)(3)) and minimum clear width (final paragraph (a)(4)) requirements prospectively (Ex. OSHA-S029-2006-0662-0381). He stated that, in the OSHA notice reopening the rulemaking docket on subpart D, the Agency said that the 1990 proposal specified prospective application of the revised provisions, and ``would allow workplaces and equipment meeting existing subpart D requirements to be `grandfathered in''' (68 FR 23529 (5/2/

    2003)). However, neither the 2010 nor the 1990 proposed rules stated that OSHA would apply the vertical spacing or minimum clear width requirements prospectively. In addition, as mentioned, the Telecommunications and ANSI/TIA 222-G-2005 standards, which have been in place more than 35 years, include both requirements. Moreover, OSHA received no comments from affected industries indicating that they could not meet the existing vertical spacing and minimum clear width requirements. Therefore, OSHA believes that most employers already are in compliance with final paragraphs (a)(3) and (4). Accordingly, OSHA does not believe it is necessary to limit the vertical spacing and minimum clear width requirements to prospective application and adopts the provisions as proposed, with minor editorial revisions.

    Final paragraph (a)(5), like the 2010 and 1990 proposed rules, requires that employers ensure the minimum perpendicular distance between the centerline of each step bolt to the nearest permanent object in back of the step bolt is at least 7 inches. When employers can demonstrate that they cannot avoid an obstruction, the final rule permits them to reduce the minimum perpendicular clearance space to 4.5 inches.

    The required 7-inch minimum perpendicular clearance space in final paragraph (a)(5) is consistent with the minimum perpendicular clearance for fixed ladders in final Sec. 1910.23(d)(2), the construction ladders standard (Sec. 1926.1053(a)(13)), and ANSI/TIA 222-G-2005 standard (Section 12.5). However, final paragraph (a)(5), like the 2010 and 1990 proposals, provides more flexibility than those standards. When the employer demonstrates that an obstruction is not avoidable, final paragraph (a)(5) allows employers to reduce the minimum perpendicular clearance to 4.5 inches for any step bolt.

    OSHA believes that a 7-inch minimum perpendicular clearance for step bolts, like fixed ladders, is necessary to ensure workers are able to maintain a secure foothold and negotiate the step bolts while they are climbing or working. Because the final rule gives employers the flexibility to reduce the minimum perpendicular clearance space for any step bolt if an obstruction cannot be avoided, the Agency believes that employers need to be able to demonstrate that they made a case-by-case evaluation and determination that the obstruction was not avoidable in the specific instance. For example, where an employer uses step bolts in an industrial setting because it is not feasible to use fixed ladders or stairs (e.g., space limits), employers need to show they evaluated the specific situation and considered potential options in determining whether they could avoid or remove the obstruction. The language in the final rule clarifies the Agency's intent about the situations in which employers may reduce the minimum perpendicular clearance space on a step bolt. The Agency did not receive comments on proposed paragraph (a)(5) and adopts the requirement as discussed.

    Final paragraphs (a)(6) and (7) address strength requirements for existing step bolts and for step bolts installed on or after the effective date of the final rule. The final rule establishes different strength requirements for existing and new step bolts to reduce the need for

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    retrofitting step bolts that currently meet the maximum intended load requirements in final Sec. 1910.22(b) and still have useful life.

    Final paragraph (a)(6), like the proposed rule, requires that employers ensure each step bolt installed before the effective date of the final rule is capable of supporting the maximum intended load. The final rule defines maximum intended load as ``the total load (weight and force) of all workers, equipment, vehicles, tools, materials, and loads the employer reasonably anticipates to be applied to a walking-

    working surface at any one time'' (Sec. 1910.21(b)).

    The final provision is based on the Telecommunications standard requirement that employers shall ensure that no employee nor any material or equipment may be supported or permitted to be supported on any portion of a ladder unless it is first determined, by inspections and checks conducted by a competent person that such ladder is adequately strong, and in good condition (Sec. 1910.268(h)(1)), and is consistent with 1990 proposed Sec. 1910.24(c)(2). The ANSI/TIA 222-G-

    2005 standard establishes strength specifications:

    A load factor, alphaL = 1.5, shall be applied to the nominal loads specified herein:

    The minimum nominal load on individual rungs or steps shall be equal to a normal concentrated load of 250 lbs 1.1 kN applied at the worst-case location and direction.

    The minimum nominal load on ladders shall be 500 lbs 2.2 kN vertical and 100 lbs 445 N horizontal applied simultaneously, concentrated at the worst-case location between consecutive attachment points to the structure (Section 12.4).

    The general requirements in the final rule specify that employers ensure all walking-working surfaces are capable of supporting the total weight and force employers reasonably anticipate placing on that surface (Sec. 1910.22(b)). Final paragraph (a)(6) reinforces that this requirement applies as well to existing step bolts. OSHA believes step bolts that cannot support their maximum intended load are not safe to use, regardless of when the employer installed them.

    The ANSI/TIA 222-G standard has been in place since 2005, and OSHA believes most step bolts manufactured today meet the requirements of that standard. In addition, OSHA's experience is step bolt manufacturers generally specify maximum loads that step bolts can withstand without failure. As such, OSHA believes that most existing step bolts are in compliance with final paragraph (a)(6) and Sec. 1910.22(b). That said, employers must continue to inspect step bolts to ensure that the loads placed on the step bolts covered by this provision do not exceed the maximum intended loads and manufacturer specifications. This is because failure or deflection of step bolts can occur during use, particularly since the weight on step bolts is not static and varies as a worker climbs. OSHA did not receive any comments on proposed paragraph (a)(6), and is adopting it as discussed.

    Final paragraph (a)(7), like the proposed rule, requires that employers ensure each step bolt installed on or after the effective date of the final rule is capable of supporting at least four times its maximum intended load. As discussed in the proposed rule, OSHA believes that requiring step bolts be capable of supporting four times the maximum intended load is necessary to provide a safety factor that is adequate to ensure that step bolts do not fail during use. The required safety factor (i.e., 4 times the maximum intended load) will provide an additional level of assurance that step bolt are safe for workers to use. OSHA believes that common engineering practice requires manufacturers to include a safety factor in any product design to account for any unanticipated conditions that may stress the product beyond its designed capabilities.

    Final paragraph (a)(7) is consistent with 1990 proposed Sec. 1910.24(c)(1), which specified that ``each step bolt shall be capable of withstanding, without failure, at least four times the intended load calculated to be applied to the step bolt.'' In addition, as mentioned above, the Telecommunications standard requires any portion of a ladder to be ``adequately strong,'' while the ANSI/TIA 222-G-2005 standard establishes specification requirements.

    The ASTM A 394-08 standard establishes specification for step bolts with nominal thread diameters of \1/2\, \5/8\, \3/4\, \7/8\ and 1-inch (Ex. 383). OSHA believes that \5/8\-inch diameter steel step bolts normally comply with the strength requirement in final paragraph (a)(7), and are the most commonly used step bolts in general industry. Manufacturers also produce step bolts smaller than \5/8\-inch diameter, but OSHA notes that \1/2\-inch step bolts may not comply with final paragraph (a)(7).

    Final paragraph (a)(7), unlike the ANSI/TIA and ASTM standards, is a performance-based requirement. OSHA believes that giving employers flexibility in determining the maximum load they anticipate applying to any step bolt will ensure that the maximum intended load accurately reflects the particular work and workplace conditions present. By contrast, OSHA believes that the ANSI/TIA 222-G-2005 test procedures are for manufacturers, not employers, because manufacturers are in the best position to test whether step bolts meet the strength requirements. Employers are free to use the specifications and test procedures in the ANSI/TIA national consensus standard to determine whether their step bolts meet the maximum intended load requirements in final paragraph (a)(7).

    OSHA received two comments on the proposed requirement. As discussed in final paragraph (a)(1), Mr. Miller, of Ameren, supported the Agency's decision to apply the new strength requirement in final paragraph (a)(7) prospectively (Ex. 189). In the second comment, Mr. Richard Willis, of Southern Company, questioned how employers would calculate the performance-based maximum intended load for step bolts in final paragraph (a)(7) (Ex. 192). He recommended:

    We suggest that the methodology of National Electric Safety Code (NESC) 2007 Rule 261N be adopted. We also feel that OSHA needs to state a failure criteria for 1910.24(a)(7). . . .

    Instead of using the four times the maximum intended load, OSHA should consider using the criteria of the NESC or IEEE 1307 (Ex. 192).

    OSHA recognizes the methodologies in the national consensus standards that Mr. Willis recommended are methodologies employers can use to determine and ensure that step bolts are capable of supporting four times the maximum intended load. Employers are free to use the NESC and IEEE 1307 standards, which OSHA referenced in the proposed rule (75 FR 28901) in determining whether their step bolts are capable of supporting four times the total load they reasonably anticipate placing on the step bolt. In a 2003 letter of interpretation, OSHA wrote, ``We believe in most situations an employer's compliance with IEEE 1307-1996 will usually prevent or eliminate serious hazards'' (OSHA letter to Mr. Brian Lacoursiere, May 5, 2003).\21\

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    \21\ Available from OSHA's website at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24564.

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    Under the performance based final rule, employers may use other methods to ensure step bolts comply with the strength requirement in final paragraph (a)(7). For example, employers may select step bolts that manufacturers test according to the strength requirements specified by the ANSI/TIA 222-G

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    standard (Section 12.4), and then ensure that workers do not place a total load on the step bolts that exceeds the specified strength limits.

    Mr. Willis also said that OSHA should state the failure criteria for final paragraph (a)(7) as: ``If the intent is a 15 degree deflection as referenced by the NESC and in 1910.24(a)(9), then this should be stated'' (Ex. 192). OSHA does not believe it is necessary to put additional language in final paragraph (a)(7) specifying a ``failure criteria'' for step bolt strength. First, the Agency believes that final paragraph (a)(9) makes clear that step bolts bent more than 15 degrees do not meet the requirement in paragraph (a)(7). Final paragraph (a)(9) states that employers must remove and replace those step bolts. Second, the language Mr. Willis recommended is not performance based as it does not include other failure criteria manufacturers and employers may use. Therefore, OSHA finalizes the provision as discussed.

    Final paragraph (a)(8) requires that employers ensure step bolts are inspected at the start of each work shift and maintained in accordance with Sec. 1910.22. By including the reference to Sec. 1910.22, OSHA is emphasizing that step bolts, like all walking-working surfaces, must meet the general requirements in the final rule.

    OSHA believes a visual inspection often can reveal structural and other problems with step bolts that may make them unsafe for workers to use. Employers must correct, repair, or replace step bolts with structural problems (e.g., broken, fractured, loose, bent, or corroded step bolts) that indicate that the step bolts cannot support the maximum intended load (final Sec. 1910.22(b) and (d)(2)). A visual inspection also can identify whether step bolts are dry, or likely to be slippery because of snow, ice, or rain (final Sec. 1910.22(a)(2)). Final paragraph (a)(8) requires that employers address these conditions to maintain step bolts in accordance with Sec. 1910.22.

    As with the inspection requirements in final Sec. 1910.22, the inspection of step bolts most often will consist of a short, visual observation of the condition of the step bolts. Final paragraph (a)(7) permits workers to perform this visual inspection as they begin to climb the structure, so long as the workers inspect the step bolts before stepping on, or grasping them, and know not to proceed if the step bolts do not pass the visual inspection. Where a worker or supervisor identifies a problem during a visual inspection, a more thorough examination may be necessary. The employer must repair, correct, or replace the damaged or hazardous step bolt before allowing workers to continue climbing the structure.

    OSHA notes the proposed rule, like 1990 proposed Sec. 1910.24(c)(4), specified that employers inspect step bolts visually ``before each use.'' The phrase ``before each use'' means before the worker climbs the step bolts for the first time at the start of the work shift. It does not mean that employers must, throughout a work shift, have workers inspect the step bolts each time they climb them. OSHA understands that workers may climb step bolts multiple times during a work shift, and believes that inspecting step bolts at the initial climb is sufficient. OSHA did not receive any comments on the inspection requirement and adopts the requirement as discussed.

    Final paragraph (a)(9), like the proposed rule, requires that employers ensure any step bolt that is bent more than 15 degrees from the perpendicular, in any direction, is removed and replaced with a bolt that meets the requirements of the section, before a worker uses it. OSHA believes this provision is necessary because step bolts bent to such a degree are not safe for workers to use. Regardless of the direction of the bend, it could cause the worker to slip or fall off the step bolt. If the bend in a step bolt is more than 15 degrees below horizontal, a worker's feet may slip or slide off the end of the step bolt. If the bend in a step bolt extends upwards more than 15 degrees, it is likely to reduce the minimum clear step width (4.5 inches) necessary to ensure the worker has a secure and safe foothold (final paragraph (a)(4)).

    The final rule also requires that employers ensure that step bolts used for replacement meet the all of the requirements of final paragraph (a). This requirement will ensure that replacement step bolts provide workers with the maximum level of protection afforded by paragraph (a).

    OSHA drew final paragraph (a)(9) from 1990 proposed Sec. 1910.24(c)(5). OSHA did not receive any comments on paragraph (a)(9), and adopts it as discussed.

    Paragraph (b)--Manhole Steps

    Final paragraph (b) addresses the design, capacity, and use of manhole steps. There are no requirements specifically addressing manhole steps in existing subpart D, although OSHA's Telecommunications standard establishes requirements to protect workers who use metal ladders in manholes (Sec. 1910.268(h)(8)). OSHA drew most of the manhole step requirements from the 1990 proposed Walking and Working Surfaces and Personal Protective Equipment (Fall Protection Systems) standard (55 FR 13360), which drew its requirements from a 1989 proposed rule on Electric Power Generation, Transmission, and Distribution. OSHA did not believe that it was necessary to include the manhole step requirements in the Electric Power Generation, Transmission, and Distribution final rule because the 1990 proposed rule to revise subpart D included provisions on manhole steps.

    Final paragraph (b)(1), like the proposed rule, requires that employers ensure manhole steps are capable of supporting their maximum intended load, as defined in Sec. 1910.21(b). As mentioned in the discussion of final paragraph (a)(6), final Sec. 1910.22(b) requires that employers ensure all walking-working surfaces are able to support the maximum intended load that employers reasonably anticipate placing on them. Final paragraph (b)(1) emphasizes that the maximum intended load requirement in the final rule applies to existing manhole steps, regardless of when the employer installed them. Manhole steps that cannot support the maximum intended load without failure are not safe to use.

    OSHA based the provision on 1990 proposed Sec. 1910.24(c)(2), which also specified that existing manhole steps be capable of supporting their maximum intended load. The ASTM C 478 standard requires vertical and horizontal load testing of manhole steps in accordance with ASTM Test Methods C 497 (Section 16.6.1.3) (Ex. 382).

    Final paragraph (b)(1), like final paragraph (a)(6) of this section and final Sec. 1910.22(b), is performance based. However, employers are free to use the test procedures in ASTM C 478 and C 497 in determining whether their manhole steps can support the maximum intended load the employer anticipates placing on them. OSHA did not receive any comments on this provision, and adopted it as proposed wit minor editorial revisions.

    Final paragraph (b)(2), like the proposal, establishes requirements for manhole steps installed on or after the effective date of the final rule. OSHA based most of these requirements on 1990 proposed Sec. 1910.24, and ASTM C 478-13, with many of the manhole step requirements in 1990 proposed Sec. 1910.24 applying only prospectively (e.g., 1990 proposed Sec. 1910.24(b)(6), (b)(7), and (c)(3)(i)-(iv))). As mentioned earlier, OSHA believes that applying the manhole step requirements when employers install new or replacement steps is the most efficient and least disruptive way to implement the

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    requirements in final paragraph (b)(2). Manhole steps, compared to step bolts, are generally more expensive to replace, and such replacement may not be necessary when the manhole steps can support the maximum intended load, and the employer inspects them at the start of each work shift, and repairs or replaces them immediately after identifying damage or hazardous conditions.

    Final paragraph (b)(2)(i), like the proposed rule, requires that employers ensure manhole steps have a corrugated, knurled, dimpled, or other surface that minimizes the possibility of a worker slipping. The final rule is consistent with the requirements for metal manhole ladders in OSHA's Telecommunications standard (Sec. 1910.268(h)(8)(v)). The 1990 proposed rule (proposed Sec. 1910.24(b)(7)) specified the same requirement as final paragraph (b)(2)(i) for manhole steps.

    OSHA believes this final rule is necessary to reduce workers' risk of slipping and falling. Underground manholes often have moisture and other slippery substances (e.g., mud, grease) that can pose slip hazards for workers. Ensuring that workers have, and can maintain, a secure foothold when entering the manhole and climbing the manhole steps is important to protect them from injury. OSHA notes final paragraph (b)(2)(i) is performance based. Thus employers are free to use any type of surface preparation that effectively minimizes the risk of slipping. OSHA received no comments on the proposed provision and adopts the requirement as discussed.

    Final paragraph (b)(2)(ii), like the proposal and final paragraph (a)(1) of this section for step bolts, requires that employers ensure manhole steps are constructed of, or coated with, material that protects against corrosion if the manhole steps are in an environment where corrosion may occur. The final rule is consistent with the Telecommunications standard (Sec. 1910.268(h)(8) introductory text and (h)(8)(vi)) and 1990 proposed Sec. 1910.24(b)(6)). The Telecommunications standard also requires that employers, when selecting metal ladders, ensure that the ladder hardware must be constructed of a material that is protected against corrosion and that the metals used shall be selected as to avoid excessive galvanic action (Sec. 1910.268(h)(8)(vi)). The ASTM C 478 standard, however, addresses corrosion hazards using a different approach. The national consensus standard does not require that manhole steps consist of corrosion-

    resistant materials or have corrosion-resistant coatings. Instead, it requires that ferrous metal steps not painted or treated to resist corrosion must have a minimum cross-sectional dimension of one inch. OSHA believes that requiring all manhole steps to consist of corrosion-

    resistant material or have corrosion-resistant coatings is more protective, and better effectuates the purposes of the OSH Act, than ASTM C 478. OSHA's final rule protects manhole steps from becoming corroded, while the ASTM C 478 standard requires that employers make ferrous metal steps with large cross-sectional dimensions so they will hold up against corrosion longer.

    Furthermore, as discussed in final paragraph (a)(1) of this section for step bolts, OSHA believes that corrosive environments can weaken and cause damage to unprotected metals, including manhole steps. Corrosion resistance will help to prevent deterioration that can lead to failure of manhole steps. OSHA did not receive any comments on the provision and adopts it as proposed with minor editorial clarifications.

    Final paragraph (b)(2)(iii), like the proposed rule, requires that employers ensure manhole steps have a minimum clear step width of 10 inches. The final rule is consistent with the ASTM C 478 standard (Section 16.5.2), as well as 1990 proposed Sec. 1910.24(b)(2). The ASTM C 478 standard has been in place for many years, so OSHA believes that most manhole steps have a step width of at least 10 inches. OSHA did not receive any comments on paragraph (b)(2)(iii) and adopts it as proposed.

    Final paragraph (b)(2)(iv), like the proposal, requires that employers ensure manhole steps are uniformly spaced at a vertical distance of not more than 16 inches apart, measured center to center between steps. As mentioned above, OSHA believes that uniform spacing helps to make climbing safe. The ASTM C 478 standard specifies a maximum vertical spacing of 16 inches. The 1990 proposed provision (proposed Sec. 1910.24(b)(1) specifies a uniform spacing of not less than six inches nor more than 18 inches apart.

    Final paragraph (b)(2)(iv), like final paragraph (a)(3) of this section for step bolts, also allows spacing from the entry and exit surface to the first manhole step to be different from the spacing between the other steps. Additionally, OSHA added a standard method for measuring the distance--from center to center between steps. This measurement method and the allowance for different spacing of the first manhole step are common practices, and will provide the consistency needed to help protect workers, who will be entering, exiting, and working in different manholes. OSHA did not receive any comments on this provision and adopts it as discussed.

    Final paragraph (b)(2)(v), like the proposed rule, requires that employers ensure manhole steps have a minimum perpendicular distance of at least 4.5 inches measured between the centerline of the manhole step and the nearest permanent object in back of it. The minimum clear-

    distance requirement is consistent with 1990 proposed Sec. 1910.24(b)(3) and ASTM C 478, indicating that 4.5 inches is the common, accepted clearance for manhole steps. This requirement will provide adequate foot and hand holds, which are necessary for workers to safely climb manhole steps. OSHA did not receive any comments on this provision and adopts it as proposed.

    Final paragraph (b)(2)(vi), like the proposal and final paragraph (a)(2) of this section for step bolts, requires that employers ensure that manhole steps are designed, constructed, and maintained to prevent the worker's foot from slipping or sliding off the end of the manhole step, which can result in a fall or slip. The final rule is the same as 1990 proposed Sec. 1910.24(b)(5).

    The proposed rule specified that manhole steps be designed to prevent workers' feet from slipping off the end of the step. For the same reasons discussed above in final paragraph (a)(2) for step bolts, OSHA added ``constructed and maintained'' to the final rule. OSHA did not receive any comments on this provision and adopted it as revised.

    Final paragraph (b)(3), like the proposed rule and final paragraph (a)(8) of this section for step bolts, requires that employers ensure manhole steps are inspected at the start of the work shift, and maintained in accordance with Sec. 1910.22. 1990 proposed Sec. 1910.24(c)(4) specified that manhole steps be maintained in a safe condition and visually inspected prior to each use. OSHA's reasons for requiring manhole step inspections at the start of each work shift are the same reasons as those discussed above in final paragraph (a)(8) and, therefore, are not repeated here.

    The proposed rule specified that manhole steps be visually inspected before each use. Mr. Miller, of Ameren, objected to the proposed language, saying: ``Manhole steps are inspected when entered. There should be no need for additional inspection which would only increase the time and have little to no impact on safety. This seems only to be a paperwork requirement and would

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    do little to protect workers from hazards'' (Ex. 189).

    OSHA is unclear what Mr. Miller means by ``additional inspection,'' specifically whether he is referring to the ``before each use'' language in the proposed rule or the requirement that employers also maintain manhole steps in accordance with final Sec. 1910.22, which requires inspection of walking-working surfaces regularly and as necessary. The ``before each use'' language means that employers must ensure inspection of manhole steps before the first use in a work shift, and not every time a worker climbs on manhole steps. OSHA recognizes that workers may climb manhole steps multiple times during a work shift, and believes that inspecting the manhole steps when workers first use them during a work shift is sufficient. The final rule clarifies this point.

    If Mr. Miller is referring to the inspections of walking-working surfaces employers must conduct in accordance with Sec. 1910.22(d)(1), OSHA disagrees with Mr. Miller that such inspections are simply a paperwork burden that have no impact on safety. Conducting regular inspections ensures that hazards are identified and corrected in a timely manner, thereby preventing worker injury or death. Regular inspections also are important if workers do not use manhole steps daily or frequently. Inspections provide the assurances that walking-

    working surfaces such as manhole steps will be in a safe and useable condition when workers use them.

    By contrast, the American Federation of State, County and Municipal Employees (AFSCME) recommended that OSHA strengthen the visual inspection requirement for existing manhole steps: ``Our members report that many of these steps degrade due to exposure to the elements and are difficult to inspect visually. Often manholes are not entered regularly. We suggest the Agency require inventory of manholes that use permanent step ladders and that they be inspected annually'' (Ex. 226). OSHA believes that the level of inspection the final rule requires provides far more protection than AFSCME recommends for existing manhole steps. Final paragraph (b)(3) requires that employers ensure each manhole step is inspected at the start of each work shift, which could amount to multiple inspections each workday, depending on the number of work shifts in a workday. OSHA believes that requiring inspection before initially using manhole steps in a work shift is more protective than using manhole steps that were last inspected almost a year ago.

    Final paragraph (b)(3) also requires that employers maintain manhole steps in accordance with final Sec. 1910.22. That section requires employers to inspect walking-working surfaces regularly and as necessary, and to maintain them in safe condition. ``Regular inspection'' means that the employer has some type of schedule, formal or informal, for inspecting walking-working surfaces that is adequate to identify hazards and address them in a timely manner. For purposes of the final rule, ``as necessary'' means that employers must conduct inspections when particular workplace conditions, circumstances, or events occur that warrant an additional check of walking-working surfaces to ensure that they are safe for workers to use. For example, an additional inspection may be necessary to ensure that a significant leak or spill does not create a slip, trip, or fall hazard on a walking-working surface.

    OSHA believes this combination of inspection requirements will ensure that employers identify and correct hazardous conditions, such as degradation due to corrosion, on a timely basis, even if workers do not use manhole steps regularly. In addition, the requirement that manhole steps must be capable of supporting the maximum intended load (Sec. 1910.22(b)) will supplement visual inspections to ensure that manhole steps are safe to use.

    Section 1910.25--Stairways

    Section 1910.25 of the final rule establishes requirements for the design and installation of stairways. OSHA carried forward the majority of these requirements from the existing rule (Sec. 1910.24, Fixed industrial stairs), and also drew a number of provisions from the following national consensus standards:

    American Society of Safety Engineers/American National Standard Institute (ASSE/ANSI) A1264.1-2007, Safety Requirements for Workplace Walking/Working Surfaces and Their Access; Workplace, Floor, Wall and Roof Openings; Stairs and Guardrail Systems (A1264.1-2007) (Ex. 13);

    National Fire Protection Association (NFPA) 101-2012, Life Safety Code (NFPA 101-2012) (Ex. 385); and

    International Code Council (ICC) International Building Code-2012 (IBC-2012) (Ex. 386).

    Final Sec. 1910.25 is titled ``Stairways,'' which replaces the ``Fixed Industrial Stairs'' title in the existing rule (see discussion of ``fixed industrial stairs'' below). The final rule (Sec. 1910.21(b)) defines a stairway as ``risers and treads that connect one level with another, and includes any landings and platforms in between those levels.'' Final Sec. 1910.25, like the proposed rule, covers all stairways, including standard, ship, spiral, and alternating-tread type stairs, used in general industry (Sec. 1910.25(a)). OSHA organized final Sec. 1910.25 by the types of stairways that the final rule covers, and revised the format to add a separate paragraph identifying the scope and application of the section, as follows:

    Paragraph (a), Application, which specifies the stairs the final rule covers and excepts;

    Paragraph (b), now titled General Requirements, which establishes the requirements that apply to all covered stairways;

    Paragraph (c), Standard Stairs; and

    Paragraphs (d) through (f), which specify requirements when employers use spiral stairs, ship stairs, and alternating tread-

    type stairs.

    OSHA believes this revised format makes final Sec. 1910.25 easier to understand and follow.

    Final Sec. 1910.25, like the proposal, replaces the term ``fixed industrial stair'' in the existing rule with the plain-language term ``stairways.'' In addition, in final Sec. 1910.25, OSHA uses the term, ``standard stairs,'' that Sec. 1910.21(b) defines as ``a fixed or permanently installed stairway.'' In the proposed rule, the Agency explained that ``fixed industrial stairs'' was the term in use when OSHA adopted the existing rule in 1971 from ANSI A64.1-1968 (now A1264.1-2007). The Agency said ``standard stairs'' was easier to understand and consistent with revised and updated national consensus standards (A1264.1-2007, NFPA 101-2006) and industry codes (IBC-2003) (75 FR 28881-82). Those standards and codes used ``standard stairs,'' ``stairways,'' and ``fixed stairs'' interchangeably, and none used or defined ``fixed industrial stairs.''

    OSHA requested comment about replacing the term ``fixed industrial stairs,'' particularly whether it would cause confusion or leave a gap in coverage. OSHA only received one comment from the National Fire Protection Association (NFPA), which supported the proposed change (Ex. 97). NPFA said standard stairs was consistent with NFPA 101-2009 (Sections 3.1 and 7.2.2.2.1). OSHA believes it is important to update terminology so standards are easy to understand and reflect current industry practice.

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    Paragraph (a)--Application

    As mentioned, OSHA changed the title of final paragraph (a) to ``Application.'' OSHA believes that ``Application'' better describes the content of paragraph (a), which identifies what stairways the final rule covers and excludes. Final paragraph (a) is broad and comprehensive. The scope of the existing rule, Sec. 1910.24(a), which covers ``interior and exteriors stairs around machinery, tanks, and other equipment, and stairs leading to or from floors, platforms, or pits,'' also is comprehensive. However, OSHA believes the language in the final rule more clearly and fully explains the Agency's objective, and ensures that the final rule does not inadvertently exclude any type of stairway used in general industry.

    Final paragraph (a) also lists certain stairways that Sec. 1910.25 does not cover, specifically:

    Stairs serving floating roof tanks;

    Stairs on scaffolds;

    Stairs designed into machines or equipment; and

    Stairs on self-propelled motorized equipment (e.g., motor vehicles, powered industrial trucks).

    Stairs serving floating roof tanks. As discussed in the proposed rule, these types of stairs are not covered by recognized industry standards and the Agency does not have any information or sufficient evidence on how to regulate these stairs. OSHA requested information on these types of stairs in the proposed rule and did not receive comment. Therefore, OSHA has not included stairs serving floating roof tanks in the scope of this section.

    Stairs on scaffolds. Final paragraph (a) retains the proposed exemption for stairs on scaffolds. Requirements for stairs on scaffolds are provided in the construction industry standards in Sec. 1926.451. In the preamble to the proposed rule, the Agency explained that the purpose of the proposed exemption was to have employers comply with the requirements for stairs on scaffolds contained in Sec. 1926.451. OSHA said the proposed approach would increase consistency among its standards, assist employers who perform both general industry and construction work, and minimize potential for confusion. This exemption is consistent with OSHA's approach in final Sec. 1910.27(a) for scaffolds used in general industry. OSHA believes that having employers who use scaffolding follow a single standard will reduce confusion and help ensure worker safety.

    Stairs designed into machines or equipment and stairs on self-

    propelled motorized equipment. Final paragraph (a) retains the proposed exemption from final Sec. 1910.25 for stairs designed into machines or equipment and stairs on self-propelled motorized equipment, such as motor vehicles and powered industrial trucks. However, OSHA does not intend this exemption to apply to equipment that the existing standard (Sec. 1910.24) currently covers. For example, the exemption does not apply to equipment such as mobile well-servicing rigs \22\ that are transported to various oil and gas wells (Delta Drilling Co. v. OSHC, 91 F.3d 139 (5th Cir. 1996) (unpublished); Basic Energy Services, 25 BNA OSHC 1811 (No. 14-0542, 2015); Poole Co., Texas Ltd., 19 BNA OSHC 1317 (No. 99-0815, 2000)).

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    \22\ A mobile well-servicing rig, also referred to as a ``workover rig,'' consists of ``a telescoping derrick; . . . articulating platforms to allow for differences in the respective well sites to which the rig travels; as well as many other implements that aid in the maintenance and upkeep of an existing well'' (Basic Energy Services, 25 BNA OSHC 1811 (No, 14-0442, 2015)). Once the rig is placed on ``stable ground'' over the well head, the ``rig-up'' process begins (Id.). ``The platforms of the mobile well servicing rig are attached to the base of a derrick, which is a part of the drilling rig itself . . . The servicing units, though mobile, are placed on stands while in use . . . The sole purpose of the well-servicing rig is to serve as a work platform'' (Poole Co., Texas Ltd., 19 BNA OSHA 1317 (No. 99-0815, 2000)). The rigging-up process also includes installation of guardrails, stairs and other implements related to ingress/egress and safety'' (Id.).

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    The exemption for stairs designed into machines or equipment and stairs on self-propelled motorized equipment is consistent with the scope of A1264.1-2007 and other national consensus standards, none of which address those stairs either. In the proposed rule, the Agency explained that it did not have sufficient information about such stairs, and there were no national consensus standards or industry codes to turn to for guidance or best industry practices. Although OSHA requested comment and information, only the Society of Professional Rope Access Technicians (SPRAT) responded:

    It is the recommendation of this commenter that any stairs not covered by recognized industry standards, and about which the Agency does not have sufficient information or evidence to regulate, simply be acknowledged as a potentially hazardous situation with provision for protection against falls required (Ex. 205).

    SPRAT pointed out that IBC-2009 and A1264.1-2007 only cover stairs associated with buildings, and the scope and requirements of those standards do not include stairs on machines or equipment. Given that, SPRAT said it would be inappropriate for OSHA to use those standards to justify covering stairs on, or designed into, machines and equipment. SPRAT also argued that the rulemaking record did not have adequate information to support regulating such stairs. OSHA agrees with SPRAT and retains the exemption for those reasons.

    Although final Sec. 1910.25 does not apply to stairs designed into machines or equipment or stairs on self-propelled motorized equipment, OSHA notes that the OSH Act's requirement that employers provide their workers with a place of employment that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm continues to apply (see 29 U.S.C. 654(a)(1)).

    Final paragraph (a) eliminates the following existing exceptions:

    Stairs to construction operations at private residences, articulated stairs installed on dock facilities and stairs used for fire exit purposes. Final Sec. 1910.25 does not include the existing exemption for stairs to construction operations in private residences, and the exemption for articulated stairs installed on dock facilities. OSHA believes that, by specifying that final Sec. 1910.25 only applies to stairs used in general industry it is no longer necessary to retain exemptions for stairs in construction operations in private residences or articulated stairs installed on dock facilities since general industry does not use such stairs. OSHA's construction (29 CFR part 1926) and maritime (29 CFR parts 1915, 1917, and 1918) standards regulate these two types of stairs as stairs used for fire-exit purposes.

    OSHA also did not include the existing exemption for stairs used for fire exit purposes in either the proposed or final rules for two reasons. First, OSHA recognizes that employers could use virtually all stairways for fire and emergency exits, which makes a special provision for fire-exit stairs unnecessary. Second, when workers use stairways to exit an area in the event of a fire, it is important that the stairways meet the safety requirements in Sec. 1910.25 so workers are able to safely escape. The Agency notes that its Means of Egress standards (29 CFR part 1910, subpart E) supplement walking-working surfaces requirements, including those in Sec. 1910.25, for those portions of exit routes, including stairways, that are ``generally separated from other areas to provide a protected way of travel to the exit discharge'' (29 CFR 1910.43(c)).

    Paragraph (b)--General Requirements

    Paragraph (b) of the final rule sets forth general requirements for all stairways covered by this section, while other provisions of Sec. 1910.25 specify

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    requirements for specific types of stairways. The general requirements in the existing rule (29 CFR 1910.23 and 1910.24) only apply to fixed industrial stairs. However, OSHA believes it is necessary to apply these general requirements to all stairways used in workplaces to ensure that workers have adequate protection from fall hazards.

    Final paragraph (b)(1), like proposed paragraph (a)(2), requires that employers ensure handrails, stair rail systems, and guardrail systems are provided in accordance with final Sec. 1910.28. This provision is intended to protect workers from falling off stairways. The final rule revises the proposal in two ways. First, OSHA added ``guardrail systems'' to final paragraph (b)(1). There are places on stairways, such as a platform between two flights of stairs, where guardrails, not stair rail systems are used. This was OSHA's intent in the proposed rule and is clarified for the final rule. There is no additional burden imposed on employers because they already must provide protection on unprotected sides and edges 4 feet or more above a lower level in accordance with final Sec. 1910.28. Section 1910.29 of the final rule details the criteria these guardrail systems must meet.

    Second, the Agency did not include the note from proposed paragraph (a)(2) in final paragraph (b)(1). The note was moved to Sec. 1910.29(f)(1)(iii) in the final rule. The proposed note specified that the top rail of a stair rail system may also serve as a handrail when installed in accordance with Sec. 1910.29(f). The Agency determined that the note primarily addresses criteria for stair rail systems and is more appropriately placed with the criteria requirements in Sec. 1910.29. OSHA did not receive any comments on the proposed provision and adopted the provision with the clarifications discussed above.

    Final paragraph (b)(2), like proposed paragraph (a)(3), requires employers to ensure that the vertical clearance above any stair tread to any overhead obstruction is at least 6 feet, 8 inches, as measured from the leading edge of the tread. Like the proposal, spiral stairs must meet the vertical clearance requirement specified by final paragraph (d)(3), which is 6 feet, 6 inches.

    The required vertical clearance in the final rule is lower than the 7-foot minimum clearance in the existing requirement (Sec. 1910.24(i)). However, the 6-foot, 8-inch clearance is consistent with A1264.1-2007 (Section 6.12) and NFPA 101-2012. OSHA notes that Section 6(b)(8) of the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 655(b)(8)) requires OSHA to promulgate rules that are consistent with existing national consensus standards or explain why differences better effectuate the purpose of the OSH Act. The Agency believes that the requirements in A1264.1-2007 and NFPA 101-2012 provide adequate protection and reflect accepted industry practice. OSHA also points out that stairways built in compliance with the existing clearance requirements already meet the final rule. OSHA did not receive any comments on the proposed provision.

    Final paragraphs (b)(3) through (5) establish requirements for riser heights, tread depths, and stairway landing platform dimensions. The final paragraphs, which are consistent with existing subpart D, are the minimum criteria necessary to ensure worker safety when using stairs. The final provisions also contain minor non-substantive changes to increase clarity.

    Final paragraph (b)(3), like proposed paragraph (a)(4), incorporates the requirement in existing Sec. 1910.24(f) that employers ensure that stairs have uniform riser heights and tread depths between landings. OSHA believes that retaining this requirement is necessary because, in the Agency's experience, even small variations in riser height can cause trips.

    OSHA, however, is not carrying forward other language in existing Sec. 1910.24(f). For example, the existing rule requires that employers ensure stair treads and nosings are slip-resistant. OSHA does not believe this provision is necessary because final Sec. 1910.22 already addresses this hazard. To illustrate, Sec. 1910.22(a)(3) requires employers to maintain walking-working surfaces free of hazards such as spills, and Sec. 1910.22(d)(1) requires employers to maintain walking-working surfaces in a safe condition. Therefore, OSHA is not repeating this requirement in final Sec. 1910.25.

    Similarly, OSHA believes it is not necessary to include in final Sec. 1910.25(b)(3) the existing language allowing employers to use ``welded bar grating treads without nosings.'' The final rule is performance-based so employers are free to use stairways constructed of any type of material that will meet the requirements of the final rule.

    OSHA received comments on the proposed provision. In particular, NFPA argued that the uniform tread and riser dimensions in final paragraph (b)(3) are not achievable because the provision does not include construction tolerances. NFPA stated, ``It is not technically possible to build stairs with consistent riser height and consistent tread depth as construction tolerances creep into the process'' (Ex. 97). To address this issue, NFPA recommended that OSHA incorporate the tolerances allowed in NFPA 101-2009, which permits an allowance of no more than \3/16\ inches in adjacent tread depth or riser height, and a tolerance of no more than \3/8\ inches between the largest and smallest tread or riser in any flight of stairs. NFPA stated that the recommendation would provide a ``safety net for compliance'' and would protect employers from an interpretation of ``uniform'' that does not permit any allowance for construction tolerances, or that permits tolerances that are less than the tolerances established in NFPA 101-

    2009 (Ex. 97).

    OSHA believes that minor variations in tread depth and riser height, such as those allowed in NFPA 101-2012 and A1264.1-2007, are acceptable. OSHA understands that minor variations in tread depth and riser height due to construction tolerances are likely to occur when building stairs and these minor variations are acceptable under the final rule.

    Final paragraph (b)(4), like proposed paragraph (a)(5) and existing Sec. 1910.24(g), requires that employers ensure the size of stairway landings and platforms is not less than the stair width and not less than 30 inches in depth, as measured in the direction of travel. The final rule is consistent with A1264.1-2007 (Section 6.10). OSHA did not receive any comments on the proposed provision adopts the proposed language with only minor clarifications.

    Final (b)(5), like proposed paragraph (a)(6), requires that, when a door or a gate opens directly onto a stairway, employers must provide a platform and ensure the swing of the door or gate does not reduce the effective usable depth of the platform to less than:

    20 inches for platforms installed before the effective date of the final rule; and

    22 inches for platforms installed on or after the effective date of the final rule.

    The final and proposed rules revise the language of the existing rule (Sec. 1910.23(a)(10)), which requires employers to ensure that doors or gates do not reduce the effective usable depth to less than 20 inches, by increasing the effective usable platform depth by 2 inches for newly installed platforms. The final rule grandfathers in the 20-

    inch platform depth requirement for existing stairways. Increasing the platform depth requirement to a minimum 22 inches is consistent with

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    the current and earlier versions of A1264.1 (1995, 2002, and 2007).

    The final and proposed rules use the term ``effective usable depth.'' The term means the portion of the platform that is beyond the swing of the door or gate where a worker can stand when opening the door or gate. As Figure D-7 in the regulatory text illustrates, the effective useable depth is that portion of the platform that extends beyond the swing radius of the door or gate when it is open fully to the leading edge of the stair. OSHA believes this term expressly clarifies that the minimum platform depth must consider the portion of the platform used to accommodate the swing of the door or gate.

    The Agency requested comment on the proposed provision and the amount of unobstructed space necessary for landing platforms when doors or gates open directly onto them. Ameren Corporation commented:

    The necessary landing outside the swing radius of any door is directly dependent upon the direction of the door's swing in relation to the direction of travel. If the door opens in the direction of travel, much less clearance is needed for the employee. Since no objective evidence is available for one distance for all paths of travel, the clearance of door swing should remain as is and allow the employer to determine whether or not two more inches of clearance is necessary for the safety of their personnel (Ex. 189).

    OSHA believes that adopting the 22-inch effective useable platform depth for newly installed stair platforms is appropriate. As mentioned earlier, OSHA drew the requirement from the A1264.1-2007 standard. The standard reflects the considered views of employers, employees, safety professionals, and others. The 22-inch requirement also was in the 1995 and 2002 editions of the A1264.1 standard. With the requirement in A1264.1-2007 being in effect since 1995, OSHA believes it clearly represents accepted industry practice. OSHA notes the 22-inch effective-depth requirement applies to platforms installed on or after the effective date of the final rule, which is January 17, 2017. OSHA believes that the phase-in time the final rule allows is more than adequate for employers who install platforms, gates, and doors on stairways.

    Ameren Corporation also raised an issue about the compliance deadline for paragraph (b)(5):

    Lead time for material orders are often quite longer than three months, often up to years to order material for large capital projects. Small projects with possibly only a small amount of material being required shouldn't have much of an issue of complying depending on the manufacturer capabilities and their imposed deadlines. Stipulations of ``ordered'' material should be imposed in regard to the date of the final rule because the time between ordering and placing into service is often greater than 90 days (Ex. 189).

    The 22-inch platform depth requirement in the final rule is prospective: it only applies to stairways, platforms, doors, and gates installed on or after the effective date of the final rule, which is January 17, 2017. This provision gives employers a 60-day lead time after publication of the final rule to come into compliance with the requirement when they install new stairway platforms. OSHA does not believe that it is necessary to extend the compliance deadline any further, even though the Agency proposed 150 days. The Agency believes a 60-day compliance lead time is more than adequate given that the 22-

    inch requirement in the A1264.1 standard has been in place for more than 18 years. During this 18-year period, OSHA believes the vast majority of employers, as well as manufacturers, construction companies, and building owners, came into compliance with the 22-inch requirement. Therefore, OSHA requires employers to comply with the 22-

    inch effective useable platform depth requirement by the standard's effective date.

    Final paragraph (b)(6), like proposed paragraph (a)(7), requires that employers ensure stairs can support at least five times the normal anticipated live load, and never less than a concentrated load of 1,000 pounds, applied at any point on the stairway. This requirement is consistent with A1264.1-2007 and earlier versions, which have been in place for many years. OSHA believes that most existing stairs have been installed in accordance with the ANSI requirements, and, therefore, already are in compliance.

    OSHA requires employers to apply this safe-load requirement to spiral stairs, ship stairs, and alternating tread-type stairs, as well as standard stairs. OSHA believes the safe-load requirement is necessary to protect workers from stair collapse due to overloading, regardless of the type of stairs they are using. OSHA notes that final paragraph (b)(6), like the ANSI standard, applies to all stairs that Sec. 1910.25 covers.

    For the purposes of final paragraph (b)(6), a ``normal anticipated live load'' means a dynamic load (e.g., temporary, of short duration, or moving) that an employer reasonably anticipates will or could be applied to the stairs (see letter to Mr. M. Podlovsky, May 8, 2000).\23\ A ``concentrated load,'' for the purposes of final paragraph (b)(6), is the load-application point where the structure would experience maximum stress. Thus, a normal live load is spread over the whole stair tread area, while a concentrated load refers to a load applied at one point on the stair tread.

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    \23\ OSHA letter to Mr. Podlovsky available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=23731.

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    Final paragraph (b)(6) includes revisions that OSHA believes will provide an equal or greater level of protection to workers than the existing and proposed rules. For example, final paragraph (b)(6) requires that employers ensure stairways ``can support'' the required load, while the existing (at Sec. 1910.24(c)) and proposed rules specify that stairways must ``be designed and constructed'' to support the required load. The revision ensures that, in addition to the design and construction of the stairways, the employer has an ongoing duty to maintain the stairways to ensure they can continue to support the load applied to them without collapse.

    The final rule also revises the default strength language to require that stairways be capable of supporting a concentrated load of not less than 1,000 pounds ``applied at any point.'' The existing rule requires that stairways be capable of carrying not less than a ``moving'' concentrated load of 1,000 pounds. OSHA believes the final provision provides equal or greater level of safety by making the final rule applicable to any single point on the stairs, particularly the point that experiences maximum stress. These revisions are consistent with A1264.1-2007. OSHA did not receive any comments on the proposed provision and adopts paragraph (b)(6) with the changes discussed.

    Final paragraphs (b)(7) through (9) specify when and where employers must provide standard stairs, and under what conditions employers may use spiral, ship, or alternating tread-type stairs. In final paragraphs (b)(7) and (8), OSHA simplified and reorganized the existing rule (Sec. 1910.24(b)) to make the requirements clearer and easier to understand than the existing and proposed rules.

    Final paragraph (b)(7), like proposed paragraph (a)(8) and existing Sec. 1910.24(b), requires employers to provide standard stairs to allow workers to travel from one walking-working surface to another. The existing and final rules both recognize that standard

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    stairs are the principal means of providing safe access in workplaces and employers must provide them when operations necessitate ``regular and routine travel between levels,'' including accessing operating platforms to use or operate equipment. The final provision is consistent with A1264.1-2007 (Section 6.1).

    For purposes of the final rule, OSHA describes ``regular and routine travel'' in much the same way as the existing rule in Sec. 1910.24(b). The term includes, but is not limited to, access to different levels of the workplace daily or during each shift so workers can conduct regular work operations, as well as operations ``for such purposes as gauging, inspection, regular maintenance, etc.'' (existing Sec. 1910.24(b)). ``Regular and routine'' also includes access necessary to perform routine activities or tasks performed on a scheduled or periodic, albeit not daily, basis, particularly if the tasks may expose employees to acids, caustics, gases, or other harmful substances, or require workers to manually carry heavy or bulky materials, tools, or equipment (existing Sec. 1910.24(b)).

    Final paragraph (b)(7) retains the existing provision allowing the use of winding stairways on tanks and similar round structures when the diameter of the tank or structure is at least 5 feet. OSHA notes that winding stairs on such tanks and structures still must meet the other general requirements for stairways specified in the final rule. This provision does not preclude the use of fixed ladders to access elevated tanks, towers, and similar structures, or to access overhead traveling cranes, etc., when the use of such ladders is standard or common industry practice. OSHA received no comments on the proposed requirement and adopted the provision with only minor editorial change.

    Final paragraph (b)(8) allows employers to use spiral stairs, ship stairs, and alternating tread-type stairs (collectively referred to as ``non-standard stairs''), but only when employers can demonstrate that it is not feasible to provide standard stairs.

    The existing rule (existing Sec. 1910.24(b)), which OSHA adopted in 1972 from ANSI A64.1-1968 pursuant to section 6(a) of the OSH Act (29 U.S.C. 655(a)), allows employers to use spiral stairs for ``special limited usage'' or as a secondary means of access but only where it is ``not practical'' for employers to provide standard stairs. The existing rule, however does not address either ship or alternating tread-type stairs.

    The 1973 proposed rule would have allowed the use of ship stairs ``in restricted spaces in which a fixed industrial stairway cannot be fitted'' (38 FR 24300, 24304 (9/6/1973)), however, OSHA withdrew that proposal (41 FR 17227 (4/23/1976)). In a 1982 letter of interpretation, though, OSHA said if employers use ship stairs in accordance with the 1973 proposal, the Agency would consider it to be a de minimis violation of existing Sec. 1910.24(e) (Letter to Edward Feege, August 20, 1982 \24\).

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    \24\ Letter to Mr. Feege available from OSHA's Web site at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=19042.

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    That year OSHA issued Instruction STD 01-01-011 (April 26, 1982) allowing the use of and establishing guidelines for ``a newly developed alternating tread-type stair'' \25\ (See also, Letter to Mr. Dale Ordoyne, December 2, 1981 \26\). To ensure worker safety, the instruction stated that alternating tread-type stairs must be designed, installed, used, and maintained in accordance with manufacturer's recommendations. In addition, OSHA said alternating tread-type stairs must meet the following requirements:

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    \25\ OSHA Instruction STD 01-01-011 is available from OSHA's Web site at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1753.

    \26\ Letter to Mr. Ordoyne available from OSHA's Web site at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=18983.

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    The stairs are installed at a 70 degree angle or less;

    The stairs are capable of withstanding a minimum uniform load of 100 pounds per square foot with a design factor of 1.7 and the treads are capable of carrying a minimum concentrated load of 300 pounds at the center of any treadspan or exterior arc with a design factor of 1.7. If the alternating tread-type stairs are intended for greater loading, the employer must ensure the stairs are constructed to allow for additional loading; and

    The stairs are equipped with a handrail on each side to assist employees climbing or descending the stairs.

    OSHA announced in both STD 01-01-011 and the 1982 letter of interpretation that it would include provisions on ship stairs and alternating tread-type stairs in the subpart D rulemaking. The 1990 proposal included provisions allowing employers to use spiral, ship, and alternating tread-type stairs and establishing design specifications for each type of stair (55 FR 13360, 13400 (4/10/1990)). No final rule came from that proposal either.

    In 2002, in response to an Office of Management and Budget (OMB) request for comment on its Draft Report to Congress on the Costs and Benefits of Federal Regulations, the Copper and Brass Fabricators Council (CBFC) urged OSHA to revise the existing rule (Sec. 1910.24(b)) to allow the use of ship and spiral stairs in a broader range of situations:

    OSHA regulations under some circumstance require the use of fixed ladders when spiral stairways or ship stairs would be safer . . . Section 1910.24(e) prohibits any stairs with an angle of rise greater than 50 degrees. Unfortunately, it is very common to have a tight location in industry where there is insufficient space for stairs with an angle of 50 degrees or less. Traditionally, these areas would use ship stairs that have separate handles from the stair rail but steps that are less deep than the traditional 8 inch to 12 inch step. Otherwise, a spiral stair was used which allowed a deeper tread. Under the present regulation, industries are required to use rung ladders in these locations which is less safe than spiral stairs or ship stairs (Ex. 4).

    The 2010 proposed rule expanded the existing standard to allow employers to use spiral, ship, and alternating tread-type stairs. Similar to the existing rule, the proposal allowed employers to use non-standard stairs for ``special limited usage'' and ``secondary access,'' but only when the employer can demonstrate it is ``not practical'' to provide standard stairs in either situation (proposed paragraph (b)(9)). The proposed rule did not define any of these terms. Also, A1264.1-2007 did not define ``special limited use,'' but OSHA explained in the preamble to the proposed rule that the International Building Code (IBC)-2009 identified ``special limited usage'' area as a space that is no more than 250 square feet (23 m\2\) and serves no more than five occupants'' (75 FR 28882). The IBC-2009 also identifies ``galleries, catwalks and gridirons'' as examples of special limited usage areas (75 FR 28882).

    Final paragraph (b)(8) differs from the proposed rule in several ways. First, final paragraph (b)(8) deletes the language in the proposed rule limiting the use of non-standard stairs to ``special limited usage'' areas and as a secondary means of access. Although the existing, proposed, and A1264.1-2007 standards permit employers to use non-standard stairs in special limited usage areas and for secondary access, none of these standards defines either term. OSHA believes eliminating those undefined terms makes the final rule easier to understand.

    Second, the final rule replaces the proposed language (i.e., ``special limited usage and secondary access situations

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    when the employer can demonstrate it is not practical to provide a standard stairway'') with long-standing and familiar performance-based language (i.e., ``can demonstrate that it is not feasible to use standard stairs''). The language in the final rule is consistent with the legal requirements of the OSH Act. In addition, OSHA believes that the language in the final rule gives employers greater flexibility. For example, there may be places other than special limited use areas and secondary access situations where an employer can demonstrate that standard stairs are infeasible. The final rule allows employers to use non-standard stairs in those situations.

    Third, the Agency believes the performance-based language in the final rule does a better job of targeting the areas where it is not possible to use standard stairs and, thus, provides more protection for workers than the existing and proposed rules. The final rule limits the use of non-standard stairs to those situations in which it is not possible to use standard stairs. For example, under the final rule, employers must use standard stairs in special limited usage areas if it is possible to install them.

    OSHA requested comment on proposed rule, including whether the final rule also should identify additional or specific limited usage areas where employers can use non-standard stairs (75 FR 28882). Two stakeholders said OSHA should narrow the situations in which employers may use non-standard stairs (Exs. 97; 159). For example, NFPA stated:

    It appears that OSHA is proposing to allow other than Standard Stairs to be used as long as the employer shows a Standard Stair cannot be used. However, no criterion as to why a standard stair could not be used is provided. Section 1910.25(a)(9) seems to allow spiral stairs, ship stairs or alternating tread devices without any limits. NFPA suggests OSHA establish a bracket of circumstances when such devices can be used (Ex. 97).

    In particular, NFPA recommended that OSHA limit the circumstances in which employers may use non-standard stairs to the following list, which are the circumstances where NFPA 101 Life Safety Code allows the use of non-standard stairs, such as alternating tread-type stairs:

    As a means to access unoccupied roof spaces;

    As a second means of egress from storage elevators;

    As a means of egress from towers and elevated platforms around machinery or similar spaces, and occupied by no more than three persons at the same time; and

    As a secondary means of egress from boiler rooms or similar spaces, and occupied by no more than three persons at the same time (NFPA 101-2009, Section 7.2.11.1).

    NFPA added that incorporating the NFPA 101-2009 list would ``close the gap created by the proposed language and greatly limit the circumstances by which `non-standard' stairs are acceptable for use'' (Ex. 97).

    Similarly, Jacqueline Nowell, of the United Food and Commercial Workers Union (UFCW), recommended that OSHA adopt a definition of special limited usage that is narrower than the IBC-2009 definition:

    The Agency refers to the ICC Building Code definition of special limited usage as ``a space not more than 250 square feet (23m\2\) in area and serving not more than five occupants.'' Work platforms in many packaging houses would meet this definition of ``special limited usage.'' By allowing the use of spiral stairs or other non-standard stairs, OSHA would be introducing a new and unnecessary hazard to the workers who must climb up and down from these platforms multiple times a day, wearing heavy and bulky layers of personal protective equipment. I urge OSHA to develop a more restricted definition of ``special limited usage'' in order to prevent falls and other injuries to these workers (Ex. 159).

    On the other hand, Southern Company (Ex. 192) said the definition of ``special limited usage'' in IBC-2009 (i.e., ``a space not more than 250 square feet'') was too restrictive and urged OSHA to adopt a more flexible approach (Ex. 192). They pointed out that mezzanine storage space generally is a special limited use area, even though in many cases the space may exceed 250 square feet (Ex. 192). They recommended that OSHA follow the approach in STD 01-01-011 and its letters of interpretation and allow the use of non-standard stairs when space limitations make the use of standard stairs infeasible, regardless of whether the space is greater than 250 square feet (Ex. 192) (See Letter to Edward Feege (August 20, 1982) and Erin Flory (February 10, 2006) \27\).

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    \27\ Available from OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25301.

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    OSHA believes the performance-based language in final paragraph (b)(8) addresses many of the concerns the stakeholders raised. The language in the final rule provides the increased flexibility that Southern Company supports. At the same time, the final rule limits the use of non-standard stairs to those circumstances where, based on specific case-by-case evaluations and demonstrations, it is not possible to use standard stairs. Thus, for example, if it is possible to use standard stairs in a space that is less than 250 square feet, the employer is not permitted to use non-standard stairs under the final rule. In conclusion, OSHA adopts final paragraph (b)(8) as discussed.

    Final paragraph (b)(9), which is a new provision, requires employers to ensure that non-standard stairs are installed, used, and maintained in accordance with manufacturer's instructions. Since 1982, OSHA Instruction STD 01-01-011 has applied this requirement to alternating tread-type stairs. Although final Sec. 1910.22(d) already requires that employers inspect and maintain walking-working surfaces in a safe condition, OSHA believes that specifically requiring that non-standard stairs comply with the instructions or provisions the manufacturer has issued for the installation, use, and maintenance is critical to ensure that unique aspects of these stairs are identified and addressed. OSHA also believes this requirement is necessary to minimize potential risks inherent in spiral, ship, and alternating tread-type stairs (e.g., reduced tread depth, increased stair angle, improper climbing techniques) and to ensure those stairs are safe for workers to use. OSHA notes that final paragraph (b)(9), like final Sec. 1910.22(d), applies to existing spiral, ship, and alternating tread-type stairs as well as non-standard stairs installed after the final rule is effective.

    Finally, the Agency notes the requirements for spiral, ship, and alternating tread-type stairs in final paragraphs (b)(8) and (9) that employers must follow are in addition to the other general requirements in final paragraph (b) and specific requirements in final paragraphs (d), (e), and (f), which also apply to non-standard stairs.

    Paragraph (c)--Standard Stairs

    Paragraph (c) of the final rule, like proposed paragraph (b), establishes specific requirements for standard stairs that apply in addition to the general requirements in final paragraph (b). OSHA believes these specific requirements are the minimum criteria necessary to ensure workers can negotiate standard stairs safely. The requirements in final paragraph (c) generally are consistent with the A1264.1-2007 standard and most of the requirements are in the existing rule.

    Final paragraph (c)(1), like proposed paragraph (b)(1) and existing Sec. 1910.24(e), requires employers to install standard stairs at angles between 30 and 50 degrees from the horizontal. The final rule is consistent with

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    A1264.1-2007, which permits employers to install standard stairways at angles between 30 and 70 degrees from the horizontal, depending on the type of stairs. The final standard includes a diagram explaining that the slope for standard stairs is 30 to 50 degrees (see Figure D-10). OSHA received no comments on the proposal and adopted the provision as proposed.

    Final paragraphs (c)(2) and (3), like proposed paragraphs (b)(2) and (3), require that employers ensure standard stairs have a maximum riser height and minimum tread depth of 9.5 inches.\28\ The final rule also includes an exception (final paragraph (c)(5)) on riser heights and tread depths for standard stairs installed prior to the effective date of the final rule, which is January 17, 2017. The exception specifies that employers will be in compliance with the riser height/

    tread depth requirements if they meet the dimensions specified in the note to final Sec. 1910.25(c)(2) and (3), or if they use a combination that achieves the required angle range of 30 to 50 degrees.

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    \28\ Riser height is a vertical distance that is measured from the tread (horizontal surface) of one step to the top of the leading edge of the tread above it. Tread depth is a horizontal distance that is measured from the leading edge of a tread to the point where that tread meets the riser (See Sec. 1910.25, Figure D-8). This method of measuring riser height and tread depth is consistent with NFPA 101-2009 (Section 7.2.2.3.5) and IBC (Section 1009.7.2).

