General Working Conditions in Shipyard Employment, 24576-24711 [2011-9567]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Rules and Regulations]
[Pages 24576-24711]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9567]



[[Page 24575]]

Vol. 76

Monday,

No. 84

May 2, 2011

Part II





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Parts 1910 and 1915



 General Working Conditions in Shipyard Employment; Final Rule

Federal Register / Vol. 76 , No. 84 / Monday, May 2, 2011 / Rules and 
Regulations

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910 and 1915

[Docket No. OSHA-S049-2006-0675 (formerly Docket No. S-049)]
RIN 1218-AB50


General Working Conditions in Shipyard Employment

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

ACTION: Final rule.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
revising its standards on general working conditions in shipyard 
employment. These revisions update existing requirements to reflect 
advances in industry practices and technology, consolidate some general 
safety and health requirements into a single subpart, and provide 
protection from hazards not addressed by existing standards, including 
the control of hazardous energy.

DATES: Effective date: This final rule becomes effective and 
enforceable on August 1, 2011, except for the provisions in Sec.  
1915.89, which become effective and enforceable on October 31, 2011.
    Information Collections: The collection of information requirements 
are contained in paragraphs Sec.  1915.83, Sec.  1915.87, Sec.  
1915.88, and Sec.  1915.89 (See section VIII Office of Management and 
Budget Review Under the Paperwork Reduction Act of 1995). 
Notwithstanding the general date of applicability that applies to all 
other requirements contained in the final rule, affected parties do not 
have to comply with the collection of information requirements until 
the Department of Labor publishes a separate notice in the Federal 
Register announcing the Office of Management and Budget has approved 
them under the Paperwork Reduction Act of 1995.
    Incorporation by reference: The incorporation by reference of 
certain publications listed in the rule is approved by the Director of 
the Federal Register as of August 1, 2011.

ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), OSHA designates 
Joseph M. Woodward, 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: Camilla F. McArthur, 
Office of Communications, OSHA, U.S. Department of Labor, Room N-3647, 
200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 
693-1999.
    General information and technical inquiries: Joseph V. Daddura, 
Director, Office of Maritime, Directorate of Standards and Guidance, 
OSHA, U.S. Department of Labor, Room N-3621, 200 Constitution Avenue, 
NW., Washington, DC 20210; telephone: (202) 693-2222.
    Additional copies of this Federal Register notice: OSHA, Office of 
Publications, U.S. Department of Labor, Room N-3101, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone (202) 693-1888. Electronic 
copies of this Federal Register notice are also available at https://www.regulations.gov, the Federal eRulemaking Portal. This notice, as 
well as news releases and other relevant documents, also is available 
at OSHA's Web site at https://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

    The following table of contents identifies the major sections of 
the preamble to the final rule on General Working Conditions in 
Shipyard Employment:

I. Background
    A. References and Exhibits
    B. Introduction
    C. Events Leading to the Final Rule
    D. Hazards
II. Pertinent Legal Authority
III. Summary and Explanation of the Final Rule
IV. Final Economic Analysis and Regulatory Flexibility Analysis
    A. Introduction
    B. Industrial Profile
    C. Technological Feasibility
    D. Benefits
    E. Cost of Compliance
    F. Economic Impact, Feasibility, and Regulatory Flexibility 
Screening Analysis
V. Environmental Impact
VI. Federalism
VII. Unfunded Mandates Reform Act
VIII. Office of Management and Budget Review Under the Paperwork 
Reduction Act of 1995
IX. State Plan Requirements
X. Effective Date
XI. List of Subjects
XII. Authority and Signature
XIII. Amendments to Standards