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    The existing rule (Sec. 1910.24(e)) does not specify a maximum riser height or minimum tread depth for fixed stairs. Instead, it requires that fixed stairs be installed at an angle of 30 to 50 degrees from horizontal and allows employers to use any combination of uniform riser and tread dimensions that achieves a stairway angle within the required range. To assist employers, the existing rule (Sec. 1910.24(e), Table D-1) provides examples of riser height and tread depth combinations that will achieve the required angle range. The existing rule also specifies that employers may use riser and tread combinations other than those listed in Table D-1, provided they achieve a stairway angle that is within the required slope of 30 to 50 degrees.

    Like the final rule, A1264.1-2007 (Section 6.5) requires a 9.5-inch maximum riser height and minimum tread depth. And like the existing rule, A1264.1-2007 also allows employers to use any combination of riser and tread dimensions that achieve a stair angle within the permissible range. OSHA notes that A1264.1-2007 (Section E6.4) specifies that the permissible angle range for ``typical fixed stair'' is 30 to 50 degrees, which is consistent with the existing and final rules.

    OSHA believes that the riser height and tread depth requirements in final paragraphs (c)(2) and (3), respectively, are simpler, clearer, and easier to understand and follow than the existing rule. The final rule also makes it easier for employers to achieve the required stair angle range of 30 to 50 degrees in final paragraph (c)(1).

    OSHA received several comments on the proposed riser height and tread depth requirements. For example, Ellis Fall Safety Solutions (Ex. 155) advocated that OSHA follow the maximum riser heights and minimum tread depths of 7 and 11 inches, respectively, in IBC-2009, stating, ``If other locations in commerce are 7/11 why should we not find that at work too? Also it is less tiring for workers to climb a 7/11 stair . . . . OSHA should not be different than the IBC Building Code in this instance'' (Ex. 155).

    To reduce employer burdens, Ellis also suggested that the final rule include a provision grandfathering in the riser and tread dimensions of existing stairways until employers do ``major renovation'' of the stairs (Ex. 155). Southern Company agreed that OSHA should grandfather in existing stairways that have a tread depth of less than 9.5 inches, ``We have not seen data that an existing stairway with an 8 inch tread depth produces an increase in the fall exposure that would justify replacing these stairs. Absent data . . . we feel these stairs should be grandfathered'' (Ex. 192).

    NFPA, on the other hand, said there was ``no technical justification'' for allowing a tread depth of less than 9.5 inches, especially since it was more lenient than the 11-inch tread depth requirement in new IBC codes (Ex. 97).

    OSHA agrees with NFPA that the 9.5-inch minimum tread requirement in the proposed, final, and A1264.1-2007 standards provides stepping space that is adequate to protect workers from falling. Although A1264.1-2007 (Section 6.5) requires a 9.5 maximum riser height and minimum tread depth, an explanatory note also suggests that employers consider the riser and tread requirements in IBC codes. OSHA notes that employers who have or install standard stairs with an 11-inch tread depth, which IBC-2009 requires, are in compliance with the final rule. Moreover, as mentioned above, OSHA grandfathers in the riser heights and tread depths of existing stairs even if they are less than 9.5 inches, which addresses the concerns of Southern Company.

    OSHA removed from final paragraph (c)(3) the proposed exception from the minimum tread-depth requirement for stairs with open risers. OSHA adopted the proposed exception from the 9.5-inch tread-depth requirement for open risers from A1264.1-2007. A note to that standard explained: ``Open risers are needed on certain narrow tread and steep angled stair systems and exterior structures'' (Section E6.13.).

    NFPA opposed the proposed exception, saying that allowing a tread depth of less than 9.5 inches for open risers is problematic in two ways:

    (1) Where open risers are present, not only does the specific 9.5-inch not apply, but no minimum tread depth is specified. The tread depth could be as little as 3-4 inches. (2) Stairs are used for travel in the downward direction at least as much as they are used for travel in the upward direction. An open riser might help to provide some extra ``effective'' tread depth for persons using the stair for upward travel. . . . However, an open riser does not create greater effective tread depth for persons using the stair for downward travel (Ex. 97).

    In addition, NFPA maintained that there is no technical justification for permitting a tread depth of less than 9.5 inches when the riser is open, stating, ``The 9.5-inch minimum tread depth specified in paragraph (c)(3) is already lenient as compared to the minimum 11-inch tread depth required in new construction model codes. The exemption for open risers should be deleted'' (Ex. 97). OSHA agrees with NFPA and, therefore, removed the proposed exception for standard stairways with open risers from the final rule.

    Final paragraph (c)(4), like proposed paragraph (b)(4), requires that employers ensure standard stairs have a minimum width of 22 inches between vertical barriers. Examples of vertical barriers include stair rails, guardrails, and walls. The added language makes the final provision more protective than the existing rule (Sec. 1910.24(d)), which also requires a tread width of 22 inches but does not specify how to measure the width. The additional language makes the final rule consistent with A1264.1-2007, which requires a minimum clear width of 22 inches. OSHA did not receive any comments on the proposed provisions and adopts the provision as proposed.

    The requirements for non-standard stairs in final paragraphs (d) (spiral stairs), (e) (ship stairs), and (f) (alternating tread-type stairs) parallel most of the provisions established for standard stairs in paragraph (c). Like the requirements for standard stairs, the requirements for spiral, ship, and alternating tread-type stairs represent the minimum requirements OSHA believes are necessary to ensure that

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    employees are able to move safely from one walking-working surface to another. OSHA adopted the requirements for non-standard stairs from A1264.1-2007, NFPA 101-2012, and IBC-2012.

    Paragraph (d)--Spiral Stairs

    Final paragraph (d), like proposed paragraph (c), establishes specific requirements for spiral stairs. As mentioned earlier, these requirements apply in addition to the general requirements in paragraph (a). OSHA adopted most of the requirements in final paragraph (d) from NFPA 101-2012. OSHA believes that the vast majority of spiral stairs currently in use already meet the requirements in final paragraph (d) because these spiral stairs conform to the current industry practice expressed in this NFPA standard. Therefore, OSHA believes employers will not have difficulty complying with the final rule.

    Final paragraph (d)(1), like paragraph (c)(1) of the proposed rule, requires that employers ensure spiral stairs have a minimum clear width of 26 inches. The ``clear'' width requirement in final paragraph (d)(1) is similar to the approach in final paragraph (c)(4) and A1264.1-2007 (Section 6.3). That is, the width is measured from the vertical barrier on the outside of the stairway to the inner pole onto which the treads are attached. Spiral stairs need a greater width than standard stairs because only the outside portion of the stairs can be stepped on since the inner part of treads are too short in depth. OSHA did not receive any comments on the proposed provision and adopts the provision as proposed.

    Final paragraph (d)(2), like proposed paragraph (c)(2) and final paragraph (c)(3), requires that employers ensure that spiral stairs have risers with a maximum height of 9.5 inches. OSHA did not receive any comments on the proposed provision, and the final rule adopts the provision as proposed.

    Final paragraph (d)(3) requires that employers ensure spiral stairs have a minimum headroom above the spiral stair treads of at least 6 feet, 6 inches. The final rule also requires that employers measure the vertical clearance from the leading edge of the tread. This requirement means that, at any and every point along the leading edge, the minimum headroom must be at least 6 feet, 6 inches. The proposed rule (paragraph (c)(3)) specifies that same minimum headroom, but proposed to measure it at the center of the leading edge of the tread. OSHA believes it is necessary to revise the method for measuring the vertical clearance to prevent injury to workers when using spiral stairs. The minimum headroom the final rule requires for spiral stairs is two inches less than the headroom final paragraph (b)(2) requires for all other stairways. Because the required headroom is less, OSHA believes it is important that employers measure the required minimum headroom at all points along the leading edge. OSHA did not receive any comments on the provision and adopts the proposed provision with the change discussed.

    To ensure that workers are able to maintain safe footing while using spiral stairs, final paragraph (d)(4), like proposed paragraph (c)(4), requires that employers ensure spiral stairs have a minimum tread depth of 7.5 inches. Because the tread depth on a spiral stair is not the same across the width of the tread, the final rule also requires that employers measure the minimum tread depth at a point 12 inches from the narrower edge. This requirement ensures that workers will have adequate space at the point on the tread where they are most likely to step.

    Although the minimum tread depth final paragraph (d)(4) requires is less than that for standard stairs, OSHA has several reasons for concluding that the minimum 7.5-inch tread depth is adequate to provide safe footing for workers. First, spiral stairs usually have open risers that provide additional space for the foot. Second, employers use spiral stairs where space restrictions make the use of standard stairs infeasible. In restricted-space situations, there may be insufficient room for stairways with 9.5-inch tread depths. Third, final paragraph (d)(4) is consistent with NFPA 101-2012. OSHA did not receive any comments on the proposal and adopts the provision as proposed.

    Final paragraph (d)(5), like proposed paragraph (c)(5), requires that employers ensure spiral stairs have a uniform tread size. As OSHA mentioned in the discussion of paragraph (b)(3), this requirement is necessary because, in the Agency's experience, even small variations in tread size and shape may cause trips and falls. OSHA did not receive any comments on the proposed rule and adopts it as proposed.

    Paragraph (e)--Ship Stairs

    Final paragraph (e), like proposed paragraph (d), provides specific requirements employers must follow in situations where they may use a type of stair commonly referred to as a ``ship stair'' or ``ship ladder.'' Employers often use ship stairs as a means to bypass large equipment, machinery, or barriers in tight spaces. OSHA drew some of the provisions in final paragraph (e) from the A1264.1-2007 standard.

    The requirements in final paragraph (e) apply in addition to the general requirements specified in paragraph (a) above. In addition, OSHA is reorganizing some of the provisions in final paragraph (e) to make the paragraph easier to follow and understand. For example, OSHA is grouping the riser requirements into one provision (final paragraph (e)(2)).

    OSHA notes that the requirements in final paragraph (e) apply only to ship stairs used in general industry. Some commenters raised concerns about whether OSHA was applying the requirements in paragraph (e) to ship stairs used on vessels. For example, Northrop Grumman Shipbuilding (NGS) said:

    OSHA has included a definition (Sec. 1910.21(b)) and design requirements for ship stairs. . . . We wish to clarify that despite the inclusion of the term ``ship stairs'' in the standard, OSHA is not attempting to extend application of the design criteria for ladders, stairs or other walking-working surfaces to vessels, which we believe are under the regulatory authority of the United States Coast Guard (Ex. 180).

    Mercer ORC Networks raised similar concerns:

    Mercer believes that OSHA intends to apply this definition to a particular stair or ladder configuration wherever it is found, whether on a ship or in a land-based facility. However, if one reads the definition literally (which should be possible with regulations), one might easily conclude that unless the stairs or ladder are actually aboard a ship, they do not fit the regulation (Ex. 254).

    Using the longstanding industrial term ``ship stairs'' does not mean that this final rule applies to any industry sectors or workplaces beyond general industry, or working conditions regulated by other agencies. As mentioned in Sec. 1910.21, OSHA considers ``ship stairs'' to be a term of art for a type of stairway used when standard stairs are not feasible. OSHA recognizes that, historically, vessels used ship stairs to access different levels in restricted spaces. Today, however, employers use these stairs in other situations, including general industry workplaces. OSHA continues to use the term in the final rule to refer to a particular stair design, and not to designate where employers install or use them (see discussion of ship stairs in Sec. 1910.21(b)).

    Final paragraph (e)(1), like paragraph (d)(1) of the proposed rule, requires that employers ensure ship stairs are installed at a slope of 50 to 70 degrees from the horizontal. As A1264.1-2007 indicates, this slope range is standard

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    for ship stairs (see Figure 6.4 of A1264.1). OSHA did not receive any comments on the proposed provision and adopts it as proposed.

    Final paragraph (e)(2), like paragraph (d)(2) of the proposed rule, addresses risers on ship stairs. First, the provision requires that employers ensure ship stairs have open risers. The final rule is consistent with A1264.1-2007 (Section 6.13), which requires that ship, spiral, and alternating tread-type stairs having a tread depth of less than 9.5 inches must have open risers. The A1264.1-2007 standard explains that open risers are necessary for stairs with narrow tread depth, such as stairs used in restricted space (Sections E6.5 and E6.13). An open riser gives workers additional space to ensure they are able to maintain safe footing on treads that have a narrow tread depth due to the limited space.

    Second, final paragraph (e)(2), like proposed paragraph (d)(3), requires that employers ensure ship stairs have a vertical rise between tread surfaces of at least 6.5 inches and not more than 12 inches. For clarity, OSHA moved the proposed requirement to paragraph (e)(2) because it also addresses stair risers. OSHA did not receive any comments on the proposed ship stair requirements for open risers and acceptable riser height and adopts the provision as proposed.

    Final paragraph (e)(3), like proposed paragraph (d)(3), requires that employers ensure ship stairs have a minimum tread depth of 4 inches. Employers must apply final paragraph (e)(3) in combination with paragraph (e)(2). Although the required 4-inch minimum tread depth for ship stairs is less than the 9.5-inch minimum tread depth required for standard stairs (final paragraph (c)(3)), nevertheless, OSHA believes the tread depth is adequate to ensure that workers have a safe stepping area because final paragraph (e)(2) requires that ship stairs have open risers. As discussed, open risers give workers additional space to maintain safe footing on ship stairs. Also, together the riser and tread requirements in final paragraphs (e)(2) and (3), respectively, set the necessary framework for employers to achieve the required 50- to 70-degree angle range for ship stairs. OSHA did not receive any comments on the proposed provision and adopts the provision as discussed.

    Final paragraph (e)(4), like proposed paragraph (d)(3), requires that employers ensure ship stairs have a minimum tread width of 18 inches. Although the required tread width for ship stairs is 4 inches less than that specified in final paragraph (c)(4), OSHA believes this width is adequate for stairs that employers may use only in certain limited situations, such as in restricted spaces where it is not feasible to use standard stairs. OSHA notes that the final rule makes the tread-width requirement a stand-alone provision, which makes paragraph (e)(4) consistent with the other tread-width provisions in Sec. 1910.25. The Agency did not receive any comments on the proposed tread width provision and adopted it as proposed.

    Paragraph (f)--Alternating Tread-Type Stairs

    Final paragraph (f), like proposed paragraph (e), establishes specific requirements for those situations in which employers may use alternating tread-type stairs. The requirements in final paragraph (f) apply in addition to the general requirements in final paragraph (b). The Agency based the requirements on OSHA Instruction STD 01-01-011 and three national consensus standards (A1264.1-2007, NFPA 101-2012, and IBC-2012).

    Final paragraph (f)(1), like proposed paragraph (e)(1), requires that employers ensure the series of treads installed in alternating tread-type stairs have a slope of 50 and 70 degrees from the horizontal. As A1264.1-2007 indicates, this slope range is standard for alternating tread-type stairs (see Figure 6.4). Final (f)(1) also is consistent with OSHA Instruction STD 01-01-011, which specifies that alternating tread-type stairs must have a slope angle of 70 degrees or less. OSHA did not receive any comments on the proposed requirement and adopts the provision as proposed.

    Final paragraph (f)(2), like proposed paragraph (e)(2) and proposed Sec. 1910.28(b)(11)(iii), specifies the required horizontal distance between handrails. It requires that employers ensure the distance between the handrails on alternating tread-type stairs is not less than 17 inches and not more than 24 inches.

    OSHA Instruction STD 01-01-011, which allows employers to use alternating tread-type stairs, does not specify a minimum width between handrails. The existing (Sec. 1910.24(d)), proposed (proposed paragraph (b)(4)), and final rules (final paragraph (c)(4)) require that employers ensure standards stairs have a minimum 22-inch tread width between vertical barriers (i.e., handrails). Similarly, A1264.1-

    2007 (Section 6.3) requires that all fixed stairs have a minimum ``clear width'' of 22 inches, which, in other words, means that the distance between handrails must be at least 22 inches.

    OSHA believes the handrail distance requirement in the final rule better effectuates the purposes of the OSH Act than A1264.1-2007. First, alternating tread-type stairs can pose unique issues. OSHA believes the 17- to 24-inch handrail distance is appropriate and provides needed flexibility to address those issues. For example, as A1264.1-2007 (Section E6.1.1) points out, some alternating tread-type stairs are built so that workers need to descend facing away from the stairs, which makes three-point contact ``a necessity.'' For those stairs, OSHA believes that the distance between handrails may need to be adjusted so workers are able to maintain critical three-point contact while they are descending the stairs.

    Second, the final 17- to 24-inch handrail distance requirement is established specifically for the alternating tread-type stairs. By contrast, the 22-inch width requirement in A1264.1-2007 applies to all fixed stairs and does not take into consideration the issues and limitations involved with alternating tread-type stairs. Therefore, OSHA believes the flexibility that final paragraph (f)(2) provides, combined with its specific consideration of the issues involving alternating tread-type stairs, ensures that the final rule will provide appropriate protection.

    Finally, adopting a 17- to 24-inch handrail distance is consistent with the NFPA 101-2012 requirement for alternating tread-type stairs (Section 7.2.11.2). Unlike A1264.1-2007, the NFPA 101 standard establishes handrail width requirements specific to alternating tread-

    type stairs and the unique issues and limitations those stairs involve. OSHA is therefore following the NFPA 101-2012 standard in accordance with section 6(b)(8) of the OSH Act (29 U.S.C. 655(b)(8)).

    OSHA notes that since 1986, OSHA Instruction STD 01-01-011 has required that alternating tread-type stairs ``be equipped with a handrail on each side'' to assist workers using the stairs. Final paragraph (f)(2) (i.e., ``between handrails'') is consistent with that instruction. OSHA did not receive any comments on proposed paragraph (f)(2) and adopts as discussed.

    Final paragraphs (f)(3) and (f)(4) address tread depth for alternating tread-type stairs. Final paragraph (f)(3), like proposed paragraph (e)(3), requires that employers ensure alternating tread-type stairs have a tread depth of at least 8.5 inches. However, if the tread depth is less than 9.5 inches, final paragraph (f)(4), like proposed paragraph (e)(4), requires that employers ensure alternating tread-type stairs have open risers. The A1264.1-2007 standard

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    contains the same requirement (Section 6.13), explaining that open risers are necessary on stairs with narrow treads (Section E6.13). OSHA did not receive any comments on the proposed provisions, which the final rule adopts with only minor editorial changes.

    Final paragraph (f)(5), like proposed paragraph (e)(5), requires that employers ensure that each tread has a minimum width of 7 inches measured at the leading edge (nosing) of the tread. The measurement is taken at the leading edge of the tread because treads on many of these types of stairs narrow at the back of the tread. This requirement is based on a requirement in the IBC-2012 (Sec. 1009.13.2). OSHA did not receive any comments on the proposed requirements and adopts the provisions as proposed.

    Section 1910.26--Dockboards

    Section 1910.26 of the final rule establishes requirements for the design, performance, and use of dockboards. The final rule updates the existing requirements for dockboards (existing Sec. 1910.30(a)).\29\ For example, the final rule deletes the existing requirement that the design and construction of powered dockboards conform to the 1961 Department of Commerce (DOC) Industrial Lifts and Hinged Loading Ramps Commercial Standard (CS202-56). ANSI/ITSDF B56.1 (2012) and other recently updated national consensus standards supersede the DOC standard. These standards include:

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    \29\ The final rule also deletes the existing requirements for forging machine areas and veneer machinery in existing Sec. 1910.30(b) and (c), respectively. OSHA believes these requirements are not necessary because Sec. 1910.22(b) of the final rule, as well as other general industry standards (e.g., 29 CFR part 1910, subpart O (Machinery and Machine Guarding)) already address those hazards. For example, subpart O includes standards on forging machines (Sec. 1910.218).

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    American National Standards Institute (ANSI)/Industrial Truck Standards Development Foundation (ITSDF) B56.1-2012, Trucks, Low and High Lift, Safety Standard (B56.1-2012) (Ex. 384);

    ASME/ANSI MH14.1-1987, Loading Dock Levelers and Dockboards (MH14.1-1987) (Ex. 371);

    ANSI MH30.1-2007, National Standard for the Safety Performance, and Testing of Dock Loading Devices (MH30.1-2007) (Ex. 372); and

    ANSI MH30.2-2005, Portable Dock Loading Devices: Standards, Performance, and Testing (MH30.2-2005) (Ex. 20).

    Both the proposed and final rules adopted provisions that generally are consistent with these national consensus standards. Final Sec. 1910.26 applies to all dockboards unless a provision states otherwise.

    The final rule (final Sec. 1910.12(b)) defines a dockboard as a portable or fixed device used to span a gap or compensate for a difference in height between a loading platform and a transport vehicle. Dockboards may be powered or manual, and include, but are not limited to, bridge plates, dock levelers, and dock plates.

    ``Loading platforms,'' as used in the definition of dockboards, include loading docks, interior floors, driveways or other walking or working surfaces. ``Transport vehicles,'' as used in the definition and in the final rule, are cargo-carrying vehicles that workers may enter or walk onto to load or unload cargo and materials. Transport vehicles include, but are not limited to, trucks, trailers, semi-trailers and rail cars. Employers primarily use transfer vehicles on dockboards in order to move cargo and materials on and off transport vehicles. ``Transfer vehicles,'' which are mechanical powered or non-powered devices to move a payload, include, but are not limited to, powered industrial trucks, powered pallet movers, manual forklifts, hand carts, hand trucks, and other types of material-handling equipment. Transfer vehicles include all mechanical handling equipment that 29 CFR part 1910, subpart N, covers.

    These descriptions of transport vehicles and transfer vehicles are consistent with the definitions of those terms in the MH30.1-2007 and MH 30.2-2005 consensus standards. In proposed Sec. 1910.26(d), OSHA used the term ``equipment'' to reference all types of transfer vehicles. OSHA believes the term ``transport vehicle'' more accurately describes the types of equipment OSHA intends to cover in final Sec. 1910.26.

    Paragraph (a) of the final rule, like proposed paragraph (a), requires that employers ensure that the dockboards are capable of supporting their maximum intended load. Section 1910.21(b) of the final rule defines ``maximum intended load'' as the total load (weight and force) of all workers, equipment, vehicles, tools, materials, and other loads that the employer ``reasonably anticipates'' to be applied to a walking-working surface at any one time. OSHA recognizes that not all dockboards are equal, and some employers may have multiple dockboards with different capacities. Some dockboards are made of lightweight materials, such as aluminum, designed to support lighter loads such as those that typically occur with manual material handling methods. Other dockboards, such as those made of steel, are typically designed to accommodate a heavier load, such as a laden powered industrial truck. Additionally, portable dockboards may be carried on transport vehicles for use at various loading platforms and subjected to a wide range of anticipated loads.

    The final rule differs from existing Sec. 1910.30(a)(1) in that the existing rule requires dockboards to be strong enough to carry the load imposed on them. As OSHA explains in the discussion of final Sec. 1910.21(b), the term ``maximum intended load'' applies not only to total loads currently applied to a walking-working surface, such as a dockboard, but also to total loads that the employer has a reasonable anticipation will be placed on the walking-working surface.

    The provision for loads in final Sec. 1910.22(b) requires that employers ensure all walking-working surfaces are capable of supporting the maximum intended load that will be applied to that surface. OSHA believes it is important for clarity to include this performance-based requirement in Sec. 1910.26. OSHA included the provision in final Sec. 1910.26(a) to emphasize that the final rule revised the load criteria in the existing rule from ``load imposed'' to ``maximum intended load.'' Also, OSHA included the load requirement in this section to emphasize that it applies to all dockboards that workers use, regardless of whether the employer or some other entity owns or provides the dockboard; whether the dockboard is portable, fixed, powered, or manual; or whether the employer uses the dockboard as a bridge to a transport vehicle. Finally, OSHA included the requirement in this section to stress that, consistent with MH14.1-1987 (Section 2), the design and construction of all load-supporting parts of the dockboard must ensure that the dockboard unit as a whole, when under load, is capable of supporting the maximum intended load.

    The national consensus standards also provide guidance to help employers comply with final paragraph (a). For example, MH14.1-1987 and MH30.2-2005 identify factors and circumstances employers should consider when ensuring their dockboards meet the load requirement in final paragraph (a): ``In selecting dock leveling devices, it is important for employers/owners to consider not only present requirements but also future plans or adverse environments'' (MH14.1-

    1987 (Section 3.1(j) and MH30.2-2005 (Section 6.2.9))).

    The MH14.1-1987 standard requires that load-supporting parts of dockboards, including structural steels

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    and other materials, when under load, conform to American Society for Testing and Materials (ASTM) standards, and that all welded connections on dockboards comply with American Institute of Steel Construction standards (Sections 2(a) and (b)). Similarly, the MH30.1-2007 standard recommends that owners and employers never use dockboards outside the manufacturer's rated capacity (Section 5.4.10). OSHA believes the guidance these national consensus standards provide will help employers ensure that dockboards are able to carry, and do not exceed, the maximum intended load. OSHA did not receive any comments on the proposed provision and adopts it with editorial revisions.

    Final paragraph (b)(1), like the proposed rule, requires employers to ensure that dockboards put into initial service on or after the effective date of the final rule, January 17, 2017, are designed, constructed, and maintained to prevent transfer vehicles from running off the dockboard edge. In other words, dockboards put into service for the first time starting on the effective date of the final rule must have run-off protection, guards, or curbs. A ``run-off guard,'' as defined in the MH14.1-1987 standard, is ``a vertical projection running parallel with the normal traffic flow at each side extremity of the dockboard. Its intent is to avoid accidental side exit'' (Section 1.3; see also MH30.1-2007 (Section 1.2.16) and MH30.2-2005 (Section 2.9))). For example, run-off protection on many dockboards is simply a lip on the side of the dockboard that is bent 90 degrees from the horizontal portion of the dockboard. The existing rule does not include a similar requirement.

    OSHA believes this provision is necessary to protect workers. A transfer vehicle that runs off the side of a dockboard could kill or injure employees working on or near it. For example, forklifts used to load items onto a transport vehicle could seriously injure or kill the operator and nearby workers if the forklift runs off the side of the dockboard. In addition, workers using hand trucks to load and unload materials from a truck could lose their balance and fall if there is no run-off guard to prevent the hand truck from running off the side of the dockboard.

    Final paragraph (b)(1) is a performance-based version of the run-

    off protection requirements in national consensus standards. To illustrate, the MH14.1-1987 standard specifies:

    Run-off guards shall be used for units that bridge an opening in excess of 36 in. (910 mm) from the face of the dock. The minimum run-off guard height shall be 2\3/4\ in (70 mm) above the plate surface. Ends of run-off guards shall be contoured both horizontally and vertically to permit a smooth transition to minimize damage to the tires of handling equipment. (Section 3.2(a); see also Sections 3.4(c), 3.5, 3.6.)

    The MH30.1-2007 and MH30.2-2005 standards also contain similar specifications (MH30.1-2007 (Sections 5.3.2, 5.3.3) and MH30.2-2005 (Section 6.1.4)) to prevent transfer equipment from accidentally running off the side of the dockboard. OSHA will deem employers that comply with the run-off protection specifications in MH14.1-1987, MH30.1-2007, or MH30.2-2005 as being in compliance with final paragraph (b)(1). OSHA also will consider employers that follow a different approach, or use dockboards with run-off guards of a different height, to be in compliance with the final rule, provided the run-off guards they use are effective in preventing transfer vehicle from running off the dockboard side.

    OSHA made several revisions to proposed paragraph (b) in the final rule. First, final paragraph (b)(1) clarifies that this provision is prospective only, that is, it only applies to dockboards put into ``initial service'' on or after the effective date of the final rule. The final rule grandfathers existing dockboards (75 FR 29009-10), meaning employers do not have to replace or retrofit dockboards currently in use.

    Second, OSHA revised the compliance deadline for this provision. The effective date specified by the proposed rule was 90 days after the effective date of the final rule. After reviewing the record, OSHA does not believe that the longer proposed compliance phase-in period is necessary because the national consensus standards on which OSHA based final paragraph (b) have been in place for many years. As such, OSHA believes many dockboards currently in use, and virtually all dockboards manufactured today, already have run-off guards. Therefore, OSHA does not believe the compliance date in final paragraph (b) will impose an undue burden on employers.

    Third, OSHA added an exception (final paragraph (b)(2)) in response to a comment the Agency received on the proposed provision. The American Trucking Associations, Inc., (ATA) (Ex. 187) said the proposed rule was ``very broad'' and opposed the requirement that all dockboards have run-off protection:

    To load or to unload, the driver of the commercial motor vehicle backs up to the dock slowly and does not stop until contacting the dock or the installed dock bumper blocks. In most cases, the gap between the vehicle and the loading dock is no more than a few inches. Either a dock leveler or portable dockboard is used to reduce even this minimal amount of space. There is insufficient space between the terminal and the truck to permit a powered industrial truck loading or unloading freight to fall to the ground.

    OSHA's proposed requirement that portable dockboards and dock plates be provided with edging and curbing is ill-conceived. Moreover, there is no space between the side of the truck and the edge of dock bay opening to allow for a forklift truck to run off of the edge to cause death or injury to the employee.

    Further, this requirement actually would reduce safety for employees in the trucking industry, as providing curbing on dock plates would create a tripping hazard for employees walking on the plates (Ex. 187).

    Accordingly, ATA recommended that OSHA revise paragraph (b) to specify:

    Curbing on dockplates to prevent a vehicle from running off the edge of a ramp or bridging device is not required where there is insufficient space for a vehicle using the device to run off the edge and drop to the ground. Any requirement for curbing on the edges of ramps and bridging devices should be limited to those working environments where a true fall-off hazard exists (Ex. 187).

    The Agency agrees with ATA that run-off protection is not necessary when there is insufficient space for equipment to run off the side of the dockboard. Accordingly, OSHA added an exception to final paragraph (b)(1) specifying that employers do not have to use dockboards equipped with run-off guards if there is no fall hazard to guard against. This exception is consistent with MH14.1-1987, MH30.1-2007, and MH30.2-2005, which only require run-off guards when the opening the dockboard bridges exceeds 36 inches (MH14.1-1987 (Sections 3.2(a), 3.4(c), 3.5, 3.6) and MH30.2-2005 (Section 6.1.4)). Unlike the national consensus standards, final paragraph (b)(1) does not specify what size of opening on the dockboard constitutes a run-off hazard. In some circumstances, an opening of less than 36 inches may pose a fall hazard. As such, OSHA believes the most effective way to determine whether a hazard exists is for employers to evaluate whether a particular opening poses a hazard, including considering factors such as the type and size of transfer vehicle the worker is using.

    Paragraph (c) of the final rule, like existing Sec. 1910.30(a) and the proposed rule, requires employers to secure portable dockboards by anchoring them in place or using equipment or devices to prevent the dockboard from moving out of a safe position. The final rule also specifies that, when the employer can demonstrate that it is not feasible to

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    secure the dockboard, the employer must ensure that there is sufficient contact between the dockboard and the surface to prevent the dockboard from moving out of a safe position.

    OSHA believes this provision is necessary to protect workers from injury or death. If the employer does not securely anchor the dockboard or equip it with a device that prevents movement, it could slide or drop off of the loading platform or transport vehicle, and the worker could fall. Workers also could fall if the dockboard moves or slides while they are on it. In addition, failure to secure a dockboard could expose workers to crush or caught-in hazards if the dockboard moves, and pins or strikes the worker, or causes the load the worker is moving to shift or fall against the worker.

    Final paragraph (c) is consistent with B56.1-2012. That standard also requires anchoring or equipping portable dockboards with devices that prevent the dockboards from slipping (Section 4.13.2). B56.1-2012 does not include any requirements for employers to follow when anchoring or equipping portable dockboards from slipping is not feasible. It does require, like final paragraph (c), dockboards of all types be designed and maintained so the ends have ``substantial contact'' with the dock and transport vehicle to prevent the dockboard from ``rocking or sliding'' (Section 4.13.5). Similarly, MH14.1-1987 (Section 3.7(b)), MH30.1-2007 (Section 5.1.7), and MH30.2-2005 (Section 6.2.2) require at least 4-inch overlap between the edge of a dockboard and the edge of the supporting surface (e.g., dock, platform, trailer track bed). OSHA did not incorporate a specific minimum overlap in the final rule because it believes that what constitutes an adequate overlap may involve a number of factors that employers need to determine on a case-by-case basis. OSHA did not receive any comments on proposed paragraph (c) and finalized the paragraph as discussed.

    Final paragraph (d), like the proposed rule, requires that employers provide and use measures (e.g., wheel chocks, sand shoes) to prevent transport vehicles from moving while dockboards are in place and workers are using them. OSHA believes it is necessary to prevent transport vehicles from moving in order to protect workers from falling when they work on dockboards. If a transport vehicle moves when a worker is on the dockboard, the sudden movement may cause the worker to fall off the dockboard or the dockboard may be displaced and fall to the ground along with the worker.

    The proposed and final rules expand the existing rule (Sec. 1910.30(a)(5)), which only requires that employers prevent ``rail cars'' from moving when workers are using dockboards to load/unload cargo. However, workers also are exposed to fall hazards when they use dockboards to load/unload other types of transport vehicles. As a result, OSHA expanded the existing rule to ensure that workers are protected whenever they use dockboards, regardless of the type of transport vehicle workers are loading/unloading.

    The final rule gives employers flexibility in selecting measures to prevent the transport vehicle from moving. Employers must ensure whatever measures they use are effective in preventing movement, regardless of the type of transport vehicle the employer is loading/

    unloading. For example, for wheel chocks, which are one of the most frequently used measures to prevent transport vehicles from moving, the size of the transport vehicle wheel determines the size of the wheel chock that will be effective to prevent the vehicle from moving.

    OSHA received one comment on the proposed rule. ATA said the requirement is both unnecessary and conflicts with section (4)(b)(1) of the OSH Act (29 U.S.C. 653(b)(1)):

    FMCSA's Federal Motor Carrier Safety Administration brake regulations address this condition and preclude OSHA's wheel chocking requirements. Jurisdiction in this matter was asserted in a 2001 letter from then FMCSA Acting Deputy Administrator Julie Cirillo to OSHA officials. The letter clearly asserts FMCSA's exclusive jurisdiction over the immobilization of parked vehicles in stating that FMCSA's parking brake regulations were ``written specifically to protect truck drivers and anyone else who might be injured by inadvertent movement of a parked commercial motor vehicle.'' . . . We believe FMCSA brake regulations constitute an `exercise of statutory authority' to prescribe or enforce standards or regulations affecting occupational safety or health (Ex. 187).

    Department of Transportation (DOT) regulates interstate transportation of ``commercial motor vehicles'' (CMV) traveling on public roads, thus, pursuant to section 4(b)(1) of the OSH Act, OSHA is preempted. DOT regulations define a CMV, in part, as a self-propelled or towed vehicle used on the highways in interstate commerce, if the vehicle:

    Has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater; or

    Is used in transporting materials found by the Secretary of Transportation to be hazardous as defined by DOT regulations and transported in a quantity requiring placarding under DOT regulations (49 U.S.C. 31132).

    DOT regulations do not apply to transport vehicles that do not meet the definition of CMV, do not operate in interstate transportation, or are not used on public roads. OSHA continues to have authority over:

    Transport vehicles that do not meet the definition of CMV; and

    CMVs not operated in interstate commerce, which includes CMVs that transport materials on private roads or within a work establishment.

    OSHA has the authority to enforce chocking requirements in these situations, which the Agency outlined in two letters of interpretation (Letter to Mr. Turner, November 8, 2005 \30\ and letter to Mr. Cole, March 7, 2011 \31\). Thus, to the extent that FMCSA covers the specific vehicle, final paragraph (d) does not apply. That said, OSHA believes final paragraph (d) is necessary because not all transport vehicles are CMVs or used on public roads. Employers use transport vehicles to move material and equipment within their facilities. In addition, most transport vehicles are loaded and unloaded off public roads. Therefore, OSHA adopted proposed paragraph (d) with editorial revisions.

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    \30\ OSHA letter to Mr. Turner available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25161.

    \31\ OSHA letter to Mr. Cole available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28121.

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    Final paragraph (e), like existing Sec. 1910.30(a)(4) and the proposed rule, requires that employers equip portable dockboards with handholds or other means that permit workers to safely handle the dockboard. Handholds and other means of gripping are necessary so workers are able to move and place dockboards without injuring themselves or others. If workers cannot handle or grip a dockboard safely, they could drop it on their feet, crush their fingers while putting the dockboard into place, or fall. Handholds also make it possible to place dockboards into the proper position (e.g., adequate overlap, secure position) so the dockboards will be safe for workers to use.

    Final paragraph (e) is essentially the same as existing Sec. 1910.30(a)(4) and is consistent with B56.1-2012 (Section 4.13.3), MH14.1-1987 (Section 3.2.(b)), MH30.1-2007 (Section 5.2.1), and MH30.2-

    2005 (Section 6.1.6). OSHA notes that these national consensus standards also specify that, when handling a portable dockboard

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    mechanically, employers must provide forklift loops, lugs, or other effective means to move or place the dockboard. There were no comments on the provision and OSHA adopted the provision with minor editorial revisions.

    Section 1910.27--Scaffolds and Rope Descent Systems

    Final Sec. 1910.27, like the proposed rule, addresses scaffolds and rope descent systems (RDS) used in general industry. The purpose of Sec. 1910.27 is to protect workers whose duties require them to work at elevation, whether on scaffolds or RDS. The existing standards (Sec. Sec. 1910.28 and 1910.29) address scaffolds, but not RDS. Prior to the final rule, OSHA regulated the use of RDS under the general duty clause (29 U.S.C. 654(a)(1)) and through written policy statements that established minimum expectations for employers who use RDS.

    For two reasons, OSHA divided the final rule into separate paragraphs for scaffolds and RDS. First, the record shows that the hazards involved in working on scaffolds are different from the hazards associated with using an RDS (Exs. 66; 122; 221). Second, based on comments received in the record, OSHA believes that the final rule should not regulate RDS as a type of suspended scaffold. Uniformly, commenters said RDS are not suspended scaffolds (Exs. 122; 163; 205). For example, Mr. Matt Adams, with Rescue Response Gear, stated: ``Rope descent systems are described in this document as representing a variation of the single-point adjustable suspension scaffold. This is a terribly antiquated view of what rope work really is, and does not adequately acknowledge the extreme versatility and safety record of rope access'' (Ex. 122). The Society of Professional Access Technicians (SPRAT) had similar concerns, noting:

    Permitting rope descent systems to be regulated as suspended scaffolds is potentially hazardous in that this does not adequately address the versatility, safety, and training required to achieve safety while working suspended on rope. The hazards associated with suspended scaffolds do not in any way emulate the hazards associated with roped access work, and as a result the mitigation measures, training, and equipment requirements also differ (Ex. 205).

    For the reasons discussed above, OSHA also revised the title of this section of the final rule to ``Scaffolds and Rope Descent Systems'' from the proposed ``Scaffolds (including rope descent systems).'' OSHA agrees with commenters that the proposed title may mistakenly imply that RDS are a type of scaffold (Exs. 122; 221). The only purpose of the proposed title was to indicate that RDS, like scaffolds, involve working at elevated work locations.

    OSHA notes that a number of stakeholders who commented on various provisions of proposed Sec. 1910.27 submitted almost identical comments. OSHA does not cite to all of these comments when discussing each provision of the final rule. Instead, OSHA cites to samplings of those comments when addressing an issue.

    OSHA drew the rope descent system requirements in the final rule from the following sources:

    1991 OSHA memorandum to regional administrators allowing the use of RDS when employers follow all of the provisions outlined therein (Ex. OSHA-S029-2006-0062-0019);

    American National Standards Institute/American Society of Safety Engineers ANSI/ASSE Z359.4-2012 Safety Requirements for Assisted-Rescue and Self-Rescue Systems, Subsystems and Components (ANSI/ASSE Z359.4-2012) (Ex. 387); and

    American National Standards Institute/International Window Cleaning Association I-14.1-2001--Window Cleaning Safety (I-14.1-2001) (Ex. 14).\32\

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    \32\ After the rulemaking record was closed and certified on June 13, 2011, ANSI administratively withdrew ANSI/IWCA I-14.1-2001, Window Cleaning Safety, on October 23, 2011, because the standard had not been revised or reaffirmed by the deadline required. ANSI Essential Requirements (www.ansi.org/essentialrequirements) specify all that ANSI national consensus standard must be revised or reaffirmed within 10 years from their approval as an American National Standard or the standard is automatically withdrawn (Section 4.7 Maintenance of American National Standards).

    SEIU Local 32BJ objected to OSHA's reliance on I-14.1-2001, arguing that the ANSI/IWCA I-14 committee did not operate by consensus and misrepresented votes (Ex. 316, 324, Ex. 329 (1/19/

    2011), pgs. 5-8). The Local submitted a number of documents purportedly substantiating this claim (see Ex. 316-320). However, ANSI has due process requirements that standards developers must follow. Because the I-14 committee was accredited by ANSI and the I-

    14.1-2001 standard was approved by ANSI, OSHA presumes those requirements were followed. ANSI's requirements include procedures for dealing with the sort of objections Local 32BJ has made, and nothing in these documents show that Local 32BJ presented its claims to ANSI, through an appeal or otherwise. OSHA is unable to ascertain from the Local's documents that the I-14 committee did not follow the ANSI rules.

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    Paragraph (a)--Scaffolds

    Final paragraph (a), like the proposed rule, requires that employers ensure scaffolds used in general industry meet the requirements in the construction scaffold standards (29 CFR 1926, subpart L (Scaffolds)), and, as a result, the final rule deletes the existing general industry scaffold requirements (existing Sec. Sec. 1910.28 and 1910.29). The construction scaffold standards, which OSHA updated on August 30, 1996 (61 FR 46104; 61 FR 46107; 61 FR 46116)), are more current than the general industry standards, which OSHA first adopted in 1974 (39 FR 23502), and last updated in 1988 (53 FR 12121 (4/12/1988)).

    The final rule, similar to the proposed and construction scaffold rules, defines scaffold as a ``temporary elevated or suspended platform and its supporting structure, including anchorage points, used to support employees, equipment, materials, and other items'' (Sec. 1910.21(b)). For the purposes of final subpart D, scaffolds do not include crane-suspended or derrick-suspended personnel platforms or RDS. OSHA's standard on powered platforms for building maintenance (Sec. 1910.66) addresses personnel platforms used in general industry.

    Commenters supported making OSHA's general industry and construction standards consistent. For example, Mr. Bill Kojola with the AFL-CIO, said: ``We believe that it is important to have consistent standards that address scaffolds so that all workers, regardless of the industry in which they work, have equal or equivalent protection from the hazards that are associated with scaffolds'' (Ex. 172). At the hearing on the proposed rule, Mr. Kojola added:

    OSHA is proposing that general industry comply with the construction industry's scaffold standards in 29 CFR 1926(L). . . . By requiring employers in general industry to comply with the construction scaffold standards, consistency will be achieved as well as a decrease in any confusion that . . . would likely arise if the standards were different between these two industries (Ex. 329 (1/20/2011, p. 222)).

    Mr. Mark Damon, president of Damon, Inc., observed: ``My experience is that people in general industry are sometimes involved in the erection of scaffolds. I believe . . . similar protection should be afforded to workers in general industry'' (Ex. 251).

    OSHA believes that the final rule will ensure consistent application of the general industry and construction standards, and increase understanding of, and compliance with, the final rule by employers who perform both general industry and construction work. The record indicates that many general industry employers who use scaffolds also perform construction work on scaffolds; therefore, they already are familiar with the construction scaffolds standards. OSHA believes that having those employers comply with a single set of requirements will facilitate

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    compliance and, thus, provide greater worker protection. In addition, these employers will not have to change their current practices to meet the requirements of the final rule. OSHA also believes that other general industry employers should not have difficulty complying with the final rule. The construction scaffold standards include all 21 types of scaffolds the existing general industry standards regulate. Therefore, OSHA finalizes paragraph (a) as discussed.

    Paragraph (b)--Rope Descent Systems

    Final paragraph (b), similar to the proposed rule, establishes requirements for rope descent systems (RDS) when employers use them. The final rule defines an RDS as a ``suspension system that supports an employee in a chair (seat board) and allows the employee to descend in a controlled manner and, as needed, stop at any point during the descent'' (Sec. 1910.21(b)). An RDS, sometimes referred to as controlled descent equipment or apparatus, usually consists of a roof anchorage, support rope, descent device, carabiner(s) or shackle(s), and a chair (seat board) (Sec. 1910.21(b)). The final rule definition also expressly states that an RDS does not include industrial rope access systems.

    The use of RDS is prevalent in the United States today. Employers frequently use RDS in building cleaning (including window cleaning), maintenance, and inspection operations. As far back as 1990, OSHA noted that, according to some estimates, 60 percent of all window cleaning operations used RDS (55 FR 92226). In 2010, Valcourt Building Services (Valcourt) stated that about 70 percent of all window cleaning operations in high-rise buildings in the United States used RDS (Ex. 147).

    OSHA's existing general industry and construction standards do not address the use of RDS.\33\ In the 1990 proposed rule, OSHA requested comments on whether OSHA should allow or prohibit the use of RDS (55 FR 29224, 29226 (7/18/1990)). Although OSHA did not finalize the 1990 proposal, in 1991 the Agency issued a memorandum allowing the use of RDS when employers follow all of the provisions outlined in that memorandum (hereafter, ``1991 RDS memorandum'') (Ex. OSHA-S029-0662-

    0019).\34\

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    \33\ The existing general industry rule only covers boatswain's chairs (29 CFR 1910.28(j).

    \34\ 1991 RDS Memorandum is available from OSHA's Web site at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22722.

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    The 1991 RDS memorandum specified that employers must use RDS in accordance with the instruction, warnings, and design limitations that the manufacturer or distributor sets. In addition, the 1991 RDS memorandum specified that employers must implement procedures and precautions including employee training; equipment inspection; proper rigging; separate fall arrest systems; equipment strength requirements; prompt employee rescue; padding of ropes; and stabilization. OSHA based the proposed rule on the provisions in the 1991 RDS memorandum. OSHA notes that the International Window Cleaning Association (IWCA) also based its standard, ANSI/IWCA I-14.1-2001--Window Cleaning Safety (I-

    14.1-2001), on the 1991 RDS memorandum. Commenters overwhelmingly supported, and already comply with, the requirements in that memorandum and I-14.1-2001 (Exs. 138; 147; 163; 184; 221; 242).

    OSHA received many comments on RDS, most of which supported allowing employers to use those systems (Exs. 138; 151; 153; 205; 219; 221; 222; 227; 241; 243). First, many commenters said RDS are safe and, as a number of commenters claimed, safer than using suspended scaffolding (Exs. 163; 184; 221; 227; 242; 243; 329 (1/19/2011, pgs. 326-329)). Mr. Stephan Bright, with IWCA and chair of the I-14.1 committee, said that RDS are safe, particularly when used in accordance with the I-14.1-2001 standard, which has established ``accepted safe practices'' for using RDS (Ex. 329 (1/19/2011, p. 466)). He also indicated that OSHA must believe RDS are safe to use because the Agency ``has been referencing this standard since its publication and has used this standard as a guideline to enforce rope descent system safety in over 100 citations against window cleaning contractors in the last 10 years'' (Ex. 329 (1/19/2011, p. 466)). Mr. Bright said that the decreases in injuries and fatalities associated with RDS use since the IWCA issued the I-14.1-2001 standard ``clearly reveal that RDS is a safe and viable means to use when the eight provisions of OSHA's memorandum and the I-14 Standard are met. Enforcement of the same by OSHA only increases the level of safety'' (Ex. 329 (1/19/2011, p. 467)).

    Mr. Sam Terry, owner and president of Sparkling Clean Window Company (Sparkling Clean), said his analysis of more than 350 incidents (125 involving window cleaning) showed that RDS are safer than suspended scaffolding (Exs. 163; 329 (1/19/2011, pgs. 326-329)). In particular, he said the analysis indicated that the RDS provisions of the proposed rule would prevent almost every RDS incident, while more than 80 percent of the suspended scaffolding incidents resulted from equipment failure that was ``beyond the control'' of the employer or workers using the equipment (Exs. 163; 329 (1/19/2011, pgs. 326-329)).

    Commenters also said RDS are safer than suspended scaffolds because they said RDS do not involve the ``ergonomic consequences'' that suspended scaffolding does (Exs. 163; 184; 221; 242). These commenters pointed out that, in many cases, moving and assembling suspended scaffolding components requires lifting heavy weights, such as davit masts (weighing up to 160 pounds), davit bases (weighing up to 145 pounds), and davit booms (weighing up to 98 pounds).

    Second, some commenters supported allowing RDS because RDS give employers greater control over the safety of workers and the public than suspended scaffolding (Exs. 163; 227; 243). With regard to worker safety, Mr. Terry said workers using RDS are able to descend to the ground or ``get themselves and their equipment out of harm's way'' more quickly than workers using suspended scaffolding (Exs. 163). Commenters said this advantage is particularly important if sudden or unexpected dangerous weather hazards appear (Exs. 138; 163; 184; 221; 242). Sparkling Clean said:

    A worker can stop and be on the ground in a matter of minutes . . . . Of the 65 incidents and 31 fatalities which occurred by users of RDS in the window cleaning industry since 1995, not one occurred as a result of . . . using the equipment during wind gusts, micro bursts or tunneling wind currents (Ex. 163).

    Moreover, Sparkling Clean maintained that the adverse weather does not affect using RDS any more than using suspended scaffolding (Ex. 163).

    With regard to protecting the safety of the public and other workers on the ground, commenters indicated that RDS are safer because suspended scaffolding requires assembling components, often done on narrow ledges without fall protection, and these components could fall and strike individuals below (Exs. 163; 184; 221; 242).

    Third, commenters supported allowing employers to use RDS because acceptance of RDS increased over the last 20 years since OSHA issued the 1991 RDS memorandum and the IWCA adopted its I-14.1 standard, which addresses RDS (Ex. 147). As noted earlier, Mr. Bruce Lapham, of Valcourt, mentioned that, nationally, about 70 percent of all window cleaning operations in high-rise buildings use

    Page 82568

    RDS (Ex. 147). IWCA also said that the use of RDS by their member companies has grown since it issued the I-14.1-2001 standard (Ex. 329 (1/19/2011, p. 483)). Mr. Lapham said that, although the IWCA standard made window cleaning safer, he had concerns that without ``clear cut regulations'' on RDS, misuse of that equipment could occur (Ex. 147).

    Finally, several commenters urged OSHA to allow employers to use RDS because they are less expensive than suspended scaffolding (Exs. 163; 184; 221; 242). Some commenters said that using suspended scaffolding can cost as much as 30 percent more than using RDS (Ex. 329 (1/19/2011, pgs. 209, 314)). Other commenters said using RDS was less costly even if the building has an existing suspended scaffold system (Exs. 163; 184; 221; 242). Mr. Terry explained:

    The time involved in setting up a powered platform system and riding the scaffold up and down at 30 feet per minute is typically much slower than using RDS. The largest cost we incur in providing our services is labor by a significant percentage. Therefore, in many cases, it is actually less expensive to access the side of the building using RDS . . . (Ex. 163).

    Commenters also said OSHA should allow employers to use RDS even if the design of the building or structure permits the use of other means and methods to perform window cleaning or other maintenance activities (Exs. 163; 184; 221; 242).

    OSHA notes that many commenters provided support for the use of RDS, saying that OSHA should allow employers to use RDS, but only if employers follow all of the provisions in OSHA's 1991 RDS memorandum, as well as those in I-14.1-2001, including the 300-foot RDS height limit (Exs. 138; 147; 215; 245; 331).

    A number of commenters, primarily workers and worker organizations, opposed allowing employers to use RDS (Exs. 311; 313; 316; 329 (1/19/

    2011, pgs. 5-8, 17-19)); 329 (1/20/2011, p. 222)). For example, the Service Employees International Union (SEIU) Local 32BJ members opposed allowing RDS because they said RDS were not safe (Exs. 224; 311; 313; 316; Ex. 329 (1/19/2011, pgs. 5-8)). At the hearing, Mr. John Stager, former SEIU Local 32BJ president, said:

    I wonder whether OSHA has seriously studied the hazards and evaluated the history of this rulemaking; and if so, I do not understand how OSHA could have decided that unrestricted use of RDS is compatible with OSHA's mission of adopting fully protective safety standards. I understand that OSHA's 1991 RDS memorandum was much less than a fully protective standard; rather, it was the way that OSHA deals with hazards for which no standards exist. We disagreed with the terms of the 1991 RDS memorandum then, and still do today . . . . But, to incorporate the terms of the 1991 RDS memorandum, or terms like them, in a permanent standard is completely inadequate and flawed. In fact, it flies in the face of the Supreme Court's decision that OSHA must place pre-eminent value on assuring employees a safe and healthful working environment limited only by the feasibility of achieving such an environment (Ex. 329 (1/19/2011, pgs. 5-6)).

    Mr. McEneaney, another SEIU Local 32BJ member, added:

    My comparisons and recommendations will ultimately show that even if these proposed safety standards are adopted, controlled descent devices cannot adequately ensure worker safety to the same extent as scaffolding. A major difference between scaffolding and rope descent systems is the type of rope used. The wire rope utilized in scaffolds is never subject to failure due to abrasions; unlike RDS ropes that are constantly at risk of abrasion once it goes past the entry point. There was also no reliable mechanism for protecting RDS rope from abrasion points between the point of entry and the ground; for example, cornices and signs, et cetera (Ex. 329 (1/19/2011, pgs. 17-19)).

    Mr. Jesus Rosario, a SEIU Local 32BJ member, and window cleaner since 1989, called RDS ``a very dangerous system'' (Ex. 311). He explained his personal experience with RDS as a way to substantiate his contention:

    The protection gap for RDS increases with the length of the rope. The more rope, the more movement. The wind can push you around much more when using an RDS rather than suspended scaffolding. When I was about 10 stories, I have swayed as much as 3 windows apart from sudden wind. And I have been pushed by the wind when I was as little as 5 or 6 stories down.

    Once, I was working by myself, and the rope below me got caught in a fan. I had to climb down the lifeline rope to get out of the RDS--about three stories. . . . Entry over the side of the roof is very dangerous. Sometimes, I have even had to jump with my chair to the edge of the building, and then over the side, which could crack the chair (Ex. 311).

    Mr. Rosario summed up:

    Please do not allow the contractors and the building owners to use RDS. Sure, sometimes there will be places where you just cannot hang a scaffold. But if there is any way to safely hang a scaffold, it is so much safer that there is no good reason to allow RDS. I know it's cheaper for the building owner. But so what--isn't my life worth something too (Ex. 311)?

    Mr. Hector Figueroa, SEIU Local 32BJ secretary-treasurer, mentioned the New York regulation prohibiting RDS use on buildings above 75 feet as the best proof that RDS are dangerous, and that OSHA should not allow their use (Ex. 224). SEIU also urged that federal OSHA allow the New York regulation to continue without federal preemption, because they believed it is far more protective than the proposed standard. (See the discussion of the preemption issue in the Federalism section.)

    OSHA disagrees with Local 32BJ, and has decided against banning all RDS use. The record shows that RDS is a useful method of accessing the sides of building and necessary, at least in certain circumstances. Further, the record shows that RDS use can be conducted safely if proper precautions are followed.

    For more than 20 years OSHA has permitted employers to use RDS, provided that employers follow all of the requirements in the 1991 RDS memorandum. Stefan Bright, with IWCA, provided evidence supporting the inference that the 1991 RDS memorandum protects workers:

    A survey of IWCA membership was conducted in 1996 and it revealed the following facts: . . . that approximately 800 systems were being used on a day to day basis with an average of 8,000 descents a day and over the course of that nine-month season, which fluctuates because in the warmer states, it's 12 months, the states like here in the North are about nine, 800 workers performed 1,584,000 descents in 1996. In 1996, there was one fatality by a window cleaner using a rope descent system.

    In 1991, OSHA published the infamous eight-step RDS memorandum. In the six years prior to this publication, 1985 to 1991, there were 19 fatalities by window cleaners using RDS to perform an estimated nine million descents using the previous information. In the six years after the memorandum was published, 1991 to 1996, only 11 fatalities occurred when window cleaners were using RDS to perform the same number of descents. So that was a significant drop, almost 50 percent reduction (Ex. 329 (1/19/2011, pgs. 463-465)).

    Further, as discussed in the FEA, OSHA conducted an analysis of 36 incidents in which one or more deaths were caused by a fall from an RDS between 1995 and 2001. It found that all of the 21 of these incidents caused by the mishandling or malfunction of RDS system or lifelines would be prevented by compliance with one or more provisions of the final rule. OSHA is not aware of any fatalities involving RDS that have occurred when all of the requirements of the final rule were followed.

    The final rule incorporates all of the requirements in the 1991 RDS memorandum. In addition, the final rule adopts additional requirements, including anchorage requirements, a 300-foot RDS height limit, prohibition

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    on RDS use in hazardous weather, securing equipment, and protecting ropes from hazardous exposures. OSHA believes these requirements enhance the protection of workers provided by the 1991 RDS memorandum. Moreover, OSHA believes that the additional protections address a number of the safety concerns SEIU Local 32BJ raised. Accordingly, the final rule continues to allow the use of RDS for suspended work that is not greater than 300 feet above grade.

    In the final rule, OSHA added language to the definition of RDS expressly specifying that RDS do not include industrial rope access systems (IRAS) (Sec. 1910.21(b)). As such, final Sec. 1910.27 does not cover or apply to IRAS. However, other sections of the final rule, including Sec. 1910.28, do cover IRAS.

    OSHA agrees with commenters who said IRAS and RDS are different (Exs. 69; 129; 205). For example, Ms. Loui McCurley, of SPRAT, said:

    I would like to point out that rope access is not the same thing as controlled descent, rope descent systems, any other big bucket that you might want to put it in. Rope access systems and rope access technicians vary greatly from just a controlled descent or a rope descent system (Ex. 329 (1/19/2011, pgs. 135-138)).

    Commenters also pointed out other differences between the two systems. Global Ascent said that IRAS use a two-rope system (Ex. 129). They stated the two-rope system consists of a working line and a safety line, whereas RDS use only a working line (Ex. 129). Accordingly, Global Ascent noted that IRAS have built-in fall arrest by virtue of the dual-ropes (Ex. 129). Several commenters also said that the training requirements necessary for IRAS use and RDS use are much different (Exs. 78; 129; 205). They also said IRAS users need more training than RDS users. Based on these comments, OSHA concluded that IRAS differ significantly from RDS and did not include them in the RDS requirements in final Sec. 1910.27(b).

    Final paragraph (b)(1) adds new requirements for anchorages to secure RDS. The final rule defines anchorage as a secure point of attachment for equipment such as lifelines, lanyards, deceleration devices, and rope descent systems (final Sec. 1910.21(b)). The proposal would have required that employers use ``sound anchorages,'' and OSHA noted that they are ``essential to the safety of RDS'' (proposed Sec. 1910.27(b)(2)(iv); 75 FR 28886). OSHA also noted that the 1991 RDS memorandum required that employers rig RDS properly, including having ``sound anchorages'' (75 FR 28869). Although the proposed rule did not include specific requirements on anchorages for RDS, proposed Sec. 1910.140(c)(12) contained a requirement for a separate anchorage for personal fall arrest systems. The Agency requested comment on whether its proposed approach was sufficient to ensure the safety of anchorages.

    OSHA also noted in the proposed rule that the Agency raised the issue of anchorages, and also requested comments in the 1990 proposal (55 FR 29224 (7/18/1990)). At that time, IWCA and window cleaning companies told OSHA that there often were no anchorages on building rooftops (75 FR 28869; OSHA-S041-2006-0666-0543; OSHA-S041-2006-0666-

    1252; OSHA-S041-2006-0666-1253). Since the companies did not own or have control over the building, they had no control over whether or where building owners would place anchorages. Therefore, they urged OSHA to require building owners to install anchorages and test, inspect, maintain, and certify that the anchorages are capable of holding the RDS, worker, and all equipment. As noted, OSHA did not finalize the 1990 proposed rule.

    Today, OSHA continues to believe anchorage requirements are necessary because, as the Final Economic Analysis indicates, anchorage failure is one of the primary causes of window cleaning accidents involving RDS. Data that Mr. Terry, president of Sparkling Clean, compiled and analyzed also showed that lack of sound anchorages accounted for 65 (more than 50 percent) of the 125 window cleaning incidents involving RDS (Ex. 163). Mr. Stefan Bright, with the IWCA, said their analysis of window cleaning fatalities revealed that 95 percent were due to lack of sound anchorages (Ex. 329 (1/19/2011, p. 465)). In addition, commenters uniformly supported adding specific requirements on anchorages to the final rule (Exs. 163; 184; 221; 242).

    Final paragraph (b)(1)(i) requires that, before the employer uses any rope descent system, the building owner informs the employer in writing that the building owner has identified, tested, certified, and maintained each anchorage so it is capable of supporting at least 5,000 pounds in any direction, for each worker attached. The final rule also requires that the building owner base the information provided to the employer on:

    An annual inspection; and

    A certification of each anchorage, as necessary, and at least every 10 years.

    The building owner must ensure that a ``qualified'' person conducts both the inspection and certification. The final rule defines qualified as a person who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience has successfully demonstrated the ability to solve or resolve problems relating to the subject matter, the work, or the project (Sec. 1910.21(b)).

    For the purposes of final paragraph (b)(1)(i), the term ``as necessary'' means when the building owner knows or has reason to believe that recertification of the anchorage is needed. The final rule gives building owners flexibility in determining when anchorage recertification is necessary. Factors or conditions indicating that recertification may be necessary include, but are not limited to, an accident involving a worker using an RDS, a report of damage to the anchorage, major alteration to the building, exposure of the anchorage to destructive industrial substances, and location of the building in an area of high rainfall or exposure to sea air and humidity that might accelerate corrosion.

    OSHA requested comment on adding more provisions ensuring the safety of anchorages in the final rule. In particular, the Agency asked whether it should adopt the information disclosure requirements of Sec. 1910.66.

    Paragraph (c)(1) of Sec. 1910.66 requires that building owners of new installations inform employers in writing that installations meet the requirements of paragraphs (e)(1) and (f)(1) of that section and additional design criteria contained in the other provisions of paragraphs (e) and (f).

    Paragraph (c)(2) of Sec. 1910.66 requires that building owners base the information required in paragraph (c)(1) on the results of a field test of the installation before being placed into service and following any major alteration to an existing installation, and on all other relevant available information, including, but not limited to, test data, equipment specification, and verification by a registered professional engineer.

    Paragraph (c)(3) of Sec. 1910.66 requires that building owners of all installations, new and existing, inform employers in writing that the installation has been inspected, tested, and maintained in compliance with the requirements of paragraphs (g) (inspection, tests, and certification) and (h) (maintenance) of the section and that all protection anchorages meet the requirements of paragraph (I)(c)(10) of appendix C (fall protection anchorages must be capable of supporting 5,000 pounds).

    Page 82570

    Paragraph (e) of that rule specifies that structural supports, tie-

    downs, tie-in guides and affected parts of the building included in the installation shall be designed by or under the direction of a registered professional engineer experienced in such design (Sec. 1910.66(e)(1)(i)).

    In addition, the I-14.1-2001 standard requires that building owners provide window cleaning contractors with the following written information:

    The installation or structure has been inspected, tested and maintained in compliance with the requirements of I-14.1-2001;

    All equipment dedicated to the building meets the requirements in Part B (i.e., equipment and building design requirements, such as the requirement that anchorages support a 5,000 pound load in any direction (9.1.11) and that certifications and re-

    certifications of anchorages be conducted under the supervision of a registered professional engineer (Section 9.1.10);

    Specified load ratings, intended use and limitations to fixtures permanently dedicated to buildings; and

    Manufacturer's instructions for installations, anchorages and fixtures permanently dedicated to the building (Section 1.6.2 (a)-

    (d)).

    Overwhelmingly, commenters supported requiring that building owners identify, test, and maintain anchorages, and certify that those anchorages are capable of supporting 5,000 pounds in each direction for each attached worker.

    Many commenters said the anchorage provision is necessary because the lack of ``sound anchorages'' was the leading cause of fatalities and incidents involving RDS (Exs. 138; 163; 184; 221; 222; 243). Valcourt said:

    Workers that use Rope Descent Systems deserve a safe place to work. . . . There is no greater contributing factor to having a safe workplace in which to use an RDS than having identified and certified anchorage points in which to tie to. In its 26-year existence, Valcourt has seen both building owners and window cleaners come to a greater understanding of this fact, leading to much safer working conditions (Ex. 147).

    Another commenter, 20/20 Window Cleaning of NC, said the new anchorage requirement would prevent accidents and save lives (Ex. 153). IWCA noted that, without the new provision, workers using RDS would not have an equivalent level of protection than do workers who use permanent powered platforms (Ex. 138).

    Commenters also said the anchorage requirement is necessary because many building owners do not provide certified anchorages, even though IWCA issued the I-14.1-2001 standard more than 10 years ago (Exs. 147; 163; 245; 329 (1/19/2011, pgs. 218-219)). Valcourt said about 75 percent of the buildings they service do not have certified anchorages, while LWC Services said less than 5 percent of the buildings they service have them (Exs. 147; 245). LWC Services also estimated that seven percent of mid- and high-rise buildings have certified anchorages (Ex. 245). Finally, LWC Services said their most significant problem is finding anchorage points to allow suspension of equipment, and they questioned how they could install anchorages when they only work at a particular location for a couple of days per year, inferring infeasibility (Ex. 245).

    Most commenters said they think permanent anchorages are the responsibility of building owners, and they urged OSHA to require that building owners provide anchorages, and to inspect, test, certify, and maintain them (Exs. 138; 147; 163; 184; 193; 221; 242; 329 (1/19/2011; pgs. 378-388)). Valcourt said OSHA needed to mandate that building owners provide anchorages because building owners will not provide and certify anchorages if it is voluntary:

    If OSHA . . . omits the requirement of building owners to have their roof anchorage systems initially certified . . . and inspected by a qualified person annually, many building owners will simply state that it is not a requirement of OSHA and not do it. This would make the marketplace more dangerous and be a regression of 20 years in window cleaning safety for both the window cleaning and building owner industries (Ex. 147; 329 (1/19/2011, pgs. 378-388)).

    Commenters uniformly agreed that OSHA should require that anchorages be capable of supporting 5,000 pounds in all directions for each worker attached, which is consistent with I-14.1-2001 (Section 9.1.1) (Exs. 163; 184; 221; 242; 243). Clean & Polish suggested that OSHA require that anchorages sustain a 5,000 pound load or at least have a 4-to-1 safety factor when using an RDS (Ex. 242). They also supported applying this requirement to tie-backs (Ex. 242).

    Commenters were about evenly divided on whether OSHA should codify the language in Sec. 1910.66(c) or the I-14.1-2001 standard. Regarding his support for following the approach in Sec. 1910.66, Mr. Terry, of Sparkling Clean, said:

    I agree that building owners should provide employers with the same information required by 1910.66; a certificate of inspection, testing, and maintenance of anchorages for rope access and suspended scaffolding used in building maintenance, and that an existing certificate for powered platform anchorages would suffice for the same anchorages to be used for rope access. This would allow for rope access to be utilized on buildings with systems or anchorages originally designed for suspended scaffold use without any new requirements or expenses on the building owner (Ex. 329 (1/19/2011, pgs. 224-226)).

    Commenters provided recommendations for specific language and items the final requirement on anchorages should contain. For example, Penta Engineering said OSHA should require load testing of all anchorages and davits (Ex. 193). Martin's Window Cleaning (Martin's) said OSHA should require that employers ask for and obtain verification of anchorage certification (Ex. 65).

    Several commenters recommended specific timelines for anchorage inspection and certification. Martin's recommended inspections every year, and certifications every 10 years (Ex. 65). Penta Engineering Group agreed, and recommended that OSHA also require anchorage recertification after building owners install new roof systems (Ex. 193).

    One commenter urged OSHA to require that building owners ensure qualified persons conduct the annual inspections and certifications (Ex. 204). Other commenters said that professional engineers should perform those tasks (Exs. 65; 193; 329 (1/19/2011, pgs. 378-388)). LJB Inc., noted that it may be a violation of local and state building codes to have anyone other than a professional engineer certify anchorages (Ex. 204). OSHA notes that, under the final provision and the final definition of qualified, building owners are free to use professional engineers to inspect and certify anchorages.

    OSHA did not receive any comments opposing an anchorage requirement. OSHA notes that the Building Owners and Managers Association (BOMA) did not submit any comments on the proposed rule or testify at the rulemaking hearing, but they did oppose the requirement in the 1990 proposed rule that building owners provide anchorages. OSHA also notes BOMA was a member of the I-14.1-2001 committee that approved the national consensus standard, which includes anchorage requirements building owners must meet. OSHA agrees with many of the comments and recommendations submitted to the record, and incorporated many of them into the final rule. For example, given that outside contractors generally perform building maintenance (such as window cleaning), and that these

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    outside contractors usually have no control over the building anchorages and are at particular buildings for only a few days, OSHA determined that inspecting, testing, certifying, and maintaining anchorages and providing information about the anchorages must be the responsibility of building owners. Only when building owners take responsibility for anchorages and provide written information to employers and contractors, can there be adequate assurance that workers will be safe when they use RDS.

    Final paragraph (b)(1)(ii) establishes a new provision that requires employers to ensure that no employee uses any anchorage before the employer obtains written information from the building owner that the anchorage meets the requirements of final paragraph (b)(1)(i). In other words, the final rule requires that employers ensure no employee uses an RDS until the employer obtains written information that the building owner identified, tested, certified, and maintained each anchorage so it is capable of supporting at least 5,000 pounds in any direction for each worker attached. The final rule also requires that the employer keep the written information from the building owner for the duration of the job.

    OSHA's powered platforms standard contains a requirement similar to the final rule (Sec. 1910.66(c)(4)). Also, the I-14.1-2001 standard requires that employers (i.e., window cleaning contractors) and building owners not allow suspended work to occur unless the building owner provides, identifies, and certifies anchorages (Section 3.9).

    OSHA believes the final rule will ensure that each anchorage to which workers attach an RDS meets the inspection, testing, certification, and maintenance requirements of the final rule before workers attach to it. Under the final rule, employers are not to allow workers to attach to an anchorage and begin work if the employer did not receive written certification that the anchorage is capable of supporting 5,000 pounds. Specifically, final paragraph (b)(1)(ii) prohibits employers, when there are no certified anchorages, from ``making do'' or attaching RDS to alternative structures, making the assumption that these structures are capable of supporting 5,000 pounds.

    OSHA acknowledges that employers currently attach RDS to other structures if there are no certified anchorages available. For example, Mr. Charles Adkins, of Corporate Cleaning Services (Corporate Cleaning), explained what his company does at the 30 to 40 percent of the buildings they service that don't have certified anchorages:

    They go up and they select it with the assistance of the foreman who is--we have--we've heard some mention of supervision here and we totally agree that that's a very important fact and that's why we have four salaried foremen, plus an operations manager, who focus exclusively on supervision.

    They go up and select them. There are a number of alternatives. They can attach them to the permanent part of the building. They can use parapet clamps if they have a way to properly attach the tieback and the safety line to it and just about every building is different. Sometimes we can use weights to keep them from--to help hold the ropes (Ex. 329 (1/19/2011, pgs. 218-219)).

    Finally, OSHA believes that the written information on anchorages that building owners must provide to employers will be helpful for employers throughout the job. Employers can use the information to keep workers continuously informed about which anchorages have proper certification. The information also will be helpful if there are work shift-related changes in personnel, if the employer brings new workers to the job, or if there is a change in site supervisors. Therefore, the final rule is requiring employers to retain the written information on anchorages they obtained from building owners for the duration of the job at that building.

    In final paragraph (b)(1)(iii), OSHA provides employers and building owners with additional time to implement the requirements in final paragraphs (b)(1)(i) and (ii). The final rule gives employers and building owners one year from November 18, 2016 to meet the new requirements in final paragraphs (b)(1)(i) and (ii). This means that building owners must identify, inspect, test, certify, and maintain each anchorage by the compliance date.

    OSHA believes the additional compliance time is necessary because a number of commenters said most buildings where they use RDS do not have certified anchorages (Exs. 147). For example, Mr. Lapham, of Valcourt, said that their company services 3,850 buildings in 14 states (Ex. 147). Of the buildings Valcourt cleans, Mr. Lapham said almost 75 percent did not have certified anchorages, more than 20 years after OSHA issued the final Powered Platforms standard (Sec. 1910.66) (Ex. 147).

    Mr. Charles Adkins, of Corporate Cleaning Services, the largest window cleaning company in the Chicago area, said that they perform window cleaning services on more than 1,200 buildings (Ex. 329 (1/19/

    2011, p. 201)). He estimates that about 60 to 70 percent of those buildings already have certified anchorages (Ex. 329 (1/19/2011, pgs. 218-219)).

    In the 1990 rulemaking, BOMA objected to requiring building owners to provide anchorages, but agreed that new buildings completed two to five years after the effective date of the final rule should have anchorages (75 FR 28862, 28879; Ex. OSHA-S041-2006-0666-1212).

    It is now 24 years since OSHA first proposed a rule addressing RDS, and 23 years since OSHA's 1991 RDS memorandum allowed the use of RDS provided they have ``sound anchorages.'' OSHA does not believe building owners, at this late date, need another two to five years to identify, inspect, test, certify, and maintain anchorages in new or existing buildings. OSHA believes that giving building owners an additional year to meet the requirements of final paragraph (b)(1)(i) is adequate.

    Final paragraph (b)(2) establishes RDS design and work-practice requirements that employers must follow to ensure their workers' safety when using an RDS. OSHA drew most of the requirements from the 1991 RDS memorandum and the I-14.1-2001 national consensus standard. Many commenters who supported allowing the use of RDS also supported requiring employers to comply with all of the provisions in the 1991 RDS memorandum and I-14.1-2001 (Exs. 138; 151; 219).

    Final paragraph (b)(2)(i), like proposed paragraph (b)(1) and the I-14.1 standard (Section 5.7.12), requires that employers ensure no RDS is used at heights greater than 300 feet (91 m) above grade. The final rule includes two exceptions to the 300-foot height limit, discussed extensively below.

    Many stakeholders supported the proposed 300-foot height limit (Exs. 138; 147; 168; 206; 215; 300; 329 (1/19/2011, pgs. 253-254, 401); 329 (1/21/2011, pgs. 98, 474, 477); 331). They said using an RDS at heights above 300 feet was dangerous for workers, and establishing a height limit was an important ``safety issue'' (Exs. 147; 215). Mr. John Capon, of Valcourt, said, ``I think anything above 300 feet is preposterous, to be honest with you. The risks associated with it, just the height, all the conditions, are just overly-dramatic at that height'' (Ex. 329 (1/19/2011, p. 401)). Mr. LaRue Coleman, of JOBS Building Services (JOBS), also said worker safety mandated that employers not use RDS over 300 feet, noting: ``Contractors will always use the excuse that an area cannot be accessed in any other manner than RDS to save the building money. This is a safety issue and should not be left up to an individual employer or

    Page 82572

    employee to make an onsite decision of this nature'' (Ex. 215). Mr. Coleman also suggested that OSHA adopt a height limit of 130 feet, which California OSHA \35\ uses (Ex. 215). Not only would a 130-foot height limit significantly reduce the dangers to workers who use RDS, but Mr. Coleman said it also would eliminate stabilization issues and requirements (Ex. 215). OSHA notes that the State of California also requires all buildings over 130 feet to be equipped with a powered platform.

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    \35\ California Code of Regulations, Title 8 Chapter 4, Subchapter 7 Article 5, Sec. 3286.

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    Mr. Lapham, of Valcourt, said their experience indicated that the following factors necessitated limiting RDS use to a maximum of 300 feet:

    The significant increased effect of wind at heights above 300 feet;

    The significant increased length and weight of ropes required for using RDS above 300 feet; and

    The increased potential that moving the weightier ropes will ``literally pull a window cleaner over the edge of the building'' roof (Ex. 147).

    Other commenters agreed with Valcourt's analysis. Ms. Kelley Streeter, of Vertical Access, said ropes longer than 300 feet are heavy and moving or working with such lengths can be hazardous and strenuous for workers (Ex. 329 (1/21/2011, p. 98)). Mr. Brian Gartner, of Weatherguard Service, Inc. (Weatherguard), agreed, and identified additional factors that contributed to the danger of using RDS above 300 feet:

    In my opinion, based on testing and evaluation and basic engineering concepts, 300 feet is at the high end of the safe use range. Suspensions over 225 feet start responding to the effects of wind on the ropes and the worker. The longer the rope, the more surface area is exposed to the wind. The wind effect is variable. The lower the worker is from the roof, there is more rope above him or her that can be subjected to the wind, thus the higher the suspension, the more the worker is free to move.

    The longer the suspension the greater the ``spring'' in the suspension and safety ropes. This springiness is in all synthetic ropes that are in the diameter ranges that are used for this purpose whether they are static type ropes or other rope types. There are many other factors that contribute to the dangers of rope descents above 300 feet. For every foot of increased suspension, the dynamics and conditions change and become more problematic (Exs. 329 (1/19/

    2011, pgs. 253-254); 331).

    Mr. Gartner added that there is a marked difference in handling RDS ropes (support and fall arrest) on buildings less than 300 feet compared to buildings above 300 feet: ``The differences of how the winds affect the ropes and you, on the roof, and the trouble discerning what is happening with the ropes will speak volumes regarding the safety issues of building height and rope descent'' (Ex. 331; see also Ex. 300). For example, he said moving heavier ropes has the potential of pulling workers over the edge of the building (Ex. 147). In conclusion, he stated: ``Those that minimize, overlook, or disregard all of these factors, as they are all safety concerns, are not responsibly or realistically addressing the height issue and manifesting a disregard to worker and the public's safety'' (Exs. 329 (1/19/2011, pgs. 253-254); 331).

    Some commenters said the 300-foot height limit would not be a burden on most employers. Mr. Gartner said, ``The number of buildings in the United States taller than 300-feet is miniscule when compared to the number of buildings under 300 feet in height'' (Ex. 331). Mr. Coleman said that the 300-foot limit would affect only six percent of office buildings in the 19 largest national markets:

    If you were to take the study out to additional markets the effect would be even less since smaller/shorter buildings are typically built in these markets. If you were to add schools, hospitals and hotels to a study the effect would be even less since again these types of structures are typically shorter except when located in a major metropolitan area. Of the 6% of buildings over 11 floors the vast majority of them will have either permanent rigging or building owned davits and tie-backs thereby reducing the cost effect of lowering the height (Ex. 215).

    Finally, commenters said OSHA should adopt the 300-foot height limit because the I-14.1-2001 national consensus standard requires it. Mr. Lapham, of Valcourt, who was one of the members of I-14.1-2001 committee, said it took ``multiple decades'' for the industry to agree to the 300-foot limit in the I-14.1-2001 standard, so OSHA should not eliminate it ``under any circumstance'' (Ex. 147). Mr. Gartner, of Weatherguard, and also a member of the I-14.1-2001 committee, said that Ontario, Canada, also adopted the I-14.1-2001 standard's 300-foot limit for RDS:

    Canada spent much time and money in the establishment of their Code with respect to the height limit of 300 feet.\36\ They did studies, hired consultants and deliberated at length. Their Code was promulgated due to the high death toll of their window cleaners; they had one fatality a month before the code was enacted (Ex. 331).

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    \36\ The Ontario window cleaning regulation specifies that employers must not use controlled descent devices above 90 meters, which equals 295.276 feet (R.R.O. 1990, Regulation 859 Sec. 28(c)).

    Many commenters opposed the proposed 300-foot RDS height limit for various reasons (Exs. 126; 151; 163; 178; 184; 205; 218; 219; 221; 222; 242). Most of those commenters said there was no safety-related reason to impose the height restriction, claiming that using RDS at heights above 300 feet is safe (Exs. 151; 163; 184; 218; 242). Mr. Terry, of Sparkling Clean, said using RDS ``at all heights is routinely performed safely and successfully . . . in many parts of the country'' (Ex. 163). He considered using RDS at any height to be so safe that ``I believe the proposed 1910.27(b) should actually read that using RDS is encouraged at any height'' (Exs. 163; 329 (1/19/2011, p. 330)). He added that OSHA's final rule also should allow employers to use RDS as a substitute to the means and methods originally designed into the building or structure when the design of the building or structure will safely support the use of the RDS (Ex. 163).

    A number of commenters said their injury data also demonstrated that RDS are safe to use at any height. These commenters said that they had no recordable incidents related to using RDS on taller buildings (Exs. 163; 184; 242). Mr. Terry said his analysis of nine RDS incidents that involved RDS use over 300-feet indicated that none of the cases involved the height of the work as the cause of the incident (Ex. 163).

    Many commenters said they considered RDS to be safer than powered platforms at any height, including above 300 feet, and, thus, there was no reason for OSHA to impose the 300-foot height limit on their use. For example, Corporate Cleaning said RDS are safer than powered platforms at all heights below 700 feet because they are more maneuverable, and allow workers to descend more quickly in an emergency (Ex. 126).

    Other commenters disputed the argument that the effects of wind on RDS used above 300 feet are greater than for suspended scaffolding/

    powered platforms. Some commenters said there was no difference in the effects of wind on RDS use than on powered platforms at any height (Exs. 163; 205). For instance, Ms. McCurley, of SPRAT, said:

    We . . . find that the height restrictions and the wind exposure to be. . . unfounded. In practical living and in practical working, we find that all of these things are a matter of skills, knowledge and good decision-making. If the wind is too high that day, if there is ice out there that day, you just don't go. And that's true of whether you are using a scaffold or a powered platform or a ground-

    based system or whatever. You just have to

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    make the right decision based on the gear that you are using (Ex. 329 (1/19/2011, p. 154)).

    Some commenters who opposed the proposed 300-foot RDS height limit claimed it was ``arbitrary.'' For instance, Mr. Ken Diebolt, of Vertical Access, said:

    My primary objection is to the 300-foot limit . . . is it seems to us completely arbitrary. I mean, once you're X number of feet off the ground, once you're 10 feet off the ground, 50 feet, 100 feet, it doesn't really--you're no safer at 300--at 100 feet than you are at 300 feet or 500 feet if you're doing the work well. And I wonder where this came from. It comes from the window washing industry but I have no history of that and I don't know (Ex. 329 (1/

    21/2011, p. 138)).

    Mr. Adkins, of Corporate Cleaning, agreed:

    We urge you not to adopt that limitation, especially as it is written in your proposals. . . . It appears to be an arbitrary limit and does not, is not based on any kind of empirical research to determine that there is a problem in fact with the use of ropes in excess of 300 feet. In fact, I haven't been able to find any evidence of any accidents or any serious incidents where the length of the rope had anything to do with it (Ex. 329 (1/19/2011, p. 204)).

    In addition, several commenters disputed there was consensus supporting the RDS height limit. For example, Mr. Adkins said:

    There is an implication there's a consensus in this industry supporting the 300-foot rule. I think a lot of testimony we've had here today makes it clear that that is not the case. Not only do I not believe it, not only will you hear from other individuals in the window washing industry who do not support that, you also heard from people on the other side, Mr. Stager from the Union who doesn't believe there's been an effective consensus developed on it (Ex. 329 (1/19/2011, pgs. 203-212)).

    However, Mr. Bright, chair of the I-14.1-2001 committee, said there was ``broad agreement'' among the committee to include a 300-foot RDS height limit, which is ANSI's definition of ``consensus'' (Ex. 329 (1/

    19/2011), pgs. 244-46).

    Commenters opposing the RDS height restriction also said the IWAC based the I-14.1-2001 requirement more on emotions and economics than on safety (Ex. 163; 184; 221; 222; 241). The comment of Mr. Sam Terry, of Sparkling Clean, was representative of those stakeholders:

    It is my contention that the 300' limitation is based more on the following two issues:

    The emotions of the untrained observer who thinks RDS looks scary

    The financial benefit to the manufacturer, designer, installer or equipment associated with suspended scaffolding and the large window cleaning companies who can limit their competition by restricting the use of the less expensive option of RDS (Ex. 163).

    Mr. Adkins agreed:

    Now like I said, those people worked very hard on it, I don't dispute that, but the I-14 Committee or 50 percent of them were not window washers. They are from other industries and they are very honest, hard-working people of integrity but they have legitimate business interests to look at enforcing a 300-foot limitation or eliminating it all together and that has to be considered, I am sure (Ex. 329 (1/19/2011, pgs. 203-212)).

    Mr. Adkins also said that restricting RDS use would lead to economic hardship for some window cleaning companies and to higher unemployment (Ex. 329 (1/19/2011, p. 220), but he did not have knowledge of any companies that experienced economic hardship by following the I-14.1-2001 height restriction on RDS use. However, Diamond Window Cleaning said the RDS height limit would give unfair competitive advantage to larger companies that have, and only use, powered platforms or systems installed on buildings (Ex. 219). Some commenters said using RDS is less costly than using powered platforms, and requiring companies to use powered platforms would be costly (Ex. 219). Mr. Terry explained:

    Of the buildings in my marketplace, the buildings taller than 300 feet typically do not have permanently-installed powered platforms for access to the exterior of the building. Most of those buildings were designed and built in the last five years and do not have permanently installed powered platforms for access to the exterior of the building (Ex. 163).

    After reviewing the rulemaking record, OSHA has decided to retain the proposed requirement that employers not use RDS at heights above 300 feet above grade. OSHA continues to believe that using RDS above 300 feet is hazardous, and that adopting the height limit in the final rule will help protect workers from injury and death.

    OSHA agrees with commenters who said that there are many factors that contribute to the dangers of operating RDS above 300 feet. First, as the proposed preamble and commenters discussed, OSHA believes that using RDS at greater heights increases the potential effects of wind (e.g., wind gusts, microbursts, tunneling wind currents) on workers. OSHA believes that, when working at heights over 300 feet, the effects of wind on the RDS and the worker are greater in general, and greater than the effects imposed on heavier powered platforms. OSHA notes that commenters identified incidents in which workers used RDS in windy weather, and the wind blew the workers around the side of a building and 30 feet away from a building (Exs. 163; 168). Moreover, while OSHA agrees that workers can descend more quickly on RDS if severe weather suddenly occurs, excessively windy weather can buffet workers descending from above 300 feet, causing them to swing great distances during the long descent. Most likely in these situations, workers using RDS will have only intermittent stabilization (i.e., suction cups) so they can swing by the ropes and hit the building or other structures and get seriously injured before they reach the ground.

    Second, using RDS above 300 feet requires the use of longer ropes. OSHA said in the proposed rule, and IWCA (Ex. 138) agreed, that the greater the length of rope used for descent, the greater the effect of winds (e.g., wind gusts, microbursts, tunneling wind currents) (see also Ex. 300). Longer ropes have a greater possibility of getting tangled or caught on objects, especially in windy (or gusty) weather, leaving the worker unable to descend or self-rescue. The compilation of RDS incidents Mr. Terry submitted included cases in which the ropes got entangled in equipment lines, an antenna, and other workers' RDS lines, leaving the worker stuck and unable to descend (Ex. 163). These cases arise because, as Mr. Bright testified, employers often have a number of workers (e.g., 5 to 6) descending on the same side of a building at the same time (Ex. 329 (1/19/2011, pgs. 477, 489-490)).

    Third, OSHA agrees with Mr. Lapham, of Valcourt, and Ms. Streeter, of Vertical Access, who said that longer ropes needed for RDS use above 300 feet are heavier, and moving them can be hazardous (Ex. 147; 329 (1/21/2011, p. 98)). Taken together, OSHA finds convincing the arguments that workers are at an increased risk of harm when using RDS over 300 feet, and that the RDS height limit in the final rule is necessary to protect them.

    OSHA also retained the RDS height limit in the final rule because the I-14.1-2001 national consensus standard included the same limit. The American National Standards Institute (ANSI) approved the I-14.1-

    2001 standard, and industry widely uses it. OSHA believes the national consensus standard reflects industry best practices. Commenters, including some who were members of the I-14.1 committee, said there was broad agreement to include the 300-foot RDS height limit in the I-14.1 standard (Ex. 147; 329 (1/19/2011, pgs. 210-211, 253, 267-268)).

    Page 82574

    Since IWCA issued the I-14.1-2001 standard, several jurisdictions have adopted the 300-foot RDS height limit. Minnesota (5205.0730, Subpart 6(A)) and Washington (WAC-296-878-20005) issued regulations limiting RDS use to 300 feet, while California now limits RDS use to 130 feet (Cal. Code Regs., Tit. 8, Sec. 3286 (2012)). Additionally, OSHA believes the experience of Canada (Ontario province) deserves consideration (R.R.O. 1990, Regulation 859). According to Mr. Brian Gartner, of Weatherguard Service, who was a member of the I-14.1 committee:

    Canada invested much time and money in the establishment of their code with respect to the height limit of 300 feet. They did studies, hired consultants, and deliberated at length. Their code was promulgated due to the high death toll of their window cleaners. They had one fatality a month before the code was enacted (Ex. 331).

    With regard to commenters' claims that economics was the basis for supporting or opposing the RDS height limit in I-14.1-2001 (as well as OSHA's proposed rule), OSHA notes that commenters on both sides of the issue claimed that the other side was seeking an economic advantage. Those commenters who supported the RDS height limit said employers were using RDS above 300 feet to win bids for window cleaning and save money (Ex. 215). For example, Mr. Gartner noted: ``RDS is the least expensive method to service a building, saving the building owner money while allowing for the largest profit margin for a window cleaning contractor'' (Ex. 331).

    Commenters who opposed the 300-foot RDS height limit said large window cleaning companies that use powered platforms instead of RDS were pushing for the height restriction to gain an ``unfair competitive advantage.'' Those commenters also said that prohibiting the use of RDS above 300 feet would result in loss of jobs, higher unemployment, and loss of income because it costs more to use powered platforms.

    During the rulemaking hearing, OSHA asked Mr. Coleman, of JOBS, whose company only uses powered platforms, why the company did not support prohibiting the use of RDS since such a prohibition would be in his company's best economic interests. He replied: ``Because . . . I understand the reality that it's here. It's going to be used and so I understand the importance of some regulation that's definite. Nothing that leaves a loophole, that leaves it up to the people in the field'' (Ex. 329 (1/19/2011, pgs. 315-316)). Moreover, Mr. Coleman said the company did not lay off any employees or lose business when they decided in 1985 to only use suspended scaffolding for suspended work (Ex. 329 (1/19/2011, p. 313)). Mr. Coleman testified that the company initially lost income because they did not change their prices even though using suspended scaffolding cost as much as 30 percent more than RDS use. He further noted that, the company eventually passed the cost to customers, ``the building owners did not really flinch when they understood that we were not going to use a device that there was no OSHA regulation for. They saw their liability rise. So . . . window cleaning on a building, if you put it on a chart, probably won't even measure as a measurable cost for most buildings'' (Ex. 329 (1/19/2011, p. 314)).

    In conclusion, based on analysis of comments and the record as a whole, OSHA believes there is substantial evidence to support retaining the 300-foot height limit for RDS use.

    Mr. Adkins, of Corporate Cleaning Services, recommended that OSHA, instead of prohibiting the use of RDS for heights greater than 300 feet, limit their use based on wind speeds \37\ (Exs. 297; 360). Mr. Adkins' model assumes that a 25 mph wind speed and 300-foot rope length ``yields a `safe' horizontal displacement,'' which he calculated to be 5 feet (Ex. 297). According to his model, as the RDS rope length increases, the permissible wind speed decreases. Thus, for example, under Mr. Adkins' model when the rope length is 700 feet the permissible wind speed for RDS use would be 15 mph \38\ (Ex. 297).

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    \37\ Mr. Adkins said the term ``wind speed'' refers to wind gusts (``When I talk about wind speed, I talk about a gust'' Ex. 329 (1/19/2010, p. 234)).

    \38\ Mr. Adkins said 9 mph would be a safe wind speed when the rope is 700 feet if the maximum speed allowed at 300 feet is 15 mph (Ex. 297).

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    The rulemaking record, however, does not support Mr. Adkins' model or recommendation to replace the 300-foot RDS height limit with wind speed limits. First, according to a study, ``Wind Effects on a Window Washer Suspended on a Rope,'' a 250-pound window cleaner hanging 75 feet down from a 300 foot building in a steady 25 mph wind would be displaced/deflected as much as 40 feet, which is far greater than the 5 feet Mr. Adkins' model predicts (Exs. 300; 352). Moreover, changes in wind speed (i.e., gusts, stops) when window cleaners are deflected significantly more than 5 feet could cause them to swing back into the building resulting in death or serious injury. In fact, the study found that window cleaners can be knocked over by ``moderate wind speeds'' (i.e., approximately 7 mph at 300 feet) and injured hitting buildings at a speed of 4 mph, both of which are significantly less than wind speeds Mr. Adkins says would be safe at 300 feet.

    Second, many stakeholders did not support limiting RDS based on wind gusts instead of height (e.g., Exs. 138; 147; 168; 206; 215; 300), or that the wind speeds limits Mr. Adkins recommends for RDS use above 300 feet would be safe (Exs. 153; 163; 184; 298; 317; 329 (1/19/2010, p. 411); 331; 352). Mr. Craig Schoch, of Tractel, Inc., said OSHA should reject Mr. Adkins' recommendation because his ``safe'' wind speeds are based on incorrect deflection assumptions (Ex. 352). Other stakeholders, including window cleaning contractors and members of the IWCA I-14.1-2001 committee, said wind speeds of 20--25 mph ``are excessive'' or ``very dangerous,'' regardless of height (Exs. 317; 329 (1/19/2010, p. 411); 331). Several employers said they discontinue using RDS when wind speeds are between 15--20 mph and stop cleaning windows before winds reach 15 mph (Exs. 153; 163; 184; 298). Mr. Terry said 15 mph is a ``reasonable'' speed limit, but added that his company stops window cleaning before winds reach that speed (Ex. 163). And although Mr. Adkins recommended the wind speed alternative, he said:

    Now, in actual fact, I've never had anybody work at 15 mph and never will because that, in my opinion, is too high for . . . a boatswain's chair, a swingstage, and a scaffold (Ex. 329 (1/19/

    2010, p. 213)).

    Thus, OSHA does not believe there is sufficient evidence that Mr. Adkins' wind speed/rope length alternative would adequately protect of workers using RDS, and the final rule does not adopt that approach.

    Final paragraph (b)(2)(i) includes two exceptions to the 300-foot height limit for using RDS. Employers may use RDS above 300 feet when they demonstrate (1) it is not feasible to access heights above 300 feet by any other means; or (2) other means pose a greater hazard than using RDS. The proposed rule would have allowed employers to use RDS at any height when the employer can demonstrate that ``access cannot otherwise be attained safely and practicably,'' which is consistent with I-14.1-2001.

    OSHA received a number of comments on the proposed exceptions. Some commenters opposed the proposed exceptions (Exs. 147; 215; 331). For example, Valcourt said:

    In no case should a window cleaning contractor be allowed to determine when RDS is acceptable over 300 feet. . . . The determination that RDS can be utilized on a per case basis on descents over 300 feet

    Page 82575

    should be made by a third party qualified person and/or, likely, a registered professional engineer experienced in facade access equipment (Ex. 147).

    Mr. Coleman, of JOBS, agreed with Valcourt, stating, ``This is a safety issue and should not be left up to an individual employer or employee to make an onsite decision of this nature'' (Ex. 215).

    Mr. Gartner, of Weatherguard, said OSHA's proposed exception allowing RDS use above 300 feet when employers cannot attain access ``safely and practicably'' was subjective and difficult to enforce (Ex. 329 (1/19/2011, pgs. 255-256)). He said, ``What is practical for me may not be practical for you and what I deem to be safely is not necessarily what you consider safely'' (Ex. 331).

    OSHA agrees with the commenters and revised the language in the final rule to make it consistent with established legal tests and defenses under the OSH Act.

    Final paragraph (b)(2)(ii) requires employers to ensure RDS use is:

    In accordance with manufacturer instructions, warnings, and design limitations (hereafter collectively referred to as ``instructions''), or

    Under the direction of a qualified person.

    The final rule (Sec. 1910.21(b)) defines qualified as someone who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience has successfully demonstrated the ability to solve or resolve problems relating to the subject matter, the work, or the project.

    The I-14.1-2001 standard also requires that employers use RDS in accordance with manufacturer's instructions. In addition, the standard specifies that employers follow design requirements in I-14.1-2001 (Section 5.7.1).

    OSHA believes that following manufacturer's instructions is critical to ensure the safety of workers who use RDS. To illustrate, manufacturers may design and sell ropes and equipment rated appropriately for recreational, but not industrial, use. The final rule requires that employers ensure they use only equipment that the manufacturer rated for industrial use. Similarly, under the final rule, employers must ensure that, if they replace elements of one manufacturer's RDS with the components of another manufacturer's system, the instructions specify that the components are compatible. Using incompatible systems or components could endanger the safety of workers and result in fatal accidents.

    Proposed paragraph (b)(2)(i)), like the 1991 RDS memorandum, would have required that employers use RDS in accordance with manufacturer or distributor instructions, and did not include the qualified person option. In the preamble to the proposed rule, OSHA requested comment about whether to allow employers to act in accordance with the instructions of either the manufacturer or a qualified person, as defined in Sec. 1910.21(b) (75 FR 28886).

    Commenters overwhelmingly supported adding the qualified person option and removing distributors (Exs. 138; 150; 153; 163; 184; 221; 220; 241; 242; 243; 245). For instance, Martin's said it was appropriate to allow employers to rely on qualified persons because they are ``able to solve relevant problems'' (Ex. 222). Mr. Gene Donaldson, of Sunlight Building Services (Sunlight), also preferred qualified persons because they ``must have a recognized degree, certificate, etc., or extensive experience and ability to solve subject problems, at the worksite'' (Ex. 227). Mr. Lawrence Green, president of Clean & Polish, said he supported replacing distributors with qualified persons ``because distributors primarily sell the product to the end user and are not responsible for the safety, design and training of the personnel using them'' (Ex. 242).

    OSHA agrees with the commenters and revised final paragraph (b)(2)(ii) by adding qualified person and deleting distributor. The Agency believes the revised language in the final rule provides greater flexibility for employers, while ensuring that RDS use is at the direction of a person who is qualified.

    Final paragraph (b)(2)(iii), like proposed paragraph (b)(2)(ii) and the 1991 RDS memorandum, requires employers to ensure that each worker who uses an RDS receives training in accordance with Sec. 1910.30. This requirement means that the employer must train each worker who uses an RDS in the proper rigging, use, inspection, and storage of an RDS before the worker uses the RDS. In addition, since the final rule requires that each worker who uses an RDS also uses an independent personal fall arrest system (Sec. 1910.27(b)(2)(vi)), the employer must ensure that each worker receives fall hazard training before that worker uses an RDS in an area where the worker may be exposed to fall hazards (Sec. 1910.30(a)(1)). As final Sec. 1910.30 specifies, the fall hazard training must include the nature and recognition of the fall hazards in the work area; the procedures to follow to minimize the hazards; the correct procedures for installing, inspecting, maintaining, disassembling, and operating the fall protection systems workers will use, such as proper hook-up, anchoring, and tie-off techniques; and methods of inspection and storage of the equipment the manufacturer specifies (Sec. 1910.30(a)(1) and (3)). Moreover, to ensure that the RDS training meets the requirements of Sec. 1910.30, employers also must provide retraining when they have reason to believe the workers do not have the understanding and skill needed to use RDS safely.

    OSHA notes that the final provision is similar to the I-14.1-2001 standard, which requires that employers train workers who use RDS so they understand the manufacturer's instructions, inspection of components, accepted rigging practices, identifying anchorages, descending, fall arrest requirements, rescue considerations, and safe working conditions (Section 5.7.2).

    OSHA believes that the final provision is necessary. Evidence in the record indicates that some employers do not train their workers who use RDS (Ex. 329 (1/19/2011, pgs. 86, 100)). OSHA believes, and commenters agreed, that workers are able to safely use RDS only if they are thoroughly knowledgeable in the equipment and its proper use (Exs. 66; 138; 151; 163; 153; 184; 216; 221; 222; 242; 243; 245; 329 (1/19/

    2011, pgs. 22-24, 433)). A number of commenters said proper training is the most important aspect of using RDS safely (Exs. 163; 184; 221; 242; 329 (1/19/2011, p. 252)). Those commenters also said that proper training would prevent most, if not all, of RDS incidents they identified (Exs. 163; 184; 221; 242). Similarly, Mr. Capon, of Valcourt, credited their training program as the reason their company did not have a fatality during its 25 years of operation (Ex. 329 (1/

    19/2011, pgs. 419-420)). Some commenters recommended that OSHA also require that employers use professional organizations to train and certify their workers (Exs. 123; 205). The performance-based approach in the final rule clearly allows employers to use professional organizations to provide training, and to require that workers receive certification to operate RDS. However, the performance-based approach of the final rule gives employers flexibility to determine how to train their workers, provided the training and the training contents meet the requirements of Sec. 1910.30. Accordingly, OSHA does not believe it is necessary to adopt the commenters'

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    recommendation, and finalizes the provision as discussed.

    Final paragraph (b)(2)(iv), like proposed paragraph (b)(2)(iii), requires that employers ensure inspection of each RDS at the start of each workshift in which their workers will use it. Additionally, the employer must ensure damaged or defective equipment is removed from service immediately and replaced. The equipment inspection must include every component of the RDS, including safety devices, ropes, rope grabs, lanyards, descent devices, harnesses, seat boards, carabiners and other hardware. When replacing damaged or defective equipment, the replacement component or system must be compatible, undamaged and not defective. Overwhelmingly, commenters supported the requirement to inspect RDS equipment (Exs. 138; 151; 153; 163; 184; 221; 222; 242; 243; 245).

    The final rule revises the proposed paragraph to clarify the regulatory language. First, OSHA drafted the final provision to specify that employers must inspect each RDS ``at the start of each workshift that it is to be used'' rather than ``each day before use'' as in the proposed rule. Therefore, the final rule specifies that employers must inspect each RDS before a worker uses it in their workday. Thus, to the extent that there is more than one workshift in a work day, the RDS needs to be inspected to ensure it is safe for each worker to use during their workshift. The inspection of RDS equipment at the start of each workshift ensures that any damage (such as abrasions and cracks) that may have occurred when using the RDS during the last workshift is identified, and appropriate action is taken before another worker uses the RDS. In addition, employers need only inspect an RDS if a worker will use it during a workshift, rather than each day. The language in the final rule clarifies this requirement.

    Second, the final rule requires that employers remove both damaged and ``defective'' equipment from service, while the proposed rule only specified removal of damaged equipment. OSHA added ``defective'' because, regardless of whether an inspection reveals that equipment was damaged during use or defectively manufactured, OSHA considers such equipment to be unsuitable for continued use.

    Third, OSHA added language to the final rule specifying that employers remove damaged or defective equipment from service ``immediately.'' This addition is consistent with the I-14.1-2001 standard (Section 5.7.3).

    Finally, the final rule revises the proposed rule to specify that employers must replace damaged or defective equipment removed from service. OSHA believes this language clarifies that improvised repairs are not allowed, consistent with I-14.1-2001 (Section 5.7.3). Replacing damaged or defective components is necessary to ensure that RDS are restored to their original condition and capacity. For these reasons, OSHA adopts the final provision as discussed.

    Final paragraph (b)(2)(v), like proposed paragraph (b)(2)(iv) and the 1991 RDS memorandum, requires that employers ensure the RDS has proper rigging, including proper anchorages and tiebacks. The final rule also requires that employers ensure that RDS rigging emphasizes providing tiebacks when using counterweights, cornice hooks, or similar non-permanent anchorage. The I-14.1 standard addresses proper rigging by requiring that employers train workers in ``correct'' and ``accepted'' rigging practices (Section 5.7.2).

    Proper rigging of RDS equipment is essential to ensure that the system is safe for workers to use. To ensure proper RDS rigging and safe use, OSHA believes that employers also must take into consideration and emphasize the specific conditions present. For example, OSHA believes that giving particular emphasis to providing tiebacks when using counterweights, cornice hooks, or similar non-

    permanent anchorages is an essential aspect of proper rigging and necessary to ensure safe work. To illustrate, when tiebacks and anchorages are not perpendicular to the building face, it may be necessary for worker safety for employers to install opposing tiebacks to support and firmly secure the RDS, have at least a 30-degree sag angle for opposing tiebacks, or ensure that no angle exists on single tiebacks. In addition, as the final rule specifies, OSHA believes that employers also must place emphasis on non-permanent anchorages because of the possibility of damage during transport and installation.

    Finally, some commenters recommended that OSHA include additional rigging requirements in the final rule. For example, Vannoy & Associates recommended that OSHA include a requirement for angle of attachment (Ex. 213). OSHA believes that the term ``proper rigging'' includes the angle of attachment and, therefore, needs no further elaboration. For the reasons discussed above, OSHA adopts the provision as discussed.

    Final paragraph (b)(2)(vi), like proposed paragraph (b)(2)(v) and the 1991 RDS memorandum, requires that each worker uses a separate, independent personal fall arrest system, when using an RDS. Final Sec. 1910.140(b) defines personal fall arrest system as ``a system used to arrest an employee in a fall from a walking-working surface.'' A personal fall arrest system consists of at least an anchorage, connector, and a body harness, but also may include a lanyard, deceleration device, lifeline, or suitable combination of these devices (Sec. 1910.140(b)). The final rule requires that the personal fall arrest system meets the requirements in 29 CFR part 1910, subpart I, particularly final Sec. 1910.140. This final rule is consistent with other existing OSHA standards (e.g., Sec. 1910.66(j), Powered Platforms for Building Maintenance, Personal Fall Protection; Sec. 1926.451(g), Scaffolds, Fall Protection), as well as the I-14.1 consensus standard (Section 5.7.6).

    OSHA believes the provision is essential to protect workers from injury or death if a fall occurs. As the 1991 RDS memorandum mentions, requiring workers to use personal fall arrest systems that are completely independent of RDS ensures that any failure of the RDS (e.g., main friction device, seat board, support line, anchorage) does not affect the ability of the fall arrest system to quickly stop the worker from falling to a lower level.

    Commenters uniformly supported the proposed provision (Exs. 138; 151; 153; 184; 221; 222; 242; 243). Also, Surface Solutions pointed out that 91 of 125 RDS incidents they reviewed as far back at 1977 resulted from the lack of an independent personal fall arrest system (Ex. 184). OSHA finds the comments and data persuasive and, therefore, adopts the requirement as proposed with only minor editorial change, for clarity.

    Final paragraph (b)(2)(vii) requires that employers ensure all components of each RDS, except seat boards, are capable of supporting a minimum rated load of 5,000 pounds. For seat boards, the final rule requires that they be capable of sustaining a live load of 300 pounds. In accordance with section 6(b)(8) of the OSH Act (29 U.S.C. 655(b)(8)), OSHA revised the final provision in three ways to make it consistent with the I-14.1-2001 national consensus standard.

    First, the final rule revised the proposal (proposed paragraph (b)(2)(vi)) to require that employers ensure ``all components'' of each RDS, except seat boards, are capable of supporting a 5,000-pound minimum rated load. As the final definition of RDS specifies, these systems usually consist of the following components: Roof anchorage, support rope, descent device, carabiner(s) or shackle(s), and chair

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    (seat board) (final Sec. 1910.21(b)).\39\ I-14.1-2001 (Section 14.1.2) also requires that each RDS must include the same list of components. The proposed rule (proposed paragraph (b)(2)(vi)) and 1991 RDS Memorandum, by contrast, only required that ``all lines'' be capable of sustaining the required load, but was silent on the minimum load requirements for other RDS components.

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    \39\ OSHA notes that RDS often include tiebacks, but they are not a required component of RDS.

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    However, like I-14.1-2001, OSHA believes that requiring all RDS components, except seat boards, be capable of supporting the required minimum rated load is essential to ensure that these systems are safe for workers to use. It makes no difference if RDS lines and ropes are capable of supporting the minimum 5,000-pound required load if RDS connectors, anchorages, and other components cannot sustain such a load. In other words, all components must be able to support the required load because RDS are only as strong as their weakest component. Thus, applying the final load requirement to all RDS components will ensure that none of the critical components will break or fail when supporting a significant load. OSHA notes that commenters overwhelmingly support the minimum 5,000 load requirement as essential to ensure RDS are safe to use (Exs. 138; 151; 153; 184; 221; 222; 242; 243).

    Second, in final paragraph (b)(2)(vii), consistent with I-14.1-2001 (Section 14.1.4), OSHA does not apply the 5,000-pound rated load requirement to seat boards. Instead, OSHA incorporates language from I-

    14.1-2001 (Section 14.3.1(c)) specifying that seat boards must be capable of supporting a live load of at least 300 pounds. I-14.1-2001 (Section 14.3.1(a)) specifies that seat boards must be made of ``wood or other suitable material,'' which cannot and does not need to support a rated load of 5,000 pounds. OSHA notes that final paragraph (b)(2)(vi), as mentioned, requires that employers ensure each employee who uses an RDS also uses a ``separate, independent personal fall arrest system'' that meets the requirements in final Sec. 1910.140.

    Third, the final rule, consistent with I-14.1-2001 (Section 14.1.4), revises the proposed rule to require that RDS components be capable of sustaining a minimum ``rated load'' of 5,000 pounds. The proposed rule specified that RDS lines be able to sustain a minimum ``tensile load'' of 5,000 pounds. OSHA believes that ``rated load'' or ``rated strength'' is the appropriate term to specify the ability of all RDS components to support a load and is consistent with the I-14.1-

    2001 standard. I-14.1-2001 (Section 2) broadly defines ``rated load'' as ``the combined weight of the workers, tools, equipment, and other materials which the device is designed and installed to lift.'' Tensile load, on the other hand, is the maximum stress that material can withstand while being stretched before breaking or failing. While the term is appropriate to use for identifying the required strength of ropes or lines, it is not a standard measure for components that do not stretch.

    OSHA notes that the final rule does not preclude the use of lines or ropes that have a knot, swage, or eye splice, which could reduce the tensile strength of a rope or line. However, under final paragraph (b)(2)(vii), even if an employer uses a line or rope that has a knot, swage, or eye split, the rope or line still must be capable of supporting a minimum rated load of 5,000 pounds. Several commenters supported this interpretation of the final paragraph (b)(2)(vii).

    In conclusion, OSHA believes that employers should not have difficulty complying with the final paragraph (b)(2)(vii) as revised. Virtually all RDS manufactured today meet the design requirements in I-

    14.1-2001 (Section 14) (See e.g., Ex. 242). In addition, I-14.1-2001 represents standard industry practice, thus, OSHA believes that the revisions to final paragraph (b)(2)(vii) will make the final rule easier to understand and reduce potential for confusion.

    Final paragraph (b)(2)(viii), like proposed paragraph (b)(2)(vii), requires that employers provide for prompt rescue of each worker in the event of a fall. The final rule is almost the same as the 1991 RDS memorandum and Sec. 1910.140(c)(21), and generally consistent with the I-14.1 standard (Section 5.7.11).

    Like Sec. 1910.140(c)(21), final paragraph (b)(2)(viii) establishes two fundamental points--(1) employers must provide for the rescue of workers when a fall occurs, and (2) the rescue must be prompt. First, providing for rescue means employers need to develop and put in place a plan or procedures for effective rescue. The plan needs to include making rescue resources available (i.e., rescue equipment, personnel) and ensuring that workers understand the plan.

    Appendix C to Sec. 1910.140 provides guidance to employers on developing a rescue plan (appendix C, Section (h)). For example, appendix C recommends that employers evaluate the availability of rescue personnel, ladders, and other rescue equipment, such as mechanical devices with descent capability that allow for self-rescue and devices that allow suspended workers to maintain circulation in their legs while they are awaiting rescue. OSHA's Safety and Health Information Bulletin on Suspension Trauma/Orthostatic Intolerance identifies factors that employers should consider in developing and implementing a rescue plan, including being aware of signs and symptoms of suspension trauma and factors that can increase the risk of such trauma, rescuing unconscious workers, monitoring suspended and rescued workers, and providing first aid for workers showing signs and symptoms of orthostatic intolerance (SHIB 03-24-2004).\40\

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    \40\ SHIB 03-24-2006 is available from OSHA's Web site at: http://www.osha.gov/dts/shib/shib032404.html.

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    Although an increasing number of employers train workers and provide devices that allow workers to rescue themselves (Exs. 227; 242), the employer's rescue plan still needs to make provisions for appropriate rescue personnel and equipment because self-rescue may not be possible in some situations. For example, unconscious workers will not be able to move and, therefore, cannot pump their legs to maintain circulation or relieve pressure on the leg muscles. The same may be true for seriously injured workers or workers who are in shock. When RDS ropes get caught on structures or entangled, workers may not be able to self-rescue (see analysis of RDS and suspended scaffolding incidents in Ex. 163).

    Second, the final rule requires that employers provide ``prompt'' rescue of workers suspended after a fall. Sunlight Building Services commented that ``prompt'' is ambiguous, and asked whether OSHA defines it to mean ``immediately'' or ``quickly'' (Ex. 227). The International Safety Equipment Association (ISEA) and Capital Safety Group (CSG) urged OSHA to require that rescue of suspended workers occur ``quickly,'' pointing out the life-threatening dangers of suspension trauma/orthostatic intolerance (Exs. 185; 198).

    OSHA agrees with ISEA and CSG. OSHA's definition of ``quick'' or ``prompt'' is performance-based. Prompt means that employers must act quickly enough to ensure that the rescue is effective; that is, to ensure that the worker is not seriously injured. If the worker is injured in the fall, the employer must act quickly enough to

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    mitigate the severity of the injury and increase the survivability of the worker. OSHA's performance-based definition has consistently recognized, and taken into account, life-threatening injuries and dangers (Ex. 22; see also 76 FR 24576 (5/2/2011); Letter to Charles Brogan, January 16, 2007; Letter to Brian F. Bisland (March 23, 2007)). For example, OSHA's Safety and Health Information Bulletin (SHIB) on orthostatic intolerance explains:

    Orthostatic intolerance may be experienced by workers using fall arrest systems. Following a fall, a worker may remain suspended in a harness. The sustained immobility may lead to a state of unconsciousness. Depending on the length of time the suspended worker is unconscious/immobile and the level of venous pooling, the resulting orthostatic intolerance may lead to death. . . . Unless the worker is rescued promptly using established safe procedures, venous pooling and orthostatic intolerance could result in serious or fatal injury, as the brain, kidneys, and other organs are deprived of oxygen.

    Prolonged suspension from fall arrest systems can cause orthostatic intolerance, which, in turn, can result in serious physical injury, or potentially, death. Research indicates that suspension in a fall arrest device can result in unconsciousness, followed by death, in less than 30 minutes (SHIB 03-24-2004).

    In sum, prompt rescue means employers must be able to rescue suspended workers quickly enough to ensure the rescue is successful, i.e., quickly enough to ensure that the employee does not suffer physical injury (such as injury or unconsciousness from orthostatic intolerance) or death. Many employers provide self-rescue equipment so workers can rescue themselves quickly after a fall, ensuring that the rescue is prompt and risks associated with prolonged suspension are minimal. OSHA believes the performance-based approach in the final rule will ensure prompt rescue of workers after a fall, while also giving employers flexibility to determine how best to provide prompt and effective rescue in the particular circumstance.

    Commenters uniformly supported the proposed provision (Exs. 138; 153; 184; 221; 222; 242; 243). Clean & Polish said, ``It is a documented fact that there is a great risk of suspension trauma when hanging from a harness.'' Accordingly, they recommended that a team of at least two workers should perform every job assignment and that workers receive training in self-rescue (Ex. 242). Sunlight also supported self-rescue, saying it is the quickest form of rescue, followed by assistance from a coworker trained in rescue. Sunlight added that, in a medical emergency, they recommend calling the local fire department (Ex. 227). A number of commenters said they train their own workers in rescue and require them to practice/demonstrate their rescue capabilities at least twice a year (Exs. 184; 221; 227; 243).

    The final rule is performance-based and gives employers flexibility to select the rescue methods that work best for their workers and worksite. However, OSHA emphasizes that, whatever rescue methods employers use, they are responsible for ensuring that it provides prompt rescue. Some commenters said they rely on calling local emergency responders, which may or may not be adequate. If employers rely on this method of rescue, they need to ensure that the responders have the appropriate equipment to perform a high angle rescue and are trained and qualified to do so. (Also see the discussion of prompt rescue in final Sec. 1910.140 below.)

    Final paragraph (b)(2)(ix), consistent with proposed paragraph (b)(2)(viii), the 1991 RDS memorandum, and I-14.1 (Section 5.7.5), requires that employers ensure the ropes of each RDS are effectively padded or otherwise protected where they contact edges of the building, anchorage, obstructions, or other surfaces to prevent them from being cut or weakened. Padding protects RDS ropes from abrasion that can weaken the strength of the rope. If employers do not protect RDS ropes, the ropes can wear against the sharp edges of buildings (e.g., parapets, window frames, cornices, overhangs), damaging their structural integrity and possibly causing them to break.

    The final rule requires that employers ensure the rope padding is ``effective.'' To be effective, padding needs to be, for example, firmly secured in place and strong and thick enough to prevent abrasion. To ensure the padding remains effective, employers also need to inspect it ``regularly and as necessary'' (final Sec. 1910.22(d)(1)).

    OSHA added language to the final rule specifying that employers may ensure that ropes are padded or ``otherwise protected.'' OSHA believes the added language gives employers greater flexibility in complying with final (b)(2)(ix). OSHA recognizes that padding may not be the only effective measure available to employers. For example, several commenters said that parapet carpets and rope-wrapper protection are effective rope protection devices (Exs. 138; 153; 184; 221; 242). Other available measures include rubber hoses and polyvinyl chloride (PVC) piping. OSHA believes that various materials are readily available and used in common industry practice; thus, employers should not have significant problems complying with the final rule.

    Overwhelmingly, commenters supported the provision (Exs. 138; 153; 184; 221; 222; 242; 243), and OSHA did not receive any comments opposing the requirement. Therefore, OSHA adopts the provision as discussed.

    Final paragraph (b)(2)(x), like proposed paragraph (b)(2)(ix), requires that employers provide stabilization at the worker's specific work location whenever descents are greater than 130 feet. The purpose of the stabilization requirement is to reduce the risks of worker injury when longer descents are made using a RDS.