I. Background

    A. References and Exhibits. In this Federal Register notice, OSHA 
references documents in Docket No. OSHA-S049-2006-0675, which was 
formerly OSHA Docket No. S-049. In addition, OSHA references documents 
in the following dockets, which the Agency incorporates by reference 
into this rulemaking:
     The proceedings of the Shipyard Employment Standards 
Advisory Committee (SESAC)--Docket Nos. SESAC-1988 through SESAC-1993;
     The proceedings of the Maritime Advisory Committee for 
Occupational Safety and Health--Docket Nos. MACOSH-1995 through MACOSH-
2008;
     The General Industry Lockout/Tagout rulemaking record--
OSHA Docket Nos. S-012, S-012A, and S-012B;
     The Shipyard Employment Standards rulemaking record--OSHA 
Docket No. S-024; and
     The Field Sanitation rulemaking record--OSHA Docket No. H-
308.
    References to documents in Docket No. OSHA-S-049-2006-0675. 
References to documents in Docket No. OSHA-S049-2006-0675 are given as 
``Ex.'' followed by the last sequence of numbers in the Document ID 
Number and, in the case of the hearing transcripts, the page number. 
Thus, Ex. 88 is Document Number OSHA-S049-2006-0675-0088, and will 
appear in this document as (Ex. 88).
    The exhibits in this docket (Docket No. OSHA-S049-2006-0675), 
including public comments, supporting materials, hearing transcripts, 
and other documents, can be found at https://www.regulations.gov, the 
Federal eRulemaking Portal, by searching the docket number. All 
exhibits are listed, but some exhibits (for example, copyrighted 
material) are not available to read or download from that Web page. All 
exhibits are available for inspection and, if permissible, copying at 
the OSHA Docket Office, Docket No. OSHA-S049-2006-0675, Room N-2625, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210; telephone (202) 693-2350.
    References to other dockets incorporated by reference. In this 
notice, references to documents in other dockets incorporated by 
reference are given as the docket number followed by the exhibit number 
for the document in that docket. For example, a reference to ``OSHA 
Docket H-308 Ex. 1'' means Exhibit 1 in the Field Sanitation rulemaking 
docket. Referenced documents in those dockets are available for 
inspection and, if permissible, copying at the OSHA Docket Office.

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B. Introduction

    OSHA is revising and updating standards in subpart F of 29 CFR part 
1915 that address hazards in general working conditions in shipyard 
employment. These revisions update existing requirements to reflect 
advances in industry practices and technology, consolidate certain 
safety and health requirements into a single subpart, and provide 
protection from hazards not previously addressed, including the control 
of hazardous energy.
    This final rule covers diverse working conditions in shipyard 
employment, including sanitation, medical services and first aid, motor 
vehicle and pedestrian safety, lighting, housekeeping, and hazardous 
energy.
    OSHA has determined that the rulemaking record supports the need 
for the revisions and additions to subpart F to protect the safety and 
health of workers performing shipyard employment operations.
    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 other 
sections of the preamble, OSHA has determined that the hazards 
addressed by this rule represent a significant risk, and estimates that 
the final standard will prevent 1.2 fatalities and 348.4 injuries 
annually. In accordance with the requirements of Section 6(b) of the 
OSH Act, OSHA has determined that this standard is both technologically 
and economically feasible.
    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 
IV of the preamble, OSHA examined the effects of this standard on small 
firms and certifies that the standard will not have a significant 
impact on a substantial number of small firms.
    In accordance with Executive Orders 13563 and 12866, OSHA has 
estimated the benefits, costs, and net benefits of this standard. As 
shown in the table below, the annual benefits of this standard are 
significantly in excess of the standard's annualized compliance costs. 
It should be noted that these monetized estimates of net benefits are 
for informational purposes only. In accordance with the OSH Act, OSHA 
does not use the magnitude of net benefits as the decision-making 
criterion in determining what standards to promulgate.
[GRAPHIC] [TIFF OMITTED] TR02MY11.000