    For purposes of final paragraph (b)(2)(x), the worker's ``specific work location'' refers to the location in the descent where the worker is performing the work tasks that necessitate the use of an RDS. For example, a window cleaner's specific work location is the window the worker is cleaning. While using an RDS, workers may have many specific work locations during a descent, and they must be stabilized at each of those locations when the descent is greater than 130 feet.

    OSHA uses a performance-based approach in final paragraph (b)(2)(x). It gives employers the flexibility to use intermittent or continuous stabilization. In addition, the final rule allows employers to use any method of stabilization (e.g., suction cups, rail and track system) that is effective to protect workers from adverse environmental effects, such as gusty or excessive wind.

    OSHA notes that the 1991 RDS memorandum included a requirement for ``intermittent'' stabilization on descents in excess of 130 feet.\41\ Similarly, the I-14.1 standard, which also requires stabilization on descents greater than 130 feet, specifies that stabilization may include continuous, intermittent, or work station stabilization (Section 5.7.12). The I-14.1-2001 standard identifies suction cups as an example of work station stabilization.

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    \41\ Shortly after OSHA issued the 1991 RDS memorandum, the Agency confirmed that employers could use suction cups to meet the stabilization requirement in the memorandum (Letter to Mr. Michael Bell, July 31, 1991, available on OSHA's website at: http://www.osha.gov/portable_ladders/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22722).

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    In the proposed rule, OSHA requested information on commonly used methods of stabilization and on other methods that may increase worker safety. The vast majority of commenters

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    said suction cups are the method they most use for stabilization (Exs. 138; 163; 184; 221; 222; 241; 242). Some commenters said they use different methods for stabilization, but only mentioned suction cups, and said suction cups is their ``primary'' method (Exs. 163; 184; 221; 242; 329 (1/19/2011, p. 436)).

    Sunlight said that some buildings have permanent rail or track systems to provide stabilization (Ex. 227). TRACTEL North America (TRACTEL) also said they use ``mulling and track,'' designed for use by powered platforms for stabilization, to stabilize RDS (Ex. 329 (1/19/

    2011, p. 436)). TRACTEL added that mulling and track stabilization systems provide greater protection because the stabilization is continuous, while suction cups only provide intermittent protection (Ex. 329 (1/19/2011, p. 436)).

    Many commenters supported the RDS stabilization requirement for work operations involving descents greater than 130 feet (Exs. 138; 147; 151; 215; 222; 241; 227; 356), and a number of commenters supported the use of suction cups as an effective stabilization method (Exs. 138; 151; 152; 222; 241).

    However, a number of commenters said stabilization is not necessary. They indicated there was no need for a stabilization requirement because the prohibition against using RDS in adverse or hazardous weather is adequate and a more protective approach (Exs. 163; 184; 221; 227; 241; 242; 243). Mr. Terry, of Sparkling Clean, explained:

    Every incident that can be partially abated by stabilization can be totally abated by substituting a restriction from working in adverse weather restrictions. Suspended workers using RDS only need stabilization during adverse weather conditions. . . .

    Suction cups can certainly be used for stabilization, if a worker chooses to work in adverse conditions that should have been avoided in the first place . . . (Ex. 163).

    Ms. McCurley, of SPRAT, also said the proposed requirement was not necessary:

    Sometimes stabilization is required, and when stabilization is required, the stabilization needs to be adequate to the situation. But, stabilization is not necessarily required just as a matter of course. . . . That requirement tends to come from the scaffold industry, which does require stabilization all the time, because that's what scaffolds do. They have to have stabilization. But, because of the individual not having nearly the wind load--a wind load on this table, because it looks a lot like an airplane wing, is going to have a much different effect than the same wind load on your body standing there (Ex. 329 (1/19/2011, pgs. 167-168)).

    Nevertheless, Mr. Terry and other commenters said they provide stabilization devices (primarily suction cups) and use them on descents as short as 10 feet (Exs. 163; 184; 221; 242; 329 (1/19/2011, p. 62)). Mr. Terry pointed out that his company uses the suction cups ``for positioning to keep us in front of the glass, not for stabilization against the effects of the wind'' (Ex. 329 (1/19/2011, p. 337)).

    Mr. Diebolt, of Vertical Access, did not oppose the concept of stabilization, but opposed OSHA's 130-foot trigger:

    Now, the 130-foot tie-offs, I have essentially the same objections. It seems arbitrary for the kind of work at least that we do, it's unnecessary. . . . Granted we're doing light work, making observations and notes and that sort of thing. Occasionally, we have done some work like take core samples out of a concrete structure using a coring rig drill rig hung from a separate line. And under those conditions, you do actually have to put in a bolt or something to hold you to the building . . . when you're on a long pendulum, when you're on a long tether.

    But making it mandatory seems arbitrary and sort of eliminates the possibility of the flexibility of doing the work (Ex. 329 (1/21/

    2011, pgs. 139-140)).

    However, the major objection to the proposed rule was not to the proposed regulatory text, but rather with the use of suction cups as a stabilization method. The Glass Association of North America (GANA), a trade association representing the architectural and glazing industry, recommended that OSHA not to allow the use of suction cups for worker stabilization:

    Glass is a brittle material and, as such, can break without warning and vacate the window framing system. Glass installed in commercial and residential buildings is designed to withstand external loads, primarily wind events, with a certain safety factor. . . . In other words, breakage cannot be eliminated in brittle materials like glass. There is no way to guarantee a specific lite of glass will not break under the loads exerted by workers as they move vertically and horizontally back and forth across the glass lites. . . . The use of suction cups may be sufficient in certain conditions to cause the glass to break and vacate the opening, particularly in the event the RDS fails and the worker is left to rely upon the suction cups used for stabilization . . . to support his/her weight.

    GANA urges OSHA, in its final rule, to reject the use of suction cups as an approved employee work location stabilization device for RDS. . . . Their use does not satisfy the safety criteria OSHA has established for this rulemaking proceeding: ``to be effective, fall protection systems must be both strong enough to provide the necessary fall protection and capable of absorbing fall impact so that the forces imposed on employees when stopping falls do not result in injury or death'' (Ex. 252).

    Mr. Gartner, of Weatherguard, and Mr. Coleman, of JOBS, opposed the use of suction cups for the same reasons as GANA (Ex. 215; 329 (1/19/

    2011, pgs. 259-260)). Mr. Gartner said:

    The use of suction devices for stabilization is problematic. The glass industry strongly discourages them and the window wall people are robustly against them. They are devices used at whim. The loads that they apply to a surface are totally unknown as there are numerous barrier bowls that influence them and they're applied to surfaces that have never been rated for these pinpoint concentrated loads.

    Applying a device to glass seems reckless when we're all aware of glass's characteristics and lack of strength. Furthermore, as glass ages, it becomes more brittle and it loses strength, just another variable to make their use totally uncontrolled (Ex. 329 (1/

    19/2011, pgs. 259-260)).

    Mr. Coleman also stated:

    In order for Work Station Stabilization to be safe, the worker must attach to a component of the building curtain wall that is designed for and capable of providing the stabilization required. Presently most Work Station Stabilization is done by using suction cups attached to the glass pane. The glass is typically not designed for such point loading; it is designed for a wind load spread out over the entire surface of the glass (Ex. 215).

    Therefore, Mr. Coleman concluded that the final rule should not allow suction cups, which provide only intermittent stabilization, as the primary stabilization device (Ex. 356). Rather, he said OSHA should define ``Work Station Stabilization'' as: ``a means to stabilize suspended access equipment by securing the worker or suspended access equipment to an approved anchor point on the exterior of the building surface,'' thus ensuring continuous stabilization (Ex. 215). Mr. Schoch, of TRACTEL, agreed with Mr. Coleman's recommendation (Ex. 329 (1/19/2011, p. 439)).

    Several workers, based on personal experience, also opposed the use of suction cups, calling the devices ``unsafe'' (Exs. 311; 316; 329 (1/

    19/2011, pgs. 5, 8, 15, 18, 19, 61, 62); 329 (1/20/2011, p. 222)). For instance, Mr. Rosario, of SEIU Local 32BJ, stated:

    I believe the use of suction cups fails to provide adequate protection. Suction cups are unreliable because they get dirty and fail to maintain suction. I remember having to clean 20-story buildings, sometimes with multiple stops per floor. At least half the time I applied the suction cup, it released during the cleaning and I had to apply it again (Ex. 311).

    Mr. Rosario also said the support offered by suction cups ``usually only lasts for a few seconds'' (Ex. 329 (1/19/2011, p. 19)). Mr. Rosario added that

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    usually he had to clean suction cups four or five times per descent (Ex. 329 (1/19/2011, p. 86)). Mr. McEneaney, with SEIU Local 32BJ, said suction cups were not reliable stabilization devices because they leave the worker ``de-stabilized during the movement from one floor to another'' (Ex. 329 (1/19/2011, p. 15)). However, most commenters said they primarily use suction cups for stabilization, and did not indicate they were not effective (Exs. 138; 163; 184; 222; 227; 241; 242).

    After reviewing the rulemaking record, OSHA decided, for several reasons, to adopt the stabilization requirement as proposed. First, OSHA believes, and many commenters agreed, that stabilization of RDS is necessary to protect workers on descents greater than 130 feet. The effects of wind gusts, microbursts, and tunneling wind currents on longer RDS ropes is particularly severe and likely to increase the risk of injury to workers. For instance, increases or changes in the wind can cause a significant pendulum effect on the long RDS ropes, and will cause workers not stabilized to swing a great distance away from or into the building, possibly causing injury or death. For example, the RDS accident data analysis Mr. Terry submitted indicated that strong wind gusts (more than 35 mph) swung two workers using RDS 30 feet away from a building (Ex. 163).

    In addition, even a single wind gust or a sudden drop in the wind speed can initiate this pendulum effect on RDS ropes and destabilize the workers using them. Moreover, when RDS ropes are long, the slightest wind movement also can cause the ropes to sway (i.e., pendulum effect) and swing or propel workers into the building. OSHA believes that requiring stabilization in these situations will prevent RDS ropes from swaying and buffeting workers against the building.

    Mr. Terry's accident analysis demonstrates what can happen when workers are not using stabilization, and how using stabilization could prevent such cases. Three RDS accidents in that analysis involved wind:

    Window cleaner cleaning 50-story building became stranded in descent equipment line as a result of a wind gust;

    Window cleaner was stuck between 12th and 13th floor and managed to rest on narrow window ledge. Winds that were gusting 35 mph caught his ropes and wrapped them around an antenna on the west side of the building so worker was unable free to himself; and

    Two window cleaners were left dangling from a building when their lines became tangled during a windy rain shower. Wind was gusting about 36 mph. The workers were stuck between the 11th and 14th floors and blown 30 feet away from the building (Ex. 163).

    OSHA believes that stabilization, as required by this final standard, could prevent many such incidents.

    Second, while OSHA agrees that employers must not allow workers to perform suspended work in hazardous weather and gusty or excessive winds, the Agency also recognizes that adverse conditions can suddenly occur without warning. When such conditions occur, employers must ensure that workers using RDS have stabilization methods immediately available so they can protect themselves from the effects of the wind, even if all they are doing is descending to stop work due to hazardous weather conditions. OSHA notes that even those commenters who asserted that stabilization is not necessary because weather restrictions can totally abate the hazard, also noted that they regularly use and rely on stabilization devices, even on descents as short as 10 feet (Exs. 163; 184; 221; 242).

    Third, the final rule is consistent with the I-14.1-2001 national consensus standard. The I-14.1-2001 standard also requires that employers ensure workers using RDS have stabilization at their work station on all descents greater than 130 feet (Section 5.7.12). The I-

    14.1-2001 standard reflects best industry practices.

    With regard to suction cups, for the following reasons OSHA decided not to prohibit their use under the final rule. First, OSHA believes that suction cups provide effective stabilization for workers using RDS, particularly in long descents. The record shows that suction cups are an effective and easy-to-use device that helps keep workers positioned or stabilized at their specific work location (Exs. 137; 138; 147; 153; 163; 184; 298).

    OSHA received a comment from GANA stating that suction cups are not safe or effective to use for stabilization (Ex. 252). GANA's comment appears to indicate that they believe suction cups are a type of personal fall protection system, and concludes suction cups are not effective because the cups are not ``strong enough to provide the necessary fall protection and capable of absorbing fall impact so that the forces imposed on employees when stopping falls do not result in injury or death'' (Ex. 252). GANA also says suction cups are not effective because they cannot support the worker's weight if the RDS and personal fall arrest system both fail (Ex. 252). However, OSHA agrees with IWCA's post-hearing comments that GANA's description of the purpose and use of suction cups is not accurate (Ex. 346). As IWCA points out, and OSHA agrees, ``Suction cups are not intended to be part of the fall protection system and they are not part of the fall protection system'' (Ex. 346).

    The second reason for allowing suction cups is that OSHA believes suction cups can provide stabilization and protection when sudden weather conditions occur while the worker is using an RDS, even if workers use the suction cups only to safely descend due to excessive wind. As Mr. Terry said, ``In the event of a sudden unforeseen weather hazard, the RDS user . . . can very easily . . . utilize the suction cup. . . . This method of stability can even be performed while descending out of harm's way'' (Ex. 329 (1/19/2011, p. 329)).

    Third, OSHA believes that suction cups are widely used and accepted by employers and workers who use RDS, even by those employers who doubt the need for stabilization, because the devices have a track record of being effective, and economical. As far back as July 31, 1991, OSHA allowed employers to use suction cups to meet the stabilization requirement in the 1991 RDS memorandum. IWCA said that, since 1991, the use of suction cups in conjunction with RDS is widespread among window cleaning companies and workers in the United States and other countries (Ex. 346). Over that period, neither OSHA nor IWCA are aware of any data or evidence indicating that a significant problem exists with using suction cups. Although GANA said it is not safe to use suction cups on glass, they did not provide any data indicating that suction cups are causing glass windows to break (Ex. 252). Moreover, according to IWCA, a 2010 GANA press release said their members did not have any record of windows breaking when window cleaners were using suction cups (Ex. 346). OSHA notes that a review of the rulemaking record failed to show that suction cups cause anything more than a few isolated cases of window breakage. For example, Mr. John Capon, of Valcourt, reported that each year his company only had to replace 15 to 20 windows on the approximately 4,000 buildings they clean 2-3 times each year because of suction cup-related damage (Ex. 329 (1/19/2011, p. 372, 399)).

    Finally, the performance-based final rule allows, but does not require, the use of suction cups for stabilization. Employers are free to use other devices, and some commenters said they use other stabilization methods, such as rail

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    and track systems, that provide continuous stabilization (Exs. 163; 184; 221; 242; 329 (1/19/2011, p. 436)). Based on the above discussion, OSHA concludes that stabilization is essential at specific workplaces where descents are greater than 130 feet and is finalizing the provision as proposed.

    Final paragraph (b)(2)(xi) is a new provision added to the final rule that requires employers to ensure no worker uses an RDS when ``hazardous weather conditions'' are present. The final provision also identifies some examples of weather conditions that OSHA considers hazardous for workers using RDS: Storms and gusty or excessive wind.

    OSHA's general industry standard on powered platforms (Sec. 1910.66) and construction standard on scaffolds (Sec. 1926.451) also prohibit elevated work when certain weather conditions are present. Specifically, the powered platforms standard prohibits using powered platforms in winds in excess of 25 mph, and requires that employers determine wind speed based on ``the best available information, which includes on-site anemometer readings and local weather forecasts, which predict wind velocities for the area'' (Sec. 1910.66(i)(2)(v)). The construction standard prohibits work on scaffolds during storms or high winds ``unless a competent person has determined that it is safe for employees to be on the scaffold and those employees are protected by personal fall arrest systems or wind screens'' (Sec. 1926.451(f)(12)).

    The I-14.1 standard also prohibits window cleaning operations and RDS use when the ``work area is exposed to excessive winds,'' which the standard defines as ``any wind which constitutes a hazard to the worker, public or property'' (Sections 3.7 and 5.7.12). The I-14.1 also requires that employers train workers in the effects of wind on RDS operations, and make workers aware of ``the potential of sudden climatic changes such as wind gusts, micro bursts or tunneling wind currents'' when they perform descents over 130 feet (Section 5.7.11(a)).

    In the preamble to the proposed rule, OSHA requested comment on a number of issues regarding hazardous weather conditions including the following (75 FR 28886):

    Should the final rule prohibit RDS use in certain weather conditions? If so, what conditions?

    How should employers determine whether weather conditions are hazardous?

    How should OSHA define excessive wind?

    Should the final rule prohibit RDS use if winds reach a specific speed? If so, what speed?

    Should the final rule require that employers monitor winds speeds? If so, how?

    Overwhelmingly, commenters supported prohibiting the use of RDS, as well as suspended scaffolding, in inclement or hazardous weather (Exs. 151; 163; 184; 221; 222; 227; 241; 242; 243; 329 (1/19/2011, p. 329)). They also agreed that conditions such as ``thunderstorms, lightning; hail, high winds, hurricane, snow and ice storms'' were hazardous. Sunlight added that heavy rain and extreme cold also make RDS use hazardous: ``Rain can affect the operation of the working line but the use of rope that is essentially waterproof can negate this problem. Very cold weather stiffens the rope and especially wet rope can be a hazard'' (Ex. 227).

    In addition, some commenters said that as the length of rope during a drop increases, the effects of wind on RDS can increase (Exs. 147; 329 (1/19/2011, pgs. 253, 291-292)). As mentioned in the proposed rule, the greater the length of rope used for a descent, the greater the adverse effects of environmental factors such as wind gusts, microbursts, or tunneling wind currents, and the greater the risk of injury to workers (75 FR 28886). OSHA notes that some window cleaning companies disagreed that greater heights pose greater wind effects on RDS (Exs. 222; 247; 329 (1/19/2011, p. 329)). Dana Taylor, of Martin's, said their accident analysis files did not show any RDS accidents occurring due to excessive wind (i.e., ``wind gusts, microbursts or tunneling wind currents'') (Ex. 222). Sam Terry of Sparkling Clean said:

    The adverse effects of environmental factors do not affect rope access any more than they affect suspended scaffolding. In actuality, users of rope access have the ability to get themselves and their equipment out of harm's way should unexpected weather hazards suddenly appear much quicker than users of suspended scaffolding.

    In the event of a sudden unforeseen weather hazard, the user of rope access can very easily use their hands, arms, legs, and feet to hold on to parts of the building or structure or to utilize the suction cup as long as a smooth surface is available. This method of stability can even be performed while descending out of harm's way. (Ex. 329, 1/19/2011, p. 329)).

    Commenters also had different viewpoints about defining ``excessive'' wind. Some commenters said winds were excessive and dangerous when they reached 25 mph (Exs. 227; 329 (1/19/2011, p. 411)), while others said winds in excess of 15 mph were too high to use RDS (Exs. 138; 151; 152; 222; 329 (1/19/2011, p. 329)). For instance, John Capon of Valcourt said: ``I don't work . . . in more than 10 or 15 miles per hour wind and I almost look at that as normal. That seems a little awkward to me because that's not very windy at all. When it gets to 20 and 25 miles per hour, to me it gets very dangerous'' (Ex. 329 (1/19/2011, p. 411)).

    Several stakeholders in the window cleaning industry indicated that including a 15-mph or 25-mph wind speed limit in the final rule was not necessary. Texas Window Cleaning Company said: ``Not many window cleaners are going to risk their health on wind, storm or other increments of bad weather. They know and are trained when, where and how to postpone the cleaning'' (Ex. 218).

    Other window cleaning companies indicated that water ``blowback'' stops window cleaning operations long before winds reach 15 mph to 25 mph (Exs. 151; 163; 329 (1/19/2011, pgs. 213-214)). Mr. Adkins, of Corporate Cleaning, explained:

    I've never had anybody work at 15 miles an hour and never will because that, in my opinion, is too high, both for a boatswain's chair, a swingstage, a scaffold. Also, I might add there's something else that happens with window washing and that's the blowback effect. Window washers don't like to do their work over, and at a certain level of wind, you wind up with dirty water blowing on clean windows . . . which, of course, the customer doesn't like. They want us to come back, do it over. So, consequently, that's a lower level normally than anything where you have to worry about safety. Most normal window washers will shut down and we support this, we fully support this because I don't want the phone call from the property manager. Most window washers will shut down before they reach an unsafe level, before they come anywhere near it. The most I think I've ever seen our company working is in 15-mph winds (Ex. 329 (1/

    19/2011, pgs. 213-214)).

    For companies that use RDS to perform operations that do not have the ``built-in monitoring'' capability for blowback of water, several commenters said, ``It would seem to me that a 15 mph limit is reasonable'' (Exs. 163; 221).

    The American Wind Energy Association (AWEA), however, opposed adding any wind-speed restriction to the final rule because it would be ``detrimental'' to the wind energy industry, which works in windy areas (Ex. 178). AWEA said that OSHA should allow employers to establish their own ``detailed policies and job hazard analyses for work in inclement weather'' (Ex. 178). Mr. Diebolt, of Vertical Access, also agreed that employers should be able to set their own weather policies:

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    Just a word about weather and changing site conditions. Wind has been a concern and understandably. But you can understand after AWEA's testimony this morning that a wind effect of somebody hanging on the outside of a turbine or working on top of a nacelle is entirely different from somebody working on a bridge, pier, abutment or the side of a building (Ex. 329 (1/21/2011, pgs. 139-140)).

    With regard to monitoring wind speed, several window cleaning companies indicated that it was not necessary because ``blowback'' of water is an adequate measure (Exs. 138; 163; 222). That said, some of these companies recommended that employers monitor weather reports in their area and notify workers of changes that would prohibit the use of RDS (Exs. 151; 163; 222). Sunlight noted that ``the use of Blackberry, PDAs, internet and cell phones give the employer the tools to monitor weather conditions in real time'' (Ex. 227).

    OSHA agrees with commenters who said the final standard must prohibit the use of RDS when weather conditions are hazardous for workers and the equipment. As the record and OSHA standards indicate, workers using RDS are vulnerable to sudden weather changes such as wind gusts, microbursts, and wind tunneling. Gusty and excessive winds can cause workers using RDS to swing into buildings, resulting in possible injury or death.

    OSHA believes that employers' support of a mandatory prohibition on RDS during windy weather indicates that they are aware of the hazards posed by inclement weather. That said, the record indicates that what constitutes ``hazardous'' weather and ``excessive'' wind is dependent on the type of work performed when using RDS. For window cleaning, the record shows that water blowback acts as a reliable sign that winds have become excessive, even if they are well below 15 mph. However, for other jobs it may be safe to use RDS at higher wind speeds, depending on the type of job performed. For instance, the record indicates that using an RDS below 130 feet may be safe when winds approach 25 mph, but hazardous when using RDS at heights approaching 300 feet, or when the length of the descent rope is long.

    In light of the many variables of RDS use, OSHA decided that using a performance-based approach in the final rule is the most effective way to cover varying worksite and job conditions. Under the performance-based final rule, employers must evaluate or analyze the worksite and job variables in light of existing weather conditions. If that analysis indicates that weather conditions are hazardous and winds are excessive, the employer must ensure that no employee uses an RDS. OSHA believes this approach will best ensure that employers provide an adequate level of safety, and take appropriate measures to protect workers in each specific work operation. Moreover, OSHA believes the performance-based final rule will not impose significant burdens on employers. The record shows that employers said they already monitor on-site weather conditions to determine whether to proceed with or postpone the job.

    OSHA also believes the performance-based approach obviates the need to require in the final rule that employers conduct on-site weather monitoring or use specific weather-monitoring systems. The record shows that many employers currently use various electronic tools to monitor local weather forecasts.

    Final paragraph (b)(2)(xii), like proposed paragraph (b)(2)(x), requires that employers ensure equipment is secured by a tool lanyard or similar method to prevent it from falling. Examples of equipment include tools, squeegees, and buckets. The purpose of this provision is to protect workers and the public below from being struck by falling equipment. The final rule is consistent with the I-14.1-2001 standard (Sections 3.10 and 5.7.15), and supplements the falling object requirements in final Sec. 1910.28(c) (Protection from falling objects).

    Several commenters, including IWCA, supported the requirement (Exs. 138; 151; 153). However, Mr. Donaldson, of Sunlight, said the provision was not practical or needed (Ex. 227). In particular, he stated that tool bungees are imperative to the window cleaning business, but a serious impediment to the use of squeegees or other tools. Therefore, he suggested the following alternative to the final rule:

    The danger of workers below being struck by falling equipment is minimal. Workers rarely work directly below other workers. The tools themselves are light and blunt and could not cause serious injury unless dropped from a great height. . . . Requiring window cleaners to wear hard hats would be a more practical solution than tool bungees (Ex. 227).

    AWEA also suggested additional alternatives:

    There are various ways to protect workers from falling objects in the wind industry. Workers are prohibited to work below other workers when using items that can fall. In addition, workers often use tool tethers for equipment. Typically, tools are hoisted in tool buckets versus being carried by workers. This practice allows the trained employee free use of his hands and mitigates the potential for tools falling out of workers' pockets (Ex. 329 (1/21/2011, p. 12)).

    OSHA does not agree with Sunlight's comment for several reasons. First, OSHA believes the performance-based approach in the final rule assures that employers have maximum flexibility in meeting the requirement to secure equipment (e.g., tools, squeegees, buckets) that workers use. Many different types of tool lanyards and similar methods are currently available to secure equipment. Tool lanyards and other securing equipment are available in many types, lengths, and load capacities, and a worker can secure the equipment at various points, including the worker's wrist, tool belt, harness, and seat board.

    Second, Mr. Donaldson did not provide any explanation about how or why tool bungees are a ``serious impediment'' to using squeegees and other tools. OSHA did not receive any other comments supporting Mr. Donaldson's claim.

    Third, OSHA disagrees with Mr. Donaldson's assertion that falling tools will not cause serious injury if they hit workers below. Many of the tools employees use in suspended work can be heavy and sharp (e.g., a bucket of cleaning water or the corner at the end of a squeegee). Tools can cause injury to various parts of the body, especially if dropped from significant heights. In any event, Mr. Donaldson's recommendation that employees wear head protection when they work below elevated workers, such as window cleaners, will not protect other persons who also may be below.

    With regard to the controls AWEA identified, OSHA believes that tethering controls is one way employers can comply with the final rule. As to the other controls AWEA suggested, OSHA believes that securing equipment is the most protective option because it removes the hazard of equipment falling and hurting workers. Putting tools in buckets and prohibiting employees from working below other workers, as AWEA suggests, does not prevent equipment from dropping and, in the case of prohibiting work below the worker, requires ongoing monitoring by the employer to be effective. Thus, OSHA believes that the final rule establishes the most protective control, and likely the most efficient one. Accordingly, OSHA adopts the requirement that employers ensure that equipment used in RDS work is secure to prevent it from falling and injuring workers and the public.

    Final paragraph (b)(2)(xiii), like proposed paragraph (b)(2)(xi), requires

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    that employers protect RDS ropes from exposure to open flames, hot work, corrosive chemicals, and other destructive conditions that could damage or weaken the ropes. This requirement will prevent damage to ropes that could lead to failure. Failure of a suspension or fall arrest line could seriously injure or kill a worker.

    The performance-based approach in final paragraph (b)(2)(xiii) gives employers flexibility in determining how to protect RDS ropes from damage. OSHA believes that this approach is appropriate for the final rule because there are various controls available to protect RDS ropes from damage. This approach also is consistent with the I-14.1-

    2001 standard, which prohibits the use of hazardous or corrosive materials that could ``endanger the . . . safety of the worker or may affect the safe operation of equipment'' (Section 3.5).

    A number of commenters supported the provision (Exs. 138; 151; 153; 184; 221; 222; 243), and OSHA did not receive any comments opposing the provision, and finalizes the provision as proposed.

    Section 1910.28--Duty To Have Fall Protection and Falling Object Protection

    Final Sec. 1910.28 is the first of three new sections in subpart D that consolidate requirements pertinent to fall protection and falling object protection. The new sections are:

    Sec. 1910.28--Duty to have fall protection and falling object protection;

    Sec. 1910.29--Fall protection systems and falling object protection--criteria and practices; and

    Sec. 1910.30--Training.

    Final Sec. 1910.28 specifies the areas and operations where employers must ensure that workers have fall and falling object protection and what type(s) of protection employers may use. The criteria for fall and falling object protection that employers use to comply the duties imposed by Sec. 1910.28, and the training workers who use those systems must receive are in Sec. Sec. 1910.29 and 1910.30, respectively. OSHA notes that Sec. 1910.140 specifies criteria for personal fall protection systems that employers must meet when their workers use these systems.

    OSHA believes these sections along with the general requirements in Sec. 1910.22, taken together, establish a comprehensive approach to fall and falling object protection. OSHA believes this approach will ensure a better understanding of the final rule, fall hazards, and fall protection systems; provide flexibility for employers when choosing a fall protection system and falling object protection; ensure the systems they choose will be effective; and most importantly, will reduce significantly the number of fall injuries and fatalities in general industry.

    Final Sec. 1910.28, like the proposed rule, consolidates most of the general industry fall and falling object protection requirements throughout subpart D. OSHA patterned this section after the construction fall protection standard (29 CFR 1926.501, Duty to have fall protection). OSHA draws the range of fall protection options in the final rule, for the most part, from the construction standard. These options include engineering controls (e.g., guardrails, safety net systems), personal fall protection systems (e.g., personal fall arrest systems, travel restraint systems, positioning systems), and administrative measures (e.g., designated areas). OSHA strived to make the final rule consistent with the construction standard, when appropriate. The record shows a number of employers have workers who perform both general industry and construction activities.

    There are several ways in which OSHA made the final rule consistent with the construction fall protection standard. For example, the final rule provides for control flexibility. This rule, like the construction fall protection standard, allows general industry employers, similar to construction employers, to protect workers from fall hazards by choosing from a range of accepted conventional fall protection options. The existing general industry standard does not allow this flexibility and mandated the use of guardrail systems as the primary fall protection method (e.g., see existing Sec. 1910.23(c)).

    The 1990 proposed revision of subpart D continued to require the use of guardrail systems. However, in the 2003 notice reopening the record, OSHA acknowledged that it may not be feasible to use guardrails in all workplace situations (68 FR 23528, 23533 (5/2/2003)) and requested comment on whether the Agency should allow employers to use other fall protection systems instead of guardrails. Commenters overwhelmingly favored this approach, which the construction fall protection standard adopted in 1994. In response to comments and OSHA's history and experience with the construction fall protection standard, the Agency proposed in 2010 to allow employers to select from a range of fall protection options instead of requiring employers to comply with the existing mandate to use guardrail systems.

    OSHA is adopting the proposed approach for several reasons. First, the final rule's control flexibility reflects longstanding OSHA policy first incorporated in the 1994 construction fall protection standard. OSHA's history and experience with the construction standard indicates that its control flexibility approach has been effective. In addition, stakeholders responding to the proposed rule overwhelmingly supported this approach and there was little opposition to providing greater flexibility in controlling fall hazards.

    Second, the fall protection systems that the final rule allows employers to use (guardrail systems, safety net system, personal fall protection systems) are accepted conventional fall protection systems that OSHA has determined provide an appropriate and equal level of safety. Moreover, allowing employers to select the least costly fall protection system from those controls that provide equal protection also ensures the final rule meets OSH Act requirements that a standard be cost effective (Cotton Dust, 452 U.S. at 514 n. 32; Lockout/Tagout II, 37 F.3d at 668).

    Third, OSHA believes giving employers greater control flexibility in selecting fall protection systems allows them to select the system or method that they determine will work best in the particular work operation and location and draw upon their experience successfully protecting workers from fall hazards. OSHA believes that the process of determining the best fall protection system for the specific work activity will improve safety because employers will need to evaluate the conditions present in each specific workplace and consider factors such as exposure time, availability of appropriate attachment points, and feasibility. Similarly, it also will allow employers to consider and select the fall protection system that enables workers to perform the job most efficiently, thereby reducing workers' exposure to fall hazards.

    Fourth, providing control flexibility allows general industry employers to take advantage of advances in fall protection technology developed since OSHA adopted the existing rule. For example, neither safety net systems nor personal fall protection systems were developed until after OSHA adopted the existing rule.

    Fifth, greater control flexibility makes the final rule consistent with the construction fall protection standard, which makes it easier for employers to comply with the final rule and thereby should increase compliance. To illustrate, making the final rule consistent with the construction standard ensures that employers who

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    have workers engaged in both general industry and construction activities are able to use the same fall and falling object protection while performing both types of activities. It eliminates the need to purchase different fall protection systems when their workers switch from performing general industry operations to construction activities, which ensures that the final rule is a cost-effective approach for eliminating or reducing fall hazards.

    Finally, as mentioned, providing greater control flexibility is part the final rule's comprehensive approach to fall protection that also includes new requirements on system criteria and use; regular inspection, maintenance and repair; and fall hazard and equipment training. OSHA believes this comprehensive approach will provide equivalent or greater protection than the existing rule. As a result, OSHA believes that the additional flexibility and consistency achieved by this final rule in providing fall protection will reduce worker deaths and injuries. OSHA's history and experience with the construction standard confirms that its comprehensive approach to fall protection has been effective.

    As mentioned, stakeholders supported incorporating control flexibility in the final rule (e.g., Exs. OSHA-S029-2006-0662-0224; OSHA-S029-2006-0662-0252; OSHA-S029-2006-0662-0306; OSHA-S029-2006-

    0662-0365). For example, Northrop Grumman Shipbuilding (NGS) commented:

    We applaud the agency's work to recognize modern methods and technologies that are now available to ensure adequate fall protection for employees. Our experience is that no single method is effective in all potential fall situations and that a menu of proven methods and techniques . . . works best (Ex. 180).

    Uniseal, Inc. said:

    OSHA should allow employers to responsibly choose any type of fall protection in proposed Sec. 1910.28 that the employer can demonstrate will be appropriate for the specific work location and activities being performed (Ex. OSHA-S029-2006-0662-0345).

    Clear Channel Outdoor agreed, saying:

    Clear Channel Outdoor and employers in the outdoor advertising industry should be permitted to choose appropriate fall protection, depending upon the location and type of structure. (Ex. OSHA-S029-2006-

    0662-0308)

    The National Grain and Feed Association (NGFA) said:

    OSHA should not require guardrails as the primary means of fall protection but allow employers the flexibility to choose the most appropriate fall protection system that is appropriate to the specific work situation and activities being performed.

    Employers evaluate each work situation to determine which option (e.g., guardrails, cages, fall arrest systems, etc.) is the most appropriate and effective (Ex. OSHA-S029-2006-0662-0223).

    Duke Energy said OSHA should allow general industry employers to ``select from the list of options'' like the construction fall protection standard:

    The construction industry standard allows employers to select fall protection from a list of options. All of the options provide equivalent protection. Employers should be allowed to use the option that fits the specific situation. The factors that employers use when selecting fall protection options include (1) duration of the job; (2) experience of the workers involved; (3) installation costs; (4) availability of fall protection at the location. There are times when the installation of guardrails is technically ``feasible'' but adds costs that are unnecessary, since other systems (such as a personal fall arrest system) provide equivalent protection (Ex. OSHA-S029-2006-0662-0310).

    Some stakeholders, however, raised concerns about providing greater control flexibility. The American Federation of State, County and Municipal Employees (AFSCME) commented, ``Although we understand the need for flexibility, we believe employers should use guardrail systems and other engineering controls whenever possible, as is stated in the existing standard'' (Ex. 226). Thomas Kramer of LJB, Inc., expressed concerns that the proposed control flexibility would not be as protective as the existing rule's requirement to use guardrail systems to protect workers from fall hazards, stating:

    The hierarchy of control is something that is essential in the area of safety, and OSHA's failure to include something on this . . . is a significant omission. While there are a number of effective abatement options in the proposed regulation--and I understand that many considerations are involved in the cost/benefit analysis for hazard abatement--I still believe that it is a material oversight to remove the hierarchy and state that the options outlined provide ``equivalent protection.''

    The hierarchy of control clearly compares the effectiveness and ``defeatability'' of a protective system. Employing the hierarchy of control to evaluate abatement options is fundamental, and eliminating its application will lead to more use of a harness and lanyard than ever before. Although this can be an effective way to protect someone from a fall hazard, personal protective equipment is definitely not the safest and is not equal to engineering controls or passive fall protection (Ex. 204).

    As discussed above, OSHA believes the comprehensive approach to fall protection that the final rule, like the construction fall protection standard, incorporates will provide equivalent or greater protection than the existing rule. OSHA is only permitting employers to use those accepted conventional fall protection systems that the Agency has determined to provide an appropriate and equal level of protection. The greater flexibility the final rule affords employers will allow them to select from those fall protection systems that provide equal protection the option that works best in the specific situation and is the most cost-effective protective measure capable of reducing or eliminating fall hazards. Moreover, the comprehensive approach in the final rule, like the construction fall protection standard, recognizes that, in some instances, it may not be possible to use guardrail systems or safety net systems to protect workers from falls. For example, some commenters said employers may not be able to install permanent systems such as guardrails when they do not own the building or structure on which their workers are working. OSHA believes the final rule addresses the concerns of these commenters without limiting employer flexibility or compromising worker safety.

    OSHA notes that the final rule also limits fall protection choices in some situations where the Agency determined that guardrail systems are necessary to protect workers from falling. For example, in final paragraphs (b)(4) and (5) of this section, OSHA specifically requires the use of guardrails on dockboards and runways and similar walkways, respectively.

    In addition to control flexibility, there are other ways in which OSHA made the final rule consistent with the construction fall protection standard. OSHA increased the consistency between the general industry and construction fall protection standards by including a provision similar to the construction standard addressing work on low-

    slope roofs (final paragraph (b)(13)). Workers on these walking-working surfaces perform both construction and general industry activities and OSHA believes that uniform requirements should apply to both activities. Final paragraph (b)(13), like the construction fall protection standard, allows employers to use designated areas instead of conventional fall protection systems when workers are performing work that is both infrequent and temporary at least six feet from the edge of a low-slope roof, while also ensuring that employers protect workers working closer to the edge using conventional systems (e.g., guardrail, personal fall arrest, or travel

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    restraint systems). As mentioned, OSHA believes that an important key to protecting workers is allowing employers the flexibility to select the fall protection system or method that will work best for their particular work activities or operations, thereby allowing employers to consider factors such as exposure time, availability of appropriate attachment points, and feasibility of compliance.

    Consistent with the construction standard, the final rule requires that employers also must train their workers working in designated areas in the use of warning lines (see final Sec. Sec. 1910.29(d) and 1910.30(a)).

    Finally, OSHA increased the consistency of the general industry standard with the construction fall protection standard by organizing this final rule in a format that is similar to the construction standard. OSHA believes that the reorganized format will increase employer understanding of, and compliance with, the final rule.

    Many commenters supported making the general industry and construction industry fall protection rules consistent (Exs. 111; 157; 165; 176; 212; 225; 236). For example, American Airlines (AA) supported making the general industry and construction standards uniform because they said it is ``nonsensical to have different fall protection requirements for similar--and sometimes identical--hazards across construction and general industries'' (Ex. 194).

    However, Mr. Kramer, of LJB, Inc., expressed doubts about whether making the final rule similar to the construction fall protection standard will produce a significant decrease in fatalities. He claimed that fatality data in the years following adoption of the construction fall protection standard showed an increase in fall fatalities. OSHA does not find his argument convincing. Mr. Kramer does not clearly identify the source or scope of the data. At one point he suggests the data are from BLS, and at another point he indicates the data are from another source. In addition, it is unclear whether the data to which he refers are for construction or for all private industry fatalities. He did not provide any of the data itself. In any event, as explained in more detail in the Analysis of Risk and FEA (Sections II and V), there are a significant number of fall fatalities in general industry, and OSHA believes the final rule will be effective in reducing those numbers.

    The final rule also establishes criteria and work practices addressing personal fall protection systems (Sec. 1910.140). These criteria include minimum strength and load, locking, and compatibility requirements for components of personal fall protection systems, such as lines (vertical lifelines, self-retracting lines, and travel restraint lines), snaphooks, and anchorages. The work practices include requiring employers to ensure inspection of personal fall protection systems before each use, and to ensure that a competent or qualified person inspects each knot in a lanyard or vertical lifeline. OSHA believes these criteria and work practices, in conjunction with the training and retraining requirements in the final rule, provide a combination of controls and redundancies that will help to ensure that personal fall protection systems are effective in protecting workers from falls hazards.

    Paragraph (a)--General

    Final paragraph (a)(1), like the proposed provision, requires employers to provide protection for workers exposed to fall and falling object hazards. It also specifies that, unless stated otherwise, the protection employers provide must comply with the criteria and work practices set forth in Sec. 1910.29, Fall protection systems and falling object protection--criteria and practices. In addition, final paragraph (a)(1) clarifies that personal fall protection systems must comply with the criteria and work practices in Sec. 1910.140, Personal fall protection systems.

    Fall hazard identification is particularly important when workers work in a ``designated area'' or under other work situations where employers do not provide conventional fall protection systems. Additionally, when general industry employers contract with other employers to perform jobs and tasks at the worksite, OSHA also requires that the host employer and contract employer work together to identify and address fall hazards. One method of accomplishing this requirement is to follow the guidance specified by appendix B of 29 CFR part 1910, subpart I, Non-Mandatory Compliance Guidelines for Hazard Assessment and Personal Protective Equipment Selection. National consensus standards provide another resource for identifying and controlling fall hazards. For example, ANSI/ASSE Z359.2-2007, Minimum Requirements for a Comprehensive Managed Fall Protection Program, provides procedures for eliminating and controlling fall hazards (Ex. 29).

    OSHA notes that the requirements in proposed paragraph (a)(2), which address the strength of walking-working surfaces, have been moved to final Sec. 1910.22(b), which establishes requirements for maximum intended loads applied to walking-working surfaces. OSHA believes this change more clearly emphasizes that all walking-working surfaces must have the strength and structural integrity to support workers safely, not just those surfaces and work conditions requiring fall protection.

    Final paragraph (a)(2) lists seven situations in which the requirements in Sec. 1910.28 do not apply:

    Portable ladders (final paragraph (a)(2)(i));

    When the employer is inspecting, investigating, or assessing workplace conditions or the location at which work is to be performed prior to the start of work or after all work has been completed. However, this exception does not apply when fall protection systems or equipment meeting the requirements of Sec. 1910.29 have been installed and are available for workers to use. If fall protection systems are present, workers must use them while conducting pre-work and post-work inspections, investigations, or assessments of workplace conditions (final paragraph (a)(2)(ii));

    Fall hazards presented by the exposed perimeters of entertainment stages and the exposed perimeters of rail-station platforms (final paragraph (a)(2)(iii));

    Powered platforms covered by Sec. 1910.66(j) (final paragraph (a)(2)(iv));

    Aerial lifts covered by Sec. 1910.67(c)(2)(v) (final paragraph (a)(2)(v));

    Telecommunications work covered by Sec. 1910.268(n)(7) and (n)(8) (final paragraph (a)(2)(vi)); and

    Electric power generation, transmission, and distribution work covered by Sec. 1910.269(g)(2)(i) (final paragraph (a)(2)(vii)).

    The first two exceptions, specified in final paragraphs (a)(2)(i) and (ii), are new additions to the final rule. OSHA added language specifically excepting portable ladders to clarify that employers only have to provide fall protection on fixed ladders. The National Chimney Sweep Guild (NCSG) (Exs. 150; 240; 268; 269; 329 (1/18/2011, pgs. 254-

    348); 365) pointed out that in the proposed rule OSHA did not exclude portable ladders from the duty to have fall protection, and expressed concern that, by default, the rule would cover portable ladders under the ``catch-all'' provision (final paragraph (b)(15), Walking-working surfaces not otherwise addressed). The fall protection requirements in the proposal were to apply only to fixed ladders, not portable ladders. Therefore, OSHA agrees with NCSG that adding a specific exception

    Page 82586

    to the final rule clarifies this requirement.

    The final rule also adds an exception when workers are inspecting, investigating, or assessing (collectively referred to as ``inspecting'') workplace conditions prior to the start of any work or after completing all work. However, once any work begins, employers must provide workers performing inspections (inspectors) with, and ensure that they use, fall protection where required by this section. Moreover, this exception does not apply when properly installed fall protection systems or equipment meeting the requirements of Sec. 1910.29 are available for use. The existing rule does not exclude pre-

    work or post-work inspections from fall protection requirements. OSHA drew the exception from the construction fall protection standard (Sec. 1926.500(a)(1)).

    Several commenters urged OSHA to add this exception to the final rule (Exs. 111; 150; 157; 176; 177; 212; 225; 240; 268; 269; 329 (1/18/

    2011, pgs. 254-348); 365). First, some commenters said it was not necessary for workers conducting pre-work or post-work inspections to use fall protection. For example, American Insurance Association (AIA) said the final rule should recognize that certain tasks that workers (e.g., claims adjustors and loss-control personnel) perform on roofs have ``lower risks'' because ``these tasks are usually conducted in good weather and normally expose employees to a fall hazard only for a short time, if at all'' (Ex. 157). Allstate Insurance Company (Allstate) agreed, adding that insurance inspectors (and adjustors) only access roofs infrequently to inspect damage (Ex. 212).

    Littler Mendelson, P.C., said, ``Employees who inspect, investigate or assess workplace conditions and perform no physical work should be exempt from the requirements of fall protection, provided the employee has received the training specified in Section 1910.30'' (Ex. 111). AIA added that all of their workers who perform inspections receive training in safe roof access, and are well aware of the proximity of unprotected sides (Ex. 157). Allstate also said that workers performing inspections are more aware of their location than other workers (Ex. 212).

    A number of commenters said OSHA should add an exception because requiring inspectors to use fall protection would expose them to greater, and additional, hazards (Exs. 111; 150; 157; 177; 212; 225; 240; 268; 365). For instance, Littler Mendelson said, ``By allowing such employees to perform their inspection duties without fall protection, OSHA would avoid the greater fall hazards incurred by employees who must access elevations carrying the tools and materials required to install fall protection for the inspectors'' (Ex. 111). Commenters also said that requiring inspectors to use fall protection would pose greater hazards because it would expose them to fall hazards for greater periods of time. Littler Mendelson said requiring inspectors to use fall protection would expose them to fall hazards for longer than it takes to perform the inspection (Ex. 111). NCSG agreed, explaining that it would take longer to get to, install, and remove anchors than the time it takes to conduct the inspection (Exs. 150; 240; 268; 269; 329 (1/18/2011, pgs. 254-348); 365). NCSG said the vast majority of their work is chimney cleaning and inspection in which chimneys are cleaned from the ground and workers only access the roof for a few minutes to inspect the chimney at the conclusion of the job to verify the cleaning operation is complete (Ex. 150). NCSG also said that chimney sweeps perform pre-inspections on roofs to identify whether repairs or other maintenance work may be needed. The fall protection exception in final paragraph (a)(2)(ii) would cover both of these inspections.

    Similarly, Roofing Consultants Institute, Inc. (RCI) said that complying with the proposed rule would require spending increased time on roofs to anchor and position fall protection systems, therefore increasing worker exposure to falls (Ex. 225). AIA, Allstate, Confrere Strategies on behalf of the National Association of Mutual Insurance Companies (Confrere Strategies), and Farmers Insurance Group of Companies (Farmers) also voiced the same argument (Exs. 157; 176; 177; 212).

    Several commenters complained that requiring inspectors to use fall protection would be infeasible and ``unduly burdensome'' (Exs. 150; 157; 176; 177; 212; 235). Allstate said the proposed requirement was infeasible because the insurance company does not own or control the properties that its adjusters inspect and does not have permission to install fall protection systems (Ex. 212). AIA indicated that the proposed requirement was infeasible, and that an exception was necessary for the insurance industry to continue its work. However, AIA did not provide any explanation regarding why the proposed requirement was infeasible (Ex. 157). RCI said the proposed rule was unreasonably burdensome because it did not provide any discernible benefits (Ex. 225).

    Two commenters, Allstate and Farmers, indicated that inconsistency between the proposed rule and the construction fall protection standard, and lack of clarity about which standard would apply to inspectors, would cause confusion and pose an unreasonable burden on employers (Exs. 157; 176). Specifically, Allstate believed that the construction exception covered the activities of insurance adjusters, but was unsure whether inspecting damaged property is subject to the general industry rule or the construction rule. Farmers pointed out:

    Currently, neither the Proposed Rule nor the construction fall protection requirements make clear whether a claims adjuster's inspection and assessment of damaged property before and after construction is considered ``construction work'' covered by 29 CFR Sec. 1926.500(a) or whether such inspection activities would be subject to the General Industry Standards under the Proposed Rule (Ex. 176).

    Finally, some commenters said OSHA's rationale for allowing the exception for the construction industry also should apply to general industry inspectors (Exs. 157; 177; 212; 225). For example, RCI said, ``Work practices used by RCI members performing site visits . . . such as on roofs would most likely be identical for both general and the construction industry'' (Ex. 225). Confrere Strategies said:

    The 1994 rationale for the insurance and inspection exception remains today. Subjecting inspectors and adjusters to fall protection standards would be overly burdensome and infeasible and would subject employees to fall hazard for greater periods of time. Incorporation of specific exemption language in Subpart D is consistent with prior regulations, reflects the realities of insurance inspection and claims adjustment operations and would eliminate any potential confusion related to the definition of ``construction activities'' (Ex. 177).

    AIA added, ``AIA supports harmonization of the fall protection requirements in the Construction and General Industry Standards. In furtherance of that goal, we recommend incorporating into the proposed rule the exception to fall protection requirements for inspection, investigation and assessment activities contained in the Construction Industry Standard'' (Ex. 157).

    OSHA recognizes that requiring workers to use fall protection when conducting inspections prior to, and after completion of, work may not be feasible in some isolated or limited situations. For example, as Allstate said, the insurance companies are unlikely to own the structures the inspectors are

    Page 82587

    inspecting, and it may not be possible to obtain permission to install fall protection equipment, such as anchors (Ex. 212). Therefore, OSHA added a limited exception to the final rule for pre-work and post-work inspections activities.

    However, as mentioned earlier, unlike the exception in the construction fall protection standard, final paragraph (a)(2)(ii) does not apply when fall protection systems or equipment already are installed on the structure where an inspector will conduct a pre-work or post-work inspection, that is, when fall protection systems are installed, workers performing pre-work and post-work inspections, like all other workers, must use them.

    OSHA believes that limiting the application of the exception to pre-work and post-work is appropriate. The Agency believes that, where fall protection equipment already is installed, there is no reason why inspectors should not use it like all other workers working on the same walking-working surface must. To illustrate, where anchors and self-

    retracting lifelines meeting the requirements of Sec. 1910.29 already are installed on a roof, OSHA believes that attaching a harness should not increase inspectors' exposure to the fall hazard in any appreciable way, while taking this action ensures that they can safely conduct the inspection. When inspectors have to climb fixed ladders equipped with ladder safety systems or self-retracting lifelines for personal fall arrest systems to inspect damage or assess maintenance needs, OSHA believes it is feasible for these workers to attach their harnesses to the existing equipment without difficulty or increasing exposure time.

    OSHA notes that evidence in the record indicates that an increasing number of buildings and fixed ladders are equipped with anchorages and ladder safety or personal fall arrest systems, respectively. Unlike pre-work and post-work inspections in the construction industry, in general industry, buildings and structures already exist and already may have fall protection equipment installed. Therefore, OSHA believes that a number of situations currently exist in which it may be feasible to use fall protection when conducting pre-work and post-work inspections, and that these situations are likely to continue increasing.

    The third exception to the requirement to provide fall protection, specified in final paragraph (a)(2)(iii), applies to fall hazards presented by exposed perimeters of entertainment stages and rail station platforms; OSHA carried this exception over from the proposed rule. The use of guardrails or other fall protection systems could interfere with performances on stage, or create a greater hazard to the performers than would otherwise be present. OSHA recognizes that there may be circumstances when fall protection may be feasible in these occupational settings, and encourages employers in these settings to use fall protection when possible, such as during rehearsals. OSHA did not receive any comments opposing this exception, and adopted it as proposed.

    Paragraphs (a)(2)(iv) through (vii), like the proposed rule, specify that the final rule does not apply to powered platforms (Sec. 1910.66), aerial lifts (Sec. 1910.67), telecommunications (Sec. 1910.268), or electric power generation, transmission, and distribution (Sec. 1910.269). Other general industry standards address those operations and equipment, and include provisions requiring employers to provide and ensure workers have and use fall protection. OSHA received one comment on these exceptions. Ameren Corporation agreed that final Sec. 1910.28 should not apply to work that Sec. 1910.269 covers (Ex. 189). OSHA adopted the proposed exceptions with only minor editorial changes, for clarity.

    Paragraph (b)--Protection From Fall Hazards

    Final paragraph (b), like the proposed rule, sets forth the requirements on the types of fall protection systems that employers must select and use to protect workers from fall hazards while working in specific workplace areas, situations, and activities (final paragraph (b)(1) through (15)). The final rule allows employers to use any one or more of the fall protection systems listed for the particular area, situation, or activity, including:

    Guardrail systems--barriers erected to prevent workers from falling to a lower level (final Sec. 1910.21(b));

    Safety net systems--passive fall protection systems that arrest a worker from falling to a lower level when a fall occurs. Employers must install safety net systems as close as practicable below the surface where workers are working, and extend the systems beyond the outermost projection of the workstation;

    Personal fall protection systems--a type of conventional fall protection system that protects a worker from falling, or safely arrests a worker's fall if one occurs. They include personal fall arrest, and travel restraint and positioning systems, but not rest lanyards (final Sec. 1910.140(b));

    Personal fall arrest systems--a type of personal fall protection system used to arrest workers from falling to a lower level when a fall occurs. These systems consist of an anchorage, connector, and body harness. A personal fall arrest system also may include a lanyard, deceleration device, lifeline, or combination of these items (final Sec. 1910.140(b));

    Travel restraint systems--a type of personal fall protection system used to limit a worker's travel to prevent exposure to a fall hazard. Travel restraint systems consist of a combination of an anchorage, connector, lanyard, and body support. Unlike personal fall arrest systems, travel restraint systems do not support the worker's weight. Rather, the purpose of these systems is to prevent workers from reaching the fall hazard, such as an unprotected side or edge (final Sec. 1910.140(b)).

    Ladder safety systems--a system designed to eliminate or reduce the possibility of falling from a fixed ladder. A ladder safety system usually consists of a carrier (i.e., a flexible cable or rigid rail track), a safety sleeve (i.e., a moving component that travels up and down on the carrier), lanyard, connectors, and body harness (final Sec. 1910.21(b));

    Positioning systems (work-positioning systems)--a type of personal fall protection system designed to support a worker in a fixed location, on an elevated vertical surface (e.g., fixed ladders), so the worker can work with both hands free (final Sec. 1910.140(b));

    Handrails--rails used to provide workers a handhold for support (final Sec. 1910.21(b)); and

    Designated areas--a distinct portion of a walking-working surface delineated by a perimeter warning line in which workers may perform work in certain situations without using additional fall protection (final Sec. 1910.21(b)).

    OSHA believes each of the fall protection systems listed for a particular situation are effective and appropriate in those situations. In this regard, OSHA notes that the final rule only permits employers to use designated areas on low-slope roofs (final paragraph (b)(13)). The proposed rule permitted employers to use designated areas for unprotected sides and edges (proposed paragraph (b)(1)(ii)), wall openings (proposed paragraph (b)(7)(ii)), and walking-working surfaces not otherwise addressed (proposed paragraph (b)(13)(ii)).

    After reviewing the rulemaking record, as well as OSHA's letters of

    Page 82588

    interpretation addressing the use of controlled access zones and warning line systems under the construction fall protection standard, OSHA believes that designated areas must be limited to only ``a few, very specific situations'' (see, e.g., letter to Mr. Keith Harkins (11/

    15/2002) \42\). To illustrate, the construction standard only permits the use of a warning line system for roofing work on low-slope roofs (Sec. 1926.501(b)(10)), and the use of controlled access zones for overhand bricklaying and related work (Sec. 1926.501(b)(9)). The construction standard also allows the use of controlled access zones for some leading edge work, for precast concrete erection, and in residential construction, rather than the broad category of unprotected sides and edges (Sec. 1926.502(k)), and then only when employers can demonstrate that it is infeasible or creates a greater hazard to use conventional fall protection equipment.

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    \42\ OSHA letter to Mr. Keith Harkins available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24552.

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    Applying the rationale in the construction standard to general industry, the final rule limits the use of designated areas to work on low-slope roofs (final paragraph (b)(13)). OSHA believes that the use of designated areas is appropriate on flat or gently sloping surfaces or when workers and work are located a safe distance from a fall hazard, such as a roof edge. However, OSHA does not believe that designated areas provide adequate protection from fall hazards on steep or vertical surfaces or for work performed near an unprotected edge or side, such as narrow walking-working surfaces. (See further discussion of designated areas in final paragraph (b)(13), below.)

    OSHA received several comments on the use of designated areas. David Hoberg, with DBM Consultants, supported limiting the use of designated areas because ``it is a huge opening for abuse'' (Ex. 206). He suggested limiting the use of designated areas to those situations that existed prior to publication of this final rule, are unique to the work such that the same work is not done at other locations using standard methods, and when a certified safety professional or professional engineer with experience in the work and conditions approves use of a designated area (Ex. 206). As discussed in more detail below (final Sec. 1910.28(b)(13)), OSHA is limiting the use of designated areas to low-slope roofs and to work more than 6 feet from the edge. Employers may use designated areas for work that is more than 6 feet and less than 15 feet from the edge if it is both infrequent and temporary. If the work is not temporary or infrequent, the employer may use a designated area if the work is more than 15 feet from the roof edge. The Agency believes this clarification addresses Mr. Hoberg's concerns.

    Several commenters objected to the designated area approach because it was too different from the construction standard's requirements for residential roofs, and instead asked that OSHA synchronize the general industry requirements with the construction standard for those roofs (See, e.g., 124, 149, 150.). OSHA agrees in general, and the final rule includes a new paragraph (final Sec. 1910.28(b)(1)(ii)) addressing these concerns. Under this provision, employers may implement a fall protection plan meeting the requirements of the construction standard if they can demonstrate that it is not feasible or creates a greater hazard to use guardrail, safety net, or personal fall protection systems on a residential roof.

    In addition to establishing fall protection options for specific workplace areas and situations, final paragraph (b) also establishes the height that triggers the employer's obligation to provide fall protection. The final rule, like the existing and proposed rules, generally requires that employers provide fall protection when workers work at levels that are four feet or more above a lower level. The final rule, like the proposal, defines ``lower level'' as an area to which a worker could fall (Sec. 1910.21(b)). The definition also includes examples of lower levels, including ground levels, floors, excavations, pits, tanks, materials, water, equipment, and similar surfaces and structures, or portions thereof.

    Employers' duty to provide fall protection when workers can fall four feet or more to a lower level is not new. As mentioned earlier, the existing rule, which OSHA adopted in 1971, has a four-foot trigger height (e.g., existing Sec. 1910.23(b)(1)(i), (b)(2), (b)(3), (c)(1), (c)(2); Sec. 1910.268(g)). Pursuant to section 6(a) of the OSH Act, OSHA adopted the 4-foot trigger from ANSI A12.1-1967, Safety Requirements on Floor and Wall Openings, Railings and Toe Boards. As far back as 1932, ANSI A12.1 prescribed a 4-foot trigger height. ANSI/

    ASSE A1264.1-2007, Safety Requirements for Workplace Floor and Wall Openings, Stairs and Railing Systems, also requires the use of fall protection where there is an unprotected side or edge 4 feet or more above a lower level (Ex. 13). Like ANSI A12.1, the ANSI/ASSE A1264.1 standard has specified the 4-foot fall protection height requirement since its inception.