C. Events Leading to the Final Rule

    OSHA adopted the existing standards in subpart F in 1972 (37 FR 
22458, Oct. 19, 1972) pursuant to section 6(a) of the Occupational 
Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651, 655). Section 
6(a) permitted OSHA, during the first two years following passage of 
the OSH Act, to adopt as occupational safety and health standards any 
established Federal standards and national consensus standards. OSHA 
adopted the existing provisions in subpart F from Federal regulations 
promulgated under section 41 of the Longshore and Harbor Workers' 
Compensation Act (LHWCA) (33 U.S.C. 941), as well as national consensus 
standards (for example, ANSI sanitation standards).
    In 1982, the Shipbuilders Council of America and the American 
Waterways Shipyard Conference requested that OSHA: (1) Revise and 
update the existing shipyard standards, including subpart F; and (2) 
consolidate into a single set of shipyard standards those general 
industry standards that apply to shipyards, particularly landside 
operations.
    In response to these recommendations, OSHA established the Shipyard 
Employment Standards Advisory Committee (SESAC) in November 1988. The 
purpose of SESAC, which included representatives from industry, labor, 
and professionals in the maritime community, was to provide guidance 
and technical expertise to OSHA about revising the shipyard employment 
standards. SESAC met from 1988 until 1993 to develop recommendations 
and provide technical expertise in developing draft regulatory language 
for revising the shipyard safety standards. On April 29, 1993, SESAC 
unanimously approved and submitted to OSHA final draft recommendations 
for revising subpart F (Docket SESAC 1993-2, Ex. 102X, p. 257; detailed 
discussion on SESAC comments and specific recommendations are presented 
in Section III, the Summary and Explanation section below).
    In 1995, OSHA established the Maritime Advisory Committee for

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Occupational Safety and Health (MACOSH) under section 7 of the OSH Act 
(29 U.S.C. 656) to advise the Agency on issues relating to occupational 
safety and health standards in the shipyard and marine cargo-handling 
(longshoring) industries. On September 8, 1995, MACOSH discussed and 
approved the recommendations and draft regulatory language that SESAC 
developed and made additional recommendations, including that OSHA do a 
separate rulemaking on the control of hazardous energy (Docket MACOSH 
1995-1, Exs. 2; 102X, pp. 25, 26).
    OSHA published the proposed rule on December 20, 2007 (72 FR 
72452). The Agency requested public comment by March 19, 2008, on the 
proposed rule, the preliminary economic analysis, and the issues the 
Agency raised in the proposal. The Agency received comments on the 
proposed rule from employees, employers, trade associations, 
consultants, and government agencies (Exs. 88 through 132.1). In 
addition, a number of stakeholders requested an informal public hearing 
and an extension of the 60-day comment period (Exs. 93 through 99). 
OSHA granted the requests to hold a hearing in two locations (73 FR 
54340, Sept. 19, 2008; 73 FR 36823, June 30, 2008), and denied the 
request to extend the comment period.
    After publishing notice of an informal public hearing (73 FR 36823, 
June 30, 2008; 73 FR 54340, Sept. 19, 2008), OSHA convened the hearing 
on September 9, 2008, in Washington, DC, with Administrative Law Judge 
Stephen Purcell presiding (Ex. 168). The hearing continued October 21 
and 22, 2008, in Seattle, WA, where Administrative Law Judge Jennifer 
Gee presided (Exs. 198; 199). Thirty-five stakeholders presented oral 
testimony at the public hearing.
    Pursuant to OSHA's recommendation, on September 9, 2008, Judge 
Purcell ordered that after the close of the hearing on October 22, 
2008, the hearing record would remain open for an additional 60 days, 
until December 22, 2008, for the submission of new factual information 
and data relevant to the hearings (Ex. 169). Judge Purcell also ordered 
that the record would remain open until February 20, 2009, for the 
submission of final written comments, arguments, summations, and briefs 
(Exs. 197 and 200 through 206.1). OSHA's recommendation for a 120-day 
post-hearing comment period was in response to comments from some 
stakeholders who said the 60-day pre-hearing comment period had not 
provided stakeholders with sufficient time to submit comments (for 
example, Ex. 119.1).
    On August 25, 2009, Judge Purcell issued an order closing the 
record of the public hearing on the Proposed Rule to Update OSHA's 
Standards on General Working Conditions in Shipyard Employment and 
certifying the record to the Assistant Secretary of Labor for 
Occupational Safety and Health.
    As required by the OSH Act, this final rule is based on careful 
analysis and consideration of the rulemaking record as a whole, 
including materials discussed or relied upon in the proposed rule, 
written comments and exhibits received, and the record of the public 
hearing.

D. Hazards

    Shipyard employment is a risky occupation that exposes workers to a 
number of different hazards. Shipyard-employment workers are at risk 
due to the nature of their work, which includes a variety of industrial 
operations such as steel fabrication, welding, abrasive blasting, 
electrical work, pipefitting, rigging, stripping, and coating 
applications. Shipyard-employment workers also operate and service 
complex machinery and equipment such as powered industrial trucks, 
cranes, and vessel systems. Several stakeholders said that vessel 
systems, in particular, present ``unique complexity'' (Ex. 132.2).
    The hazards associated with these operations and equipment are 
heightened because they are often performed outdoors in all kinds of 
weather. Gerry Merrigan, of Prowler LLC and Ocean Prowler LLC, 
commented on the risks of working outdoors and on vessels: ``The 
predictability of shoreside operations is not often found at sea (for 
example, ice accumulation on vessels),'' and that ``Almost everyday so 
far this fishing season in the Bering Sea had freezing spray warning'' 
(Ex. 100). A number of other stakeholders also said that working in 
rain, ice, and snow is common in shipyard employment (Exs. 101.1; 
105.1; 121.1; 124; 128).
    Yaniv Zagagi, of Atlantic Marine Florida, also addressed the range 
of environmental conditions that shipyard workers face:

    With outdoor work a common practice on vessels under 
construction and repair, maintaining dry work surfaces at all times 
in all area[s], since work areas cannot be delineated, is not 
possible. In this region, rainfall averages 6 inches per month, with 
an inch or more common for a single rain event (Ex. 115.1).

    The nature of work spaces in shipyard employment also poses risks 
for employees. Shipyard employment activities are performed aboard 
vessels, in confined or enclosed spaces below deck, on scaffolds, and 
on busy, crowded docks. James Thornton, of Northrop Grumman--Newport 
News, commented: ``Shipbuilding and repair, by nature, requires 
employees to access numerous small, awkward spaces, such as catapult 
wing voids on aircraft carriers and vertical launch silos on 
submarines; therefore, working space is inherently limited'' (Ex. 
116.2).
    The safe coordination of shipyard employment activities also is 
complicated by the fact that most shipyards are multi-employer 
worksites where shipyard workers, ship's crew, contractors, and 
subcontractors work side-by-side and often on the same vessel system at 
the same time.
    The combination of these hazards puts workers at risk of injury, 
regardless of whether they are working on vessels or at landside 
operations.
    The proposed rule examined in detail the fatalities and injuries 
associated with the hazards this rule addresses (72 FR 72453-55, Dec. 
20, 2007). Since OSHA did not receive any objections on its fatality 
and injury analysis, the Agency does not see a need to repeat the 
analysis here. In addition, section IV of this preamble discusses the 
fatalities and injuries the final rule is estimated to prevent.

II. 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

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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, Mar. 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. See Pub. Citizen Health Research Group v. 
U.S. Dep't of Labor, 557 F.3d 165, 170-71 (3rd Cir. 2009); Am. Iron and 
Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991) (``AISI''); 
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. See Am. Textile Mfrs. Inst. v. 
Donovan, 452 U.S. 490, 530 n.55 (1981) (``ATMI''); AISI, 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, 37 F.3d 665, 
668 (D.C. Cir 1994) (``LOTO III''). See also ATMI, 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 16614-
16615, Mar. 30, 1993; LOTO III, 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).