    Since OSHA adopted the general industry four-foot trigger, the Agency consistently reinforced the requirement in numerous public statements and Agency interpretations (e.g., letters to Mr. Paul Osborne (May 13, 1980); \43\ Mr. Anil Desai (September 14, 1990); \44\ M.O. Brown, Jr. (October 22, 1992) \45\). Moreover, as far back as 1932, the ANSI A12.1 standard included the four-foot trigger. Thus, OSHA believes the general industry four-foot trigger is a well-

    recognized requirement.

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    \43\ OSHA letter to Mr. Osborne available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=18868.

    \44\ OSHA letter to Mr. Desai available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=20086.

    \45\ OSHA letter to Mr. Brown available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=20899.

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    In 1994, the construction fall protection standard, with some exceptions, set a six-foot trigger height for construction work (59 FR 40672 (8/19/1994)). In 2003, when OSHA reopened the record for comment on subpart D, comments received by the Agency indicated that some stakeholders mistakenly believed that the general industry fall protection trigger height is the same as the construction fall protection standard. To address this confusion, OSHA clearly pointed out in the 2010 proposed rule that the four-foot trigger height for general industry ``has been standard industry practice for more than 75 years'' (75 FR 28887).

    OSHA did not propose to revise the four-foot trigger height, noting that the existing rule is a long-standing requirement and standard industry practice. OSHA also said the results of a 1978 University of Michigan study supported the four-foot fall protection trigger height (Ex. OSHA-S041-2006-0666-0004). OSHA requested comment on the four-foot trigger height, including information on any recent studies and information that ``support or contradict'' the four-foot trigger height (75 FR 28887).

    A number of commenters supported retaining the existing four-foot trigger height (Exs. 65; 172; 226). In particular, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) stated, ``The 4-foot rule maintains a long-standing OSHA requirement and industry practice that we believe is important for protecting workers against fall hazards to a lower

    Page 82589

    level'' (Ex. 172). Martin's Window Cleaning said that ``since it has always been OSHA's stand that potential falls be limited to less than 4 feet in general industry, then it is imperative that OSHA include requirements for . . . lifeline tie backs . . . in locations that would limit falls to this distance'' (Ex. 65). In addition, they said, ``OSHA should require that all fall protection systems and suspension systems limit falls to 4 feet'' (Ex. 65).

    The American Society of Safety Engineers (ASSE) urged OSHA to conduct research that would support a single trigger height for fall protection in general industry and construction, noting:

    As OSHA ably recognizes in its discussion in the proposed rule, research supports the conclusion to maintain its current 4-

    foot trigger height for general industry. In the same discussion, however, OSHA also recognizes that a 6-foot trigger height is the standard for construction. Despite the long-established traditions behind these different trigger heights, we would encourage OSHA to work with NIOSH to determine if appropriate research can be conducted that would help lead the occupational safety and health community to a single trigger height. If a single trigger height could become widely accepted, ASSE believes there would be significant gains in understanding the importance of fall protections and ways to protect employers. Given the continued high incidence of injuries from heights, it would be prudent to at least examine whether a single trigger height would be helpful (Ex. 127).

    ORC Mercer also supported a single fall protection trigger height for general industry and construction, although it was ``not arguing that OSHA should set the trigger for fall protection to six feet for all general industry work'' (Ex. 254). However, they said OSHA needed to provide a ``better explanation/justification for the disparity in the trigger for fall protection in General Industry maintenance work versus Construction work,'' stating:

    The proposed rule retains the historic disparity of a 4-foot trigger for fall protection in General Industry and a 6-foot trigger for fall protection in Construction. Although the proposal makes a number of arguments regarding the history of its adoption of the four-foot trigger for General Industry work and states that the four-foot rule has been used in consensus standards for more than 75 years, OSHA has not addressed the difficulties for employers who may have General Industry maintenance work going on within only a few feet of activities that meet the definition of Construction work. The definition of what constitutes construction work versus work that falls under the General Industry standard continues to confuse employers seeking to set a consistent standard in their workplaces. Simply telling a construction contractor (who is performing work at a manufacturing site) that he must protect his employees whenever they may fall more than four feet above a lower level (because the host employer wishes that all workers on the site to adhere to a uniform standard) is likely to be met with resistance as the construction contractor's employees will have been trained and equipped to work with the 6-foot trigger. Hence many employers have simply adopted the six-foot trigger for all non-routine or maintenance work (Ex. 254).

    ORC Mercer added that ``language and guidance for determining the feasibility of fall protection for work that is done between four and six feet above the next lower lever is needed in both the final rule and in any compliance documents that follow the promulgation of this rule'' (Ex. 254).

    Others stakeholders also supported a single trigger height, but argued that the single height should be six feet instead of four feet (Exs. 165; 202; 236). The Mechanical Contractors Association of America (MCAA) said, ``Construction workers performing work at existing facilities often have to comply with both standards, which creates confusion, and therefore, opportunity for unintentional noncompliance'' (Ex. 236). MCAA added that making the general industry trigger height consistent with the construction standard ``would eliminate the confusion and simplify compliance requirements without compromising worker safety,'' noting:

    This section proposes to keep the previously established four foot fall protection/prevention rule in place for general industry. However, employers are often unclear about what OSHA considers to be maintenance and repair, which falls under the agency's general industry standards (29 CFR 1910), vs. construction work, which falls under the construction standards (29 CFR 1926). In addition, inconsistencies between the two sets of standards often require employers to comply with both sets of standards for the same application (Ex. 236).

    Mr. Kramer, of LJB, Inc., raised concerns about the availability and effectiveness of personal fall arrest systems in situations where the fall hazard is only four feet, stating:

    It is clear from the proposed regulation that a personal fall arrest system can be used in situations where the fall hazard is 4 feet. I acknowledge that it is possible to rig a fall arrest system to protect a worker from a fall where the allowable fall distance is 4 feet. However, without a direct and in-depth discussion on fall clearance requirements, the statement by OSHA can be very misleading. Falls occurring while attached to a horizontal lifeline can result in total fall distances as large as 15 feet. OSHA risks having employers simply provide their employees with a harness, lanyard and anchorage when they are four feet above a lower level. In this case, the employee is not protected. The stated goal of reducing fatalities and injuries due to a fall has not been achieved and it is clear in these circumstances that a personal fall arrest system does not provide equivalent protection to a guarded platform (Ex. 204).

    However, other commenters said there is personal fall protection equipment available that can limit falls to four feet. In this regard, Capital Safety Group (CSG) and the International Safety Equipment Association (ISEA) said:

    ASSE is currently working on a standard for self-retracting lanyards that includes a class of self-retracting line that when anchored overhead is designed to protect workers in situations where fall clearance is very limited such as the case when exposed to a 4-

    foot fall. OSHA should include a reference to this standard when it becomes available (Exs. 185; 198).

    Comments and testimony submitted in this rulemaking record have not persuaded OSHA that adopting a fall protection trigger height greater than four feet would provide equivalent or greater protection than the current trigger. As mentioned, existing national consensus standards require that employers provide fall protection where unprotected sides or edges are more than four feet above a lower level. Section 6(b)(8) of the OSH Act specifies that OSHA follow the requirements in national consensus standards unless the Agency can show why a rule that differs substantially from consensus standard ``will better effectuate the purposes'' of the OSH Act than the national consensus standard. None of the stakeholders arguing that OSHA should change its longstanding general industry four-foot trigger height provided any recent studies, data, or other information to support changing the trigger height to six feet. OSHA believes increasing the height at which employers must provide fall protection may expose workers to additional risk of injury, reduce worker safety, and decrease the protection afforded to workers by OSHA's general industry fall protection standards (75 FR 28887).

    With regard to comments arguing that different fall protection trigger heights for general industry and construction would cause confusion and non-compliance, OSHA's experience and the rulemaking record do not bear that out. The general industry and construction fall protection trigger heights have been in place for years. OSHA's enforcement experience with both standards does not indicate that employers are confused about or not been able to comply with applicable fall protection height requirements. In addition, stakeholders did not submit comments in this

    Page 82590

    rulemaking indicating that they currently are experiencing confusion. Given that, OSHA does not believe that reaffirming the current general industry four-foot fall protection height trigger will cause confusion in the future. In any event, OSHA points out that employers will be in compliance with both the general industry and construction fall protection standards if they provide fall protection when workers are working four feet or more above a lower level.

    Final paragraph (b), like the proposal, includes the following four exceptions \46\ from the four-foot trigger height:

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    \46\ For work on scaffolds, the final rule specifies that employers must protect workers from falls in accordance with the construction scaffold standards (29 CFR part 1926, subpart L). The construction scaffold standards (Sec. 1926.451(g)(1)) require that employers provide fall protection for workers working on a scaffold more than 10 feet above a lower level.

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    When using motorized equipment on dockboards (final paragraph (b)(4)(ii));

    Over dangerous equipment (final paragraph (b)(6));

    Around repair, service, and assembly pits (final paragraph (b)(8)); and

    On fixed ladders (final paragraph (b)(9)).

    More specifically, for work performed on dockboards, the final rule establishes a trigger height of greater than 10 feet for guardrails or handrails when dockboards are used solely for materials-handling operations using motorized equipment. For work performed over dangerous equipment, the final rule, like the proposal, requires that employers protect workers from falling onto or into dangerous equipment regardless of the height at which the workers are working above the dangerous equipment. For work around repair, service, and assembly pits, the use of fall protection is not required for pits that are less than 10 feet deep, provided the employer limits access to the edge of the pit to trained, authorized employees, marks the floor around the edge of the pit in contrasting colors (or places a warning line at least 6 feet from the pit edge), and posts readily visible caution signs around the pit that warn workers of the fall hazard. For fixed ladders, the final rule adopts the proposed requirement that employers must provide fall protection when the ladder extends more than 24 feet above a lower level. (See the detailed discussion of these exceptions below.)

    As mentioned earlier, final paragraph (b) also adds a new provision for work on low-slope roofs (final paragraph (b)(13)). In addition, the final rule moves work on platforms used in slaughtering facilities into a separate provision (final paragraph (b)(14)). The proposed rule addressed these platforms as part of proposed paragraph (b)(1), Unprotected sides and edges.

    Unprotected sides and edges. Final paragraph (b)(1), like the proposed rule, establishes fall protection requirements employers must follow to protect workers from falling off unprotected sides and edges of walking-working surfaces that are four feet or more above a lower level. The final rule defines ``unprotected sides and edges'' as any side or edge of a walking-working surface (except at entrances and other points of access) where there is no wall, guardrail system, or stair rail system to protect an employee from falling to a lower level (final Sec. 1910.21(b)).

    Final paragraph (b)(1)(i), similar to the construction fall protection standard (Sec. 1926.501(b)(1)), specifies that employers may use one or more of the following fall protection options to protect workers from fall hazards at unprotected sides and edges:

    Guardrail systems (final paragraph (b)(1)(i)(A));

    Safety net systems (final paragraph (b)(1)(i)(B));

    Personal fall protection systems, such as positioning, travel restraint, and personal fall arrest systems (final paragraph (b)(1)(i)(C)).

    Final paragraph (b)(1)(i) differs from the proposed rule in two ways. First, the final rule allows employers to use positioning systems, in addition to using personal fall arrest and travel restraint systems. Neither the proposed rule nor the construction fall protection rule (Sec. 1926.501(b)(1)) included positioning systems in the list of personal fall protection systems that employers may use. However, OSHA believes positioning systems are effective to protect workers from falling when they are working in a fixed location above a lower level. OSHA notes that some employers equip their workers with both systems, especially when the workers climb and work on fixed ladders. That is, employers provide personal fall arrest systems to protect workers during climbing and positioning systems to protect workers when they work while standing on the ladder.

    Second, as discussed, final paragraph (b)(1)(i) eliminates the use of ``designated areas'' to protect workers from fall hazards on any unprotected side or edge, which proposed paragraph (b)(1)(ii) would have allowed. As discussed, the use of designated areas is intended for a very few specific and limited situations rather than all unprotected sides or edges.

    General industry work on residential roofs. In final paragraph (b)(1)(ii), which was not in the proposed rule, OSHA adds a provision from the construction fall protection standard (Sec. 1926.501(b)(13)) that applies to construction on residential roofs. Final paragraph (b)(1)(ii) specifies that when employers can demonstrate it is infeasible or creates a greater hazard to use any type of conventional fall protection system (i.e., guardrail, safety net, or personal fall protection system) when working on a residential roof they must take specific alternative measures to eliminate or reduce fall hazards. Specifically, employers must develop and implement a written ``fall protection plan,'' including other control measures, and training that meet the requirements in the construction standard (29 CFR 1926.502(k) and Sec. 1926.503(a) and (c); STD 03-11-002 Compliance Guidance for Residential Construction (6/6/2011)).

    At the outset, and discussed in detail below, OSHA notes that many stakeholders, including NCSG, urged OSHA to add the construction fall protection plan requirements to the final rule (Exs. 149; 150; 240). These stakeholders, many of whom perform both general industry and construction activities, said making the final rule consistent with the construction standard would make it easier for them to protect workers performing both types of activities. In addition, stakeholders indicated the specific requirements of the fall protection plans give employers a clear blueprint for protecting their workers and achieving compliance when conventional fall protection is infeasible or creates a greater hazard.

    OSHA limits final paragraph (b)(1)(ii) to work employers perform on ``residential roofs.'' OSHA's definition of ``residential roof'' incorporates the principles established in its Compliance Guidance for Residential Construction (STD 03-11-002 (6/6/2011)):

    The Agency's interpretation of ``residential construction'' for purposes of 1926.501(b)(13) combines two elements--both of which must be satisfied for a project to fall under that provision: (1) the end-use of the structure being built must be as a home, i.e., a dwelling; and (2) the structure being built must be constructed using traditional wood frame construction materials and methods (although the limited use of structural steel in a predominantly wood-framed home, such as a steel I-beam to help support wood framing, does not disqualify a structure from being considered residential construction). . . .

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    Recently it has become more common to use metal studs for framing in residential construction rather than wood. . . . OSHA will consider it within the bounds of ``traditional wood frame construction materials and methods'' to use cold-formed sheet metal studs in framing.

    And finally, OSHA is aware that many homes and townhouses, especially in the southern and southwestern regions of the country, have usually been built using traditional wood frame construction throughout the structure except for the exterior walls, which are often built with masonry brick or block. . . . Because the same fall protection methods are likely to be used in the construction of homes built with wood framed and masonry brick or block exterior walls, the Agency has decided that it is consistent with the original purpose of 1926.501(b)(13) to treat the construction of residences with masonry brick or block in the exterior walls as residential construction.

    In accord with the discussion above, and for purposes of the interpretation of ``residential construction'' adopted herein, ``traditional wood frame construction materials and methods'' will be characterized by:

    Framing materials: Wood (or equivalent cold-formed sheet metal stud) framing, not steel or concrete; wooden floor joists and roof structures.

    Exterior wall structure: Wood (or equivalent cold-formed sheet metal stud) framing or masonry brick or block.

    Methods: Traditional wood frame construction techniques.

    Consistent with the construction standard, final paragraph (b)(1)(ii) does not apply to nursing homes, hotels, and similar facilities, even though they are homes or dwellings. As OSHA explained in Compliance Guidance for Residential Construction:

    Construction of nursing homes, hotels, and similar facilities typically involves the use of the following materials in the framework of the structure: precast concrete, steel I-beams (beyond the limited use of steel I-beams in conjunction with wood framing, described above), rebar, and/or poured concrete. These materials are not used in traditional wood frame construction, and buildings constructed using these materials will not be considered ``residential construction'' for purposes of Sec. 1926.501(b)(13) (STD 03-11-002 (6/6/2011).

    OSHA does not intend for final paragraph (b)(1)(ii) to apply to low-slope residential roofs. Employers performing work on low-slope residential roofs must comply with final Sec. 1910.28(b)(13), which requires the use of conventional fall protection in certain locations (within 6 feet of the roof edge) and allows employers to use designated areas further from the roof edge. OSHA does not believe these residential roofs pose the same types of hazards and potential feasibility issues as work performed on residential roofs that have a greater slope. OSHA notes that final paragraph (b)(1)(ii) applies to the vast majority of residential roofs because they do not meet the final rule's definition of low-slope roof: ``a roof having a slope less than or equal to 4 in 12 (vertical to horizontal)'' (Sec. 1910.21(b)).

    As mentioned, final paragraph (b)(1)(ii), like the construction standard, requires that employers use a fall protection plan but only where they demonstrate that all of the fall protection systems specified in final paragraph (b)(1)(i) are infeasible or present a greater hazard in a specific location on a residential roof. The final rule adopts the definition of ``infeasible'' in the construction fall protection standard, which states that ``infeasible'' means that it is impossible to perform the construction work using a conventional fall protection system (i.e., guardrails, safety net system, or personal fall arrest system) or that it is technologically impossible to use any one of those systems to provide fall protection (Sec. 1926.500(b)).

    To establish that an OSHA standard creates a greater hazard, an employer must prove, among other things, that the hazards of complying with the standard are greater than those of not complying, and no alternative means of employee protection are available (Bancker Construction Corp., v. Reich, 31 F.2d 32, 34 (2d Cir. 1994); Dole v. Williams Enterprises, Inc., 876 F.2d 186, 188 (D.C. Cir. 1989)). It is not enough for the employer to show that complying with a standard will create a new hazard. The Occupational Safety and Health Review Commission (the Commission) has held that the employer must establish that complying with a standard would be more dangerous than allowing employees to work without compliance (Secretary of Labor v. Spancrete Northeast, Inc., 16 O.S.H. Cas. (BNA) 1616, aff. 40 F.3d 1237 (2d Cir. 1994)) (See further discussion of greater hazard vis-agrave-vis rolling stock and motor vehicles in the explanation of final Sec. 1910.21). OSHA notes that employers must document in the fall protection plan the reasons for their determination of infeasibility or greater hazard (Sec. 1926.502(k)(5)).

    Final paragraph (b)(1)(ii), like the construction standard, includes a note specifying there is a presumption that using at least one of the fall protection systems final paragraph (b)(1)(i) specifies is feasible and will not create a greater hazard. The record includes information and examples of conventional fall protection controls that employers currently are using or are available for work on residential roofs (Exs. 150; 240; 347). For example, the NCSG acknowledged there are personal fall protection anchorages available that work on residential roofs (Ex. 150). Some of these systems have been available and in use since OSHA issued the construction fall protection standard in 1994 (59 FR 40694-95). Based on the rulemaking record, OSHA believes there is substantial evidence that employers can protect workers from falling with conventional fall protection systems in virtually all work operations performed on residential roofs. For example, NCSG indicates that it is feasible to use conventional fall protection in substantial and major installation and repair jobs. Thus, OSHA believes it is appropriate to include the note to underscore that employers have the burden to prove in the particular roof operation all of the controls in final paragraph (b)(1)(i) are infeasible or pose a greater hazard.\47\ If those criteria are satisfied, employers must implement:

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    \47\ Employer claims that standards are infeasible or create a greater hazard are affirmative defenses that employers have the burden of proving in citation cases (OSHA Field Operation Manual, Chapter 5, Section VI).

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    A written fall protection plan that meets the requirements of Sec. 1926.502(k), including implementing other control measures (Sec. 1926.502(k)(6) and (8)); and

    Training that meets the requirements of Sec. 1926.503(a) and (c).

    Section 1926.502(k) specifies that the employer's fall protection plan must:

    Be prepared by and have any changes approved by a ``qualified'' person (Sec. 1926.502(k)(1) and (2)). The final rule defines qualified as a person who, by possession of a recognized degree, certificate, or professional standing, or who, by extensive knowledge, training, and experience has successfully demonstrated the ability to solve or resolve problems relating to the subject matter, the work, or the product (final Sec. 1910.21(b));

    Be developed specifically for the site where the employer will perform work on residential roofs (Sec. 1926.502(k)(1));

    Be maintained up to date (Sec. 1926.502(k)(1)), which OSHA said in the construction fall protection standard ``provides clear notice to employers that they have an ongoing responsibility'' to monitor conditions and address any changes or deficiencies (59 FR 40718);

    Be maintained at the job site (Sec. 1926.502(k)(1) and (3)), which gives workers the opportunity to inspect the fall protection plan and provides them with needed reassurance that the employer is taking appropriate measures to reduce or eliminate exposure to fall hazards when conventional fall

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    protection cannot be used (59 FR 40719);

    Be implemented under the supervision of a ``competent person'' (Sec. 1926.502(k)(4)). The construction standard defines competent person as a person who is capable of identifying existing and predictable hazards in the surrounding or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them (Sec. 1926.32(f));

    Identify each location where conventional fall protection cannot be used and document the reasons why the use of conventional fall protection systems is infeasible or would create a greater hazard (Sec. 1926.502(k)(5) and (7)).\48\ OSHA explained in the preamble to the construction fall protection standard that requiring employers to make a close examination helps to ensure their decision is justified and has an objective basis (59 FR 40719). A closer examination also ensures that employers have not overlooked locations or operations where conventional fall protection can be used (59 FR 40719);

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    \48\ OSHA notes that the construction fall protection standard requires employers to classify each location in which conventional fall protection cannot be used as a ``controlled access zone'' and follow the requirements for controlled access zones in Sec. 1926.502(g) (Sec. 1926.502(k)(7)). Unlike the construction fall protection standard, the general industry final rule does not permit the use of controlled access zones. Therefore, the final rule does not require employers to comply with the controlled access zones requirements in Sec. 1926.502(k)(7), such as erecting a flagged control line around the entire length of the unprotected edge, in locations where the employer has demonstrated that conventional fall protection cannot be used.

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    Discuss other measures that the employer will take to eliminate or reduce the fall hazard for workers where conventional fall protection is infeasible or creates a greater hazard (Sec. 1926.502(k)(6));

    Implement control measures to reduce or eliminate hazards or implement a safety monitoring system that complies with Sec. 1926.502(h) (Sec. 1926.502(k)(8));

    State the name or other method of identification for each worker who works in a location where a fall protection plan is implemented (Sec. 1926.502(k)(9)); and

    Investigate the circumstances of any fall or other serious incident that occurs to determine whether the employer needs to change the fall protection plan and implement those changes (Sec. 1926.502(k)(10)).

    In the preamble to the construction fall protection standard, OSHA said the fall protection plan requirements gives employers a ``clear direction'' about what they must do and how they must proceed if conventional fall protection cannot be used (59 FR 40718). Requiring employers to comply with all of the requirements of the fall protection plan, including implementing other control measures, reflects the Agency's position that any deviation from the general requirements for fall protection must be construed as narrowly as possible'' (59 FR 40720). OSHA believes that requiring employers to strictly comply with all of the requirements in Sec. 1926.502(k) when conventional fall protection is not feasible or creates a greater hazard ``will provide the best opportunity to avert employee injury and death'' (59 FR 40718).

    The construction fall protection standard requires that employers develop and implement a fall protection plan for the specific site where they are performing work on a residential roof (Sec. 1926.502(k)(1)). OSHA notes that a fall protection plan an employer develops for repetitive use for a particular style or model of a residential structure will be considered site-specific for other sites, but only if the plan ``fully addresses all issues related to fall protection at that particular site'' (STD 02-11-002). For example, chimney sweep companies may use a fall protection plan they develop for a particular type of residential roof (e.g., tile, metal) for other roofs of that type rather than developing a new plan for each residence. Additionally, where a roof is similar to others for which the employer has a fall protection plan, the employer may modify an existing plan instead of developing a new one. However, where the roofs are not the same type or involve different specifications or working conditions, employers must develop and implement a fall protection plan that is specific to the site.

    OSHA stresses that after employers have identified where and why conventional fall protection cannot be used (Sec. 1926.502(k)(5)), it will not be acceptable for employers' fall protection plans to simply state that they will not be implementing any measures to reduce or eliminate the fall hazard in those locations. Employers must implement other measures to reduce or eliminate fall hazards for workers in those locations (Sec. 1926.502(k)(6)). The construction fall protection standard identifies a number of measures employers can use to reduce fall hazards when conventional fall protection cannot be used, such as scaffolds, ladders, bucket trucks, and vehicle mounted platforms (Sec. 1926.502(k)(6)). To reduce the risk of falls in ``ladder to roof transitions,'' which NCSG said was ``one of the highest hazards,'' employers can use equipment (e.g., quivers, backpacks, rope pull) to lift materials and tools instead of carrying them up on ladders. Other measures include safe work practices (e.g., workers positioning themselves so their backs are not to the fall hazard, not working in adverse weather), safety screens (59 FR 40720), scaffold platforms (Ex. 150), and fall hazard training specific to residential roofs.

    Stakeholders who recommended adding the fall protection plan provision to the final rule, indicate that they are using the measures identified above (Exs. 150; 342). NCSG, for example, said they use scaffolds and bucket trucks for some chimney sweep operations, particularly significant and major repairs and installations that may takes days to a week to complete (Ex. 329 (1/18/2011), pgs. 268-69, 278-80). Chimney sweep companies also work from ladders where possible because, according to NCSG, doing so reduces the fall hazards associated with transitioning from the ladder to the roof (Ex. 150).

    Where no other measures can be implemented, the construction fall protection standard requires that employers implement a safety monitoring system that complies with Sec. 1926.502(h). In the preamble to the construction fall protection standard, OSHA indicated that using safety monitoring system is a last resort ``when no other, more protective measures can be implemented'' (59 FR 40719-20 (``OSHA has determined that the employer must do what it can to minimize exposure to fall hazards before turning to the use of safety monitoring systems'')).

    Section 1926.502(h)(1) requires that safety monitoring systems must designate a competent person to be the safety monitor for employees working in areas where no other fall protection measures are used. Section 1926.502(h)(1) also specifies, among other things, that safety monitors must be on the same walking-working surface be within visual sight of workers, close enough to orally communicate with the workers they are monitoring, and not have any other responsibilities that could take their attention away from the workers they are monitoring. In addition, safety monitors must warn workers when it appears that the workers are not aware of fall hazard or are acting in an unsafe manner.

    OSHA believes that many employers will not use safety monitoring systems as alternate control measures because

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    they assign one-worker jobs and a safety monitoring system requires at least two workers at each work location. NCSG said, for instance, that one-person jobs constitute the majority of their work (Ex. 150).

    In addition to implementing other measures to eliminate or reduce worker exposure to fall hazards, final paragraph (b)(1)(ii) also requires that employers using fall protection plans must develop and implement a training program and retraining for each employee who works in a location where conventional fall protection cannot be used. The training must meet the requirements in Sec. 1926.503(a) and (c). Section 1926.503(a) requires that employers ensure, among other things, their fall protection plan training program ``enables each employee to recognize the hazards of falling and . . . train each employee in the procedures to be followed in order to minimize the hazards'' (Sec. 1926.503(a)(1)). The retraining requirements in Sec. 1926.503(c) are essentially the same at those in final Sec. 1910.30(c).

    As stated above, OSHA believes, based on the rulemaking record and the Agency's experience with the construction fall protection standard, that in most, if not virtually all, jobs performed on residential roofs employers can protect workers from falls by using conventional fall protection systems (i.e., guardrail systems, safety net systems, personal fall protection systems). That said, OSHA has decided to add paragraph (b)(1)(ii) to the final rule for two reasons: (1) To make the final rule consistent with the construction fall protection standard, which is one of the stated goals of this rulemaking, and (2) to address stakeholder concerns about the feasibility of conventional fall protection in certain residential roof operations.

    Allowing employers who perform both general industry and construction activities to follow the same standard makes it easier and more efficient for employers to safely perform both types of activities, and thereby, facilitates compliance and reduces potential for confusion about which standards apply to a particular operation.

    Throughout this rulemaking, stakeholders have repeatedly urged OSHA to harmonize the general industry and construction fall protection standards, particularly with respect to the fall protection plan requirements in the construction standard (Exs. 124; 149; 150; 240; 329 (1/18/2011, p. 279); 342; 365). For example, SBA Office of Advocacy said small business representatives (SERs) who attended a roundtable discussion on the proposed rule, recommended that ``OSHA should further synchronize the proposed general industry rule with the existing construction standard'' (Ex. 124). According to SBA Office of Advocacy, SERs expressed concern that ``two employees could be working side by side on similar tasks, but one could be covered by the general industry standard and the other by the construction standard'' (Ex. 124). SBA Office of Advocacy added that SERs were confused about ``the difference between maintenance and repair (general industry) and construction activities'' and ``which standards applied under what circumstances'' (Ex. 124). To illustrate, NCSG said it can be difficult to figure out whether certain chimney sweeps operations (e.g., replacing chimney caps, repairing roof flashing) are maintenance (general industry) or construction activities. OSHA believes that making the general industry and construction fall protection standards consistent resolves those concerns.

    OSHA notes the construction fall protection plan requirements have been in place since 1994, therefore, general industry employers who perform construction activities (e.g., chimney sweep companies) have significant experience developing and implementing fall protection plans, other control measures, and training in jobs where conventional fall protection cannot be used. OSHA has not received any reports that these employers have experienced difficulty complying with the fall protection plans requirements in the construction standard. Rather, these stakeholders repeatedly urged OSHA to allow them to implement fall protection plans when they satisfy the criteria in final paragraph (b)(1)(ii) regardless of whether the activity is general industry or construction.

    OSHA also is adopting final paragraph (b)(1)(ii) to address the concerns stakeholders raised (e.g., Exs. 149; 150; 240). NCSG, for instance, commented that using conventional fall protection systems on residential roofs is ``technologically and/or economically infeasible'' ``for the great majority of tasks performed by chimney sweeps'' and ``threatens both the continuing viability of the industry and the availability of chimney inspection, sweeping, and repair services at affordable prices'' (Ex. 150).

    NCSG and the National Association of Home Builders (NAHB) both argued that it is not possible to use conventional fall protection systems on residential roofs because there are not suitable attachment or anchorage points and it is not possible to install them (Exs. 149; 150; 342). For instance, NAHB said it is not possible to penetrate tile or metal roofs to secure an anchor (Ex. 149). In addition, NAHB and NCSG said homeowners would not permit contractors to nail anchorages into the roof or install guardrails because of concern that such installation would cause damage.

    OSHA notes that NCSG's own materials suggest some flexibility in the use of nails in particular. In their ``successful chimney sweep training'' booklet, NCSG recommends securing ladders by ``driving a nail into the roof and securing the ladder with rope. If you choose this method, remember to remove the nail and to seal the hole before leaving the rooftop'' (Ex. 342). NCSG offers no explanation as to why homeowners would allow ladders to be secured to the roof with nails but not roof anchorages. In addition, CSG and ISEA said temporary roof anchors can be mounted to common roof structural materials by clamps or screws, which would not damage the roof (Exs. 185; 198).

    OSHA recognizes that, where homeowners will not allow employers to install temporary or permanent anchors or other fall protection (e.g., guardrails) and all other conventional fall protection systems are infeasible, implementing a fall protection plan, other measures to eliminate or reduce fall hazards, and training ``will provide the best opportunity to avert employee injury and death'' (59 FR 40718). That said, OSHA notes that attaching personal fall protection systems to a roof anchorage may not be the only available method of anchoring those systems. However, to the extent other types of anchors or attachment devices are or become available, employers would have to demonstrate that those devices are infeasible in order to satisfy the criteria in final paragraph (b)(1)(ii).

    As mentioned, stakeholders, including NCSG, have argued they should be allowed to use fall protection plans and other control measures where they demonstrate conventional fall protection would create a greater hazard. NCSG said requiring the use of conventional fall protection would result in extended exposure to fall hazards, and thereby create a greater hazard, because it may take longer to install and remove fall protection (e.g., roof anchors for personal fall protection) than to perform the work. NCSG said chimney cleaning and inspection involves accessing the roof for only 5 to 20 minutes and minor repairs (e.g., replacing a chimney cap, minor flashing repair) typically requires the chimney

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    sweep to work on the roof for 20 minutes to 2 hours (Ex. 150). By contrast, they said installing anchors would take 45 to 90 minutes (Ex. 150). However, Tom Wolner, of CSG, said that employers can install temporary nail-on roof anchors in ``probably less than 10 minutes'' (Ex. 329 (1/18/2011, p. 107)).

    Stakeholders also said requiring the use of conventional fall protection in residential rooftop operations would create a greater hazard because workers would have to carry extra equipment to the roof, which they said would ``increase the number of ground to roof trips'' (Ex. 150). NCSG pointed out that chimney cleaning and inspection typically is done in one climb; however, they also acknowledged that fall protection can be brought to the roof during the initial climb and even minor repairs and installations can involve multiple climbs (Ex. 150). As the examples above illustrate, rooftop work varies widely in the duration and climbs. Employers will have to demonstrate that using conventional fall protection in the specific operation makes it more dangerous for workers than working without that protection.

    Some commenters opposed allowing any exemptions from using conventional fall protection systems (Exs. 185; 198; 329 (1/18/2001), pgs. 82-83, 107). For example, Tom Wolner, of CSG, said:

    Certain segments within general industry have requested that OSHA provide broad exemptions from proposed fall protection regulations, by citing things such as hardships that the use of fall protection would create, safe work histories or feasibility concerns. Capital Safety is opposed to granting such general exemptions within the regulation. It is our opinion that it is feasible and practical to provide workers with active or passive means of fall protection in nearly every work situation. A variety of all fall protection equipment available today, combined with our ability and the ability of others like us within the fall protection industry to customize or tailor fall protection equipment to specific needs often eliminates the need for exemptions (Ex. 329 (1/

    18/2011, pgs. 82-83)).

    OSHA agrees with Mr. Wolner that it is feasible for employers to provide workers with conventional fall protection systems in ``nearly every work situation.'' However, OSHA does not agree with Mr. Wolner that final paragraph (b)(1)(ii) is an overly broad exemption or unprecedented. In enforcement action, employers always are permitted to raise affirmative defenses, such as a claim that the required controls are not feasible or pose a greater hazard.

    Final paragraph (b)(1)(iii), similar to proposed paragraph (b)(1)(vi), excepts employers from providing the fall protection specified in final paragraph (b)(1)(i) when employers can demonstrate that it is not feasible for workers to use fall protection on the working side of platforms used at loading racks, loading docks, and teeming platforms. The ``working side'' is the side of the platform where workers are in the process of performing a work operation. The final rule, similar to the proposed rule, specifies that the working side exception to providing fall protection only applies when the employer demonstrates infeasibility and:

    The work operation for which fall protection is infeasible is in process (final paragraph (b)(1)(iii)(A));

    The employer limits access to the platform to ``authorized'' workers (final paragraph (b)(1)(iii)(B)), which the final rule defines as a worker who the employer assigns to perform a specific type of duty, or allows to be in a specific location or area (final Sec. 1910.21(b)); and

    The employer trains authorized workers in accordance with final Sec. 1910.30 (final paragraph (b)(1)(iii)(C)). Section 1910.30 requires, among other things, that employers train workers, including authorized workers, to recognize fall hazards and the procedures to follow to minimize them.

    OSHA notes that, in limited cases, it may not be possible for workers to perform work operations if fall protection, such as guardrails, interferes with access to the work operation. However, as the final rule specifies, the issue of blocking access to the work operation is a concern only when workers are in the process of performing the work operation. As a result, fall protection, such as guardrails, must be in place or used when workers are not performing a work operation on the working side of a platform. OSHA believes that fall protection does not interfere with performing tasks such as maintenance, cleaning, and similar tasks; therefore, when workers are performing these tasks, employers must provide fall protection.

    Final paragraph (b)(1)(iii) differs from the proposal in two respects. First, the final rule deletes the proposed exception for the ``working side'' of slaughtering facility platforms (proposed paragraph (b)(1)(iv)). Based on evidence in the record, OSHA decided to regulate those platforms separately in final paragraph (b)(14).

    Second, the exception in the final rule only applies when the employer demonstrates that no fall protection system is feasible. The proposed rule applied the exception when the employer demonstrates guardrail systems are not feasible (proposed paragraph (b)(1)(vi)). Therefore, to the extent fall protection systems other than guardrails are feasible, such as travel restraint or personal fall arrest systems, the employer would have to provide those systems and the exception would not apply.

    Stacked materials. In the proposed rule, OSHA raised an issue about whether there is a need to promulgate specific requirements to address the use of fall protection when employees work and climb four feet or more above a lower level on stacked materials, such as stacks of steel and precast concrete products that are being stored or loaded onto motor vehicles and rail cars for transport (75 FR 28868). OSHA noted in the proposed rule that the Agency uses Sec. 1910.23, Sec. 1910.132 and the general duty clause (29 U.S.C. 654(a)(1)) to protect workers who climb and stand on stacked materials from falling (75 FR 28868).

    By 2004, the American Iron and Steel Institute (AISI) and Precast/

    Prestressed Concrete Institute (PCI) had raised the issue of fall protection on stacked materials (75 FR 28868; Exs. 5; 41). In general, they both said using fall protection, such as ``guardrails or tie-off protection,'' on stacked materials was infeasible or creates a greater hazard (75 FR 28868). AISI said workers at steel and steel product companies ``need to stand on `stacks' of product that have a large surface area in order to rig bundles for crane lifts and similar activities'' or ``load products onto truck trailers and railcars'' (Ex. 5, AISI's comments on the Office of Management and Budget ``Draft Report to Congress on the Costs and Benefits of Federal Regulations''). They characterized the solutions OSHA recommended to protect those workers (i.e., guardrails around stacked materials, magnet cranes, and safety lines around vehicle trailers and rail cars) as ``not feasible'' and ones that could ``create its own serious safety hazard.'' For example, AISI said safety lines would interfere with movement of the product and magnet cranes cannot connect to single bundles.

    PCI, in a January 3, 2000, letter requesting an exception from existing fall protection requirements for loading/unloading precast concrete products on motor vehicles and for stacking, storing, and loading/unloading precast concrete products in the plant, said workers need to access the top of concrete products for only ``very short periods of time'' to connect/disconnect lifting devices or rigging (Ex. 41). They said installing a fall protection system, by contrast, would expose employees to fall hazards for ``an extended period of time'' and,

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    therefore, poses a greater hazard (Ex. 41). PCI also pointed out that the OSHA construction fall protection standard does not require that workers use fall protection when unloading precast concrete at construction sites (Ex. 41).\49\

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    \49\ OSHA notes that the definition of ``walking-working surface'' in the construction fall protection standard does not include rolling stock and motor vehicles (29 CFR 1926.500(b)).

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    AISI and PCI recommended that OSHA allow employers to use alternative measures, such as safe work practices and training, including a ``mentor system hands-on process for training'' (Exs. 5; 41). AISI said OSHA should require guardrails or tie-off protection only ``where practical'' and be permitted to use an ``alternative practice'' and provide training where it is not (Ex. 5). However, AISI did not identify any alternative practices that would provide adequate protection for employees working on stacked materials. PCI said employers should be allowed to provide ``individual instruction as well as have a mentor system hands on training process'' instead using fall protection systems on stacked materials (Ex. 41). PCI also recommended that employees perform ``corrective and detail work'' at the ground level or from a ladder or mobile-elevating work platform instead of on the stacked materials.

    OSHA received a number of comments in response to the proposed rule, most of which supported requiring the use of fall protection on stacked materials (Exs. 127; 155; 161; 185; 198; 205; 238). For example, ASSE stated:

    ASSE cannot agree with ``some commentators (who) have recommended that OSHA allow the use of safe work practices by trained employees in lieu of conventional fall protection for certain activities,'' . . . . If employers are going to ask employees to climb on stacked materials where there are fall hazards and, typically, exposure to falls off the sides to lower levels, employers have the duty to warn, train and protect workers from falls. In our members' experience, this is not infeasible or unreasonable to ask (Ex. 127).

    The Society of Professional Rope Access Technicians (SPRAT) said ``the prevalence of incidents that have occurred in these situations'' warrants a requirement to use ``fall protection of some sort'' on stacked materials (Ex. 205). SPRAT recommended allowing employers to use industrial rope access systems (IRAS) to protect employees because they said it would mitigate any difficulty or impossibility of using ``measures previously recognized by OSHA as being `conventional' '' (Ex. 205). SPRAT further recommended:

    If OSHA's language toward protection against falls were less method-specific and more results-oriented, competent and qualified persons would have greater latitude in creating protective systems that would be very protective without having to use a proscribed method. OSHA would be well-advised to permit use of such systems so long as they are approved by a Qualified Person, created by a Competent Person, and appropriate training is provided to the Authorized Person (Ex. 205).

    OSHA did not propose to cover IRAS and the final rule clarifies that IRAS are not rope descent systems (Sec. 1910.21(b)). Given that, OSHA is not adopting SPRAT's recommendations.

    Several commenters said fall protection systems to protect employees working on stacked materials are feasible and currently in use in general industry (Exs. 155; 185; 198). For instance, ISEA and CSG said fall protection manufacturers have developed and are supplying employers with such systems, including ``trailer-mounted systems, A-

    frames, rope grab systems, and ropes at tie-off points'' (Exs. 185; 198). They added that manufacturers also create custom fall protection systems (Exs. 185; 198). Ellis Fall Safety Solutions (Ellis) said that temporary and permanent wheeled and forkhyphenlifted devices with railed personal fall protection anchorages are available for loading/

    unloading operations and should be required for stacked materials (Ex. 155; see also 148; 158; 198; 355-2). Ellis also pointed out that these systems can provide fall protection over a large surface area (i.e., ``up to 30 ft.'') (Ex. 155).

    PCI and the International Sign Association (ISA), in response to the proposed rule, submitted comments opposing any requirement for fall protection on stacked materials (Exs. 161; 238). PCI said in the 14 years since their request for an exception from the existing fall protection requirements they had ``not learned of any system or device'' that would change their position that requiring the use of fall protection on stacked materials is infeasible and would create a greater hazard (Ex. 238).

    ISA, like PCI and AISI, argued that it is infeasible to require the use of fall protection on stacked cargo and motor vehicles (Ex. 161). In particular, ISA said permanent attachment of fall protection equipment to motor vehicles is not feasible because the area of the truck bed normally available for walking or working is usually quite small and such equipment would interfere with the utility of trucks as cargo-carrying vehicles. Like PCI and AISI, ISA also recommended that OSHA ``should provide flexibility for employers in terms of implementing alternative practices, appropriate training, or both'' (Ex. 161).

    ISA also appeared to suggest that installing fall protection for employees working on stacked materials would create a greater hazard. ISA said employees stand or work on stacked materials only ``occasionally'' and ``temporarily'' to perform operations that ``are strictly associated with rigging of cargo items for hoisting,'' implying that rigging stacked cargo only exposes employees to fall hazards for a very brief period of time compared to the time necessary to install fall protection systems (Ex. 161).

    After reviewing the rulemaking record, OSHA does not agree that requiring fall protection on stacked materials is infeasible or could create a greater hazard. OSHA finds there is substantial evidence showing that a number of fall protection systems for stacked materials are available and already are in use in general industry (Exs. 155; 185; 198). For example, commenters said wheeled, trailer-mounted and fork-lifted overhead anchor and retractable line systems are available and in use to protect employees working on stacked materials (Exs. 155; 185; 198. See also, e.g., Exs. 148; 158; 355-2; OSHA-S029-2006-0662-

    0373). These stand-alone systems can be used for stacking, storing, and loading/unloading stacked materials in open yards and plants as well as for loading/unloading stacked materials on rolling stock and motor vehicles (e.g., Ex. 355-2). In addition, the record shows that other fall protection systems employers use for loading/unloading stacked cargo on rolling stock and motor vehicles also work for materials that are stacked or stored in yards or plants. These systems include mobile work platforms, scissor lifts and stairs equipped with railings/

    guardrails that allow workers to access stacked materials without standing on them (e.g., Exs. 63; 124; 169; 181; 335; OSHA-S029-2006-

    0662-0208; OSHA-S029-2006-0662-0227; OSHA-S029-2006-0662-0350; OSHA-

    S029-2006-0662-0373).

    Finally, OSHA also concludes that the final rule does not need to include specific or separate requirements addressing stacked materials. OSHA believe that final Sec. 1910.28(b)(1) (Unprotected sides and edges) and (b)(15) (Walking-working surfaces not otherwise addressed) adequately address fall protection on stacked materials.

    Hoist areas. Final paragraph (b)(2), like the proposed rule, establishes fall

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    protection requirements for workers who work in hoist areas that are four feet or more above a lower level. The final rule defines a ``hoist area'' as an elevated access opening to a walking-working surface through which equipment or materials are loaded or received (final Sec. 1910.21(b)).

    Final paragraph (b)(2)(i) requires employers to protect workers in hoist areas from falls by:

    Guardrail systems (final paragraph (b)(2)(i)(A));

    Personal fall arrest systems (final paragraph (b)(2)(i)(B)); or

    Travel restraint systems (final paragraph (b)(2)(i)(C)).

    The construction fall protection standard includes a similar provision requiring that employers provide guardrail or personal fall arrest systems to protect workers in hoist areas that are six feet or more above a lower level (Sec. 1926.501(b)(3)). This final rule provides greater control flexibility than the construction standard because it also allows employers to provide travel restraint systems to protect workers. OSHA received no comments on the proposed provision and it is finalized as discussed.

    Final paragraph (b)(2)(ii), like the proposed and construction rules (Sec. 1926.501(b)(3)), requires that, if removing any portion of a guardrail system, gate, or chains and if the worker leans through or over the edge of the access opening to facilitate hoisting, the employer must protect the worker from falling by a personal fall arrest system. The proposed rule required that employers provide ``grab handles'' on each side of a hoist area opening, in addition to a personal fall arrest system, if removing the guardrail, gate, or chains and if the worker leans out the access opening. The existing rule does not have a specific provision addressing hoist areas. However, the existing provisions on wall openings and holes requires that both sides of openings and holes have grab handles if the rail, half door, or other equivalent barrier is removed (existing Sec. 1910.23(b)(1)). In addition, where the structure has extension platforms onto which employers may place hoisted materials, the existing rule requires that employers provide side rails or equivalent guards to protect workers (existing Sec. 1910.23(b)(ii)). OSHA notes that it adopted the existing rule in 1971, before personal fall arrest systems were widely available.

    OSHA only received one comment on the proposed provision. Ameren recommended that OSHA define what would qualify as a grab handle to ensure the final rule does not result in confusion or misinterpretation (Ex. 189). After further consideration, OSHA believes it is not necessary for employers to provide grab handles in addition to personal fall arrest systems if removing guardrails, gates, or chains and if workers look through or over the edge of an access opening to facilitate hoisting. OSHA believes that personal fall arrest systems provide adequate worker protection, and better protection than grab handles, therefore, OSHA does not carry forward the proposed requirement on grab handles. Of course, employers are free to provide grab handles or other handholds in addition to personal fall arrest systems in those situations. OSHA believes that the revisions in the final rule address Ameren's concern and the provision is finalized as discussed.

    Final paragraph (b)(2)(iii), specifies that if grab handles are installed at hoist areas, they must meet the requirements of Sec. 1910.29(l). Employers are not required to install grab handles at hoist areas; however, if they do install grab handles, the handles must meet the criteria specified in Sec. 1910.29(l). Although OSHA believes it is not necessary to install grab handles at hoist areas when workers use a personal fall arrest system, the Agency recognizes grab handles can provide some security when workers must lean out from a hoist area. In those cases, OSHA believes it is important for grab handles to be of a certain size, have sufficient clearance, and be capable of withstanding the forces placed on them.

    Holes. Final paragraph (b)(3) consolidates the proposed requirements to protect workers from falls associated with holes (proposed paragraph (b)(3)) and floor holes (proposed paragraph (b)(14)), and requires that employers protect workers from falling into or through any hole, including skylights, stairway floor holes, ladderway floor holes, hatchway and chute-floor holes, and other holes on roofs. The final rule defines a ``hole'' as a gap or open space in a floor, roof, horizontal walking-working surface, or other similar surface that is at least 2 inches in its least dimension (final Sec. 1910.21(b)). Although skylights may be covered by screens or other material, for the purposes of this definition and the final rule, OSHA classifies skylights as holes. Falling into a hole or tripping and possibly falling due to a hole in a walking-working surface may injure or kill a worker.

    OSHA believes that consolidating the requirements for protecting workers from falling into or tripping on a hole is appropriate because the hazards generally associated with these conditions, and the methods to address these hazards, are the same. Moreover, consolidating the provisions makes the final rule easier to understand and follow, which will enhance employer compliance.

    In the final rule, OSHA moved the proposed requirement (proposed paragraph (b)(3)(iii)) to protect workers on walking-working surfaces from being hit by objects falling through overhead holes to final paragraph (c), Protection from falling objects. The final rule consolidates all requirements addressing falling object hazards in final paragraph (c).

    OSHA received one general comment on the proposed requirements to protect workers from falling or stepping into, or tripping on, holes. Ellis Fall Safety Solutions (Ellis) said the final rule should require that employers not leave holes exposed or uncovered for more than two minutes and assign a ``standby person'' to be present to warn workers about the hole until employers cover or barricade the hole (Ex. 155). Ellis also said the final rule should require that employers use two means to protect employers from falling into holes as a way ``to safeguard the next trade or planned work'' (Ex. 155). For example, Ellis suggested that employers cover the hole with a plywood board as the primary means of protection and, as the secondary protection, attach a net to a bar joist underneath the hole using a scissor lift. OSHA believes the final rule provides a reasonable and appropriate level of protection. Any of the fall protection systems specified by the final rule will protect workers from falling, tripping, or stepping into holes. OSHA believes the final rule already ensures the ``next trade'' is safeguarded from holes. The final rule requires that all employers in any trade must conduct inspections of walking-working surfaces and maintain those surfaces in a safe condition before allowing workers to work there (final Sec. 1910.22(d)(1)). OSHA notes that employers are free to use more than one measure to protect workers from hazards associated with holes.

    Final paragraph (b)(3)(i) requires that employers ensure workers are protected from falling through any hole (including skylights) that is four feet or more above a lower level using one or more of the following:

    A cover over the hole (paragraph (b)(3)(i)(A));

    A guardrail system around the hole (paragraph (b)(3)(i)(B));

    A travel restraint system (paragraph (b)(3)(i)(C)); or

    A personal fall arrest system (paragraph (b)(3)(i)(D)).

    Final paragraph (b)(3)(i) is the same as the proposed rule, and provides greater

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    control flexibility than the existing general industry and construction fall protection rules (existing Sec. 1910.23(a)(4), (8), and (9), and Sec. 1926.501(b)(4)). The existing general industry rule only allows employers to guard holes using standard railings (guardrails) or, in some situations, a cover. The construction rule does not include travel restraint systems as a fall protection option to protect workers from falling into holes (Sec. 1926.501(b)(4)(i)).

    Final paragraph (b)(3)(ii) requires that employers ensure workers are protected from tripping into or stepping into or through any hole that is less than four feet above a lower level by covers or guardrail systems. The final rule differs from the proposal in two ways. First, final paragraph (b)(3)(ii) clarifies that OSHA intended that the proposed requirement only applied to holes that are less than four feet above a lower level. Where a hole is four feet or more above a lower level, the requirements in final paragraph (b)(3)(i) apply and ensure that workers do not step or trip into the hole or fall into it. Second, final paragraph (b)(3)(ii) provides greater control flexibility than the proposal and the construction fall protection standard because it adds guardrail systems as an alternative option employers may use to protect workers from tripping or stepping into holes. Proposed paragraph (b)(3)(ii) and the construction standard (Sec. 1926.501(b)(4)(ii)) only permit employers to use covers to prevent stepping or tripping into holes.

    Final paragraph (b)(3)(iii), like the existing standard (Sec. 1910.23(a)(1)) and the proposed rule (proposed paragraph (b)(14)(i)), requires that employers ensure workers are protected from falling into stairway floor holes by a fixed guardrail system erected on all exposed sides, except at the stairway entrance. The final rule also carries forward, with revisions, the existing and proposed exception for stairways when (1) used less than once a day and (2) traffic across the opening prevents the use of a fixed guardrail system (e.g., stairway floor hole located in store aisle). In that situation, employers may protect workers from falling using a hinged floor-hole cover that meets the criteria in Sec. 1910.29 plus a removable guardrail system on all exposed sides except the stairway entrance. The exception in the final rule is consistent with ANSI/ASSE A1264.1-2007, Safety Requirements for Workplace Walking/Working Surfaces and Their Access; Workplace, Floor, Wall and Roof Openings; Stairs and Guardrails Systems (ANSI/ASSE A1264.1-2007).

    OSHA also clarifies the ``infrequently used'' language in the existing exception by incorporating the language in a note in the proposed rule stating that ``infrequently used'' means using the stairways ``on less than a daily basis.'' The exception in the final rule also clarifies the language in the existing and proposed rules requiring that the hinged floor-hole cover be of ``standard strength and construction'' by specifying that the cover must meet the criteria in final Sec. 1910.29, specifically Sec. 1910.29(e). OSHA believes the language in the final rule will make the rule easier for employers to understand and follow. For example, requiring that the hinged floor-

    hole cover meet the requirements in Sec. 1910.29 ensures that they will support, without failure, at least twice the maximum intended load that may be imposed on the cover (final Sec. 1910.29(e)(1)). This is important because a hinged floor-hole cover, like all covers, need an adequate margin of safety to ensure they are capable of supporting intended loads, and to account for the possibility of unforeseen traffic across the cover.

    In addressing stairways used less than once a day, OSHA requested information and comment in the proposed rule on using automatically rising railings that come into position when a load-bearing hinged floor-hole cover opens (75 FR 28892). Explanatory paragraph E3.1 in ANSI/ASSE A1264.1-2007 states that the removable guardrail system required for infrequently used stairways should be ``hinged or otherwise mounted so as to come into position automatically with the opening of the hinged floor-hole cover.'' Ameren commented, ``As long as the automatic rising railings are an option and not the only method of protection this provision would be feasible'' (Ex. 189). OSHA did not receive any comments supporting making automatically rising guardrails mandatory, and the final rule does not include such a requirement.

    Final paragraph (b)(3)(iv), similar to the existing (Sec. 1910.23(a)) and proposed (proposed paragraph (b)(14)(ii)) rules, requires that employers ensure they protect workers from falling into ladderway floor holes or ladderway platform holes by providing a guardrail system and toeboards on all exposed sides, except at the hole entrance. In addition, the final rule requires that employers protect the access opening in the guardrail system by using a ``self-closing'' gate or an offset so workers cannot walk or step into the hole.

    Final paragraph (b)(3)(iv) substitutes ``self-closing'' gate for ``swinging'' gate language in the existing and proposed rules. The purpose of these gates, when open, is to provide a means of access to ladderway floor holes and, when closed, to provide guardrail protection that meets of all the criteria in final paragraph (b). The term ``swinging'' gate, as used in the existing and proposed rules, refers to gates that automatically swing back into a closed position when the opening is not being used for access to prevent workers from falling into the ladderway hole. These are sometimes called ``safety gates'' (Ex. 68). If gates do not swing automatically into a closed position, they do not provide the required guardrail protection.

    OSHA is aware that, in addition to swinging gates, there are automatically closing sliding gates that are currently manufactured, readily available, and in use to protect workers from falling into ladderway floor and platform holes. OSHA believes these sliding gates provide protection that is as effective as the protection swinging gates provide. Therefore, to give employers the flexibility to use the type of automatically closing gate that works best for them, OSHA uses the term ``self-closing'' gates in final paragraph (b)(3)(iv).

    OSHA received one comment on the proposed requirement. Edison Electric Institute (EEI) recommended that OSHA allow employers to use double chains ``around holes used as points of access (such as ladderways)'' (Ex. 207). ``Many industrial facilities use double chains instead of swinging gates or guardrails at the top of fixed ladders,'' EEI said. ``These have been effective for a number of decades'' (Ex. 207). EEI also pointed out that the 1990 proposed rule would have allowed the use of chains, in addition to swinging gates and offsets, at the access openings in the guardrail systems.\50\

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    \50\ See also Letter to Mr. Stephen Hazelton (5/23/2005) that states:

    The 1990 proposed paragraph at 1910.28(b)(6) permits the use of movable guardrail sections such as gates, chains, and other means, which, when open, provide a means of access and, when closed, provide the guardrail protection that meets the proposed paragraphs 1910.28(b)(1) through (b)(5). An employer's compliance with the proposed rule, in lieu of compliance with an existing rule 1910.23(a)(2), is considered as a de minimis violation.

    This letter available on OSHA's website at:

    https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25100.

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    OSHA has not adopted EEI's recommendation. In the preamble to the 2010 proposed rule, OSHA said the new proposed rule replaces the 1990 proposal (75 FR 28863). Unlike the 1990 proposal, proposed paragraph (b)(14)(ii)

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    did not permit employers to use double chains in place of self-closing gates or offsets. As mentioned, OSHA believes that chains less protective than self-closing gates or off sets. Self-closing gates and offsets are passive fall protection methods that automatically restore guardrail protection as soon as the worker passes through the opening or offset area. Neither method requires the worker to take any action to restore that protection. However, if employers provide double chains at entrances to ladderway floor or platform holes, their employees would have to remove the chains and reattach them once they pass through the opening. If workers forget or fail to reattach the chains, they and others in the area could fall through the hole. Workers also are at increased risk of falling through the hole once they enter the area inside the guardrails to climb down the ladder because they have to turn around and away from the hole to reattach the chains and risk falling backward into the hole. If workers avoid this risk by not reattaching the chains, it exposes other workers to the risk of a fall when they approach the opening in the guardrail system. OSHA believes that double chains do not fully protect workers from falls at hole entrances, and therefore, is adopting the existing and proposed requirements that entrances to ladderway floor and platform holes have a self-closing gate or be offset to prevent workers from falling.

    Final paragraph (b)(3)(v), like proposed paragraph (b)(14)(iii), requires that employers ensure workers are protected from falling through hatchway and chute-floor holes by one of the following:

    A hinged floor-hole cover and a fixed guardrail system that leaves only one exposed side.\51\ When the hole is not in use, the employer must ensure the cover is closed or a removable guardrail system provided on all exposed sides (final paragraph (b)(3)(v)(A));

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    \51\ OSHA used the term ``permanently attached'' guardrail system in the proposal. In the final rule, OSHA uses the term ``fixed'' guardrail systems, which OSHA considers to be equivalent to, but clearer than, the proposed term.

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    A removable guardrail system and toeboards on not more than two sides of the hole and a fixed guardrail system on all other exposed sides. The employer must ensure the removable guardrail system remains in place when the hole is not in use (final paragraph (b)(3)(v)(B)); or

    A guardrail system or travel restraint system when the work operation necessitates passing material through a hatchway or chute floor hole (final paragraph (b)(3)(v)(C)).

    With one exception (final paragraph (b)(3)(v)(C)), the final rule generally is consistent with existing Sec. 1910.23(a)(3) and A1264.1-

    2007 (Section 3.1). Final paragraph (b)(3)(v)(C) adds a requirement that employers provide a guardrail system or travel restraint system when workers need to pass materials through a hatchway or chute-floor hole. The existing and ANSI rules only state that ``protection shall be provided to prevent a person from falling through the opening,'' but do not specify what protection is needed. OSHA believes the final rule is more protective and clearer than these rules because it specifies how employers must protect workers. OSHA adopts final paragraph (b)(3) as discussed.

    Dockboards. Final paragraph (b)(4) adds fall protection requirements to protect workers on dockboards. The final rule defines a ``dockboard'' as a portable or fixed device for spanning a gap or compensating for the elevation difference between a loading platform and a transport vehicle. Dockboards include, but are not limited to bridge plates, dock plates, and dock levelers. (final Sec. 1910.21(b)).

    Final paragraph (b)(4)(i), like the proposal, requires that employers ensure each worker on a dockboard is protected from falling four feet or more to a lower level by a guardrail system or handrails. The final rule limits the fall protection options that employers may use. OSHA believes guardrails and handrails will provide adequate protection for workers. In addition, employers can use them on dockboards while other options may not work. For example, it may not be possible to install anchorages on dockboards that would support the use of personal fall arrest systems.

    OSHA notes that in some situations there may be insufficient space between the dock and the transport vehicle for a worker to fall and, therefore, no fall hazard would exist. In that situation, final paragraph (b)(4)(i) would not apply.

    Final paragraph (b)(4)(ii), like the proposal, includes an exception specifying that employers do not have to provide a guardrail system or handrails when:

    Using the dockboard solely for materials-handling operations using motorized equipment (final paragraph (b)(4)(ii)(A));

    Workers engaged in motorized material-handling operations are not exposed to fall hazards greater than 10 feet (final paragraph (b)(4)(ii)(B)); and

    Employers train those workers in accordance with Sec. 1910.30 (final paragraph (b)(4)(ii)(C)).

    Final paragraph (b)(4)(ii)(C) does not include the proposed language identifying the subjects that training must address. The requirements in final Sec. 1910.30 cover all of the topics OSHA proposed, thus, OSHA does not believe it is necessary to repeat them in this provision.

    OSHA believes the exception in final paragraph (b)(4)(ii) is appropriate. Employers often use motorized equipment to move large and heavy material across dockboards. However, such equipment may not fit on a dockboard that has guardrails or handrails. Preventing workers from using motorized equipment to move the material may expose them to other hazards, such as risk of injury associated with lifting and carrying heavy materials. OSHA did not receive any comments on the proposed dockboard requirements, and finalizes the provisions as discussed.

    Runways and similar walkways. Final paragraph (b)(5) specifies the fall protection systems that employers must provide to protect workers from falling off runways and similar walkways. The proposed and final rules define a ``runway'' as an elevated walking-working surface (Sec. 1910.21(b)). For purposes of the final rule, runways include catwalks, foot walks along shafting, and elevated walkways between buildings.

    Final paragraph (b)(5)(i), like the proposed rule, retains the existing requirement (Sec. 1910.23(c)(2)) that employers must protect workers on runways or similar walkways from falling four feet or more to a lower level by a guardrail system. The final rule generally is consistent with the construction fall protection standard (Sec. 1926.501(b)(6)). Like dockboards, the final rule limits the fall protection options employers may use. OSHA believes that guardrails will provide adequate protection from falls, and that other options may not work on runways. For example, it may not be possible for employers to install anchorages and other components of personal fall protection systems that would protect workers from falling off runways while still allowing them to walk on the runway.

    Final paragraph (b)(5)(i) no longer includes the existing and proposed requirement that employers provide toeboards on both sides of runways if workers are likely to use tools, machine parts, or other objects on the runway. The primary purpose of requiring toeboards is to prevent objects from

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    falling onto workers on a lower level. As mentioned earlier, OSHA consolidated all requirements addressing falling object hazards in final paragraph (c), and, therefore, does not repeat them here.

    Final paragraph (b)(5)(ii), which is similar to the proposed rule, addresses runways used exclusively for special purposes, such as filling tank cars. The final paragraph requires that when the employer can demonstrate that it is not feasible to have guardrails on both sides of special purpose runways, the employer may omit the guardrail on one side, provided the employer:

    Ensures that the runway is at least 18 inches wide (final paragraph (b)(5)(ii)(A)); and

    Provides each worker with, and ensures that each worker uses, a personal fall arrest system or travel restraint system (final paragraph (b)(5)(ii)(B)).

    The final rule clarifies two points in the proposed rule. First, the final rule clarifies that guardrails may be omitted from a special purpose runway only when the employer can demonstrate that it is not feasible to have guardrails on both sides of the runway. Feasibility is the standard test of whether employer action is possible, and OSHA believes employers are familiar with, and understand, it.

    Second, final paragraph (b)(5)(ii)(B) clarifies the language in the proposed rule requiring that employers ensure ``the proper use of personal fall arrest systems or travel restraint systems.'' This provision means that employers may omit a guardrail on one side of a special purpose runway only when the employer both provides and ensures that each worker properly uses a personal fall arrest system or travel restraint system.

    OSHA notes that the final rule provides greater protection for workers than both the existing rule (Sec. 1910.23(c)(2)) and A1264.1-

    2007 (Section 5.2). Although these standards specify that employers may omit a guardrail on one side of a special use runway only if they use a runway that is at least 18 inches wide (consistent with final paragraph (b)(5)(ii)(A)), the standards do not require that employers provide, and ensure that workers use, personal fall arrest or travel restraint systems while on those runways.

    OSHA received no comments on the proposed runway requirements, and adopts them with the revisions discussed above.

    Dangerous equipment. Final paragraph (b)(6) addresses the hazards associated with working above dangerous equipment. Final Sec. 1910.21(b) adopts the definition of ``dangerous equipment'' in the construction fall protection standard (Sec. 1926.500(b)). The definition also specifies that such equipment includes vats, tanks, electrical equipment, machinery, machinery with protruding parts, or similar units that, because of their function or form, may harm a worker who falls into or onto the equipment. The existing rule in Sec. 1910.23(c)(3) also provides examples of equipment OSHA considers to be dangerous, including pickling or galvanizing tanks and degreasing units. The definition of dangerous equipment in this final rule includes similar equipment. OSHA added a definition of dangerous equipment to the final rule in response to Northrup Grumman Shipbuilding's (NGS) recommendation that OSHA define the term so that employers understand what equipment the final rule covers (Ex. 180).

    This final rule, like the proposed rule, includes requirements for protecting workers who are working less than four feet above dangerous equipment. OSHA believes it is necessary to protect workers from falling onto or into dangerous equipment regardless of how far above the equipment they are working. Falling less than four feet into or onto equipment that has sharp, protruding, or moving parts could kill or seriously injure a worker.

    When workers are less than four feet above dangerous equipment, final paragraph (b)(6)(i), like the proposed rule, requires that employers protect workers from falling into or onto the dangerous equipment using a guardrail system or a travel restraint system, unless the equipment is covered or guarded to eliminate the hazard. The existing rule in Sec. 1910.23(c)(3) requires that, regardless of height, employers must protect workers who are working above dangerous equipment using guardrails and toeboards. The construction fall protection standard contains a provision requiring guardrails or equipment guards when workers are working less than six feet above dangerous equipment (Sec. 1926.501(b)(8)).

    OSHA believes final paragraph (b)(6)(i), which allows employers to protect their workers by providing either guardrails or travel restraint systems, but does not require toeboards, provides greater control flexibility than the existing rule without compromising worker safety. OSHA believes that either guardrails or travel restraint systems provide sufficient protection for workers above dangerous equipment. Therefore, OSHA does not believe that toeboards, which primarily protect workers from falling objects from higher levels, are necessary. Accordingly, OSHA deleted the existing toeboard requirement, but notes that final paragraph (c)(1) of this section requires that employers provide toeboards to protect workers from objects falling from higher levels and hitting them.

    OSHA notes that the final rule does not permit employers to use safety nets or personal fall arrest systems when workers are less than four feet above dangerous equipment. At these heights, safety nets and personal fall arrest systems may not be safe to use because there may not be sufficient stopping distance to prevent a falling worker from making contact with the dangerous equipment.

    Final paragraph (b)(6)(i), like the proposal, does not require employers to use guardrails or travel restraint systems if the employer covers or guards dangerous equipment and the worker is less than four feet above the equipment. OSHA believes that covering or guarding dangerous equipment that is less than four feet below workers adequately eliminates the hazard.

    When workers are four feet or more above dangerous equipment, final paragraph (b)(6)(ii), like the proposed rule, requires that employers protect workers from falling by providing:

    Guardrail systems (final paragraph (b)(6)(ii)(A));

    Safety net systems (final paragraph (b)(6)(ii)(B));

    Travel restraint systems (final paragraph (b)(6)(ii)(C)); or

    Personal fall arrest systems (final paragraph (b)(6)(ii)(D)).

    Final paragraph (b)(6)(ii) provides more control flexibility for employers than the existing rule, which requires that employers protect workers from falling onto or into dangerous equipment by providing a guardrail system. OSHA believes that allowing employers to use a range of fall protection options ensures that employers will be able to select the fall protection option that best fits the particular workplace situation and conditions.

    OSHA received two comments on the proposed provision. Verallia recommended that OSHA delete the requirement because they said the proposal was ``too subjective and vague'' and ``could be interpreted differently'' (Ex. 171). However, Verallia did not provide examples or further explain its recommendation. As mentioned earlier, this final rule adds a definition of dangerous equipment, which also includes examples of specific equipment OSHA considers to be dangerous. The final rule specifically

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    and clearly identifies what constitutes dangerous equipment, what protections employers must provide at specific heights, and when and at what height employers can protect workers from falling using fall protection options other than guardrails or travel restraint systems. Moreover, OSHA believes the examples of equipment OSHA defines as being dangerous specifically clarifies, in objective terms, under what conditions employers must comply with the final rule and, therefore, reduces the possibility of conflicting interpretations.

    The second commenter, NGS, said the proposed rule was not as protective as the existing rule and would not provide an equivalent level of protection from ``open pits, vats, etc.'' as existing Sec. 1910.22(c) (Ex. 180). NGS recommended that ``standard guardrails be required around open tanks'' and ``vats that contain hazardous substances that pose an immediate threat to life'' (Ex. 180). OSHA does not believe including NGS's recommendations are necessary in this final rule. First, although final paragraph (b)(6) does not retain existing Sec. 1910.22(c) as a separate provision, OSHA incorporated into the final definition of dangerous equipment all of the equipment Sec. 1910.22(c) covers, including the equipment NGS mentioned. The final rule does not leave any dangerous equipment unaddressed, and, therefore, the Agency believes the final rule provides protection equivalent to that in existing Sec. 1910.22(c).

    Second, the final rule allows employers to use controls that provide equivalent or greater protection than the controls specified in existing Sec. 1910.22(c). OSHA believes that giving employers flexibility in choosing what protection to use will enable them to select the measure that works best, and is the most effective, in the particular work situation. Third, the final rule recognizes that it may not be possible to use guardrails in a particular situation and provides employers with alternatives that will protect their workers in those cases.

    Fourth, where dangerous equipment is not covered or guarded, final paragraph (b)(6)(i) requires that employers use guardrails or travel restraint systems to protect workers from falling onto the dangerous equipment, when the height of the fall is less than four feet. OSHA notes that employers are free to use guardrails when an employee works at any height above dangerous equipment.

    Openings. Final paragraph (b)(7), similar to the proposed rule, requires that employers protect workers from falling through openings. Final Sec. 1910.21(b), like both the proposed and construction (Sec. 1926.500(b)) rules, defines an ``opening'' as a gap or open space in a wall, partition, vertical walking-working surface, or similar surface that is at least 30 inches high and at least 18 inches wide through which a worker can fall to a lower level.

    The final rule requires that employers protect workers on walking-

    working surfaces near openings (including openings with a chute attached) if the inside bottom edge of the opening is less than 39 inches above the walking-working surface and the outside bottom edge of the opening is four feet or more above a lower level. The employer must protect workers from falling through those openings by providing:

    Guardrail systems (final paragraph (b)(7)(i));

    Safety net systems (final paragraph (b)(7)(ii));

    Travel restraint systems (final paragraph (b)(7)(iii)); or

    Personal fall arrest systems (final paragraph (b)(7)(iv)).

    The final rule, unlike the proposal (proposed paragraph (b)(7)(ii)), does not allow employers to use designated areas instead of providing conventional fall protection to protect workers from falling through openings. As discussed above, the final rule limits the use of designated areas to the limited and specific situation of work on low-slope roofs. Deleting the option of designated areas from final paragraph (b)(7) makes the provision consistent with the construction standard, which also does not allow the use of designated areas to protect workers from falling through openings (Sec. 1926.501(b)(14)).

    The final rule simplifies, updates, and increases the control flexibility of the existing rule. For example, the final rule establishes one set of requirements that apply to all openings, while the existing rule, in Sec. 1910.23(b), contains different provisions for different types of wall openings (e.g., chute-wall, window-wall, and temporary wall openings). The final rule also incorporates new fall protection technology (e.g., personal fall arrest systems, travel restraint systems, safety net systems) in place of some of the measures listed in the existing rule (e.g., rail, roller, picket fence, half door, standard slats, standard grill work). OSHA believes that allowing employers to use new technology will enhance worker protection.

    Finally, in several ways the final rule provides more flexibility than the existing rule. First, the final rule only requires employers to provide fall protection when the inside bottom edge of the opening is less than 39 inches above the floor or other type of walking-working surface, while the existing rule, with one exception, generally requires employers to protect wall openings regardless of the height of the bottom inside edge of the opening.\52\ OSHA does not believe that it is necessary to provide fall protection when the bottom inside edge of openings are 39 inches or higher than the walking-working surface on which the worker is standing; in such cases, OSHA believes the wall or partition itself usually provides adequate protection against falling though the opening. Second, the final rule allows employers to use a wider range of fall protection options than the existing rule to protect workers near wall openings. OSHA believes the increased flexibility will ensure that workers have the most effective protection because employers will be able to select the fall protection option they determine works best in the particular situation. Finally, paragraph (b)(7) of the final rule, unlike the existing rule in Sec. 1910.23(b)(1)) and (e)(10), does not require that employers install grab handles on each side of wall openings. OSHA believes that the fall protection options specified by final paragraph (b)(7) provide adequate protection from falls through wall openings, and therefore, grab handles are not necessary.

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    \52\ OSHA notes the existing provision (Sec. 1910.23(b)(3)) for window wall openings at stair landings, floors, platforms, or balconies did not require fall protection if the bottom edge of the opening is three feet or more above the landing, floor, platform, or balcony.

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    As discussed in the preamble to the proposed rule, when work operations require that workers reach through wall openings to facilitate hoisting materials, OSHA considers the opening to be a ``hoist area'' covered by final paragraph (b)(2), and not a wall opening. OSHA believes this distinction is important. Final paragraph (b)(7) allows employers to use guardrail, personal fall arrest, travel restraint, or safety net systems to protect workers from falling through wall openings. However, it is not always possible to use a safety net system to protect workers from falling when they are hoisting materials through an opening because a safety net system may interfere with materials being hoisted or may not provide a sufficient stopping distance to prevent a falling worker from making contact with the lower level. Accordingly, final paragraph (b)(2) specifies that employers must protect workers using only a guardrail, personal fall arrest, or travel restraint systems. Moreover, when workers need to lean out or over the edge of the hoist area, final paragraph (b)(2) requires that employers protect workers with personal fall arrest

    Page 82601

    systems. Final paragraph (b)(7) does not contain the protective limitations specified by final paragraph (b)(2). OSHA did not receive any comments on proposed paragraph (b)(7), and adopts it as discussed.

    Repair, service and assembly pits (pits) less than 10 feet deep. Final paragraph (b)(8), like the proposed rule, adds a new provision addressing fall hazards associated with repair, service, and assembly pits that are less than 10 feet deep. Employers use these pits primarily to provide access to the underside of vehicles to perform work, such as vehicle maintenance. Typically, a worker drives a vehicle over the pit and uses stairs to get into the pit. The final rule specifies that employers do not have to provide fall protection systems for service, repair, or assembly pits that are less than 10 feet deep, provided the employer:

    Limits access within six feet of the pit edge to authorized workers trained in accordance with final Sec. 1910.30 (final paragraph (b)(8)(i));

    Applies floor markings or warning lines and stanchions, or a combination thereof, at least six feet from the pit edge. Floor markings must be a color that contrasts with the surrounding area and warning lines and stanchions must be capable of resisting, without tipping over, a force of at least 16 pounds that is applied horizontally against the stanchion at a height of 30 inches (final paragraph (b)(8)(ii)); and

    Posts readily visible caution signs that state ``Caution--

    Open Pit'' and meet the requirements of Sec. 1910.145, Specifications for Accident Prevention Signs (final paragraph (b)(8)(iii)).

    Final paragraph (b)(8) only applies to service, repair, and assembly pits that are less than 10 feet deep. For deeper pits, employers must provide a conventional fall protection system specified in final paragraph (b)(1), Unprotected sides and edges.

    Neither the existing nor construction fall protection rules contain a similar provision on service, repair, and assembly pits. Historically, OSHA addressed these hazards through Section 5(a)(1) (General Duty Clause) of the OSH Act (29 U.S.C. 654).

    The final rule recognizes that protecting workers from falling into service, repair, and assembly pits can present some unique issues. For example, for vehicle service and repair pits, the fall hazard is present only when a vehicle is not over the pit. Driving a vehicle over the pit normally eliminates the fall hazard. In addition, conventional fall protection systems may not work at service, repair, and assembly pits. For instance, using guardrails can interfere with driving vehicles over or away from a pit, and personal fall arrest and travel restraint systems may prevent workers from reaching the area where they need to perform work. Finally, it is OSHA's understanding that workers are unlikely to be near service, repair, and assembly pits when they are not working on vehicles.

    OSHA believes the final rule strikes an appropriate balance between protecting workers and ensuring that they can repair, service, or assemble vehicles. The Agency believes that establishing well-marked areas (that is, floor markings or warning lines and stanchions, or both), along with posting caution signs, will be effective in warning authorized workers that they are about to enter a hazardous area, and other workers that they need to keep out of the area. In addition, limiting access within six feet of pits to those workers who the employer specifically assigns or allows to be in the area, and who, as a result of training, recognize the applicable fall hazards, will keep worker exposure to these hazards to a minimum.

    OSHA received comments on the proposed provision from the American Trucking Associations, Inc. (ATA) and the American Truck Dealers Division of the National Automobile Dealers Association (NADA). Both organizations supported the proposed rule (Exs. 181; 187). NADA said, ``These proposed requirements should serve to adequately address the potential for fall hazards related to motor vehicle service pits'' (Ex. 181).

    OSHA added a sentence to the final rule addressing the situation where two or more pits are in a common area and are not more than 15 feet apart. It specifies that OSHA employers may comply with final paragraph (b)(8)(ii) if they place contrasting floor markings at least six feet from the pit edge around the entire area of the pits. OSHA added the sentence to respond to a comment from ATA, which stated:

    OSHA should include a provision stating that when two or more pits are in a common area, a perimeter marking and the posting of appropriate warnings around the entire area will meet the requirements of this section. In addition, when the distance from a building entrance to the pit is less than 6 feet, a floor marking and warning sign at the entrance will satisfy the requirements (Ex. 187).

    ATA also noted, ``In some large motor carrier facilities, there may be two or more adjacent pits in one area of the shop,'' that ``the distance between pits can vary from 12 to 15 feet,'' and that ``the distance from the doorway to the closest portion of the pit . . . is less than six feet'' (Ex. 187). OSHA believes the added sentence in the final rule addresses ATA's concerns and finalizes the provision as discussed.

    Fixed ladders (that extend more than 24 feet above a lower level). Final paragraph (b)(9) establishes fall protection requirements for fixed ladders that extend more than 24 feet above a lower level. Final Sec. 1910.21(b), like the proposed rule, defines ``fixed ladder'' as a ladder with rails or individual rungs that is permanently attached to a structure, building, or equipment. Fixed ladders include individual rung ladders, but not ship stairs, step bolts, or manhole steps.

    Final paragraph (b)(9), like the proposal, only requires that employers provide fall protection to those fixed ladders that extend more than 24 feet above a lower level. The existing rule (Sec. 1910.27(d)(1)(ii)) requires that fixed ladders more than 20 feet above a lower level be equipped with cages or wells. Changing the fall protection trigger height to 24 feet makes the final rule consistent with ANSI/ASC A14.3-2008 and OSHA's construction ladder standard (Sec. 1926.1053(a)(18) and (19)), which is one of the Agency's goals in this rulemaking. This change allows workers who perform both general industry and construction activities to use fixed ladders with the same fall protection trigger height.

    Siebe North, Inc., a manufacturer of ladder safety systems and personal fall arrest systems, supported the proposed change in the fall protection trigger height for fixed ladders (Ex. OSHA-S041-2006-0666-

    0198). CSG and ISEA, on the other hand, argued that OSHA should require fall protection on fixed ladders from the ground up (Exs. 185; 198). As discussed above, limiting fall protection to fixed ladders that extend more than 24 feet above a lower level makes the final rule consistent with both OSHA's construction rule and the long-standing ANSI standard (A14.3). In any event, OSHA does not believe the change from the existing rule will affect worker safety substantially because fixed ladders that extend more than 24 feet must have fall protection systems that protect workers from the ground up even if workers climb the ladder less than 24 feet above the lower level.

    In final paragraph (b)(9)(i), OSHA revises the existing fall protection requirements for fixed ladders. The final rule requires that employers equip fixed ladders with ladder safety systems or personal fall arrest systems to protect workers from falling to a lower level, which could result in death or serious injury. Final paragraph (b)(9)(i) establishes a new framework to protect

    Page 82602

    workers from fall hazards on fixed ladders that allows employers to gradually, over 20 years, phases in ladder safety systems/personal fall arrest systems and phase out the use of cages and wells as a means of fall protection. After this 20-year period ends, the final rule requires that employers must ensure all fixed ladders are equipped with either ladder safety or personal fall arrest systems to protect workers from fall hazards. The final rule establishes the following phase-in/

    phase-out schedule:

    For existing fixed ladders (that is, for ladders erected before November 19, 2018)--employers have up to 20 years to install ladder safety or personal fall arrest systems (final paragraph (b)(9)(i)(A));

    For new fixed ladders (that is, for new ladders erected on or after November 19, 2018)--the employer must equip the new ladder with a ladder safety or personal fall arrest system (final paragraph (b)(9)(i)(B));

    For ladder repairs and replacements--when an employer replaces any portion of a fixed ladder the replacement must be equipped with a ladder safety or personal fall arrest system (final paragraph (b)(9)(i)(C)); and

    The final deadline for all fixed ladders--on and after November 18, 2036 all fixed ladders must be equipped with a ladder safety or personal fall arrest system (final paragraph (b)(9)(i)(D)). (See further discussion of phase-out schedule below.)

    The gradual phasing out of cages and wells means that employers may continue to use existing fixed ladders during the 20-year phase-out period, even if the existing fixed ladders are equipped only with cages and wells. However, during the 20-year phase out period, when employers install new fixed ladders or replace a portion of a section on an existing fixed ladder, final paragraphs (b)(9)(i)(B) and (C) require them, respectively, to install a new fixed ladder equipped with a ladder safety or personal fall arrest system (when replacing the entire ladder) or equip the replacement section (e.g., a ladder with multiple, offset sections) with a ladder safety system or personal fall arrest system (when replacing a portion of an existing fixed ladder). At the end of 20 years, final paragraph (b)(9)(i)(D) specifies that all fixed ladders must be equipped with ladder safety or personal fall arrest systems. (OSHA notes that after the 20-year phase out period ends employers may still have or equip fixed ladders with cages and wells, but OSHA will not consider them to be a means of fall protection.)

    The proposed rule would have allowed employers to use cages, wells, ladder safety systems, or personal fall arrest systems when the length of a climb is less than 24 feet regardless of the height of the ladder (proposed Sec. 1910.28(b)(9)(i)). When the total length of a climb on a fixed ladder is at least 24 feet, the proposed rule would have allowed employers to equip the fixed ladder with a ladder safety system, personal fall arrest system, cage or well (proposed Sec. 1910.28(b)(9)(ii)). OSHA is phasing in the requirement to equip fixed ladder with ladder safety systems/personal fall arrest systems and phasing out the use of cages and wells as a means of fall protection because there is wide recognition in general industry that cages and wells neither prevent workers from falling off ladders nor protect them from injury when a fall occurs (e.g., Exs. OSHA-S041-2006-0666-0198; 113; 155; 185; 198; 329 (1/21/2011), pgs. 18-19, 259). In general, stakeholders said cages and wells simply ``contain employees in the event of a fall and direct them to a lower landing'' rather than preventing them from hitting a lower level (Ex. 113; see also Exs. OSHA-S041-2006-0666-0198; 155; 185; 198; 329 (1/21/2011), pgs. 18-19, 259)). In addition, they also said fixed ladder cages and wells may result in severe injury or fatality and increase the severity of fall injuries (Ex. 113; 185; 198; OSHA-S041-2006-0666-0198). Therefore, they said OSHA should require that fixed ladders be equipped with ladder safety systems or personal fall arrest systems (Exs. OSHA-S041-2006-

    0666-0198; OSHA-S041-2006-0666-0354; 113; 155; 185; 198; 329 (1/21/

    2011), pgs. 18-19, 259).

    As far back as 1990, when OSHA first raised the question about the effectiveness of cages and wells as a means of fall protection on fixed ladders, Siebe North, Inc., a manufacturer of ladder safety and personal fall protection systems, said OSHA should require that fixed ladders be equipped with ladder safety systems or personal fall arrest systems:

    Except to the extent that a cage or well will change the trajectory of a fall so that the victim falls directly to the base of the ladder, we are unaware of any empirical or other data which suggests that a cage or well will otherwise result in a fall which is not a free fall--or, more importantly, a fall likely to result in less severe injury than would be caused by a free fall of the same distance. (Indeed, most falls of any significant distance in cages, and probably in wells as well, are likely to add to the victim's trauma due to impacts with the cage or well during the course of the fall.)

    * * * * *

    As already noted, except to the extent that it directs the victim's falling body to the base of the ladder, a cage or well provides no protection for the falling climber. On the other hand, where a ladder safety device is used, a climber's fall is stopped in 2 feet or less, with no trauma from this short fall. When a fall occurs, a ladder safety device alone will both save a life and prevent injury, no matter where in the climb the fall begins. On the other hand, a cage or well will do neither. If the ladder is equipped with only a cage or well, whether a falling climber dies or merely lives with severe injury depends entirely on the length of the fall since the cage or well will have no protective effect (Ex. OSHA-S041-2006-0666-0198) (emphasis in original).

    In response to the 2010 proposed rule, a number of commenters also agreed that employers need to equip fixed ladders with ladder safety systems/personal fall arrest systems because cages and wells are not effective fall protection measures (Exs. 113; 185; 198; 329 (1/18/

    2011), p. 96; 329 (1/21/2011), p. 259). For example, CSG said:

    Cages should not be used as an individual method of fall protection, but only in conjunction with a personal fall arrest/

    cable-and-rail system or a twin-leg lanyard. CSG recognizes that a cage system allows a measure of security. However, if a person does fall in a cage, OSHA is correct that the cage will direct the person to the ground, likely resulting in a severe injury or fatality (Ex. 198).

    ISEA agreed with CSG (Ex. 185). The Oregon Department of Transportation (DOT) added:

    Ladder cages are an old technology used for decades before ladder safety systems were ever developed . . . Cages and wells are designed to ``. . . contain employees in the event of a fall and direct them to a lower landing.'' Cages provide little fall protection and no fall prevention. They do give a sense to the climber of being contained, and do provide a surface to rest against for a winded climber, but will not prevent a fall. Falls in cages can be very gruesome with the faller entangling themselves in the cage as they fall, sometimes tearing off body parts (Ex. 113).

    Similarly, Ellis testified that OSHA should prohibit the use of cages and wells for fall protection because he said they are ineffective:

    This may be the time to withdraw cages since they are ineffective. I refer to the Health and Safety Executive Report on their website relating to cages and the testing that's being done to show that they're incapable of stopping falls. It may not be OSHA's best move to keep citing a device that fails to work which most people would admit that you're not get stopped in a fall. The best that happens in a fall inside a cage is to be a--have a feeling of being contained. . . . (Ex. 329 (1/21/2011, p. 259)).

    The Health and Safety Executive (HSE) report Ellis cited was

    Page 82603

    ``Preliminary investigation into the fall-arresting effectiveness of ladder safety hoops'' (Research Report 258-2004).\53\

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    \53\ The HSE Report is available at http://www.hse.gov.uk/research/rrpdf/rr258.pdf.

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    The Executive Summary states:

    After studying the information from the references, the survey, from the accident database and the results from testing, it seems clear that caged ladders cannot provide positive fall-arrest capability, especially in the case of the three-upright design which was tested as part of this research. There is every possibility of a fall down the cage to the ground or other platform.

    There would appear, or so it seems, a possibility to stop the fall of a worker in certain circumstances, but this depends upon the attitude of the worker both before the fall and during the fall, and whether or not the worker manages to catch part of his or her body in one of the cage apertures, or manages to trap themselves in the cage some other way. In any event, it is a chance occurrence, and the opinion is that even if the worker could be caught by the cage, it could lead to significant if not fatal injury.

    The accidents reviewed indicate that workers fall down cages to the next level and are rarely caught. Injuries have been reported. Even if a fall is halted by limb entanglement within a cage, rescue would be extremely difficult process to carry out successfully (Ex. 392).

    OSHA believes there is substantial evidence in the rulemaking record to support eliminating the use of cages and wells as a means of fall protection on fixed ladders. Therefore, for the reasons discussed above, OSHA is phasing out their use and requiring that employers equip fixed ladders with ladder safety systems or personal fall arrest systems according to the schedule established in final paragraph (b)(9)(i).

    OSHA believes that gradually phasing out the use of cages and wells as a means of fall protection over 20 years and requiring employers to provide ladder safety systems/personal fall arrest systems prospectively (that is, when installing new fixed ladders or replacing a portion of an existing fixed ladder section) is a safe, cost-

    effective way to increase worker protection beyond the existing and proposed rules, and will not pose difficulties or undue burdens for employers. For example, ladder safety and personal fall arrest systems generally are less costly and easier to install on fixed ladders than cages and wells. OSHA believes that providing 20 years to phase out cages and wells gives employers ample time to plan and carry out this transition as part of their normal business and replacement cycles, instead of retrofitting fixed ladders. According to the FEA, the useful life of a large majority of fixed ladders will be exhausted within 20 years.

    Several stakeholders specifically recommended that OSHA prospectively require new fixed ladder be equipped with ladder safety systems/personal fall arrest systems (Exs. OSHA-S041-2006-0666-0198; 113; 329 (1/21/2011), p. 18-19). For example, Siebe North supported installing ladder safety systems/personal fall arrest systems ``in the design stage'' because ``ladder safety devices can be engineered into and installed as part of the original ladder installation without any extra hazardous exposure to the installation workers,'' adding that ``well or cage installations hazards will always be significantly greater than the installation hazards for ladder safety devices'' (Ex. OSHA-S041-2006-0666-0198). The American Wind Energy Association said:

    Technology in fall protection has developed to the point where suitable solutions exist for the protection of climbers for fixed ladders. At a minimum, new installation of fixed ladders, that meet the trigger heights and length listed, should include falling-object for workers regardless of the industry. The wind industry is an example of a new industry that has embrace ladder-climbing systems across-the-board (Ex. 329 (1/21/2011), pgs. 18-19).

    Siebe North also indicated that requiring employers to install ladder safety systems/personal fall arrest systems instead of cages/

    wells was cost effective, ``For a 50-foot climb, a ladder safety device would cost about $500 installed, but a case or well would cost in excess of $1,500'' (Ex. OSHA-S041-2006-0666-0198). Clear Channel Outdoor indicated that equipping billboard ladders with ladder safety systems/personal fall arrest systems would cost significantly less than installing cages and wells (Ex. 329 (1/18/2011), pgs. 134-35). Ameren Corporation recommended grandfathering in all existing ladders ``due to the potential financial impact'' (Ex. 189).

    As mentioned, OSHA believes the prospective application of the requirement to equip fixed ladders with ladder safety systems or personal fall arrest systems will not pose financial hardship on employers. According to CSG, it is ``common'' for fixed ladders manufactured today to be equipped with ladder safety systems (Ex. 329 (1/18/2011), p. 104).

    As mentioned, final paragraph (b)(9)(i) also establishes the cage and well phase-out dates for existing, new, replacement, and eventually all fixed ladders (i.e., a final deadline when employers may no longer use cages and wells as a means of fall protection on any fixed ladder):

    Existing fixed ladders.\54\ Final paragraph (b)(9)(i)(A) requires that employers ensure existing fixed ladders are equipped with at least one of the following four devices no later than November 19, 2018:

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    \54\ For purposes of final paragraph (b)(9)(i)(A), the term ``existing fixed ladder'' includes any fixed ladder installed before November 19, 2018.

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    A cage;

    A well;

    A ladder safety system; or

    A personal fall arrest system.

    Although the existing rule requires that employers already must have installed cages or wells on fixed ladders, the record indicates some have not. Therefore, OSHA is giving employers two years to come into compliance with the existing rule (existing Sec. 1910.27). Providing two years will ensure that employers have adequate time to order and install devices on fixed ladders and will reduce costs for employers who have ordered and not yet installed new fixed ladders equipped with cages or wells. Although the final rule is phasing out the use of cages and wells as a fall protection device, final paragraph (b)(9)(i) allows employers to continue to use existing fixed ladders that have a cage or well, but not ladder safety or personal fall arrest system, until:

    The fixed ladder, cage, or well, of portion of it is replaced (final paragraph (b)(9)(i)(C)); or

    November 18, 2036 (final paragraph (b)(9)(i)(D)), whichever comes first.

    This means that employers may not have to install ladder safety or personal fall arrest systems on their existing fixed ladders for up to 20 years. However, OSHA believes that many employers already have installed ladder safety systems and personal fall arrest systems or will install those systems long before the 20-year deadline comes due.

    Like final paragraph (b)(9)(i)(A), ANSI/ASC A14.3-2008 (Section 1.6.1) generally permits employers to use existing fixed ladders without change. The requirements of ANSI/ASC A14.3-2008 do not apply to existing fixed ladders, provided that the ladder was in compliance with a Federal, state, or national consensus standard at the time it was installed and there is documentation available to substantiate that (Section 1.6.1(1)), or a person competent in structural design determines that any differences in the existing ladder are such that its performance ``will not substantially deviate from the requirements'' of ANSI/ASC A14.3-2008 (Section 1.6.1(2)).

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    OSHA believes that most fixed ladders, except for some used in outdoor advertising, already have at least one of the four devices final paragraph (b)(9)(i)(A) requires and, therefore, will be able to continue using those ladders under the final rule. At a minimum, OSHA believes that most existing fixed ladders have cages or wells, which the existing rule (Sec. 1910.27(d)(1)(i)) has required since the Agency adopted it pursuant to section 6(a) of the OSH Act (29 U.S.C. 655(a)). Evidence discussed in the FEA also indicates that a significant percentage of employers already have ladder safety or personal fall arrest systems on existing fixed ladders.

    For fixed ladders that do not have any fall protection, which appears to be the case in the outdoor advertising industry, final paragraph (b)(9)(i)(A) requires that employers install a cage, well, ladder safety system, or personal fall arrest system before November 19, 2018. OSHA believes that most of those employers will install ladder safety or personal fall arrest systems during that time. First, according to the FEA, those systems generally are less expensive than cages or wells. Second, even ANSI/ASC A14.3-2008 requires the use of ladder safety systems for some climbs (Sections 4.1.3, 4.1.4, 4.1.4.2). However, the Agency notes that employers also will be in compliance if they install cages or wells on existing fixed ladders during the first two years after the final rule is published.

    One commenter, Ameren, said OSHA should make allowances for employers who have ordered fixed ladders but not yet received and installed them (Ex. 189). They said that it may take up to one year to receive a fixed ladder after placing the order. Final paragraph (b)(9)(i)(A) gives employers two years to install fall protection devices on their fixed ladders. As mentioned, OSHA considers ladders installed during this two-year period to be ``existing fixed ladders,'' which means employers may install any of the four devices specified in final paragraph (b)(9)(i)(A). Thus, employers will not have to change their orders if they purchased fixed ladders equipped with a well or cage. That said, OSHA believes many employers will change their orders to ladder safety or personal fall arrest systems which are less expensive than cages and wells and brings employers into compliance with final paragraph (b)(9)(i)(D) without having to make changes when the final phase-out deadline comes due.

    New fixed ladders. Final paragraph (b)(9)(i)(B) requires that employers ensure new fixed ladders they install on and after November 19, 2018 are equipped with a ladder safety system or personal fall arrest system. Requiring that new fixed ladders, rather than existing fixed ladders, be equipped with ladder safety or personal fall arrest systems makes the final rule primarily prospective. OSHA believes that employers should not have any difficulty complying with this approach.

    OSHA believes virtually all new fixed ladders manufactured and installed today are available with ladder safety and personal fall arrest systems. Allowing employers two years to begin equipping new fixed ladders with ladder safety or personal fall arrest systems gives employers adequate time to identify companies that manufacture fixed ladders equipped with these systems. OSHA notes that the 2-year phase-

    in also gives ladder manufacturers time to ensure their ladder safety and personal fall arrest systems comply with the personal fall protection system criteria in the final rule (final Sec. 1910.29).

    OSHA points out that final paragraph (b)(9)(i)(B) does not prohibit employers from also installing cages and wells on new fixed ladders in addition to ladder safety or personal fall arrest systems. Cages and wells can provide a way for workers to rest while they are climbing and working on fixed ladders. However, OSHA stresses that employers may not use cages and wells instead of providing ladder safety and personal fall arrest systems. In addition, employers must ensure that the cages and wells are compatible with and do not interfere with the ladder safety or personal fall arrest systems. (See final paragraph (b)(9)(iv) for further discussion.)

    Unlike final paragraph (b)(9)(i)(B), ANSI/ASC A14.3-2008 does not require that employers ensure new fixed ladders they install are equipped with ladder safety systems or personal fall arrest systems; but rather allows employers to install new ladders that only have cages or wells in some situations. For example, that standard allows employers to install new fixed ladders equipped with only cages where the length of any climb is less than 24 feet even though the top of the ladder is at a distance greater than 24 feet above a lower level (Section 4.1.2). Similarly, A14.3-2008 allows employers to install only cages or wells on new multiple-section fixed ladders that do not have a single length of climb exceeding 24 feet, provided each ladder section is offset horizontally from adjacent sections and there is a landing platform for safe access/egress (Section 4.1.4.1). That standard only requires employers to use ladder safety systems when a single length of climb exceeds 24 feet (Section 4.1.3) or the length of climb on multiple section ladders exceeds 50 feet (Section 4.1.4.2).

    Final paragraph (b)(9)(i)(B) does not adopt the approach in ANSI/

    ASC A14.3-2008. As discussed above, evidence in the record shows that cages and wells do not prevent workers from falling off ladders or protect workers from injury if they fall (e.g., Exs. 113; 155; 185; 198; OSHA-S041-2006-0666-0198). OSHA believes the final rule, requiring that employers ensure new fixed ladders are equipped with ladder safety systems or personal fall arrest systems, is more protective than ANSI/

    ASC A14.3-2008. In addition, OSHA believes the final rule is easier to understand and follow than specifying the type of fall protection employers must provide based on the length of the worker's climb, as A14.3-2008 requires.

    Replacement. Final paragraph (b)(9)(i)(C) requires that employers ensure when a fixed ladder, cage, or well, or any portion of a section thereof is replaced, a personal fall arrest system or ladder safety system is installed in at least that section of the fixed ladder, cage, or well where the replacement is located. Unlike final paragraph (b)(9)(i)(B), which does not become effective until November 19, 2018, any replacement installed after the final rule becomes effective, which is January 17, 2017, must be equipped with a ladder safety system or personal fall arrest system.

    Final paragraph (b)(9)(i)(C) does not require that employers install ladder safety or personal fall arrest systems when they make minor repairs to fixed ladders, cages, or wells, such as replacing a bolt or repairing a weld on a cage. However, when employers determine that they cannot simply make a repair to a section or a portion of a section of a fixed ladder, cage, or well but must replace that portion or section, employers must ensure the replacement is equipped with a ladder safety or personal fall arrest system. OSHA believes the inspection requirement in final Sec. 1910.22(d) will help employers identify when simple repairs or corrections will be adequate and when the situation, such as a condition that affects the structural integrity of the fixed ladder, cage, or well, necessitates replacement of the fixed ladder, cage, or well section.

    OSHA also notes that when ``a portion of a section'' of a fixed ladder, cage, or well needs replacement, the final rule only requires the employer to install a ladder safety or personal fall arrest system in that ``section of the fixed ladder, cage, or well where the replacement is located.'' The final rule

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    does not require employers to install a ladder safety or personal fall arrest system on the entire fixed ladder when a portion of one section needs replacement. For example, only part of a 50-foot section of a cage, well or multi-section ladder might need replacement because of damage. Final paragraph (b)(9)(i)(C) only requires that the employer replace that 50-foot section of the ladder, cage, or well with a ladder safety system or personal fall arrest system, not all sections. OSHA believes that a ``section'' of a fixed ladder equipped with a cage or well most likely will not exceed 50 feet. In this regard, ladder sections are the length of ladder between landings or platforms, and final paragraph (b)(9)(iii) requires that fixed ladders that have cages or wells must have landing platforms at least every 50 feet.

    The approach ANSI/ASC A14.3-2008 follows when existing fixed ladders are replaced, modified, or repaired differs from the final rule in two respects. First, when existing fixed ladders are replaced, modified, or repaired, the ANSI/ASC standard specifies that employers may install cages or wells instead of ladder safety systems or personal fall arrest systems in some situations (see discussion of final paragraph (b)(9)(i)(B)). Second, the ANSI/ASC standard requires that employers only have to install cages, wells, or ladder safety systems when they make repairs to more than 25 percent of the whole ladder. OSHA believes that requiring employers to install personal fall arrest or ladder safety systems when repairs necessitate replacement of a portion of a fixed ladder, cage, or well is more protective than allowing employers to wait until more than 25 percent of the fixed ladder is in need of repair. In fact, the final rule prohibits that approach. Section 1910.22(d)(2) requires that hazardous conditions be repaired immediately and, if that is not possible, guarded so workers cannot use the walking-working surface until it is fixed (final Sec. 1910.22(d)(2)). Moreover, as discussed above, the record indicates that installing ladder safety systems or personal fall arrest systems instead of cages or wells also is more protective.

    Again, this provision does not prohibit employers from keeping those portions of a cage or well that are functioning properly, or installing a new cage or well, provided the employer also installs a personal fall arrest or ladder safety system as final paragraph (b)(9)(i)(B) requires, and the cage or well does not interfere with the fall protection system.

    Final deadline. Finally, final paragraph (b)(9)(i)(D) establishes the final deadline for employers to ensure that all fixed ladders that extend more than 24 feet above a lower level are equipped with ladder safety or personal fall arrest systems, which, as mentioned, is 20 years after OSHA publishes the final rule. By that date (November 18, 2036), and thereafter, employers must ensure that all fixed ladders are equipped with personal fall arrest or ladder safety systems, even if the ladders have cages or wells.

    OSHA set the extended phase-out period to take into account normal replacement and average useful life of fixed ladders, cages, and wells. After 20 years, OSHA estimates that the large majority of fixed ladders will have been replaced or in need of replacement. Even ANSI/ASC A14.3-

    2008 notes that while ``fixed ladders are designed for extended service,'' they ``are neither designed nor intended to possess an infinite safe useful life'' (Section 9.1.3).

    OSHA also believes the extended phase-out lessens the compliance burden on employers, provides a smooth transition to update ladder systems, and allows employers to install ladder safety and personal fall arrest systems according to normal replacement schedules. In addition, OSHA believes that, through replacement and new installations, the vast majority of fixed ladders will have ladder safety or personal fall arrest systems before the time the final deadline arrives.

    Final paragraph (b)(9)(ii) adds new requirements for one-section fixed ladders that are equipped with personal fall arrest systems or ladder safety systems and fixed ladders equipped with those systems on more than one ladder section. For these ladders, the final rule requires that employers ensure:

    The personal fall arrest or ladder safety system provides protection throughout the entire vertical distance of the ladder, including all ladder sections (final paragraph (b)(9)(ii)(A)); and

    The ladder has rest platforms provided at least every 150 feet (final paragraph (b)(9)(ii)(B)).

    In final paragraph (b)(9)(ii)(A), OSHA clarified the proposed language (``vertical distance'') so the Agency could eliminate the need for the proposed note to paragraph (b)(9). OSHA stresses that the entire vertical distance of a fixed ladder includes all sections of a ladder, as well as any vertical distance in between ladder sections (sometimes referred to as ``entire length of climb''). This means that employers must protect workers for the entire vertical distance of fixed ladders equipped with ladder safety or personal fall arrest systems. The final provision also addresses the hazard of attempting to connect to a ladder safety or personal fall arrest system part way through a climb (i.e., at 24 feet), which would require that the worker release one hand from the ladder, and thereby increase the risk of falling. This requirement is consistent with the construction fall protection standard and ANSI A14.3-2008 (Section 7.1.6).

    OSHA notes that final paragraph (b)(9)(ii)(A) does not apply when only one section of a multiple-sectioned fixed ladder has a personal fall arrest system or ladder safety system and the other sections have only cages or wells. In this case, final paragraph (b)(9)(i)(C) applies, and employers need only ensure that the ladder safety or personal fall arrest system protects the worker during that section of the climb. However, when one-section fixed ladders and multiple sections of a fixed ladder have a ladder safety or personal fall arrest system, final paragraph (b)(9)(ii)(A) applies, and the employer must ensure the system protects the worker throughout the entire climb. The Agency does not believe that complying with final paragraph (b)(9)(ii)(A) should pose difficulties for employers. Rather, OSHA believes that if employers must install a ladder safety or personal fall arrest system, it is likely they will install the system on the entire fixed ladder (including all ladder sections). This is particularly true if the employer anticipates that other sections of the fixed ladder, cage, or well also will need replacement at some point.

    Paragraph (b)(9)(ii)(B), like the proposal, requires that employers ensure fixed ladders that have personal fall arrest or ladder safety systems also have landing platforms at intervals of at least every 150 feet. This final provision generally is consistent with OSHA's construction ladder standard and ANSI A14.3-2008. OSHA's ladder standard for construction requires that fixed ladders with self-

    retracting lifelines have rest platforms every 150 feet, while the ANSI standard requires that fixed ladders equipped with ladder safety systems have rest platforms at the same intervals (Section 4.1.4.2). OSHA received no comments on the proposed provision and finalizes it as discussed.

    Final paragraph (b)(9)(iii), like proposed paragraph (b)(9)(ii)(C), applies during the gradual phase out of cages and wells. The final rule requires that employers ensure ladder sections that have cages or wells:

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    Are offset from adjacent sections (final paragraph (b)(9)(iii)(A)); and

    Have landing platforms provided at maximum intervals of 50 feet (final paragraph (b)(9)(iii)(B)).

    Final paragraph (b)(9)(iii) is the same as the ladder standard for construction (Sec. 1926.1053(a)(19)(iii)). ANSI/ASC A14.3-2008 requires that each section of multiple section ladders equipped with only cages or wells be horizontally offset from adjacent sections and have landing platforms to provide safe access/egress (Section 4.1.4.1). Figure 5a in the A14.3 standard specifies platform landings at intervals of at least 50 feet. The existing rule in Sec. 1910.27(d)(2), however, requires landing platforms at 30-foot intervals if the fixed ladder has a cage or well, and at 20-foot intervals when there is no cage or well. OSHA based the existing rule on the ANSI A4.13-1956 rule in effect at the time. OSHA believes that making final paragraph (b)(9)(iii) consistent with the construction ladder requirements and the current ANSI A14.3-2008 standard will allow workers who perform both general industry and construction activities to use the same fixed ladders while cages and wells are being phased out. OSHA notes that once employers equip fixed ladders with a ladder safety or personal fall arrest system this provision no longer applies, even if the ladder also still has the cage or well.

    David Hoberg, with DBM Consultants, supported the provision requiring that fixed ladders have landing platforms, stating:

    Having climbed ladders of up to 125 feet and supervised persons using them, you would not believe the difference a landing makes. A hand cramping stops the climb. And try climbing a ladder as a first responder wearing 100 lbs. of gear where there is no landing to stage equipment or rest or take action (Ex. 206).

    The provision is finalized with minor reorganization for clarity.

    Final paragraph (b)(9)(iv) is a new provision OSHA added to the final rule that allows employers to use cages and wells in combination with personal fall arrest and ladder safety systems, provided the cages and wells do not interfere with the operation of the system. The proposed rule did not specifically address this issue, but ANSI A14.3-

    2008 (Section 4.1.6) allows the use of ladder safety systems in combination with a cage. OSHA is adding this provision to clarify that employers do not have to remove cages or wells when they install a required ladder safety or personal fall arrest system, provided the cage or well does not interfere with the operation of the required ladder safety or fall protection system. If a cage or well prevents a personal fall arrest or ladder safety system from operating properly, then the employer must remove the cage or well to protect workers from falling or otherwise incurring an injury.

    OSHA received one comment about using ladder safety or personal fall arrest systems in combination with cages or wells. Ellis urged that OSHA prohibit the use of ladder safety devices inside ladder cages because the rear bars of ladder cages can ``pitch the body forward which is tantamount to free fall'' (Ex. 155). The Agency believes that the language addressing interference in final paragraph (b)(9)(iv) resolves Ellis' concern without limiting employer flexibility or compromising worker safety.

    Outdoor advertising. Final paragraph (b)(10) addresses fall hazards on fixed ladders used in outdoor advertising (billboards). Final paragraph (b)(10), in combination with final paragraph (b)(9), revises the proposed rule to require that employers ensure their workers use fall protection while climbing fixed ladders that extend more than 24 feet above a lower level. This provision ensures that workers in outdoor advertising will have the same protection from fall hazards as other general industry workers who climb fixed ladders.

    The effect of the final rule is to phase out the fall protection exception that OSHA established in the 1991 Gannett variance (56 FR 8801 (3/1/1991)) and the 1993 directive extending the variance to the entire outdoor advertising industry (Fixed Ladders Used on Outdoor Advertising Structures/Billboards in the Outdoor Advertising Industry, STD 01-01-014 (1/26/1993)). (Hereafter, the Gannett variance and OSHA directive are collectively referred to as ``outdoor advertising directive.'') The outdoor advertising directive excepted that industry from complying with existing requirements that fixed ladders have cages or wells (existing Sec. 1910.27(d)(1)(ii)), and landing platforms (existing Sec. 1910.27(d)(2)). The effect of the directive is that workers in the outdoor advertising industry may climb fixed ladders, in some situations, without conventional fall protection (e.g., cages, wells, and ladder safety and personal fall arrest systems), provided employers ensure that:

    Each worker wears a safety belt or harness with an appropriate 18-inch rest lanyard when climbing up to 50 feet or heights up to 65 feet from grade on a combination ladder consisting of a portable ladder and a fixed ladder;

    Each worker keeps both hands free of tools or materials when climbing;

    Each worker uses a ladder safety system for climbs on fixed ladders that exceed 50 feet or when the ladder ascends to heights that exceed 65 feet above grade;

    Each worker who climbs fixed ladders equipped with ladder safety devices uses those devices properly and follows appropriate procedures for inspection and maintenance of those devices;

    The employer ensures proper maintenance and use of ladder safety devices that are installed on fixed ladders;

    Each worker uses an appropriate fall protection system after reaching the work position; and

    Each qualified climber receives training and demonstrates the physical capability to perform necessary climbs safely. In this regard, the employer must ensure that: The worker's physical condition is such that climbing will not impair the worker's health or safety; the worker completes training consisting of classroom training, observing an experienced qualified climber, and actual climbing under close supervision using redundant safety equipment; and the worker works without fall protection only after demonstrating the necessary ability and skill in climbing (STD 01-01-014).

    The proposed rule would have codified the specifications contained in the outdoor advertising directive, thus allowing outdoor advertising workers to continue climbing fixed ladders without fall protection so long as they complied with all of the provisions the directive included.

    The final rule, however, does not adopt the proposal. Instead, final paragraph (b)(10)(i) specifies that the fall protection requirements for fixed ladders in final paragraph (b)(9) also apply to fixed ladders used in outdoor advertising. This means that outdoor advertising employers must ensure, in accordance with final paragraph (b)(9)(i)(A), that fixed ladders are equipped with a ladder safety system, personal fall arrest system, cage, or well before November 19, 2018. In addition, they must follow the schedule in final paragraph (b)(9)(i) for gradually phasing in the installation of ladder safety and personal fall arrest systems on fixed ladders.

    Final paragraph (b)(10)(i) also requires that employers in outdoor advertising follow other provisions in revised subparts D and I, such as the inspection and maintenance requirements in final Sec. 1910.22, the training requirements in final Sec. 1910.30, and the criteria for personal fall protection systems in Sec. 1910.140.

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    Final paragraph (b)(10)(ii) establishes the requirements that outdoor advertising employers must follow during the phase-in period (two years) they have to install a cage, well, ladder safety system or personal fall arrest system. During this period when outdoor advertisers have not yet installed fall protection, employers must ensure that each worker:

    Receives training and demonstrates the physical capability to perform the necessary climbs in accordance with final Sec. 1910.29(h) (final paragraph (b)(10)(ii)(A));

    Wears a body harness equipped with an 18-inch rest lanyard (final paragraph (b)(10)(ii)(B));

    Keeps both hands free of tools or material while climbing the fixed ladder (final paragraph (b)(10)(ii)(C)); and

    Is protected by a fall protection system upon reaching the work position (final paragraph (b)(10)(ii)(D)).

    The requirements in final paragraph (b)(10)(ii) are limited and temporary. First, they only apply to fixed ladders used in outdoor advertising that are not equipped with any type of fall protection. Once a fixed ladder used for outdoor advertising is equipped with one of these systems, the requirements in final paragraph (b)(10)(ii) no longer apply. Instead, the requirements in final paragraphs (a) and (b)(9), final Sec. 1910.29, and final Sec. 1910.140 apply to outdoor advertising employers and fixed ladders used in outdoor advertising.

    Second, final paragraph (b)(10)(ii) is only a temporary provision. It is applicable only before November 19, 2018. As of November 19, 2018, final paragraph (b)(9)(i)(A) requires that employers must ensure all existing fixed ladders, including those used for outdoor advertising activities, are equipped with a cage, well, ladder safety system, or personal fall arrest system. Thus, as of November 19, 2018, the requirements in final paragraph (b)(10)(ii) no longer apply and the provision, in essence, expires. In their place, as stated above, the requirements in paragraphs (a) and (b)(9), as well as other fall protection system requirements in the final rule, apply to outdoor advertising employers. OSHA notes that the requirements in final Sec. 1910.29(h), which apply when workers climb fixed ladders without fall protection to perform outdoor advertising activities, also are temporary. As of November 19, 2018, the requirements in Sec. 1910.29(h) no longer will apply since, in accordance with final paragraph (b)(9)(i)(A), all fixed ladders used for outdoor advertising will be required to be equipped with a personal fall arrest system, ladder safety system, cage, or well.

    Final paragraph (b)(10)(ii)(A) requires that outdoor advertising employers ensure that each worker who climbs a fixed ladder that is not equipped with a personal fall arrest system, ladder safety system, cage, or well, receives training and demonstrates the physical ability to climb fixed ladders. Employers may comply with the training final paragraph (b)(10)(ii)(A) requires by ensuring that workers have completed a training or apprenticeship program, provided the program includes hands-on training on climbing ladders safely, performance observation combined with formal classroom or on-the-job training, and retraining as necessary (final Sec. 1910.29(h)(2) and (3)).

    OSHA notes that employers must ensure the requirement in final paragraph (b)(10)(ii)(A) to demonstrate physical capability must include either a physical examination or observation of the worker performing actual climbing activities (final Sec. 1910.29(h)(1)). Final Sec. 1910.29(h) discusses in detail the training and physical capacity requirements in final paragraph (b)(10)(ii)(A). OSHA notes that this training is in addition to the training outdoor advertising employers must provide to their workers under final Sec. 1910.30.

    Final paragraph (b)(10)(ii)(B) requires that outdoor advertising employers ensure workers who climb fixed ladders without fall protection wear body harnesses equipped with an 18-inch rest lanyard. OSHA's intention in requiring that outdoor advertising workers wear body harnesses with rest lanyards is that employers must ensure workers tie off to the fixed ladder when they need to rest during the climb.

    The final rule differs from proposed (b)(10)(i) and outdoor advertising directive, both of which permit outdoor advertising employers to provide a body harness or body belt for workers to use for resting during a climb. However, as discussed in final Sec. 1910.140, the final rule does not permit the use of body belts as a part of a personal fall arrest system; thus, OSHA deleted body belts from final paragraph (b)(10)(ii)(B). This revision also makes the final provision consistent with OSHA's construction industry rule, which also does not allow use of body belts for personal fall arrest (Sec. 1926.502(d)).

    Final paragraph (b)(10)(ii)(C) requires employers to ensure that workers engaged in outdoor advertising keep both hands free of tools or material when climbing fixed ladders. This requirement ensures that workers use their hands exclusively for climbing and not carrying tools and material up and down fixed ladders. When workers climb fixed ladders without fall protection, it is essential that they maintain balance and body control. Carrying tools and materials in their hands while they climb may cause workers to lose their balance, which could result in a fall. Both the proposed rule at paragraph (b)(10)(vi) and the outdoor advertising directive include this requirement. In addition, it is consistent with final paragraphs Sec. 1910.23(b)(12) and (13), the construction standard (Sec. 1926.1053(b)(21) and (22)), and ANSI A14.3-2008 (Section 9.2.1 and 9.2.2).

    Final paragraph (b)(10)(ii)(D), like the proposed rule at paragraph (b)(10)(vii) and the outdoor advertising directive, requires outdoor advertising employers to provide workers who climb fixed ladders with, and ensure that they use, a fall protection system once they reach the work position/platform. Thus, when workers step onto the work platform, they must be tied off or otherwise protected from falling (e.g., guardrails). OSHA believes this requirement is necessary because outdoor advertising employers typically install platforms at great heights. The final provision allows employers to use any type of fall protection system specified by final paragraph (b)(1) to protect workers from falling off an unprotected side or edge, including guardrail, safety net, travel restraint, positioning, or personal fall arrest systems.

    OSHA requested comment in the proposed rule about eliminating the qualified climber exception for the outdoor advertising industry and instead require fixed ladders used in outdoor advertising to be equipped with the same fall protection as other fixed ladders under the general industry standard (75 FR 28869). In response, OSHA received many comments. A number of commenters, including several fall protection equipment manufacturers, safety organizations, and safety professionals who provide fall protection services, opposed retaining the qualified climber exception in the final rule (Exs. 155; 185; 198; 250). For several reasons, these commenters opposed including in the final rule a qualified climber exception for any industry. These reasons included the dangers of climbing without fall protection; the questionable need for the qualified climber exception in the outdoor advertising industry when compared to other industries; and the ready availability of feasible and easy to use fall protection (e.g., Exs. 155; 185; 198; 205; 250). For example, American Society of Safety Engineers (ASSE) said:

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    The idea that it is somehow acceptable to climb high distances without fall protection contradicts OSHA's proposed fixed ladder standard requiring a ladder safety system or a cage/well when the total length of a climb exceeds 24 feet. Our members fail to understand why fixed ladders between 24-50 feet in height used in outdoor advertising should be different than other industry ladders used at the same heights. Further, the technology is readily available to provide protections for the fixed ladder (Ex. 127).