III. Summary and Explanation of the Final Rule

    This section of the preamble discusses the requirements of the 
final standard and explains the purpose of the requirements and the 
reasons supporting them. This section also discusses and resolves 
issues raised during the comment period, significant comments received 
as part of the rulemaking record, and any substantive changes from the 
proposed rule.
    As mentioned, OSHA adopted many of the provisions in subpart F in 
1972 from existing Federal occupational safety and health standards and 
national consensus standards (for example, sanitation, medical services 
and first aid, housekeeping). Since then, those national consensus 
standards have been updated and revised. OSHA carefully reviewed the 
updated standards and, when they encompassed new technology and 
requirements to provide greater workplace safety and health, has 
incorporated those changes in the final rule.
    SESAC recommended many of the provisions in the final rule as 
representing industry best practices. To the extent that such practices 
and technology have changed since SESAC made its recommendations, OSHA 
has updated those recommendations accordingly.
    In the final rule, OSHA has consolidated a number of provisions to 
more clearly indicate that they apply to shipyard employment. For 
example, both existing general industry (part 1910) and shipyard 
employment (part 1915) standards address housekeeping, sanitation, and 
medical services and first aid. General industry standards apply to 
shipyard employment when part 1915 standards do not address a 
particular hazard or working condition. To make the applicable 
requirements easier to understand and follow, the final rule 
consolidated the sets of standards into one section. To illustrate, 
Sec.  1910.141 and Sec.  1915.97 contain requirements on sanitation 
that are applicable to shipyard employment. The final rule has combined 
all of the sanitation requirements in both standards that are 
applicable to shipyard employment in Sec.  1915.88.
    The consolidation of some standards, and the addition of new 
sections, has resulted in a renumbering of the sections in subpart F. 
Table 1 lists the section numbers of the final rule and the existing 
section(s), if any, from which they were derived.

   Table 1--Proposed Provisions and Corresponding Existing Provisions
------------------------------------------------------------------------
                                                        Existing rule
     Title of provision            Final rule           applicable to
                                                     shipyard employment
------------------------------------------------------------------------
Scope, application, and       Sec.   1915.80......  Each section of
 definitions.                                        subpart F has a
                                                     scope and
                                                     application
                                                     provision. No
                                                     existing section
                                                     for definitions.
Housekeeping................  Sec.   1915.81......  Sec.   1915.91 and
                                                     Sec.   1910.141.
Lighting....................  Sec.   1915.82......  Sec.   1915.92.
Utilities...................  Sec.   1915.83......  Sec.   1915.93.
Working alone...............  Sec.   1915.84......  Sec.   1915.94.
Vessel radar and              Sec.   1915.85......  Sec.   1915.95.
 communication systems.
Lifeboats...................  Sec.   1915.86......  Sec.   1915.96.
Medical services and first    Sec.   1915.87......  Sec.   1915.98 and
 aid.                                                Sec.   1910.151.
Sanitation..................  Sec.   1915.88......  Sec.   1915.97 and
                                                     Sec.   1910.141.
Control of hazardous energy   Sec.   1915.89......  No existing rule.
 (lockout/tagout).
Safety color code for         Sec.   1915.90......  Sec.   1910.144.
 marking physical hazards.
Accident prevention signs     Sec.   1915.91......  Sec.   1910.145.
 and tags.
Retention of DOT markings,    Sec.   1915.92......  Sec.   1915.100.
 placards and labels.
Motor vehicle safety          Sec.   1915.93......  No existing rule.
 equipment, maintenance, and
 operation.
Servicing multi-piece and     Sec.   1915.94......  No existing rule.
 single-piece rim wheels.
------------------------------------------------------------------------