    ISEA and CSG also voiced opposition to a qualified climber exception for outdoor advertising:

    Their situation is not unique. Right now there are many systems available to provide fall arrest as soon as these workers leave the ground. In fact, this type of equipment is used today, so the burden on employers is slight.

    OSHA asks about technological and economic feasibility of fall protection for this type of work. Because this industry is constantly improving its offerings and developing new solutions for employers and employees, it is safe to say there has been marked improvement in ladder systems over the past 20 years. In addition, ladder climbing systems are becoming increasingly common.

    Finally, Assistant Secretary Michaels has been speaking about fostering a greater culture of safety in U.S. workplaces. Providing an exemption from use of fall protection for those working at dangerous heights seems to run counter to this message (Exs. 185; 198).

    The Society of Professional Rope Access Technicians (SPRAT) agreed, saying:

    In light of advances in technology and accepted practices for safe alternatives such as Rope Access, twin lanyards, and lead climbing, elimination of the Qualified Climber provision may be timely and appropriate. Variations on these concepts are already accepted methodologies in international fall protection regulations, including ISO, BSA, and Australia. Granted, a 100% tie-off approach may be onerous to implement all at once, but implementation could be phased over several years to help ameliorate the impact (Ex. 205).

    Ellis made a similar comment:

    This concept of a safe climber who does not need fall protection on ladders or step bolts for climbing towers is a timeworn concept whose day has passed. Protection should be required. Use of rope access teams for work at heights . . . and always using fall protection is what has already arrived in many countries of the world including most of Europe, Australia and South Africa (Ex. 155).

    Finally, Damon, Inc., opposed the qualified climber exception because it suggests that older, experienced workers climb better with age while data actually shows that ``older workers have a disproportionate share of fatal falls from ladders'' (Ex. 250).

    Many commenters, primarily those in the outdoor advertising industry (Exs. 121; 260; 359; 369) and employees of Lamar Advertising (Lamar) (e.g., Exs. 75; 80; 81; 82; 83; 84; 85; 86; 87; 88; 89; 90; 91; 92; 93; 94; 95; 99; 104; 105; 106; 128), supported codifying the outdoor advertising directive for fixed ladders used in outdoor advertising. For example, Clear Channel Outdoor, Inc. (CCO), and the Outdoor Advertising Association of America (OAAA) supported codifying the outdoor advertising directive because the industry has been operating under it for over two decades (Exs. 121; 329 (1/18/2011, pgs. 113-116)). Many Lamar employees also said they followed the requirements of the outdoor advertising directive for more than two decades and are familiar with the requirements. In this regard, Joseph Shopshear, a Lamar operations manager, said Lamar based its worker safety programs on the Gannett variance, and that ``the Gannett Variance is a very important first step in our safety program and other safety related programs and has been since my employment began with Lamar'' (Ex. 81). Similarly, William DeVine, another Lamar operations manager, said the Gannett variance is the ``forefront'' of the company's safety meetings, the qualified climber qualifications, and the ``backbone'' of their training program (Ex. 94). Therefore, he:

    Urges OSHA to allow this variance to remain in effect. Any other legislation could immediately affect my job and others around me . . . I do support the Gannett Variance wholeheartedly and request that it remain permanent in the newest legislation . . . The Gannett Variance as written will continue to protect me and my fellow climbers and provide the safest of work environments . . . (Ex. 94)

    Several commenters said that OSHA should codify the qualified climber exception for outdoor advertising because they have not experienced any fatalities related to climbing fixed ladders without fall protection, and falls are ``extremely rare'' (Exs. 106; 260; 329 (1/18/2011, pgs. 113-19); 369). For example, Mike Gentile, another Lamar operations manager, said, ``There has been over a million climbs made by all billboard personnel in California in the past ten (10) years on fixed ladders. To date, I am not aware of one single fall'' (Ex. 106). CCO, which asserted in its comments on the proposed rule that ``CCO employees simply do not fall from fixed ladders'' (Ex. 121), expanded on this assertion in its post-hearing comments, stating:

    The past eighteen years has clearly established that the Gannett Variance works very well for this industry. There have been zero fatalities and industry is aware of only one fall from a fixed ladder, one, despite literally millions of climbs. The hard evidence proves that the variance works and the numbers could only get worse if the variance is not codified into the new regulations (Ex. 369).

    OAAA, reporting on information from industry members, said, ``From a safety standpoint, our companies report that no deaths due to falls from fixed ladders have occurred in the past five years; of the 15,840,000 climbs over the past 5 years, our companies are aware of only one fall from a fixed ladder'' (Ex. 260). OAAA estimated that its members, which it said comprise 90 percent of the market, have a total of 1,800 climbers.

    The International Sign Association (ISA) also supported retaining the qualified climber exception because of the industry's safety record, noting, ``It is our understanding that the safety record of outdoor advertising professionals has been excellent over the last decade, and that changing the rule would impose unnecessary costs and technical requirements'' (Ex. 161).

    CCO said it would be too costly to retrofit fixed ladders with fall protection (Exs. 121; 369). They claimed that it would cost the company in excess of $80 million to retrofit its 60,000 existing structures (Ex. 121).\55\ In its post-hearing comments, CCO revised and supplemented its cost information on retrofitting fixed ladders with fall protection, noting, ``The installation of cages and wells would cost approximately $1,400 for first 20 feet and $1,050 for each twenty foot section after. Accordingly the cost depends upon the height of the unit'' (Ex. 369). CCO stated further:

    ---------------------------------------------------------------------------

    \55\ CCO submitted a pre-hearing comment, Ex. 121, and a post-

    hearing comment, Ex. 369. In the earlier of CCO's two comments, the company appeared to be describing compliance costs for the entire set of billboard ``faces'' owned and operated by the company (60,000 structures, $80 million), whereas in the later comment the company appeared to be restricting its cost discussion to 20,000 billboard structures that reach elevations above a certain height and require a compliance response.

    Clear Channel Outdoor is one of the largest outdoor advertising businesses in the USA. Many of the remaining companies are very small ``mom and pop'' types of operations. While Clear Channel has always met or exceeded regulatory requirements, the additional cost to comply would not only be a significant impact on the company, it could potentially put the smaller operations out of business due to additional financial burden to meet the new requirements.

    Clear Channel Outdoor has in excess of 20,000 structures domestically. If one were to remove the structures greater than fifty feet that were addressed earlier in these

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    questions you would be left with approximately 16,000 structures. If one were to divide that number in half to allow for structures less than twenty-four feet of ladder climber and specialty structures without ladders, there would still be around 8,000 structures that would be affected by the proposed codification of the Gannett Variance with heights in excess of twenty-four feet of climb (twenty-five feet is the typical average mentioned in question 1). To install cages on this number of structures would be approximately $12,000,000. To install vertical fall protection would be approximately $2,200,000. While looking at the percentage of cost on new builds individually may not appear to be that much, to retrofit structures that are already in existence to meet new requirements would be extremely expensive.

    Additionally, guardrails, cages and wells could potentially obscure advertising copy. This could result in a diminishment of sales and possibly have a catastrophic financial impact on all outdoor advertisers (Ex. 369).

    Citizens for a Scenic Wisconsin, Inc. (CFSW), raised a similar concern about requiring fall protection on fixed ladders used for outdoor advertising. CFSW pointed out that the Federal Highway Administration allows catwalks or handrails for non-conforming billboards, and the Highway Beautification Act (HBA) of 1965 allows non-conforming billboards to remain in place until they are destroyed, abandoned, discontinued, or removed. CFSW concluded, ``If existing non-

    conforming billboards cannot be safely serviced then their advertising message will eventually become obsolete or so weathered and worn that it will become discontinued or abandoned, and ordered removed without compensation as the HBA intended'' (Ex. 217).

    Two commenters supported applying the qualified climber option to industries other than outdoor advertising. For example, Verallia said limiting the qualified climber option only to outdoor advertising was ``too restrictive,'' and recommended that OSHA expand the qualified climber provision to other industries, stating:

    There are many other tasks that are routinely performed in general industry that are comparable. Without attempting to provide a comprehensive list of such tasks, one example is the infrequent, but not uncommon, need to climb a ``smoke stack'' in order to perform emissions testing. The ``stack tester'' is only at the elevated level for a relatively short amount of time. This task, and surely many others, are comparable to that of the ``outdoor advertiser'' and should also come within the proposed standard at 1910.28(b)(10) (Ex. 171).

    OSHA notes that neither CCO nor OAAA supported allowing existing fixed ladders used for outdoor advertising to remain in place and prospectively applying the fall protection requirements to fixed ladders erected in the future. OAAA said, ``It could be difficult to support a grandfather provision due to the fact that a new regulatory requirement could foster inconsistent application of climbing methods which ultimately could increase overall risk to climbers. Essentially a double standard is created'' (Ex. 359). OAAA stated further that ``there is concern that two training systems will be required in the future, one for grandfather structures and another separate program for new structures and fixed ladders. Thus, this can be costly as well as potentially strain overall company safety efforts'' (Ex. 359). Finally, OAAA noted that ``we concur with the use of new technologies to protect our workers and professional climbers,'' but ``recommend that OSHA not list specific equipment in the standard so as to give employers the flexibility to use new technologies as they become available'' (Ex. 260). A number of Lamar employees agreed, saying that listing fall protection system in the final rule would make the rule ``outdated as soon as it was published'' (e.g., Exs. 75; 92; 93; 99; 101).

    For a number of reasons, OSHA believes that it is necessary and appropriate to eliminate the qualified climber exception in the outdoor advertising industry. First, workers are at risk of death and injury climbing to elevated heights on fixed ladders without fall protection (no matter how often) and OSHA believes employers in outdoor advertising are aware of these risks. For example, CCO, one of the largest companies in the outdoor advertising industry, said they already have equipped a number of fixed ladders with fall protection systems (Ex. 369). CCO added that the average height at which those fall protection systems protect their workers is 18 feet, which is well below the height at which fall protection is required in the outdoor advertising directive. OSHA also notes that the outdoor advertising industry did not oppose the proposal's requirement that fixed ladders used in outdoor advertising be equipped with ladder safety systems or personal fall arrest systems when those ladders exceed 50 feet or for climbs that exceed 65 feet, which is an acknowledgement that workers climbing fixed ladders without fall protection are exposed to great risk.

    As demonstrated in the FEA, falls from ladders are a significant cause of worker deaths and injuries. The FEA indicates that on average, falls kill 47 general industry workers and injure 10,716 workers each year. OAAA said their member companies reported no deaths and only one fall involving their 1,800 climbers for the years 2005 to 2010 (Ex. 260). OSHA's Integrated Management Information System (IMIS) data indicate that since the 1991 Gannett Variance there have been at least three falls from fixed ladders in the outdoor advertising industry, one of which resulted in death.\56\

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    \56\ OSHA derives IMIS data from investigations of employer accident reports. Since OSHA only requires that employers report accidents that involve a fatality or the hospitalization of three or more workers, the Agency believes that IMIS data may understate the number of non-fatal injuries. IMIS Fatality and Catastrophe Investigation Summaries are found on OSHA's Web site at: http://www.osha.gov/pls/imis/accidentsearch.html.

    The referenced falls are in Ex. 393 under the following inspection numbers: 310696489; 126063924; and 126062694.

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    The IMIS data also show a large number of falls, in servicing outdoor advertising structures; however, the data do not identify the location of the workers on the structures when they fell (Ex. 393). Therefore, OSHA cannot determine definitively whether the falls were from fixed ladders. However, OSHA believes that at least some of these falls could have occurred while workers were climbing the fixed ladder or transitioning from the fixed ladder to the work platform because the incident narratives state that workers were not using fall protection (or were not tied off) when they fell. Since the outdoor advertising directive requires that employers ensure their workers use fall protection at all times when they are on work platforms, OSHA believes that workers may have been on fixed ladders or transitioning from fixed ladders to the work platform when they fell. As such, OSHA believes that there may actually be more than the three falls (noted above) related to climbing without fall protection.

    Second, OSHA believes that requiring outdoor advertising employers to ensure their workers use ladder safety systems or personal fall arrest systems when they are on fixed ladders will reduce the risk of falls when workers are transitioning from fixed ladders to work platforms (or from the work platform to the fixed ladder). Stakeholders, including many Lamar Advertising workers, admitted that transitioning from fixed ladders to work platforms is an ``important'' safety concern (e.g., Exs. 85; 86; 90; 92; 103; 104; 105. See also, Ex. 329 (1/18/2011), p. 333). OAAA agreed, saying the final rule must ensure ``safe transitions'' from fixed ladders to landing surfaces (Ex. 260). IMIS data show falls occurred in the outdoor advertising industry when workers were

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    transitioning between the fixed ladder and the landing/work platform (Ex. 393). As such, OSHA finds that qualified climber training programs have not adequately addressed the significant risk associated with transitioning to/from fixed ladders without work platforms and the requirement that employers ensure workers use ladder safety systems or personal fall arrest systems while climbing fixed ladders is needed. Requiring that workers must be tied off at all times (both on the fixed ladder and work platform) will reduce the risk of worker falls during fixed ladder/platform transitions. For example, when workers leave the work platform they can slip or lose their balance when turning to climb back down the ladder. At this point the workers may not see the first rung on the ladder and must feel for a foothold as they transition from the platform to the fixed ladder. If workers are tied off, falls will be stopped even if their balance is lost, their foot slips off a ladder rung, or they lose their grip on the ladder or other hand hold.

    Third, OSHA believes that requiring outdoor advertising employers to use fall protection on fixed ladders will help to ensure that their workers also continue to use fall protection (i.e., be tied off) at all times when they are on outdoor advertising work platforms, which will reduce fatal falls from those platforms. The outdoor advertising directive, issued in 1993, requires that employers ensure their workers use fall protection at all times while on work platforms. However, IMIS data from 1993-2010 indicate that 23 falls from outdoor advertising work platforms occurred during that time because either employers did not provide fall protection for workers or did not ensure workers were properly tied off. Of those falls, 13 resulted in worker deaths (Ex. 393). OSHA believes if employers must provide and ensure workers use fall protection when they start climbing fixed ladders to work platforms that those workers will be more likely to remain tied off when they reach, and work on, the platforms.

    OSHA notes that requiring that workers in outdoor advertising use fall protection when they climb fixed ladders makes the final rule consistent with the construction ladder standard (Sec. 1926.1053(a)(18) and (19)) and other standards the Agency recently revised (Sec. Sec. 1910.269 and 1926.954). Those standards require that workers, including specially trained workers similar to qualified climbers in outdoor advertising, use fall protection while climbing fixed ladders, poles, towers, and similar structures. For example, the construction ladder standard requires that employers provide workers climbing fixed ladders above 24 feet with, and ensure that they use, ladder safety devices, self-retracting lifelines (i.e., personal fall arrest system), cages, or wells (Sec. 1926.1053(a)(19)).

    OSHA's revised general industry (Sec. 1910.269) and construction (29 CFR part 1926, subpart V) electric power generation standards added a requirement that qualified employees must use fall protection while climbing or changing locations on poles, towers, or similar structures, unless the employer can demonstrate that fall protection is not feasible or presents a greater hazard to the employees (Sec. Sec. 1910.269(g)(2)(iv)(C)(3) and 1926.954(b)(3)(iii)(C))(79 FR 20315 (4/11/

    2014)). As originally adopted, Sec. 1910.269 (adopted by OSHA in 1994) did not require that qualified employees use fall protection when climbing poles, towers, and similar structures unless conditions (e.g., ice, high winds, presence of contaminants) could cause workers to lose their grip or footing. However, because of the incidence of fall fatalities and ready availability of personal fall protection systems (e.g., personal fall arrest systems, pole straps), OSHA added a provision to Sec. 1910.269 specifically requiring that qualified employees use fall protection (Sec. 1910.269(g)(2)(iv)(C)(3))(79 FR 20399-20401). OSHA believes the rationale for eliminating the qualified employee exception from Sec. 1910.269 also is applicable to outdoor advertising.

    OSHA is requiring that outdoor advertising employers provide fall protection on fixed ladders because it is clear that, like the utility industry, there are technologically feasible means of fall protection available that are currently in use to protect workers in outdoor advertising. Indeed, since 1993 the outdoor advertising directive has required that employers install ladder safety systems, and ensure that workers use them, when climbs on fixed ladders exceed 50 feet or when the fixed ladder ascends to a height of more than 65 feet above grade. During the period since OSHA issued the directive, manufacturers developed new types of personal fall protection systems, specifically personal fall arrest systems, for climbing fixed ladders, and these systems are readily available, effective, and easy to use (e.g., Exs. 127; 185; 198). OSHA included these systems in the construction fall protection standard issued in 1994, and their use is commonplace today. As mentioned, OSHA also required the use of fall protection systems, such as personal fall arrest systems, in the 2014 revisions to Sec. 1910.269 and Sec. 1926.954. OSHA also notes that, in the current rulemaking, several stakeholders submitted information to the record about fall protection systems that are readily available and effective in protecting workers climbing fixed ladders (Exs. 127; 155; 185; 198; 205).

    The record also shows that it is economically feasible for the outdoor advertising industry to comply with the final requirement to ensure that employers provide and ensure their workers use fall protection systems while climbing fixed ladders in outdoor advertising. Many, if not most, fixed ladders manufactured today have ladder safety systems or personal fall arrest systems (i.e., self-retracting line or cable) that meet the requirements of final paragraph (b)(9) of this section and final Sec. 1910.29. The FEA and the record for this rulemaking indicate that these systems are reasonably priced and economically feasible. In the FEA, OSHA estimates that the cost of purchasing and installing a ladder safety system or personal fall arrest system is about $1,050. In their post-hearing comments, CCO's cost estimates for installing ladder safety or personal fall arrest systems are lower than OSHA's cost estimates, suggesting that OSHA's estimate is conservative (Ex. 369).

    OSHA also believes the fall protection requirement is economically feasible because the FEA estimates that employers will need to equip only a small percentage of existing outdoor advertising structures with fall protection. OAAA estimates there are approximately 450,000 existing structures (Exs. 260; 359; 369). Employers in outdoor advertising will not have to install fall protection on fixed ladders that do not extend more than 24 feet above a lower level (final paragraph (b)(9)(i)(A)) or that already are equipped with fall protection. As such, in the FEA, OSHA estimates that employers will need to equip only about 21,000 existing outdoor advertising structures with a fall protection system by November 19, 2018. In the Preliminary Economic Analysis (PEA) of the proposed rule, OSHA included a similar estimate (i.e., 20,490 outdoor advertising structures extend more than 20 feet above a lower level); OAAA provided this estimate to OSHA based on their member comments and a survey (Ex. OSHA-2007-0072-0046, p. A-

    9). Neither OAAA nor any other employer in the outdoor advertising industry challenged OSHA's estimate. In fact, OAAA's and CCO's comments generally support OSHA's conclusion that employers will need to equip only

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    a small percentage of existing outdoor advertising structures with fall protection systems (Exs. 260; 359; 369).

    The framework of the final rule, when read in the context of final paragraph (b)(9)(i) of this section, provides employers with substantial control flexibility, which further ensures the final rule is economically feasible. Specifically, the final rule allows outdoor advertising employers to equip existing ladders (that have no fall protection) with a cage, well, ladder safety system, or personal fall arrest system (final paragraph (b)(9)(i)(A)), while the existing rule, absent the outdoor advertising directive, would require outdoor advertising employers to equip the fixed ladders with cages or wells (existing Sec. 1910.27(d)(1)(ii)). As mentioned earlier in this preamble, this flexibility allows employers to equip fixed ladders with the least costly fall protection system, which the record indicates are ladder safety or personal fall arrest systems (Ex. 369; see also FEA). OSHA notes that CCO, one of the largest outdoor advertising companies, said it would cost approximately $12 million to install cages or wells on 8,000 existing fixed ladders, but only $2.2 million to install ladder safety systems or personal fall arrest systems (i.e., ``vertical fall protection'') on those fixed ladders (Ex. 369).

    In addition, giving employers in outdoor advertising two years to install a fall protection system on fixed ladders lessens the economic impact of the final rule and further shows the requirement is economic feasible. For example, it gives employers time to identify and evaluate various types of fall protection systems, negotiate with manufacturers and vendors to select the most cost-effective system that best satisfies their needs, and train workers in the use of that equipment. Moreover, OSHA notes that the final rule gives outdoor advertising employers two years to comply with the requirement that their workers use fall protection while climbing fixed ladders while revised Sec. 1926.954 gave employers only one year to comply with the fall protection requirement.

    Gradually phasing in over 20 years the requirement that fixed ladders be equipped with ladder safety systems or personal fall arrest systems also significantly lessens the economic impact on employers, including those in outdoor advertising. To illustrate, if outdoor advertising employers currently use fixed ladders equipped only with cages or wells, the final rule gives these employers 20 years to install ladder safety or personal fall arrest systems. This extended phase-in period allows employers to install fall protection systems as part of their normal replacement or business cycles rather than retrofitting fixed ladders immediately. In sum, OSHA believes the combination of flexibility to use controls that are less expensive than those the existing rule required, extended compliance time, and gradual phase-in of ladder safety systems and personal fall arrest systems ensures the final rule is economically feasible and will not threaten the industry's ``long-term profitability'' or substantially alter its competitive structure. (Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1453 (4th Cir. 1985) (en banc) (Noise)).

    Finally, OSHA believes requiring employers in outdoor advertising to provide and ensure that workers use fall protection when climbing fixed ladders is reasonable and appropriate because, as a number of commenters said, the outdoor advertising industry and the fixed ladders it uses are not unique with regard to fall protection (Exs. 155; 185; 198). Therefore, OSHA believes that it is no longer necessary or warranted for it to except the outdoor advertising industry from the requirements to use fall protection while climbing fixed ladders. Stakeholders in the outdoor advertising industry did not argue that the elevated heights encountered in outdoor advertising are not dangerous, or that fall hazards or work conditions in outdoor advertising are unique compared to other industries. Moreover, they did not argue that the fall protection systems used by workers in other industries when climbing fixed ladders will not work, or are not a feasible means of worker protection, in the outdoor advertising industry.

    Regarding comments recommending that OSHA not list specific fall protection systems in the final rule because such a list would soon become outdated, OSHA notes that the Agency has dealt with issues like this in the past. If an employer has information about a new method of fall protection that will provide worker protection equivalent to the protection afforded to workers by the final rule, it can approach the Agency and seek permission to use it through a request for interpretation or a variance.

    Stairways. Final paragraph (b)(11), which generally is consistent with existing Sec. Sec. 1910.23(d)(1) and 1910.24(h) and proposed paragraph (b)(11), requires that employers protect workers from falling off stairway landings and the exposed sides of all stairways. Stairways, as defined in the final rule in Sec. 1910.21(b)), include standard stairs, ship stairs, spiral stairs, and alternating tread-type stairs.

    Final paragraph (b)(11)(i), like the proposal, requires that employers ensure each worker exposed to an unprotected side or edge of a stairway landing that is four feet or more above a lower level is protected by a guardrail \57\ or stair rail system.\58\ The final requirement is consistent with the requirements for stairway landings specified by the existing general industry standard in Sec. 1910.24(h) and the construction standard in Sec. 1926.1052(c)(12). The final provision is also consistent with A1264.1-2007 (Section 7.1), the National Fire Protection Association (NFPA) Life Safety Code--NFPA 101-

    2012 (Section 7.1.8), and the International Code Council International Building Code (IBC)--IBC-2012 (Section 1013.2). OSHA notes that NFPA and IBC require guards on open-sided walking surfaces located more than 30 inches above the floor or grade below. Unlike final paragraph (b)(1), which allows employers to protect workers using one of several fall protection options, final paragraph (b)(11)(i) requires that employers provide guardrails or stair rails on unprotected sides and edges of stairway landings and stairways. OSHA believes that limiting the fall protection options to stair rails or guardrails is necessary, because the other fall protection options in final paragraph (b)(1) (i.e., safety net, travel restraint, and personal fall arrest systems) are not appropriate or practical to use on stairways, which workers use regularly and routinely to access workplace areas. Using the other options could prevent, or significantly encumber or impede, workers from using the stairways and freely moving around the worksite. By contrast, guardrail and stair rail systems provide continuous protection while allowing workers to freely access stairs and worksites.

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    \57\ The final rule defines guardrail system as a barrier erected along an unprotected side, edge or other walking-working surface to prevent workers from falling to a lower level (final Sec. 1910.21(b)).

    \58\ The final rule defines stair rail or stair rail system as a barrier erected along the exposed or open side of stairways to prevent workers from falling to a lower level (final Sec. 1910.21(b)).

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    Final paragraph (b)(11)(ii), consistent with existing Sec. 1910.23(d)(1) and proposed paragraph (b)(11)(ii), requires that employers ensure each flight of stairs having at least three treads and at least four risers is equipped with a stair rail system and handrails as specified in Table D-2. Table D-2 specifies the type and number of stair rails and handrails employers must provide based on the width and configuration of the stairs.

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    NFPA commented on the proposed table, saying that it was potentially misleading (Ex. 97). In particular, NFPA said the third column (``One open side'') did not clearly specify that, in addition to providing a handrail on the ``one open side,'' employers also must provide a handrail on the ``enclosed side'' (Ex. 97). NFPA noted that OSHA should not expect employers to know that they must meet the requirements for both the ``enclosed side'' and for ``one open side'' to be in compliance with the final rule. NPFA, therefore, made the following two recommendations to revise the third column of the proposed table: (1) For stairways that are 44-88 inches wide, NFPA recommended, ``One stair rail system with handrail on open side and one handrail on enclosed side''; and (2) for stairways that are greater than 88 inches, NFPA recommended, ``One stair rail system with handrail on open side, one handrail on enclosed side, and one intermediate handrail located in the middle of the stair.'' OSHA agrees that NFPA's recommendations clarify the information provided in the proposed table, and incorporates them in final Table D-2.

    Final paragraph (b)(11)(iii), like the proposal, requires that employers ensure ship stairs and alternating tread-type stairs are equipped with handrails on both sides. Both of those types of stairs have slopes that are 50 to 70 degrees from the horizontal, and OSHA believes that workers need handrails on both sides to safely climb those stairs. This requirement is consistent with IBC-2012 (Section 1009.13 and .14) and NFPA 101-2012 (Section 7.2.11). OSHA did not receive any comments on the proposed provision and adopts paragraph (b)(11) with only minor changes for clarity.

    Scaffolds and rope descent systems. Final paragraph (b)(12), like the proposal, requires that employers protect workers from falls who are working on scaffolds and who are using rope descent systems. The final rule defines a scaffold in part as a temporary elevated or suspended platform and its supporting structure, including anchorage points, that support workers, equipment, materials, and other items (final Sec. 1910.21(b)). As defined in the final rule, a rope descent system, also known as controlled descent equipment or apparatus, is a suspension device that allows the worker to descend in a controlled manner, usually in a chair (seatboard) (final Sec. 1910.21(b)).

    Final paragraph (b)(12)(i), like the proposal, makes the general industry standard consistent with the construction standard by requiring the employer to ensure that workers on scaffolds are protected from falling in accordance with 29 CFR part 1926, subpart L. The final rule deletes the existing general industry scaffold provisions and, instead, requires that employers comply with the requirements in the construction scaffold standards. The requirements in the construction scaffold standard are more comprehensive and up to date than the existing rule, which OSHA adopted in 1971. OSHA notes the existing rule, like the construction standard, requires that employers provide fall protection when workers on scaffolds are 10 feet or more above a lower level (see e.g., existing Sec. 1910.28(b)(15), (c)(14), (d)(7), (f)(15), (g)(5), (h)(8), (k)(5), (m)(7), (o)(2), (p)(7); Sec. 1926.451(g)(1)).

    Final paragraph (b)(12)(ii), like the proposal, requires that employers ensure workers using rope descent systems four feet or more above lower levels are protected from falling by a personal fall arrest system. OSHA reminds employers that if they use vertical lifelines to protect workers using RDS, the lifeline must be attached to a separate anchorage (see final Sec. 1910.140(c)(12)). The construction fall protection standard includes a similar requirement (Sec. 1926.502(d)(15)). OSHA did not receive any comments on the proposed provision and finalizes it with only minor editorial change.

    Work on low-slope roofs. Final paragraph (b)(13) is a new provision that establishes fall protection requirements when employees perform work on low-slope roofs. OSHA is adding this provision to make the general industry standard more consistent with the construction fall protection standard, which includes a provision addressing roofing work performed on low-slope roofs (Sec. 1926.501(b)(10)). Many stakeholders urged OSHA to incorporate the construction provision in the final rule (see e.g., Exs. 121; 124; 164; 171; 180; 189; 192; 207; 226; 251).

    The final rule defines low-slope roof as ``a roof having a slope less than or equal to 4 in 12 (vertical to horizontal)'' (Sec. 1910.21(b); see also Sec. 1926.500(b)). A ``4 in 12'' slope means, for example, the slope does not exceed a 4-foot vertical rise for every 12 feet in the horizontal length of the roof.\59\

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    \59\ In the preamble to the proposed rule, OSHA mistakenly indicated that a ``4 in 12'' slope is a slope that is 10 degrees or less. NIOSH noted correctly in its comments that ``a slope of 10 degrees or less from the horizontal requires a slope of 2 in 12 (9.5 degrees)'' (Ex. 164). Therefore, for the purposes of this final rule, a low-slope roof has a slope of 4 in 12 or less, which is a slope of less than 20 degrees.

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    Under paragraph (b)(13), the type of fall protection measures employers must use on low-slope roofs depends upon the distance they work from the roof edge.\60\ The final rule divides work on low-slope roofs into three zones:

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    \60\ OSHA notes that final paragraph (b)(13) only applies to unprotected ``edges'' of low-slope roofs. As such, employers must protect workers from holes on roofs, including skylights, in accordance with final paragraph (b)(3).

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    Work performed less than 6 feet from the roof edge;

    Work performed 6 feet to less than 15 feet from the roof edge; and

    Work performed 15 feet or more from the roof edge.

    Work performed less than 6 feet from the roof edge--Final paragraph (b)(13)(i), like the construction standard (Sec. Sec. 1926.501(b)(10) and 1926.502(f)) requires that employers use conventional fall protection systems (i.e., guardrail systems, safety net systems, personal fall protection systems) when they work less than 6 feet from the edge of a low-slope roof. OSHA believes that using a conventional fall protection system is necessary to protect workers from falling when they work that close to the roof edge, including the edge of low-

    slope roofs. Without conventional fall protection, an inadvertent slip or trip this close to the edge could propel the worker off the roof.

    Work performed 6 feet to less than 15 feet from the roof edge--

    Final paragraph (b)(13)(ii), which applies when employees work at least 6 feet but less than 15 feet from the roof edge, requires that employers protect workers from falling by using:

    A conventional fall protection system; or

    A designated area, but only when the employer is performing work ``that is both infrequent and temporary.''

    The final rule defines ``designated area'' as ``a distinct portion of a walking-working surface delineated by a warning line in which employees may perform work without additional fall protection'' (final Sec. 1910.21(b)). The definition of designated area is similar to the construction standard's ``warning line system,'' defined as a barrier erected on a roof to warn employees that they are approaching an unprotected roof side or edge, and which designates an area in which roofing work may take place without the use of guardrail, body belt, or safety net systems to protect employees in that area (Sec. 1926.500(b)).

    In the preamble to the construction fall protection standard, OSHA explained how warning line systems work:

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    A warning line ``serves to warn and remind employees that they are approaching or working near a fall hazard by providing direct physical contact with the employee. The contact attracts the employee's attention, enabling the employee to stop in time to avoid falling off the roof'' (59 FR 40672, 40689 (8/9/1994)).

    OSHA intends the use of designated areas and warning lines in the final rule to work in the same way.

    The use of designated areas in the final rule is very limited. Final paragraph (b)(13)(ii), like the construction standard, only allows employers to use designated areas for work performed at least six feet from the roof edge. When work that is at least 6 feet from the edge of a low-slope roof, OSHA believes the use of fall protection alternatives is appropriate in certain situations. As far back as the 1990 proposed rule, OSHA said that working a ``six foot (1.8m) distance from the edge of a low-slope roof is sufficient to allow an employee to stop moving toward the fall hazard after realizing the perimeter has been contacted'' (55 FR 13360, 13376 (4/10/1990)).

    That said, working as close as 6 feet from the edge of a roof, even a low-slope roof, may pose some risk of falling. To address that risk, the final rule further limits the use of designated areas at that distance to work that is ``both infrequent and temporary'' (final Sec. 1910.28(b)(13)(ii)). The proposed rule limited designated areas to work ``of a temporary nature'' (proposed Sec. 1910.29(d)(1)(ii)). In the preamble to the proposed rule, OSHA said, ``Designated areas may only be used for temporary, relatively infrequent work'' (75 FR 28895). OSHA believes the language in the final rule more clearly expresses OSHA's proposed intent.

    For purposes of the final rule, ``temporary'' means that the duration of the task the worker performs is brief or short. Temporary and brief or short tasks generally include those that a worker is able to perform in less time than it takes to install or set up conventional fall protection. When the duration of a task is this short and the work is performed at least 6 feet from the edge of a low-slope roof, OSHA believes worker exposure to fall hazards is very limited. OSHA agrees with stakeholders who said that requiring employers to install conventional fall protection in these instances could increase worker exposure substantially (e.g., Exs. 165). Conversely, when it takes more time to complete a job than it takes to install or set up conventional fall protection (e.g., personal fall protection system), OSHA believes that the use of conventional fall protection is necessary because the duration of and potential for exposure to fall hazards is more significant; such exposure is extensive and prolonged.

    Temporary tasks also include those that workers are able to complete at one time rather than repeatedly climbing up or returning to the roof or requiring more than one workshift to complete. When jobs take that long to complete or involve repeated exposure, OSHA believes the risk of falls increases significantly. For purposes of the final rule, OSHA intends that ``temporary'' tasks generally are limited to ``simple'' tasks and ``short-term . . . scheduled maintenance or minor repair activities'' (Ex. 165). OSHA agrees with SMACNA's comment that temporary and simple tasks are those that do not require ``significant equipment, personnel, and other resources'' or a level of exposure that ``long-term'' or ``complicated'' maintenance and repair work does (Ex. 165).

    Although the final rule does not place a specific time limit on what constitutes a temporary task, OSHA agrees with SMACNA that short duration tasks generally are those that take less than ``1-2 hours'' to complete (Ex. 165; see also Exs. 124; 171; 236). Examples of temporary tasks include changing a filter in a roof-top HVAC system, replacing a part on a satellite dish, caulking or resealing the flashing around a skylight, or sweeping a chimney.

    The term ``infrequent,'' for purposes of the final rule, means that the task or job is performed only on occasion, when needed (e.g., equipment breakdown), on an occasional basis, or at sporadic or irregular intervals. Infrequent tasks include work activities such as annual maintenance or servicing of equipment, monthly or quarterly replacement of batteries or HVAC filters, and responding to equipment outage or breakdown. In these instances, the frequency of exposure to fall hazards is very limited.

    By contrast, tasks performed or repeated on a daily, routine or regular basis are not infrequent activities within the meaning of the final rule. Infrequent jobs also do not include those that workers perform as a primary or routine part of their job or repeatedly at various locations during a workshift. A task may be considered infrequent when it is performed once a month, once a year, or when needed.

    The designated area provision in final paragraph (b)(13)(ii) generally is modelled on the construction fall protection standard, which allows employers to use ``warning line systems'' when they perform roofing work at least six feet from the edge of a low-slope roof (Sec. 1926.501(b)(10)). However, the final rule also differs from the construction standard in several respects. The construction provision is limited to ``roofing work,'' which that standard defines as ``the hoisting, storage, application, and removal of roofing equipment and materials, including related insulation, sheet metal and vapor barrier work, but not the construction of roof decks'' (Sec. Sec. 1926.500(b)). Roofing jobs typically take a significant amount of time to complete (hours or days). As a result, workers have prolonged exposure to fall hazards. Therefore, the construction standard requires that employers performing roofing work as close as 6 feet from the roof edge must use conventional fall protection systems, warning line systems used in combination with conventional fall protection, or warning line systems in combination with safety monitoring systems. The construction standard included alternative fall protection options for roofing work because the ``Agency recognized conventional fall protection systems could pose feasibility problems during roofing work; therefore, the rule allows other choices of fall protection methods'' (Letter to Mr. Anthony O'Dea (12/15/2003); 59 FR 40688-89).\61\ Some stakeholders said the same feasibility issues are present in general industry (Exs. 192; 226; 236). Southern Company, for instance, said there are no suitable anchorage points for securing personal fall protection systems on some roofs (Ex. 192).

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    \61\ OSHA letter to Mr. O'Dea available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24682.

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    OSHA is including the designated area provision in final paragraph (b)(13)(ii) for work that is both temporary and infrequent primarily for other reasons. First, as mentioned, adding the designated area provision for work on low-slope roofs makes the final rule more consistent with the construction fall protection standard, which is one of the main goals of this rulemaking. In addition, making the general industry and construction standards more consistent will make compliance easier for employers who perform both general industry and construction activities. Many stakeholders supported including the designated area provision for this reason (e.g., Exs. 121; 124; 164; 165; 171; 180; 189; 192; 195; 207; 226; 236; 251; 254).

    Second, when the slope of the roof is low, workers are at least 6 feet from the

    Page 82614

    roof edge, and their time in the area is both brief and infrequent, OSHA believes there is very limited exposure to fall hazards. As far back as the 1990 proposed rule, OSHA said ``it would be unreasonable to require employers to install guardrail systems in a designated area'' (55 FR 13375).

    Third, when the duration of the task is very short, OSHA believes the physical reminder that warning lines provide can effectively alert and remind workers that they are approaching the roof edge and must not get any closer. Fourth, OSHA agrees with stakeholders that requiring employers to spend the time installing conventional fall protection in instances when the task is brief and infrequent may pose a greater risk of falling than the task itself (Exs. 124; 165; 171).

    Fifth, allowing employers to use designated areas instead of conventional fall protection when they perform tasks that require less time to complete than installing conventional fall protection significantly limits the duration of the job, thereby increasing efficiency and cost-effectiveness. Allowing employers to use designated areas reduces the cost of the job and also makes it easier for them to assign one-person jobs, which a number of stakeholders do (e.g., Exs. 150; 165).

    Finally, the final rule allows the use of designated areas only in very limited situations. The proposed rule would have allowed greater use of designated areas. OSHA believes that the limitations incorporated in final paragraph (b)(13)(ii) (i.e., work that is performed on low-slope roofs, that is performed at least 6 feet from the edge and that is both temporary and infrequent) ensures that designated areas are used only where the duration and frequency of exposure is extremely limited. In these situations, OSHA believes that the use of designated areas provides adequate protection and does not compromise worker safety.

    OSHA believes the designated area provision in the final rule also is more protective than the construction standard. As mentioned, the construction standard allows employers to use warning line systems in combination with a safety monitoring system when performing roofing work (i.e., work that involves prolonged exposure to fall hazards) 6 feet or more from the roof edge (Sec. 1926.501(b)(10)). The construction standard does not limit the use of warning line systems to work that is both temporary and infrequent. It also does not require employers to demonstrate that all conventional fall protection systems are infeasible in order to use a safety monitoring system. By contrast, the final rule does not permit employers to use safety monitoring systems unless the employer first demonstrates that all conventional fall protection systems are infeasible.

    OSHA notes that some commenters (Exs. 124; 165; 171) opposed requiring employers to establish designated areas (i.e., erect warning lines) for short duration jobs performed within 15 feet from the roof edge could (Ex. 171). Some stakeholders supported excepting work that is both temporary and infrequent from the requirement to use warning lines for work performed 6 feet to less than 15 feet from the roof edge (Exs. 165; 207). For example, SMACNA said:

    Where is the hazard if the HVAC work does not require the worker to be within 15 feet of the roof edge . . . and the worker is only on the roof for a specific purpose (repair or maintain equipment) and for a short time . . . ? (Ex. 165).

    OSHA disagrees with SMACNA. When employers perform any work, including work that is both temporary and infrequent in nature, as close as 6 feet from the edge of a low-slope roof, the Agency believes that some protection is necessary because there is or may be some risk of falling.

    SBA Office of Advocacy said requiring employers to erect warning lines for short duration tasks could ``present an independent hazard'' (Ex. 124). They reported, ``Small business representatives expressed concern about situations where employees are working on rooftops during simple, short-duration projects and would be required to construct physical barriers as `Designated Areas' that may actually increase the risk of falls and introduce other safety hazards'' (Ex. 124; see also Ex. 171).

    OSHA's experience with warning line systems in the construction industry does not support SBA Office of Advocacy's claim that using designated areas for brief tasks poses a greater hazard and the commenter did not provide any evidence to support their claim. Moreover, SBA Office of Advocacy recommended that OSHA make the final rule consistent with the construction fall protection standard, which, as mentioned, does not exempt ``short duration projects'' from providing any fall protection (conventional or designated areas) at this distance from the edge of low-slope roofs the requirements to provide fall protection. That said, OSHA believes the allowances that final paragraphs (b)(13)(ii) and (iii) include for employers who perform work that is both infrequent and temporary, provides substantial flexibility and should not pose any significant compliance difficulties.

    Work performed 15 feet or more from the roof edge--Final paragraph (b)(13)(iii), which applies to work performed 15 feet or more from the edge of a low-slope roof, requires that employers protect workers from falling by:

    Using a conventional fall protection system or a designated area. If, however, the work is both infrequent and temporary, employers do not have to provide any fall protection (final paragraph (b)(13)(iii)(A)); and

    Implementing and enforcing a work rule prohibiting employees from going within 15 feet of the roof edge without using fall protection in accordance with final paragraphs (b)(13)(i) and (ii) (final paragraph (b)(13)(iii)(B)).

    Final paragraph (b)(13)(iii) generally is consistent with OSHA's longstanding enforcement policy regarding construction work performed at least 15 feet from the edge of low-slope roofs (see e.g., letter to Mr. Anthony O'Dea (12/15/2003); \62\ letter to Mr. Keith Harkins (11/

    15/2002); \63\ letter to Mr. Barry Cole (5/12/2000) \64\). OSHA set forth its policy in the letter to Mr. Barry Cole:

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    \62\ OSHA letter to Mr. O'Dea available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24682.

    \63\ OSHA letter to Mr. Harkins available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24552.

    \64\ OSHA letter to Mr. Cole available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24802.

    At 15 feet from the edge of a roof . . . , a warning line, combined with effective work rules, can be expected to prevent workers from going past the line and approaching the edge. Also, at that distance, the failure of a barrier to restrain a worker from unintentionally crossing it would not place the worker in immediate risk of falling off the edge. Therefore, we will apply a de minimus policy for non-conforming guardrails 15 or more feet from the edge under certain circumstances. Specifically, we will consider the use of certain barriers that fail to meet the criteria falling-object a guardrail a de minimus violation of the guardrail criteria in Sec. 1926.502(b) where all of the following are met:

    1. A warning line is used 15 feet or more from the edge;

    2. The warning line meets or exceeds the requirements in Sec. 1926.502(f)(2);

    3. No work or work-related activity is to take place in the area between the warning line and . . . the edge;

    4. The employer effectively implements a work rule prohibiting the employees from going past the warning line.

    Page 82615

    In one respect, final paragraph (b)(13)(iii) differs from and provides more flexibility than the construction enforcement policy. When employers perform work that is both temporary and infrequent at least 15 feet from the roof edge, the final rule does not require them to provide any fall protection (using conventional fall protection or warning lines). OSHA believes this limited exception eases compliance for employers without compromising worker safety.

    Comments in the record support an exception for work that is temporary and infrequent and performed at least 15 feet from the roof edge (Exs. 165; 207). For example, SMACNA said:

    A work procedure such as a simple filter change or belt adjustment to an HVAC system, especially if the unit is in the middle of a large roof does not warrant placement of a physical warning line (Ex. 165).

    EEI noted, ``Some flat roofs in general industry settings could be the size of several football fields'' (Ex. 207). OSHA agrees that requiring employers to erect a warning line in that situation could take more time than simply performing a very brief task.

    Many stakeholders supported the use of the use of designated areas ``where work is performed away from the immediate fall hazard, such as in the center of the rooftop'' (Ex. 180; see also Exs. 171; 207; 226). Verallia concurred, noting that less is needed to protect or warn workers the further the work area is from the roof edge (Ex. 171). EEI also said conventional fall protection was not necessary when workers are not near the roof edge, ``OSHA should not require protection from fall hazards on large flat roofs when the hazard can be controlled by keeping all workers a specified distance away from the roof edge'' (Ex. 207). AFSCME agreed, saying that air-handling systems and other equipment often are located in the middle of the roof (Ex. 226).

    Other stakeholders, however, said OSHA should not require any fall protection, including a warning line, for any task performed ``a safe distance'' from the edge of a low-slope roof (Exs. 165; 207; 236; 254). For example, MCAA, whose member companies construct, install, and service mechanical systems (e.g., HVAC systems), said:

    Most of the time, HVAC units are a safe distance from the edge of the roof and/or skylights, and can be accessed and serviced safely without the use of a ``designated area'' or other fall protection/prevention systems. Under this proposed rule . . . HVAC technicians would have to erect a temporary, designated area perimeter line to comply with the standard. MCAA believes that this requirement would create unintended hazards, which would be much more likely to cause injury or death to workers (Ex. 236).

    MCAA's argument is not persuasive. MCAA did not provide any data or other information to support its claim that requiring employers to erect a warning would be more likely to cause injury or death than working without any protection. Moreover, MCAA recommended that OSHA make the final rule consistent with the low-slope roof provision in the construction standard. That provision requires employers to use designated area perimeter lines for all roofing work if the employer does not use conventional fall protection.

    In conclusion, OSHA believes that the limitations on the use of designated areas in final paragraphs (b)(13)(i), (ii) and (iii), taken together, provide appropriate protection from fall hazards while affording employers greater control flexibility.

    Slaughtering facility platforms. Final paragraph (b)(14) specifies new requirements OSHA added to the final rule addressing fall protection for work performed on the unprotected working side of platforms in slaughtering facilities. As mentioned in the discussion of final paragraph (b)(1)(ii) earlier in this preamble, the working side is the side of the platform where workers are in the process of performing a work operation.

    Final paragraph (b)(14)(i) requires that employers protect workers from falling off the unprotected working side of slaughtering facility platforms that are four feet or more above a lower level. Employers must protect those workers by providing:

    A guardrail system (final paragraph (b)(14)(i)(A)); or

    A travel restraint system (final paragraph (b)(14)(i)(B)).

    The proposed rule in Sec. 1910.28 addressed slaughtering facility platforms, as well as the working sides of loading racks, loading docks, and teeming platforms, in paragraph (b)(1). Proposed paragraph (b)(1)(vi) required that employers provide guardrail systems on the working side of slaughtering house platforms unless they could demonstrate that providing guardrail systems was infeasible. If an employer could demonstrate infeasibility, workers could work on the working side of these platforms without guardrails or any other fall protection when: the work operation on the working side is in progress (see proposed paragraph (b)(1)(vi)(A)); the employer restricts access to the platform to authorized workers (proposed paragraph (b)(1)(vi)(B)); and the employer trained the authorized workers in accordance with proposed Sec. 1910.30(b)(1)(vi)(C).

    OSHA proposed the exception for the working sides of these platforms because information available to the Agency at the time indicated that there may be technological feasibility issues with using guardrail systems while workers are working on certain platforms. OSHA requested comment on this issue, including whether there are other feasible means to protect workers working on the unprotected side of platforms (see 75 FR 28889).

    Commenters said employers often use travel restraint systems on the working side of slaughtering facility platforms, and, therefore, OSHA should not provide an exception. For example, Damon, Inc., said, ``I have worked with several packing houses that have successfully implemented restraint systems'' (Ex. 251). Likewise, the representative of the United Food and Commercial Workers Union (UFCW) commented:

    My gravest concern is with 1910.28(b)(vi), specifically OSHA's proposed exception to the requirement for guardrails or other fall protection on the working side of platforms in slaughtering facilities. This exception is inappropriate and not protective of the thousands of workers who would be affected. Work platforms in the meatpacking industry are becoming increasingly common and are built to greater heights. Many employers, including Cargill Meat Solutions in Dodge City, KS have successfully implemented travel restraint systems for use on these platforms. Just as there is no question about the feasibility of these systems, there should be no question about the compelling need for them. There is a compelling need in meatpacking plants. Falls from platforms in slaughtering facilities are especially dangerous because of the universal use of knives and other sharp instruments (Ex. 159).

    These comments and other information in the record convince OSHA that using fall protection on the working side of slaughtering facility platforms is feasible. Therefore, to eliminate any confusion, OSHA decided to specify fall protection requirements for slaughtering facility platforms in a separate provision in the final rule.

    Final paragraph (b)(14)(ii) specifies that when the employer can demonstrate it is infeasible to use guardrail or travel restraint systems, they can perform the work on slaughtering facility platforms without a guardrail or travel restraint system, provided:

    The work operation for which fall protection is infeasible is in process (final paragraph (b)(14)(ii)(A));

    The employer restricts access to the platform to authorized workers (final paragraph (b)(14)(ii)(B)); and

    Page 82616

    The employer ensures authorized workers receive training in accordance with final Sec. 1910.30 (final paragraph (b)(14)(ii)(C)).

    The language in final paragraph (b)(14)(ii) is the same as the language in the exception for working sides of loading rack, loading dock, and teeming platforms (final paragraph (b)(1)(ii)).

    Walking-working surfaces not otherwise addressed. Final paragraph (b)(15), like proposed paragraph (b)(13), applies to walking-working surfaces that other paragraphs in final Sec. 1910.28(b) do not address specifically, such as ramps. Final paragraph (b)(15), like final paragraph (b)(1)), requires that employers must protect each worker on a walking-working surface not addressed elsewhere in final paragraph (b) or other subparts in 29 CFR part 1910 from falling four feet or more to a lower level using:

    Guardrail systems (final paragraph (b)(15)(i));

    Safety net systems (final paragraph (b)(15)(ii)); or

    Personal fall protection systems, such as personal fall arrest systems, travel restraint systems, and positioning systems (final paragraph (b)(15)(iii)).

    Final paragraph (b)(15) does not retain the proposed fall protection measure of designated areas (proposed paragraph (b)(13)(ii)). However, final paragraph (b)(15) still gives employers the same level of control flexibility that proposed and final paragraph (b)(1)(i) provides for all unprotected sides and edges. The final rule also is consistent with the construction fall protection standard (Sec. 1926.501(b)(15)).

    OSHA included this provision in the final rule to protect workers from all fall hazards in general industry regardless of whether final paragraph (b) in this section specifically mentions the particular walking-working surface or fall hazard. Therefore, this provision ensures that general industry employers will protect their workers from falling whenever and wherever a fall hazard is present in their workplaces. OSHA did not receive any comments on the proposed provisions and adopts it as discussed.

    Paragraph (c)--Protection From Falling Objects

    Final paragraph (c), like the proposed rule, requires that employers protect workers from being struck by falling objects, such as objects falling through holes or off the sides or edges of walking-

    working surfaces onto workers below. When workers are at risk of being struck by falling objects, the final rule requires that employers ensure that workers wear head protection meeting the requirements of 29 CFR part 1910, subpart I. In addition, final paragraph (c) requires that employers protect workers using one or more of the following:

    Erecting toeboards, screens, or guardrail systems to prevent objects from falling to a lower level (final paragraph (c)(1));

    Erecting canopy structures and keeping potential falling objects far enough from an edge, hole, or opening to prevent them from falling to a lower level (final paragraph (c)(2)); or

    Barricading the area into which objects could fall, prohibiting workers from entering the barricaded area, and keeping objects far enough from the edge or opening to prevent them from falling to the lower level (final paragraph (c)(3)).

    Final paragraph (c) simplifies the rule by consolidating into a single paragraph all of the provisions that address falling objects in the existing standard (Sec. 1910.23(b)(5) and (c)(1)) and the proposed rule (paragraphs (b)(3)(iii), (b)(5)(i), (b)(14)(ii)). The final rule is consistent with the proposal and patterned on the construction standard (Sec. 1926.501(c)). OSHA did not receive any comments on the proposed protection from falling object requirements and adopts final paragraph (c) as discussed.

    Section 1910.29--Fall Protection Systems and Falling Object Protection--Criteria and Practices

    Final Sec. 1910.29, like the proposed rule, establishes system criteria and work-practice requirements for fall protection systems and falling object protection specified by final Sec. 1910.28, Duty to have fall protection systems and falling object protection,\65\ and Sec. 1910.140, Personal fall protection equipment.

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    \65\ The final rule revised the title for Sec. 1910.29 to state that it establishes criteria and practices for both fall protection systems and falling object protection. Although the proposed title only listed fall protection systems, it also included criteria and systems for protecting workers from falling objects. OSHA believes stakeholders understood the proposed rule covered both fall protection systems and falling object protection, the final rule makes it clear and explicit.

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    As discussed earlier in this preamble, final Sec. Sec. 1910.28, 1910.29, 1910.30, and 1910.140 establish new provisions that provide a comprehensive approach to fall and falling object protection in general industry. Final Sec. 1910.28 specifies that employers must provide fall and falling object protection for workers exposed to fall and falling object hazards, and select a system that the final rule allows them to use in particular situations or operations.

    Final Sec. 1910.29 requires that employers ensure the fall protection system and falling object protection they select meet the specified criteria and practice provisions. Finally, Sec. 1910.30 requires that employers ensure workers exposed to fall and falling object hazards and who must use fall protection systems and falling object protection receive training on those hazards and how to use the required protection properly. OSHA notes that the final rule adds a requirement that employers provide training for personal fall protection systems to existing Sec. 1910.132.

    In general, OSHA patterned the system criteria and work practice requirements in final Sec. 1910.29 to be consistent with its construction standards (Sec. Sec. 1926.502 and 1926.1053). OSHA believes that making the general industry fall protection system and falling object protection criteria requirements consistent with the construction standards will make the final rule easier to understand than the existing general industry standard, and make compliance easier for employers who perform both general industry and construction activities. In many situations employers should be able to use the same fall protection systems and falling object protection for both activities, which helps to minimize compliance costs. As mentioned in the preamble to final Sec. 1910.28, many commenters supported making the general industry fall and falling object protection requirements consistent with those in the construction industry.

    Final Sec. 1910.29, like the proposed rule, reorganizes the existing rule so that the format of the final rule is consistent with the format in the construction fall protection standard in Sec. 1926.502. OSHA believes this reorganization will make the final rule easier to understand and follow because many employers already are familiar with and follow the construction requirements.

    Final Sec. 1910.29 also draws provisions from, and is consistent with, national consensus standards addressing personal fall protection systems and falling object protection, including:

    ANSI/ASC A14.3-2008, American National Standards for Ladders-Fixed (A14.3-2008) (Ex. 8);

    ANSI/ASSE A1264.1-2007, Safety Requirements for Workplace Walking/Working Surfaces and Their Access; Workplace, Floor, Wall and Roof Openings; Stairs and Guardrails Systems (A1264.1-2007) (Ex. 13); and

    ANSI/ASSE A10.18-2012, Safety Requirements for Temporary Roof and Floor Holes, Wall Openings, Stairways, and Other Unprotected Edges in

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    Construction and Demolition Operations (A10.18-2012) (Ex. 388); and

    National Fire Protection Association (NFPA) 101-2012, Life Safety Code (NFPA 101-2012) (Ex. 385).

    Paragraph (a)--General Requirements

    Final paragraph (a) establishes general requirements that are applicable to the fall protection systems and falling object protection covered by final 29 CFR part 1910.

    In final paragraph (a)(1), OSHA specifies that employers ensure all fall protection systems and falling object protection that 29 CFR part 1910 requires meet the requirements in Sec. 1910.29. Accordingly, the requirements of Sec. 1910.29 apply to fall protection systems and falling object protection that other part 1910 standards require if those standards do not establish specific criteria and work practices. For example, final paragraph (a)(1) requires that ladder safety systems on fixed ladders used at sawmills (Sec. 1910.265)) must comply with requirements in Sec. 1910.29(i) because Sec. 1910.265 does not specify criteria that ladder safety systems must meet.

    When employers elect to use a personal fall protection system, final paragraph (a)(1) specifies that employers must ensure those systems meet the applicable requirements in 29 CFR part 1910, subpart I, namely final Sec. Sec. 1910.132, General requirements, and 1910.140, Personal fall protection equipment. Final Sec. 1910.140 establishes personal fall protection system criteria and work practice requirements, while Sec. 1910.132 establishes provisions that apply to all personal protective equipment (PPE), including personal fall protection systems. For example, Sec. 1910.132(a) requires that employers provide, use, and maintain PPE, including personal fall protection systems, in a reliable condition, and Sec. 1910.132(c) specifies that employers ensure that the design and construction of PPE is safe for the work the employee is performing. In addition, Sec. 1910.132(d) requires that employers perform a hazard assessment and ``select PPE that properly fits each affected employee,'' while Sec. 1910.132(h) requires, with a few exceptions, that employers must provide PPE, including personal fall protection systems, at no cost to the worker.

    Final paragraph (a)(1) revises the proposed rule slightly by deleting the reference to ``body belts and body harnesses,'' because they are components of personal fall protection systems. OSHA did not receive any comments on proposed paragraph (a)(1) and adopts the provision with the change discussed.

    Final paragraph (a)(2) specifies that employers must provide and install all fall protection systems and falling object protection required by final subpart D, and comply with all other applicable requirements of final subpart D, before any worker begins work that necessitates fall or falling object protection. Final paragraph (a)(2), requires that employers take a proactive approach to managing fall and falling object hazards by installing, for example, fall protection systems or components (e.g., a vertical lifeline), so the systems are in place and available for use whenever there is potential worker exposure to fall hazards. OSHA believes that a proactive approach will encourage employers to anticipate and evaluate whether their workers may be on walking-working surfaces where a potential fall or falling object hazard exists and install systems (e.g., guardrail systems, toeboards) or attachment (tie-off) points (e.g., anchorages, tieback anchors) so that workers can use such protection readily when needed.

    OSHA believes such proactive planning and action already are part of the standard operating procedures for many employers. OSHA also believes that such pre-planning will encourage and guide employers to use the most effective and protective measures to address fall and falling object hazards. OSHA did not receive any comments on proposed paragraph (a)(2) and adopts the provision with the clarification discussed above.

    Paragraph (b)--Guardrail Systems

    Final paragraph (b) contains system requirements employers must follow to ensure guardrail systems they use will protect workers from falling to lower levels. In developing final paragraph (b), OSHA carried forward, with some revision, many of the requirements from the existing rule (e.g., existing Sec. 1910.23), and also drew the requirements from the construction fall protection standard in Sec. 1926.502(b).

    The Agency believes that the revised guardrail requirements make the final rule easier to understand than the existing general industry rule, reflect current technology and work practices, and ensure consistency among guardrail requirements throughout general industry. For example, OSHA reorganized the final rule so the same guardrail system requirements (final paragraph (b)) apply uniformly to all walking-working surfaces, in turn making the requirement easier to understand than the existing general industry rule, which separately lists the guardrail requirements for floor holes, open-sided floors, platforms, runways, and stairways. In addition to the explanations below for each of the guardrail system requirements, OSHA notes that the preamble to Sec. 1926.502 (59 FR 40733) also provides useful explanatory material for each of the guardrail system provisions in Sec. 1926.502(b).