    To the extent possible, OSHA has expressed the final rule in 
performance language; that is, the requirements are ``expressed in 
terms of objective criteria and of the performance desired.'' 29 U.S.C. 
655(b)(5). Some stakeholders, particularly larger establishments, 
supported this approach and urged OSHA to adopt a flexible approach in 
the final rule (Exs. 116.1; 120.1). Other stakeholders, particularly 
smaller businesses, urged OSHA to provide more specific language in the 
final rule (Exs. 104.1; 107; 121.1; 125; 198, p. 56). For example, 
Philip Dovinh, of Sound Testing, Inc., said that vague or ``open-
ended'' language ``leaves ample room for

[[Page 24580]]

erroneous misinterpretations'' (Ex. 121.1).
    OSHA believes that the performance-based approach in the final rule 
provides employers with maximum flexibility in determining the most 
effective strategies for controlling hazards and protecting their 
workers. At the same time, OSHA believes that the objective criteria 
the final rule incorporates will assist employers, particularly small 
businesses, with complying with the final rule. In addition, as 
stakeholders requested, OSHA has defined a number of additional terms 
used in the final rule (Exs. 121.1; 129.1). OSHA believes this approach 
also will help employers understand and comply with the final rule 
while providing flexibility for the range of employers the final rule 
covers.

Section 1915.80--Scope, Application, and Definitions

Paragraph (a)--Scope and Application
    Paragraph (a) specifies that the provisions in subpart F apply to 
general working conditions:
     In shipyard employment;
     At landside operations and on vessels and vessel sections; 
and
     Regardless of geographic location.
    Final paragraph (a) consolidates the individual scope provisions 
contained in each section of existing subpart F into one section. 
Paragraph (a) also applies subpart F to all operations constituting 
shipyard employment. Some of the existing scope provisions, which were 
part of the LHWCA standards that OSHA adopted in 1972, applied only to 
certain sectors of shipyard employment. However, OSHA's intention 
always has been that part 1915 standards apply to all of shipyard 
employment, which Sec.  1915.4(i) defines as ``ship repairing, 
shipbuilding, shipbreaking and related employments.'' As OSHA stated in 
the proposed rule, this consolidation eliminates duplication. Finally, 
the consolidation also makes the scope and application section 
consistent with other subparts of 29 CFR part 1915 that OSHA has 
revised (for example, subpart B--Confined and Enclosed Spaces and Other 
Dangerous Atmospheres in Shipyard Employment (59 FR 37816, Jul. 25, 
1994); subpart I--Personal Protective Equipment in Shipyard Employment 
(61 FR 26322, May 24, 1966); and subpart P--Fire Protection in Shipyard 
Employment (69 FR 55702, Oct. 15, 2004). OSHA did not receive any 
comments on the proposed consolidation.
    Paragraph (a) of the final rule adopts the proposed language that 
subpart F applies to shipyard-employment work on vessels and vessel 
sections and at landside operations. With regard to vessels, this means 
that the requirements of subpart F apply to the extent that OSHA has 
authority over the vessel. OSHA's instruction titled, ``OSHA Authority 
over Vessels and Facilities on or Adjacent to U.S. Navigable Waters and 
the Outer Continental Shelf (OCS),'' provides current Agency policy, 
information, and guidance on OSHA's authority to regulate working 
conditions on certain vessels (inspected vessels, commercial 
uninspected fishing vessels, and other uninspected vessels) (CPL-02-01-
047, Feb. 22, 2010). The instruction is available to read and download 
on OSHA's Web site at https://www.osha.gov.
    Paragraph (a) also adopts language from the proposed rule 
clarifying OSHA's longstanding position that subpart F applies to 
shipyard employment ``regardless of geographic location'' of the 
shipyard activity. OSHA included the phrase ``regardless of geographic 
location'' in the scope so that protection is afforded to employees 
whenever they engage in shipyard employment: On vessels, on vessel 
sections, at landside facilities, or at any other location where they 
perform shipyard employment. This has been the Agency's longstanding 
policy on shipyard employment, and is included in the scope of subpart 
B--Confined and Enclosed Spaces and Other Dangerous Atmospheres, 
subpart I--Personal Protective Equipment, and subpart P--Fire 
Protection.
    Shipyard employment also occurs on vessels and vessel sections 
within the navigable waters of the United States, and includes work on 
a vessel or part of a vessel that is being constructed, or repaired, 
whether it is in the shipyard or dockside, at anchor, or underway for 
testing. The requirements in this subpart will apply to all vessels 
within OSHA's jurisdictional boundaries.
    Several commenters requested that OSHA define ``navigable waters'' 
in the final rule (Exs. 101.1; 124; 126; 128; 132.2). Since the final 
rule does not use the term ``navigable waters,'' OSHA does not believe 
there is a need to include a definition in the rule. In any event, the 
U.S. Coast Guard, not OSHA, is the Federal agency responsible for 
making determinations about whether a body of water is considered 
``U.S. navigable waters.'' The Coast Guard definition of navigable 
waters and other associated terms are contained at 33 CFR part 2, which 
is available at  https://www.gpoaccess.gov/cfr/.
    One stakeholder urged OSHA to exempt from the rule vessels under 
200 gross weight tons or vessels that do not process seafood (Ex. 
197.1). Karen Conrad of the North Pacific Fishing Vessel Owners' 
Association commented:

    [T]hese regulations would apply to all uninspected vessels and 
that would include ``tens of thousands'' of vessels of all kinds. 
OSHA needs to consider that these vessels do ongoing maintenance 
work, not just at the dock, but while they move to other locations. 
We suggest that OSHA communicate with the Coast Guard and industry 
to identify which vessels need this regulation and best to scale 
down this regulation to cover the sector of vessels that should be 
covered (Ex. 197.1).

    OSHA does not agree with the stakeholder's position and has not 
exempted small vessels from the final rule. OSHA regulates hazardous 
working conditions where they are found. To the extent that the 
hazardous working conditions addressed in subpart F are present, OSHA 
believes employees are at risk of injury and death and need protection. 
Of course, OSHA has authority only to the extent that the hazard, 
employer, and vessel are within the Agency's geographical authority.
Paragraph (b)--Definitions
    Paragraph (b) of the final rule sets forth definitions that are 
applicable to subpart F. As mentioned, OSHA believes that defining key 
terms makes the final rule easier to understand and, therefore, will 
increase compliance.
    OSHA has moved the definitions to the beginning of subpart F from 
the final section of the proposed rule (Sec.  1915.95). Two 
stakeholders urged OSHA to move the definitions forward (Exs. 119.1; 
121.1). Philip Dovinh of Sound Testing, Inc. commented:

    Definitions are an extremely important part of any successful 
regulation. OSHA may have misled the reader that their set of 
definitions is just an incomplete afterthought as represented in the 
current Proposed Rule. Section 1915.95 Definitions, is awkwardly 
buried in the last section of Subpart F-General Working Conditions. 
Why not be consistent and place it immediately following Sec.  
1915.80 Scope and application--as in the rest of the other OSHA 
regulations? By having the definitions located immediately at the 
front of the Proposed Rule, they will grab the attention of the 
reader and become much more beneficial (Ex. 121.1).

    OSHA agrees with the commenter that prominently placing the 
definitions for this subpart immediately after the Scope and 
Application section will assist the employer and employees in 
understanding the provisions in subpart F.

[[Page 24581]]