    Final paragraph (b)(1) specifies requirements for the minimum and maximum height of guardrail systems. Final paragraph (b)(1) carries forward the existing requirement (existing Sec. 1910.23(e)(1)) that employers must ensure the top edge of the top rails of guardrail systems is 42 inches above the walking-working surface, which is consistent with the proposal and the construction fall protection standard (Sec. 1926.502(b)(1)). The final rule allows the height of guardrails to deviate from the 42-inch required height by up to three inches, plus or minus, which also is consistent with the construction standard. Final paragraph (b)(1) clarifies in objective terms (``plus or minus 3 inches'') the language in the existing provision that the guardrail height may deviate from 42 inches by a ``nominal'' amount. OSHA believes that a deviation of no more than three inches from the 42-inch guardrail height constitutes a ``nominal'' deviation that will not compromise worker protection. The Agency believes that continuing this allowance provides flexibility for employers if they make changes to walking-working surfaces (e.g., adding carpet, installing grating, and replacing flooring) that may slightly reduce the effective height of the guardrail (see 55 FR 13374).

    Final paragraph (b)(1) also is consistent with A10.18-2012 (Section 4.1.2) and A1264.1-2007 (Section 5.4). A1264.1-2007 (Section 5.4) requires that guardrails have a minimum height of 42 inches, but does not specify a maximum height. A note to that standard explains that, generally, ``guardrails are 42 to 45 inches in height'' (Section E5.4).

    Final paragraph (b)(1) also revises the existing rule (existing Sec. 1910.23(e)(1)) to allow employers to erect guardrail systems that exceed the 45-inch height limit, provided the employer ensures that the higher guardrails comply with all other requirements in paragraph (b). The final rule is consistent with the requirement in the construction fall protection standard (Sec. 1926.502(b)(1)), which permits an increase in the top rail height ``when conditions warrant.'' OSHA believes that such conditions also exist in general industry, and that exceeding the 42-inch height

    Page 82618

    requirement will not impact worker safety as long as employers comply with the other provisions of final paragraph (b). While the proposed rule allowed higher guardrail systems in these situations ``when conditions warrant,'' OSHA did not adopt that phrase in the final rule because the Agency concluded that no other conditions are necessary to ensure employee safety as long as the employer satisfies the other provisions of final paragraph (b). OSHA believes that adding this exception to the final rule will make compliance easier for employers who perform both general industry and construction activities. Neither the A10.18-2012 nor the A1264.1-2007 standards include this exception to the guardrail height limit. Ameren supported ``relaxing the `maximum' '' height requirement for the reasons OSHA delineated (Ex. 189).

    In the preamble to the proposed rule, OSHA said it was considering adding a provision that would allow employers to use barriers ``as the functional equivalent of guardrails'' (75 FR 28894). Such a provision would permit employers to use barriers as guardrails even if the height of the barriers is as low as 30 inches provided the total sum of the height and depth of the barrier is 48 inches. Using this formula, an employer could use a barrier with a height of 36 inches if the depth of the barrier were at least 12 inches. OSHA notes that the 1990 proposal, which the Agency did not adopt, included the provision as an alternative means of complying with the 42-inch guardrail height requirement (55 FR 13374). The preamble to the 1990 proposal explained that the National Bureau of Standards recommended a formula from its 1976 report, ``A Model Performance Standard for Guardrails.''

    OSHA received one comment about the potential provision. Thomas Kramer, of LJB, Inc., supported incorporating the provision in the final rule, stating, ``This reference would allow a number of parapets associated with roof fall hazards to be used as a compliant physical barrier. It would have the added value of providing the building owner with a very low cost, if any cost at all, solution to protecting workers on a roof,'' and further commenting that ``clearly, this proposed revision is technologically feasible'' (Ex. 367).

    For the following reasons, OSHA decided not to add a provision allowing the use of barriers as functional equivalents of guardrail systems. First, incorporating the provision would make the final rule inconsistent with the construction fall protection standard, which is contrary to a major goal of the rulemaking. Similarly, neither A10.18-

    2012 nor the A1264.1-2007 include the provision.

    Second, the formula from the 1976 report ``A Model Performance Standard for Guardrails,'' which forms the basis for the potential provision, is almost 40 years old. The documents and codes the report references are even older. OSHA believes that industry practices over the last 40 years overwhelmingly complied with the 42-inch guardrail requirement in the existing rule as well as the construction fall protection and ANSI standards, eliminating the need for this alternative.

    Finally, OSHA does not believe the provision will provide fall protection that is as effective as the final rule. The Agency believes there is a risk of workers falling over barriers that are one-half foot or more lower than the required 42-inch guardrail height. In particular, OSHA does not believe a barrier with a height of 36 inches provides adequate protection from falls even when the barrier depth is 12 inches. OSHA believes it would be too easy for workers to fall over barriers that are one-half foot lower than the required height, and that the 12-inch barrier depth would not provide adequate protection from going over the barrier. OSHA expressed much the same rationale when it decided not to propose a provision that would allow existing guardrails that are 36 inches in height. In the proposed rule OSHA said that it did not consider 36-inch high guardrails to be as safe as the required 42-inch high guardrails (75 FR 28894).

    OSHA notes that the 1990 proposed rule would have allowed a 36-inch minimum height for existing guardrail systems instead of the required 42 inches (55 FR 13360 (4/10/1990)). In particular, the earlier proposal would have codified the 1981 OSHA directive classifying as a de minimus violation any existing guardrail having a height of 36 inches (STD 01-01-010). OSHA issued the directive because it recognized that employers likely erected guardrails under pre-OSHA building codes (55 FR 13373). As mentioned, however, OSHA did not propose allowing this alternative in the 2010 proposal because of safety concerns. In addition, due to those concerns, OSHA also announced that it was going to rescind the directive and previous interpretations treating 36-inch height guardrails as de minimus violations (see 75 FR 28894 n.2).

    OSHA received several comments recommending that the Agency not rescind the directive and instead adopt a provision allowing employers to continue using existing guardrails that have a height of 36 inches. Mercer ORC questioned OSHA's statement in the proposal that guardrails 36 inches in height are not as ``equally safe'' as guardrails with a height of 42 inches (Ex. 254). However, they provided no evidence to support deviating from the height requirements in the construction fall protection standard and both A10.18-2012 and A1264.1-2007. Mercer ORC also said OSHA should estimate the costs associated with replacing the lower-height guardrails and the number of injuries prevented by having guardrails that are 39 inches in height (Ex. 254). Mercer ORC stated:

    Clearly, if people have been writing to OSHA to ask about guardrails that are less than the ``42 inches nominal'' in the existing rule, there are likely to be significant numbers of workplaces that have these non-standard guardrails in place. OSHA should either quantify the benefits and costs of this rule change or grandfather those guardrail installations that occurred prior to the effect date of the new rules (Ex. 254).

    The New York City Department of Environmental Protection (NYCDEP) commented that requiring 42-inch guardrails would ``impact'' many NYCDEP facilities (Ex. 191). They said the 42-inch height requirement ``will not provide a benefit to our employees commensurate with the costs and will encumber funds that could be used for more efficacious health and safety initiatives.''

    OSHA does not agree with Mercer ORC and NYCDEP that requiring guardrails to be 42 inches in height will impose significant costs to a substantial number of workplaces. They did not provide any evidence showing that a 36-inch guardrail height better effectuates the purposes of the OSH Act than the proposed 42-inch height. In fact, the requirement that employers ensure guardrails be 42 inches high (plus or minus 3 inches) has been in place since OSHA adopted the Walking-

    Working Surfaces standards in 1972 from then-existing national consensus standards (ANSI A12.1-1967, Section 7.1) (38 FR 24300 (9/6/

    1973)). Moreover, the guardrail height requirements in those consensus standards were adopted years before 1972. A1264.1-2007 and A10.18-2012 also require that guardrail heights be at least 42 inches.

    OSHA points out the directive OSHA issued in 1981 allowing guardrails to have a minimum height of 36 inches instead of 42 inches only applied to guardrails existing at that time. OSHA believes that the vast majority of guardrails in use today are 42 inches (plus or minus 3 inches) in height. Therefore, OSHA does not believe that employers will experience significant difficulty bringing any remaining

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    guardrails into compliance with this final standard. Accordingly, the final rule does not allow existing guardrails that are less than 39 inches in height. Moreover, OSHA hereby rescinds OSHA Directive STD 01-

    01-010 and all subsequent letters of interpretation allowing guardrails to have a minimum height of 36 inches.

    Mr. M. Anderson raised a different point regarding the 42-inch guardrail height requirement, saying that the requirement will pose a problem for historic buildings, which often have low guardrails:

    This will present an infeasible-to-fix problem for historic sites. Many historic balustrades are less than the required 42 inches. In order to comply with this height requirement, balustrades will have to be replaced thereby changing the historic aesthetic of the building. This seems to go against the Historic Preservation Act (Ex. 139).

    OSHA did not receive comments from any other stakeholders concerning historic buildings and historic preservation requirements. To the extent that any employer encounters such a problem, the employer may use one of the other means of fall protection authorized by Sec. 1910.28 (e.g., safety net systems or personal fall protection systems).

    Final paragraph (b)(2), like the proposed rule, requires that employers install intermediate protective members, such as midrails, screens, mesh, intermediate vertical members, solid panels, or equivalent intermediate members between the walking-working surface and the top edge of the guardrail system when there is not a wall or parapet that is at least 21 inches (53 cm) high. Whatever intermediate protective member employers use, the final rule requires that employers install them as follows:

    Install midrails midway between the top edge of the guardrail system and the walking-working surface. Since the final rule requires that guardrail systems be 42 inches high (plus or minus three inches), employers must install midrails approximately 21 inches above the horizontal walking-working surface (final paragraph (b)(2)(i));

    Install screens, mesh, and solid panels from the walking-

    working surface to the top rail and along the entire opening between top rail supports (final paragraph (b)(2)(ii));

    Install intermediate vertical members, such as balusters, no more than 19 inches apart (final paragraph (b)(2)(iii)); and

    Install other equivalent intermediate members, such as additional midrails and architectural panels, so that openings are not more than 19 inches wide (final paragraph (b)(2)(iv)).

    OSHA drew the requirements in final paragraph (b)(2) from the construction fall protection standard in Sec. 1926.502(b)(2), which has almost identical requirements. The existing rule in Sec. 1910.23(e)(1) and (e)(3)(v)(c) only address the installation of midrails. OSHA believes final paragraph (b)(2) provides more clarity and flexibility than the existing rule. Final paragraph (b)(2) includes examples of different types of intermediate members that employers may use, and identifies the placement/installation criteria for each type. In addition, the final rule does not require that employers install intermediate protective members when the guardrail system is on a wall or parapet that is at least 21 inches high, which is consistent with the construction fall protection standard. OSHA believes it is not necessary to install intermediate protective members where a wall or parapet reaches at least the same height as that required for a midrail.

    OSHA received one comment on proposed paragraph (b)(2). Ellis Fall Safety Solutions (Ellis), recommended that guardrails made of wire cable use at least three wires so the space between cables does not exceed 19 inches (Ex. 155). OSHA does not believe it is necessary to add such language to the final rule. The requirements on ``intermediate members'' and ``other equivalent intermediate members'' include wire cables; thus, the final rule in paragraphs (b)(2)(iii) and (iv) already require that wire cable installed in a guardrail system leave no opening in the system that exceeds 19 inches.

    OSHA added language to final paragraph (b)(2) to clarify that solid panels are an example of a protective intermediate member. This addition makes the final provision consistent with final paragraph (b)(5).

    Final paragraphs (b)(3) and (4) are companion provisions that establish strength requirements for guardrail systems. Final paragraph (b)(3), like the proposed rule, requires that employers ensure guardrail systems are capable of withstanding, without failure, a force of at least 200 pounds applied in a downward or outward direction within two (2) inches of the top edge, at any point along the top rail. Final paragraph (b)(3) generally is consistent with the existing rule in Sec. Sec. 1910.23(e)(3)(iv) and (e)(3)(v)(b). The final rule is almost identical to the construction fall protection standard in Sec. 1926.502(b)(3), and consistent with A10.18-2012 (Section 4.1.4).

    The term ``failure,'' as defined in final Sec. 1910.21(b), means a load refusal (i.e., the point at which the load exceeds the ultimate strength of a component or object), breakage, or separation of a component part. Conversely, ``without failure'' means a guardrail system must have adequate strength to withstand at least 200 pounds applied downward or outward within two inches of the top edge of top rail, without a load refusal, breakage, or separation of component parts. OSHA believes that if the guardrail system can withstand application of such force, even if the system has some minor deformation, it will be capable of preventing a worker from falling. OSHA believes minor deformation that does not affect the structural integrity or support capabilities of the guardrail system does not constitute failure as the final rule defines it.

    OSHA also has removed the language in the existing standard that requires supporting posts to be spaced not more than 8 feet apart. OSHA believes the performance language of final paragraph (b)(3) is adequate, and also provides greater flexibility. In some cases an 8-

    foot distance between posts may not be adequate to meet the 200-pound strength requirement, while in other situations and with certain materials, the guardrail will maintain a 200-pound force with the supporting posts installed at distances greater than 8 feet apart. Employers must install supporting posts at whatever distance is necessary to meet the strength requirement of the final rule, without failure.

    OSHA received two comments on proposed paragraph (b)(3). Peter Catlos recommended that the final rule, at a minimum, specify test methods or requirements for load concentrations and rates when applying the 200-pound test load (Ex. 203). Without specifying load concentrations and rates, or test methods, Mr. Catlos said the referenced 200-pound minimum load requirement ``is not definitive'' (Ex. 203).

    Consistent with Section 6(b)(5) of the OSH Act, final paragraphs (b)(3) and (4) use a performance-based approach that establishes the strength objective employers must meet when testing a guardrail. The A10.18-2012 standard (Section 4.1.4) and the A1264.1-2007 standard (Section 5.6.1) follow a similar approach. As such, OSHA believes the strength requirement, which also is identical to the requirement in the construction fall protection standard, is protective, clear, and functional.

    Final paragraph (b)(3) gives employers flexibility to use whatever test methods or manufacturer information they want so long as those methods and

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    specifications meet the same strength requirement as the final rule. OSHA notes that A1264.1-2007 and American Society for Testing and Materials (ASTM) E985-00e1-2006 Standard Specification for Permanent Metal Railing Systems and Rails for Buildings, provide helpful guidance for meeting the 200-pound strength requirement.

    The other commenter, Ellis, recommended that OSHA revise the 200-

    pound strength requirement to 276 pounds (i.e., the 95th percentile for men) (Ex. 155). He said that, according to the National Health and Nutrition Examination Survey, the average weight of workers increased about 1\1/2\ to 2 pounds a year since the 1950s, adding, ``Heavier workers deserve to be protected and just because ANSI and OSHA have not updated their standards for effectively 40 years does not mean we should stay with out of date values'' (Ex. 155). OSHA does not believe the change Ellis proposes is necessary. The 200-pound strength requirement in A10.18-2012 (Section 4.1.4) and A1264.1-2007 (Section 5.6.1) is a minimum strength requirement.

    Finally, Ellis said OSHA should prohibit using guardrail systems as anchorages for personal fall protection systems unless a registered structural engineer approves, marks, or labels the systems for such use. OSHA does not believe it is necessary to add Ellis' recommendation to the final rule because Sec. 1910.140 requires that personal fall protection system anchorages be capable of supporting 5,000 pounds. However, final paragraph (b)(3) only requires that guardrail systems be capable of withstanding a force of at least 200 pounds, which means that guardrail systems are not capable of serving as anchorages unless they also meet the requirements anchorages in final rule Sec. 1910.140. OSHA, received no other comments and is adopting in this final rule paragraph (b)(3) as discussed.

    Final paragraph (b)(4), like the proposed rule, requires that employers ensure that when the 200-pound test load is applied in a downward direction, the top rail of the guardrail system does not deflect to a height of less than 39 inches above the walking-working surface. Deflection refers to the distance or degree a structure moves or displaces when a load is applied to the structure. To illustrate, employers must ensure that application of the required minimum test load to the top rail of a 42-inch guardrail system does not reduce its height by more than three inches. If the load or stress placed on a guardrail system, regardless of its height, reduces the height of the system to less than 39 inches, it is not likely to be tall enough to prevent workers from falling over the top rail. Therefore, final paragraph (b)(4) specifies that employers must ensure the height of their guardrail systems, deflected or not, is never less than 39 inches high.

    Final paragraph (b)(4) is almost identical to the construction fall protection standard in Sec. 1920.502(b)(4). The A10.18-2012 standard (Section 4.1.4) specifies that guardrails shall not deflect more than 3 inches in any direction. Since that standard does not allow any nominal deviation in the guardrail height, it means that standard limits the deflected height to not less than 39 inches high.

    OSHA received comments from Mr. Catlos and Ellis on proposed paragraph (b)(4). Ellis opposed allowing the guardrail system to deflect as much as 3 inches, stating, ``Three inches of movement specified in 1926.502 is too great and 1.5 inches should be the maximum when over half the male worker center of gravity exceeds 39 inches'' (Ex. 155). OSHA believes that a guardrail system that has a height of at least 39 inches, as final paragraph (b)(4) requires (i.e., ``42 inches, plus or minus 3 inches''), is adequate to protect a worker from falling over the top rail. OSHA drew final paragraph (b)(4) from the construction fall protection standard, and the Agency is not aware of any data indicating workers are falling over guardrail systems that have a height of at least 39 inches. OSHA also notes the final rule is consistent with A10.18-2012 (Section 4.1.4), indicating final paragraph (b)(4) has wide stakeholder acceptance.

    Mr. Catlos raised concerns that the proposed language on deflection does not include a horizontal deflection allowance or limit (Ex. 203). He pointed out that proposed paragraph (b)(3) includes both vertical and horizontal load test requirements, and he said that, for consistency, final paragraph (b)(4) should include a horizontal load test and deflection allowance, in addition to the vertical allowance. OSHA disagrees with the commenter for the following reasons. First, the final rule focuses on ensuring that guardrail systems maintain a minimum height, so that if workers fall into or onto the guardrail they are protected from falling over the top rail.

    Second, Mr. Catlos did not say what would constitute an appropriate horizontal load test deflection allowance and OSHA believes that allowing a horizontal deflection in addition to the vertical allowance, may result in failure of the guardrail system to protect workers from falling. For example it may break or permanently deform in a way that affects the structural integrity of the guardrail system. Such deformation may adversely affect the structural integrity or support capabilities of the system when workers lean on or fall into the top rail of a guardrail that is not perpendicular to the horizontal walking-working surface. In this regard, Mr. Catlos did not provide any data indicating that horizontal deflection of the guardrail system would not result in system failure. Additionally, OSHA is concerned that after repeated horizontal deflection, the guardrail could be reduced in height to below 39 inches, which is below the minimum height requirement that final paragraph (b)(1) requires.

    Third, OSHA believes that allowing a horizontal deflection when vertical deflection already reduces the height of guardrail systems may put workers at risk of falling over the top rail. This is true especially when vertical deflection reduces the height of the top edge of a guardrail system to 39 inches. OSHA does not believe Mr. Catlos presented a compelling argument to support deviating from the construction fall protection standard Sec. 1926.502(b)(4) by adding a horizontal deflection allowance to final paragraph (b)(4). Therefore, OSHA is adopting in this final rule paragraph (b)(4) as discussed.

    Final paragraph (b)(5), like the proposal, requires that employers ensure midrails, screens, mesh, intermediate vertical members, solid panels, and other equivalent members, are capable of withstanding, without failure, a force of at least 150 pounds applied in any downward or outward direction at any point along the intermediate member.

    The existing standard does not contain a strength requirement for midrails and this omission has resulted in confusion. OSHA drew the proposed requirement from the construction fall protection standard in Sec. 1926.502(b)(5). In the preamble to that rule, OSHA explained that a strength test of 150 pounds was adequate for intermediate structures because they do not serve the same purpose as the top rails of guardrail systems (59 FR 40672, 40697 (8/9/1994)). Workers often place forces on top rails (e.g., leaning over the top rail) that they do not place on intermediate members; if workers fall onto a guardrail, they most likely will strike the top rail, not the intermediate member. Therefore, OSHA believes that midrails and other intermediate members do not need deflection limits.

    The A1264.1-2007 standard (Section 5.6.1) requires that intermediate

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    members be capable of withstanding a slightly higher horizontal load limit (i.e., 160 pounds) applied in a downward (i.e., perpendicular) direction at the midpoint and mid-height. OSHA notes that A1264.1-2007 (Section 5.6.1) also includes a 3-inch horizontal deflection allowance. The A10.18-2012 standard does not include a load test for midrails and other intermediate members. Although the final rule only requires a 150-pound load test, OSHA believes, nonetheless, that the final rule is more protective than the A1264.1-2007 standard because it does not permit a 3-inch horizontal deflection allowance. OSHA did not receive any comments on the proposal and adopts it as discussed above.

    Final paragraph (b)(6), like the proposed rule, requires that employers ensure guardrail systems are smooth-surfaced to protect workers from injury, such as punctures or lacerations, and to prevent catching or snagging of workers' clothing. The final rule is based on the existing requirement in Sec. 1910.23(e)(1) and (e)(3)(v)(a), and A1264.1-2007 (Section 5.4). The final rule also is consistent with the construction fall protection standard in Sec. 1926.502(b)(6), as well as A10.18-2012 (Section 4.1), which specifies that guardrails be free of ``sharp edges, splinters, or similar conditions.''

    The Agency believes it is important that guardrail systems have smooth surfaces to prevent injuries. For example, workers can cut or puncture their hands or other parts of their bodies, when they grab or lean against guardrails that have protruding nails. Similarly, protruding nails can catch workers' clothing which can damage protective clothing or cause workers to trip or fall. OSHA did not receive any comments on the proposed rule and adopts it with the changes discussed above.

    Final paragraph (b)(7), like the proposed rule, requires that employers ensure the ends of top rails and midrails do not overhang the terminal posts, except where the overhang does not pose a projection hazard for workers. Top and midrails that extend past the terminal post may cause a worker's clothing or tool belt to catch which could result in a fall. However, the final rule allows top rails and midrails to overhang the terminal posts provided they do not pose a projection hazard. For example, employers may shape top rails and midrails so snag hazards do not exist. The provision is almost identical to the existing rule in Sec. 1910.23(e)(1) and the construction fall protection standard in Sec. 1926.502(b)(7). The final rule is consistent with the A1264.1-2007 standard at Sections 5.4 and 5.6.3. OSHA did not receive any comments on the proposed provision and OSHA adopts the requirement as proposed.

    Final paragraph (b)(8), like the proposed and construction fall protection standards(Sec. 1926.502(b)(8)), prohibits employers from using steel and plastic banding for top rails or midrails in guardrail systems. The preamble to the construction fall protection standard explained that although banding, particularly steel banding, often can withstand a 200-pound load, it also can tear easily if twisted (59 FR 40698). In addition, workers can cut their hands when they seize steel or plastic banding, especially in a fall, since banding often has sharp edges. OSHA notes that, like the construction fall protection standard, final paragraph (b)(8) does not prohibit the use of steel or synthetic rope on top rails and midrails because rope does not have sharp edges. OSHA reminds employers, as discussed in final paragraph (b)(15) and similar to the construction rule, that manila or synthetic rope used for top rails must be inspected as necessary to ensure the rope meets the strength requirements of this section. OSHA did not receive any comments on the proposed provision and adopts it as discussed above.

    Final paragraph (b)(9), like the proposed rule, requires that employers ensure top rails and midrails of guardrail systems are at least one-quarter inch in diameter or thickness. The final rule applies to all top rails and midrails, regardless of the material employers use for those rails. The final rule uses both ``diameter'' and ``thickness'' because top rails and midrails may have different shapes (e.g., cylindrical or rectangular).

    OSHA based final paragraph (b)(9) on the construction fall protection standard (Sec. 1926.502(b)(9)). The final paragraph ensures that whatever material an employer uses for top rails or midrails, it is not so narrow that workers grabbing onto the top rail or midrail may cut their hands. Such injuries could occur if employers use narrow, high strength rope or wire for top rails or midrails. To eliminate the possibility of injury, employers must ensure that all top rails and midrails are at least one-quarter inch in diameter/thickness. OSHA did not receive any comments on the proposed provision and adopts it is discussed above.

    Final paragraph (b)(10) requires that employers using guardrail systems at hoist areas place a removable guardrail section or, in the alternative, chains or a gate consisting of a top and midrail, across the access opening between guardrail sections when workers are not performing hoisting operations. This requirement ensures workers do not fall through an opening accidentally when materials are not being hoisted. It also gives employers flexibility in determining how to effectively guard access openings at hoist areas.

    OSHA stresses that employers may use chains and gates as an alternative to removable guardrails, but only when the chains and gates provide a level of safety that is ``equivalent'' to the level of protection provided by removable guardrails. As defined in final Sec. 1910.21(b), ``equivalent'' means that the alternative means ``will provide an equal or greater degree of safety.''

    OSHA clarified final paragraph (b)(10) in response to comments stakeholders raised on several issues. First, in response to a comment from Mercer ORC (Ex. 254), the final rule clarifies that employers may use any of the following three alternatives to guard openings to hoist areas:

    Removable guardrail sections;

    Chains that provide protection at least at the top and midrail level; or

    A gate consisting of a top rail and midrail.

    A typographical error (i.e., missing comma) in the proposed rule made it appear that employers could only use a removable guardrail section or ``chain gate.'' However, OSHA believes that both chains and gates that include protection at the top rail and midrail levels provide protection at hoist areas that is equivalent to removable guardrail sections.

    Second, on a related issue, Mercer ORC requested clarification about whether a ``chain gate'' must have one or two chains (Ex. 254). Final paragraph (b)(10) clarifies that any alternative the employer uses to guard the access area when workers are not performing hoisting operations must have a top rail and a midrail to provide workers with protection that is equivalent to a guardrail system. OSHA does not believe that a single bar or chain provides protection that is equivalent to a guardrail system. This clarification is consistent with OSHA's 1990 proposed rule and letters of interpretation on the use of gates and chains to protect workers from falling through access openings in hoist areas when they are not performing hoisting operations (e.g., Letter to Mr. Stephen Hazelton (5/23/2005 \66\); letter to Mr. Erich Bredl (1/15/

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    1993) \67\). In the letter to Mr. Bredl, OSHA said ``employee protection at access openings must be equivalent to that of the guardrail system.''

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    \66\ OSHA letter to Mr. Stephen Hazelton available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25100.

    \67\ OSHA letter to Mr. Erich Bredl available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=20991.

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    Finally, Ellis opposed the use of chains to guard access openings at hoist areas (Ex. 155). He said chains ``cannot meet the sag requirements of the standard and an overbalance hazard can occur'' (Ex. 155). OSHA does not agree with Ellis' recommendation, noting that neither the proposed nor final rules establish a sag requirement for chains used at hoisting areas. In addition, OSHA notes that Ellis does not explain or provide any information about what constitutes an ``overbalance'' hazard. Nevertheless, OSHA clarified the language in final paragraph (b)(10) to indicate that chains and gates are alternatives that employers may use instead of removable guardrail sections when they provide a level of safety equivalent to guardrails. However, if chains sag so low that they do not meet the minimum guardrail height requirements (see final paragraph (b)(1)), or are not as effective as a removable guardrail section in preventing workers from falling through access openings, employers would have to use removable guardrail sections or a gate instead.

    The final rule is almost identical to the proposed rule and construction fall protection standard in Sec. 1926.502(b)(10), and OSHA adopts it with the clarifications discussed above.

    Final paragraphs (b)(11) through (13) establish criteria for the use of guardrail systems to protect employees working near holes. Final paragraph (b)(11) requires that employers ensure that when guardrail systems are used around holes, they are installed on all unprotected sides or edges of the hole. As discussed earlier in this preamble, final Sec. 1910.21(b) defines ``hole'' as ``a gap or open space in a floor, roof, horizontal walking-working surface, or similar surface that is at least 2 inches (5 cm) in its least dimension.''

    The final rule consolidates into one provision the various requirements in the existing rule that pertain to criteria for protecting workers from falling through holes. Final paragraph (b)(11) is almost identical to the proposed rule, and OSHA's construction fall protection industry standard in Sec. 1926.502(b)(11). OSHA did not receive any comments on the proposed provision and finalizes it as discussed.

    Final paragraph (b)(12), like the proposed rule and construction fall protection standard (Sec. 1926.502(b)(12)), establishes requirements for guardrail systems erected around holes through which materials may be passed. The final rule requires:

    When workers are passing materials through a hole, employers must ensure that not more than two sides of the guardrail system are removed (final Sec. 1910.29(b)(12)(i)); and

    When workers are not passing materials through the hole, employers must ensure a guardrail system is installed on all unprotected sides and edges, or close the hole with a cover (final Sec. 1910.29(b)(12)(ii)).

    The final rule reorganizes and revises the proposed provision to make it easier to understand and follow. Final paragraph (b)(12) also updates the existing rule in Sec. 1910.23(a)(7), which does not contain a provision addressing guarding holes when workers pass materials through the holes. The final rule generally is consistent with A1264.1-2007 (Section 3.5) and A10.18-2012 (Section 7.1). OSHA notes the A1264.1 standard allows employers to use an attendant if a hole is uncovered and guardrails are removed. However, OSHA believes that requiring guardrails on all sides of the hole is more protective than using an attendant.

    The final rule allows employers to remove guardrail sections on no more than two sides of a hole when materials are being passed through the hole (paragraph (b)(12)(i)). In other words, the final rule does not allow the other guardrail sections to be removed during the time materials are moving through the hole to protect other workers who may be in the area. Final paragraph (b)(12)(ii) also protects workers by requiring guardrails on all unprotected sides of the hole or covering it when workers are not passing materials through the hole. OSHA did not receive any comments on the proposed provision and finalizes it as discussed.

    Final paragraph (b)(13), similar to the proposed rule and construction fall protection standard (Sec. 1926.502(b)(13)), requires that employers using guardrail systems around holes that are points of access, such as ladderway openings, protect workers from walking or falling into the hole by installing gates at the opening in the guardrail system (final paragraph (b)(13)(i)), or offsetting the opening from the hole so workers cannot walk or fall into the hole (final paragraph (b)(13)(ii)). The final rule also revises the proposed criteria for such gates by specifying that they:

    Must be self-closing;

    Must either slide or swing away from the hole; and

    Be equipped with top rails and midrails or equivalent intermediate members that meet the requirements in final paragraph (b) (final paragraph (b)(13)(i)).

    The final provision is consistent with A1264.1-2007 (Section 3.2 and E3.2). The ANSI/ASSE standard requires that ladderway floor openings be guarded to prevent workers from falling into the hole and explicitly notes self-closing gates that swing away from the ladderway hole and offsets are two methods of guarding those openings.

    OSHA revised the proposed criteria for guardrail opening gates for two reasons. First, the revisions make final paragraph (b)(13) consistent with final Sec. 1910.28. As discussed, final Sec. 1910.28(b)(3)(iv) replaced ``swinging gate'' with ``self-closing gate'' to give employers flexibility to use sliding gates at guardrail access openings. OSHA believes sliding gates that are self-closing are as effective as swinging gates that self-close and are readily available and in use today.

    Second, the revisions in the final rule respond to stakeholder questions and recommendations urging OSHA to identify more clearly the criteria for access opening gates must meet (Exs. 68; 254; 366). For example, Eric Bredl, with Intrepid Industries Inc., a safety gate manufacturer, said the final rule needs to clarify and define ``safety gate (swinging gate)'' used at openings in guardrail systems used around points of access holes (e.g., ladderways):

    There have been many interpretations as to what constitutes a safety gate. It is not well defined, nor has it been well defined for several years (Ex. 68).

    Mr. Bredl also requested that OSHA clarify whether gates used at guardrail openings must be equipped with midrails:

    The OSHA wording of this proposal does not clarify that the space to be protected must conform to the guardrail. Does OSHA want to allow a single member (chain or single bar) or two bars that are less than 19'' apart as adequate protection for ladderway openings? (Ex. 366).

    Similarly, Mercer ORC said OSHA needs to define the ``specific type of gate'' it intends to require for gates used for guardrail openings near points of access holes, and answer the following questions about midrails:

    Must a ``swinging gate'' have both a top rail and midrail, like a standard railing? Or is a gate with only a top rail adequate to prevent an employee from walking ``directly into the hole''? The existing rule is silent on the issue, but OSHA implied in the 1990 proposal and,

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    in subsequent discussions and letters of interpretation, has stated that a two-rail configuration is required (Ex. 254).

    Mercer ORC opposed requiring that guardrail opening gates be equipped with midrails, saying that several companies and a safety gate manufacturer indicated that OSHA's ``interpretation has not been accepted by a large number of employers'' (Ex. 254).

    Although Mr. Bredl acknowledged that when OSHA first issued the 1990 proposed rule, which would have required that guardrail opening gates comply with guardrail requirements (i.e., have tops rails and midrails), ``this was `foreign' to industry'' (Ex. 366). However, he added that ``since then, a majority of protection devices have both a top rail and a midrail similar to that of the guardrail'' (Ex. 366).

    The purpose of guardrail opening gates used around holes that serve as points of access (e.g., ladderways) is, when open, to provide a means of access to holes, and, when closed, to provide guardrail protection that meets of the guardrail criteria in final paragraph (b). Accordingly, final paragraph (b) requires, among other things, that guardrails have both top rails and midrails or equivalent intermediate members, such as screens, solid panels, or intermediate vertical members, to ensure that closed access gates provide adequate guardrail protection.

    OSHA believes that employers should not experience difficulty complying with the final rule. If an existing gate does not have a midrail or equivalent intermediate member, OSHA believes it is feasible for employers to add one. Therefore, OSHA adopts final paragraph (b)(13) with the revisions and clarification discussed above.

    Final paragraph (b)(14), which is almost identical to the proposal, and the construction fall protection standard in Sec. 1926.502(b)(14), requires that employers ensure guardrail systems on ramps and runways are installed along each unprotected side or edge. The existing rule in Sec. 1910.23(c)(2) and A1264.1-2007 (Section 5.2) contain similar requirements for runways, but do not specifically address guarding ramps. OSHA believes it is appropriate to apply this provision to ramps as well as runways because both walking-working surfaces can have open sides. In addition, like runways, ramps can have open sides that are four feet or more above a lower level, which presents a fall hazard to workers. OSHA did not receive any comments on the proposal and adopts it as discussed above.

    Final paragraph (b)(15), similar to the proposed rule, requires that employers ensure manila and synthetic rope \68\ used for top rails or midrails of guardrail systems are inspected as frequently as necessary to ensure that the rope continues to meet the strength requirements in final paragraphs (b)(3) (top rails) and (b)(5) (midrails) of this section. OSHA believes inspecting manila and synthetic rope is important to ensure that it remains in serviceable condition, and that workers are not at risk of harm due to damage or deterioration. OSHA drew this requirement from the Agency's construction fall protection standard in Sec. 1926.502(b)(15). The existing rule does not include a similar provision.

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    \68\ Synthetic rope includes plastic rope, therefore, OSHA does not carry forward in the final rule the term ``plastic.''

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    OSHA received two comments on the proposed provision. The National Institute for Occupational Safety and Health (NIOSH) recommended that OSHA incorporate in final paragraph (b)(15) the strength requirements for midrails (final paragraph (b)(5)) in addition to the strength requirements for top rails (final paragraph (b)(3)) (Ex. 164). OSHA agrees and incorporates the midrail strength requirements in final paragraph (b)(15).

    Peter Catlos opposed allowing employers to use manila, plastic, or synthetic rope for top rails and midrails. He pointed out, ``Based on the mechanical characteristics of these materials, such as high elongation and high elastic recovery, guardrails could be constructed that meet the requirements of the Sec. 1910.29(b) as written, yet offer no practical restraint whatsoever, thereby creating an unsafe condition'' (Ex. 203). OSHA believes that requiring employers to inspect ropes ``as necessary'' helps to ensure that the top rails and midrails made of such rope will continue to comply with the strength requirements in final Sec. 1910.29(b)(3) and (5).

    Final paragraph (b) includes an informational note that OSHA proposed as paragraph (b)(16). The note reminds employers that criteria and practice requirements for guardrail systems on scaffolds used in general industry are in the construction scaffold standards (29 CFR part 1926, subpart L, Scaffolds). This provision is a companion to final Sec. 1910.28(b)(12)(i), which requires that employers protect employees working on scaffolds in accordance with the construction scaffold standards. These companion provisions ensure that employers who use scaffolds to perform both general industry and construction activities will have one consistent set of requirements to follow. OSHA believes this approach will increase understanding of, and promote compliance with, the final rule, a conclusion Ameren supported because it would promote consistent application for employers who use scaffolds to perform both general industry and construction activities (Ex. 189). OSHA did not receive any comments opposing the proposed provision and adopts the note as discussed.

    Ellis recommended OSHA include additional guardrail criteria in the final rule (Ex. 155). He recommended prohibiting guardrails from being used as personal fall protection anchorages unless approved and marked by a registered structural engineer, and that horizontal rails in wood guardrails be attached on the inside of the posts so the nails are not pushed out in a fall.

    With regard to using guardrails as personal fall protection anchorages, final Sec. 1910.140 requires that anchorages be capable of supporting 5,000 pounds. Therefore, unless the guardrail is designed to meet all the requirements for anchorages in final Sec. 1910.140, they already are prohibited from such use.

    Although OSHA agrees with Ellis on the placement of wood rails, the Agency does not believe it is necessary to regulate guardrail systems to this detail. Employers are responsible for ensuring that guardrail systems are erected to meet the strength requirements specified in the final rule.

    Paragraph (c)--Safety Net Systems

    Final paragraph (c), like the proposed rule, requires that general industry employers ensure all safety net systems they use meet the criteria and practice requirements in 29 CFR part 1926, subpart M, Fall protection. Neither the existing subpart D nor other provisions in 29 CFR part 1910 address safety net systems.

    Final Sec. 1910.28 allows employers to use safety net systems to protect workers on several types of elevated walking-working surfaces, including unprotected sides and edges, wall openings, and low-slope roofs. To ensure that the requirements for safety net systems used in general industry are consistent with, and are as protective as, the construction requirements, OSHA requires employers working in general industry to follow the construction criteria and practice requirements for safety net systems. Incorporating by reference the construction safety net system requirements also eliminates unnecessary repetition of the construction requirements.

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    OSHA received two comments on this requirement, both of which supported making the general industry requirements for safety net system criteria and practices as protective as those in the construction fall protection standard in Sec. 1926.502(c) (Exs. 155; 226). The American Federation of State, County and Municipal Employees (AFSCME) said the requirements for safety net systems used in general industry should be ``no less'' protective than the provisions in the construction standard (Ex. 226). In the same comment, AFSCME raised an issue about the difference in testing requirements for safety net systems and personal fall arrest systems and anchorages, saying the 400-pound drop-test requirement for safety net systems is ``stricter'' than the requirement for personal fall arrest systems and anchorages (Ex. 226). OSHA notes the 400-pound drop-test requirement is consistent with the construction fall protection standard in Sec. 1926.502(c)(4)(i).

    OSHA agrees with the commenters that the safety net system requirements in the final rule should be as protective as the requirements in the construction fall protection standard. In addition, OSHA believes that making the general industry and construction requirements consistent will make the rule easier to understand and follow for those employers who perform both general industry and construction operations.

    In the proposal, OSHA also requested comment about whether the final rule should require that employers meet the requirements for safety net systems in the construction fall protection standard or list the specific construction safety net system requirements in the final rule (75 FR 28895). Ellis supported incorporating the construction standard by reference (Ex. 155). AFSCME, however, recommended that OSHA include the specific safety net system criteria and practice requirements in final Sec. 1910.29(c), stating, ``Referencing the construction standard, CFR Sec. 1926.502(c), may not be helpful to employers who normally do not use the construction standards; therefore information on the requirements and testing of the safety net systems should be covered in the General Industry Standard'' (Ex. 226).

    After reviewing the record, OSHA decided to incorporate by reference into this final rule the safety net system requirements in the construction fall protection standard. OSHA notes that the final rule also incorporates by reference the construction scaffold requirements. OSHA does not agree with AFSCME that general industry employers who do not use construction standards will have a difficult time obtaining them. OSHA's construction standards are readily available online at www.osha.gov, along with other guidance materials, which will facilitate obtaining, and complying with, the construction safety net provisions. In addition, OSHA believes that having a single set of safety net system requirements to follow should make compliance easier for employers who perform both general industry and construction activities.

    Ellis raised another issue about safety nets. He recommended that the final rule allow the use of ``platform nets'' in general industry, provided those nets also complied with the requirements in the construction standard in Sec. 1926.502(c). He observed, ``Platform nets are not only for catching falling workers they are also for working from if the mesh or fabric is tight enough to prevent the foot from going through. These nets . . . are finding considerable use around the world for construction and maintenance work and provide both access and a walking-working surface'' (Ex. 155).

    The final rule does not prohibit the use of platform nets. However, if employers also use platform nets for fall protection, the nets must meet the criteria and practice requirements in the construction fall protection standard.

    Paragraph (d)--Designated Areas

    Final paragraph (d), like the proposed rule, establishes criteria and practices for ``designated areas,'' which the final rule in Sec. 1910.21(b) defines as ``a distinct portion of a walking-working surface delineated by a warning line in which employees may perform work without additional fall protection.'' Designated areas are non-

    conventional controls for addressing fall hazards.

    As mentioned earlier in this preamble, final Sec. 1910.28(b)(13) limits the use of designated areas to one situation: Work on low-slope roofs. The final rule in Sec. 1910.21(b) defines ``low-slope roof'' as ``a roof that has a slope less than or equal to a ratio of 4 in 12 (vertical to horizontal).'' Final Sec. 1910.28(b)(13) limits the use of designated areas to work on low-slope roofs performed at least six (6) feet from the roof edge and requires that employers use conventional controls (e.g., guardrail systems, safety net systems, personal fall arrest systems) if workers are less than six (6) feet from the roof edge. In the area that is 6 feet to less than 15 feet from the edge, employers may use designated areas when their employees perform work that is both temporary and infrequent. Where employers perform work that is 15 feet or more from the edge, they also can use a designated area for any work (i.e., without regard to frequency or duration of the work). In addition, the final rule does not require that employers provide any fall protection or use a designated area when employees perform work that is both temporary and infrequent and the work is 15 feet or more from the roof edge.

    Proposed Sec. 1910.28(b)(1), (7), and (13) allowed general industry employers to use designated areas in additional situations: On unprotected sides and edges of walking-working surfaces, at wall openings, and on walking-working surfaces the final rule does not specifically address. However, as discussed in the preamble to Sec. 1910.28, OSHA believes that employers must use designated areas, like warning line systems in the construction fall protection standard, only in ``a few, very specific situations'' (see, e.g., letter to Mr. Keith Harkins (11/15/2002) \69\). Allowing the use of designated areas only on low-slope roofs makes the final rule consistent with limited use specified by the construction standard for non-conventional controls. (See further the discussion of designated areas in the preamble to final Sec. 1910.28(b).)

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    \69\ Letter to Mr. Keith Harkins available on OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24552.

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    Final paragraph (d)(1) establishes general criteria and practice requirements for the use of designated areas on low-slope roofs. Final paragraph (d)(1) revises the proposed requirements by deleting, as unnecessary, the language in proposed paragraph (d)(1)(iii) requiring employers use designated areas only on ``surfaces that have a slope from horizontal of 10 degree or less,'' since that is now contained in the definition of a low-slope roof.

    Final paragraph (d)(1)(i), like the proposed rule, requires that employers ensure workers remain within the designated area during work operations. Going outside of the designated area will increase the risk of a worker falling off the roof edge. If workers must go outside the designated area, they must be protected by conventional fall protection systems. OSHA did not receive any comments on the proposed requirement and finalizes it as discussed.

    Final paragraph (d)(1)(ii), similar to the proposed rule, requires that employers delineate the perimeter of designated areas with a warning line.

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    The final rule in Sec. 1910.21(b) defines ``warning line'' as ``a barrier erected to warn employees that they are approaching an unprotected side or edge, and which designates an area in which work may take place without the use of other means of fall protection.''

    Final paragraph (d)(1)(ii) also specifies warning lines may consist of ropes, wires, tape, or chains that employers ensure meet the requirements of final paragraphs (d)(2) and (3). Final paragraphs (d)(2) and (3) contain specific requirements for warning lines, for example, they must be installed so the lowest point of the line, including sag, is not less than 34 inches (86 cm) and not more than 39 inches (99 cm) above the walking-working surface (final paragraph (d)(2)(i)).

    The final rule generally is consistent with the requirements for warning line systems in the construction fall protection standard in Sec. 1926.502(f)(1).

    Northrop Grumman Shipbuilding (NGS) recommended that OSHA give employers more flexibility to demarcate designated areas by using materials other than ropes, wires, tape, chains, and supporting devices, stating:

    We recommend that a contrasting color marking on the floor or roof surface be another acceptable means of delineating the designated area. Note that this is similar to the options provided in proposed 1910.28(b)(8) for pits. Colored markings are the best means to permanently mark pathways and work areas for maintenance of rooftop equipment, thus eliminating the hazards associated with getting stanchions and rope or chain to the job site. Stanchions typically cannot be permanently attached to rooftops because they will damage the roof surface and they cannot be left in place because they pose a projectile hazard in the event of high winds (Ex. 180).

    OSHA agrees that using warning line materials made of contrasting colors, such as brightly-colored ropes or tape makes the line ``clearly visible,'' which final paragraph (d)(2)(iv) requires. However, OSHA believes that painting the surface of the roof instead of attaching warning line materials to supporting devices does not provide a clearly visible perimeter throughout the designated area as required by final paragraph (d)(2)(iv). To be clearly visible, OSHA believes materials used to demarcate a designated area need to be high enough above the walking-working surface to be visible from a distance at least 25 feet away, as well as anywhere within the designated area, and not obscured by materials, tools, and equipment that may be in the designated area.

    NGS also pointed out that the proposed rule would allow employers to apply floor markings, instead of erecting warning lines, to demarcate vehicle repair, services, and assembly pits (see proposed and final Sec. 1910.28(b)(8)(ii)). OSHA does not consider the working conditions on low-slope roofs to be similar enough to the working conditions at vehicle repair, service, and assembly pits to permit the use of floor markings. OSHA allows employers to apply floor markings to delineate vehicle repair, service, and assembly pits that are less than 10 feet deep because the pits often are so close together that using warning lines would impede movement of vehicles and equipment around and over the pits, which is not true for work on low-slope roofs.

    Final paragraph (d)(2) establishes criteria and practice requirements for warning lines. As part of these requirements, final paragraph (d)(2)(i) specifies that employers ensure warning lines have a minimum breaking strength of 200 pounds. The proposed rule in paragraph (d)(2)(ii) would have required that employers ensure the warning line has a 500-pound minimum breaking or tensile strength and, after being attached to the stanchions, is capable of supporting the loads applied to the stanchions as prescribed in proposed paragraph (d)(2)(i). Proposed paragraph (d)(2)(i) also would have required that stanchions be capable of resisting, without tipping over, a force of at least 16 pounds applied horizontally against the stanchion. The force would have been required to be applied 30 inches above the work surface. OSHA drew the proposed requirement from the construction warning line system requirements for roof work performed on low-slope roofs (see Sec. 1926.502(f)(2)(iv)). OSHA explained in the proposal that the requirement would ensure the warning line is ``durable and capable of functioning as intended, regardless of how far apart the stanchions are placed'' (75 FR 28896). In addition, OSHA said the proposed strength requirement would ensure that employers use substantial materials for warning lines, such as chains, ropes, or heavy cord. OSHA also requested comment on the appropriateness of requiring warning lines to have a tensile strength of 500 pounds (similar to construction warning line system requirements), which ``assures the line is made of material more substantial than string'' (75 FR 28896).

    Several stakeholders indicated carrying stanchions that meet the proposed strength requirement would be infeasible or create a greater hazard for workers (Exs. 165; 171; 296). For example, the National Chimney Sweep Guild (NCSG) said, ``The technician would be exposed to a greater fall hazard while transporting numerous stanchions weighing over 50 pounds to the roof.'' Later, NCSG stated, ``Stanchions would not meet the specified stability criterion unless they were either weighted to the point where they create an unacceptable fall hazard or attached to the roof'' (Ex. 296). The Sheet Metal and Air Conditioning Contractors' National Association (SMACNA) agreed, stating, ``The placement of a designated area by the construction of a barrier system (rope, wire or chain supported by stanchions meeting specific design criteria) would create more safety hazards due to the transporting of barrier materials up to the roof'' (Ex. 165). Verallia recommended that OSHA also reconsider the companion requirement in proposed paragraph (d)(2)(i) addressing the stability of stanchions, noting:

    With respect to the specified size of the stanchions, 16 pounds resistance may be insufficient in some cases, while . . . completely unnecessary in others. The further the area is from the unprotected edge, the less is required to adequately protect (or warn) the affected employees.

    The size and form of stanchions (or comparable barriers) should be left to the discretion of the employer, as long as they are effective in putting the employee on notice that a fall hazard may exist. . . . Moreover, there is an additional concern that the use and handling of 16-pound resistant stanchions could itself present an independent hazard and/or cause damage to roofs or working surfaces (Ex. 171).

    After analyzing the entire rulemaking record on designated areas, OSHA has determined that the proposed 500-pound breaking strength requirement is not necessary to warn workers they are approaching a fall hazard on a low-slope roof. Therefore, in the final rule OSHA replaces the proposed requirement with a 200-pound minimum breaking strength requirement, which is consistent with the requirement for control lines in controlled access zones in the construction fall protection standard in Sec. 1926.502(g)(3)(iii). OSHA believes that the strength requirement in the final rule, combined with the other requirements in final paragraph (d)(2), will ensure that the delineation of designated areas is sturdy and provides adequate warning to workers.

    In addition, in response to these commenters, the final rule also deletes the stanchion stability requirement specified by proposed paragraph (d)(2)(i), which would have required that employers ensure stanchions are ``capable of resisting, without tipping over, a force of at least 16 pounds (71

    Page 82626

    N) applied horizontally against the stanchion,'' The Agency drew proposed paragraph (d)(2)(i) from the construction warning line system requirements in Sec. 1926.502(f)(2)(iii). OSHA believes this deletion will give employers greater flexibility in selecting supporting devices to delineate designated areas. OSHA will consider employers who erect designated area warning lines that meet the requirements of proposed paragraphs (d)(2)(i) and (d)(2)(ii) (i.e., using stanchions that meet the 16-pound force resistance) to be in compliance with the final rule; however, OSHA notes the final rule does not require that stanchions meet those requirements.

    Final paragraph (d)(2)(ii), like proposed paragraph (d)(2)(iv), requires that employers install warning lines so the lowest point, including any sag, is not less than 34 inches or more than 39 inches above the walking-working surface. The final rule is consistent with the warning line system requirement in the construction fall protection standard in Sec. 1926.502(f)(2)(ii).

    NGS recommended that the final rule permit employers to use contrasting color marking on the floor or roof instead of erecting warning lines at 34 to 39 inches above the walking-working surface (Ex. 180). As discussed above, the final rule does not include NGS' recommendation. OSHA believes the warning line height specified in the final rule is necessary to adequately warn workers that they are approaching the boundary of a designated area. At a height of between 34 to 39 inches, warning lines will be more visible than if employers paint them on the surface of the roof. Moreover, at the height the final rule requires, warning lines will be visible even if equipment, tools, or objects are near the warning line.

    OSHA also rejects NGS's recommendation because painting warning lines on surfaces makes them permanent, thus suggesting that employers may use designated areas for any operation regularly or routinely performed on a low-slope roof, rather than performing work in these areas that is both temporary and infrequent. As discussed earlier in this preamble, employers must provide conventional fall protection for routine, regular, or frequent work performed within 15 feet of the edge of low-slope roofs.

    Final paragraph (d)(2)(iii) requires that employers ensure warning lines are supported in such a manner that pulling on one section of the line will not result in slack being taken up in any adjacent sections causing the line to fall below the limit of 34 inches at any point, as specified in (d)(2)(ii). Proposed paragraph (d)(2)(iii) and the construction fall protection standard in Sec. 1926.502(f)(2)(v) require that taking up slack in adjacent sections of a warning line must not cause the supporting devices to tip over. The final rule revises the proposed provision for two reasons. First, the revised language ensures that the warning line will be visible at all times because it will remain at the height specified in final paragraph (d)(2)(ii). Second, the revisions ensure employers remain in compliance with final paragraph (d)(2)(ii). OSHA did not receive any comments on the proposal and adopts the requirement with the revisions discussed above.

    Final paragraph (d)(2)(iv) requires that employers ensure warning lines are clearly visible from a distance of 25 feet away and anywhere within the designated area. The final rule clarifies proposed paragraph (d)(2)(v) by recasting the provision in plain language that is easier to understand than the proposed paragraph.

    The proposed rule would have required that employers ensure the warning line is clearly visible from any unobstructed location within the designated area up to 25 feet away, or at the maximum distance a worker may be positioned away from the warning line, whichever is less. The final rule states more clearly than the proposed provision that employers must erect warning lines that are clearly visible within the designated area, regardless of where the employee is working in that area. That is, the warning line must be clearly visible when the worker is approaching the line. Whether the designated area is large or small, the final rule also requires that the warning line be visible at least 25 feet away. For large designated areas, requiring that warnings lines be visible at least 25 feet away ensures that workers have adequate warning when approaching fall hazards. Such warning is particularly necessary when workers use mobile mechanical equipment that can cover distances quickly. If workers cannot clearly see warning lines until the mobile equipment they are operating is near the boundary of the designated area, they may not be able to stop in time to prevent going past the boundary or over the edge of the roof. For designated areas that are small and close to the roof edge (e.g., 6 feet from the edge), the 25-foot minimum visibility range adequately prepares workers for approaching the hazard zone.

    As the proposal noted, there is a possibility that a portion of the warning line could be obstructed. This remains true in the final rule. As long as the boundaries of the designated area are clearly visible within 25 feet and anywhere within the area, obstructions of some portion of the line are permissible.

    The construction fall protection standard in Sec. 1926.502(f)(2)(i) and (g)(3)(i) requires employers to flag warning lines with high-visibility material at least every 6 feet to ensure that the lines are visible. OSHA believes there is a greater need for visibility aids in construction operations because the work may be at leading edges or other areas close to the roof edge. Also, construction work is more likely than work in general industry to shift from one part of the roof to another because construction work often involves performing tasks that are not temporary and infrequent. Therefore, OSHA believes that it is appropriate to give general industry employers greater flexibility to select the measures they believe will make the warning line ``clearly visible.'' Accordingly, employers are free to comply with the final rule by flagging warning lines.

    Final paragraph (d)(2)(v), like proposed paragraph (d)(3)(i), requires that employers erect warning lines as close to the work area as the task permits. This provision, like final paragraph (d)(2)(iv), helps to make warning lines as clearly visible as possible without interfering with the work employees perform. It also eases compliance for employers. Instead of placing warning lines 6 feet or 15 feet around the entire roof, employers can simply erect the warning line around the specific area where employees are working. This will make compliance easier for many employers, one of whom said, ``Some flat roofs in general industry settings could be the size of several football fields'' (Ex. 207).

    Finally, OSHA believes the performance-based approach in the final rule gives employers flexibility to determine the distance that makes the warning line most clearly visible, without interfering with the work being performed. OSHA did not receive any comments on the proposed requirement and adopts it with the clarification discussed above.

    Final paragraph (d)(2)(vi), similar to proposed paragraph (d)(3)(ii), requires that employers erect warning lines not less than 6 feet (1.8 m) from the roof edge for work that is both temporary and infrequent, or not less than 15 feet (4.6 m) for other work. OSHA believes the minimum distance of six feet for work that is temporary and infrequent provides an adequate safety zone that allows workers to stop moving toward the fall hazard after reaching or

    Page 82627

    contacting the perimeter line of the designated area and provides an adequate safety zone should a worker trip and fall at the edge of the designated area. This final provision is almost identical to the six-

    foot safety zone required for warning line systems in the construction fall protection standard in Sec. 1926.502(f)(1)(i). OSHA added the requirement that warning lines not be erected less than 15 feet from the roof edge for other work to be consistent with final paragraph Sec. 1910.28(b)(13)(iii) and OSHA's enforcement policy discussed above. OSHA did not receive any comments on the proposed requirement and adopts it as discussed.

    Final paragraph (d)(3), like proposed paragraph (d)(3)(iii), establishes minimum distances from an unprotected side or edge for erecting warning lines when workers use mobile mechanical equipment to perform work that is both temporary and infrequent in a designated area. In such cases, the final rule requires that employers erect warning lines: (1) Not less than 6 feet from the unprotected side or edge that is parallel to the direction in which workers are using the mechanical equipment; and (2) not less than 10 feet from the unprotected side or edge that is perpendicular to the direction in which workers are operating the mechanical equipment. When mobile mechanical equipment is used to perform other work, a warning line must be erected at least 15 feet from the roof edge.

    The purpose of this final provision is to provide additional distance for the worker to stop the mechanical equipment from moving toward an unprotected side or edge. The 10-foot minimum distance provides a safety zone that takes into account the momentum of the equipment workers may be using. Final paragraph (d)(3), which OSHA renumbered in the final rule to make it easier to follow, is consistent with the construction fall protection standard in Sec. 1926.502(f)(1)(ii). OSHA did not receive any comments on the proposed provision and finalizes it as discussed above.

    Proposed paragraph (d)(4), which the final rule does not retain, required that employers provide clear access paths to designated areas. The proposal specified that the path have warning lines on both sides attached to stanchions that comply with the strength, height, and visibility requirements in proposed paragraph (d)(2). OSHA drew the proposed rule from the warning line system requirements in the construction fall protection standard in Sec. 1926.502(f)(1)(iii) and (iv).

    OSHA requested comment on whether the proposed requirement is necessary to protect general industry workers when they travel to and from designated areas. AFSCME supported the proposed requirement, stating, ``We believe that such an access path to the designated area is absolutely necessary for work on roofs when other fall protection is not provided'' (Ex. 226). Other commenters recommended that OSHA give employers more flexibility in delineating access paths to designated areas (Exs. 180; 189). In this regard, NGS recommended allowing employers to use contrasting color markings painted on the roof to designate access paths (Ex. 180), while Ameren said OSHA should consider allowing employers to use rubber mats for access paths (Ex. 189).

    Several commenters recommended that OSHA delete the proposed requirement. Ameren urged OSHA to delete the proposed requirement because it ``could be burdensome if the path of travel to a work area on a roof is down the center of the roof especially if the delineation must be along the entire route and not just around the `work area' '' (Ex. 189). Clear Channel Outdoor, Inc. (CCO) said the proposed requirement was not necessary:

    Based upon CCO's experience that employees do not trip or fall when traversing to and from the access ladder, CCO does not believe that installing an access path with safety cables or stations adds to safety in any measurable way. Accordingly, CCO supports the designated work area concept, but does not believe that a designated access path is necessary (Ex. 121).

    Some commenters said the proposed access path requirement was not necessary because most of the work they perform on low-slope roofs is not near the edge of the roof (Exs. 165; 189; 236).

    Based on stakeholder comments and other information in the record, OSHA decided not to retain proposed paragraph (d)(4) in the fin