    Many of the proposed definitions have been carried forward 
unchanged, or with editorial changes, to better clarify the term. Some 
of the clarification, additions, and modifications have been made in 
response to stakeholder comments, which provided helpful and useful 
language to improve the clarity of terms used in the final rule. OSHA 
also has added new definitions to the final rule, many of which help to 
explain and clarify OSHA's revised approach to the control of hazardous 
energy. Definitions that have been added to the final rule, or 
substantially clarified or modified from the proposal, are described 
below.
    Additional safety measure. A definition for ``additional safety 
measure'' was added to the final rule to more fully explain and clarify 
the tags-plus system described in Sec.  1915.89, Control of hazardous 
energy. ``Additional safety measure'' is defined as a component of the 
tags-plus system that provides an impediment (in addition to the 
energy-isolating device) to the release of hazardous energy or the 
energization or startup of the machinery, equipment, or system being 
serviced. Examples include, but are not limited, to removing an 
isolating circuit element; blocking a control switch; blocking, 
blanking, or bleeding lines; removing a valve handle or wiring it in 
place; or opening an extra disconnecting device.
    Authorized employee. Paragraph (b)(3) of Sec.  1915.80 specifies 
that an ``authorized employee'' is an employee who performs one or more 
of the following lockout/tagout responsibilities:
     Executes the lockout/tagout procedures;
     Installs a lock or tagout system on any machinery, 
equipment, or system that is to be serviced; or
     Services any machinery, equipment, or system that is under 
a lockout/tagout application.

The final definition specifies clearly and more directly than the 
proposed definition the role of authorized employees in lockout/tagout 
situations. In addition, the final definition retains the sentence 
clarifying that affected employees become authorized employees if their 
duties include servicing machinery, equipment, or systems under a 
lockout/tagout application.
    Contract employer. OSHA has added a new definition for ``contract 
employer.'' OSHA determined that this definition was needed to clarify 
the requirements in Sec.  1915.89(l), Multi-employer worksites. The 
definition is currently included in subpart P, Fire Protection for 
Shipyard Employment, and has been carried over into subpart F in this 
final rule. A ``contract employer'' is an employer who performs 
shipyard employment-related services or work under contract to the host 
employer or to another employer who is under contract to the host 
employer when the work or services takes place at the host employer's 
worksite. Services a contract employer may provide include painting, 
joinery, carpentry, or scaffolding. The definition excludes any 
employer who provides services that are not directly related to 
shipyard employment, such as mail delivery, office-supply, or food 
vending services.
    Dummy load. In Sec.  1915.85, Vessel radar and communication 
systems, paragraph (b)(2) was revised at the suggestion of Northrop 
Grumman Shipbuilding--Newport News (Ex. 116.2) to require protection 
for employees working on a system with a dummy load. OSHA defines 
``dummy load'' as a device used in place of an antenna to aid in the 
testing of a radio transmitter that converts transmitted energy into 
heat to minimize energy radiating outward or reflecting back to its 
source during testing.
    Hazardous energy. ``Hazardous energy'' was defined to ensure that 
employers understand that Sec.  1915.89, Control of hazardous energy, 
applies to any source or type of energy, including mechanical (for 
example, power transmission apparatus, counterbalances, springs, 
pressure, and gravity), pneumatic, hydraulic, electrical, chemical, and 
thermal (for example, high or low temperature), that could cause injury 
to employees. These energy sources may be active, residual, or stored. 
Because this definition encompasses the various types of energy, it was 
not necessary to define separately the phrase ``energy source,'' so 
OSHA deleted the phrase as its own defined term.
    Hazardous substances. In the proposal, OSHA defined ``hazardous and 
toxic substances'' broadly as used in Sec.  1915.87, Medical services 
and first aid. Several commenters stated that this definition was not 
appropriate, was economically infeasible, or was too broad (Exs. 104.1; 
107.1; 105.2; 106.1; 112.1). OSHA has replaced ``hazardous and toxic 
substances'' with ``hazardous substances'' in the final standard, which 
are defined as substances that may cause injury, illness, or disease, 
or otherwise harm an employee by reason of being explosive, flammable, 
poisonous, corrosive, oxidizing, irritating, or otherwise harmful. OSHA 
has concluded that this definition adequately sets forth the hazards 
that have the potential to occur in shipyard employment. This 
definition will assist employers to address the hazards in their 
particular workplaces by providing, for example, quick-drench 
facilities and other first aid or emergency medical equipment.
    Host employer. OSHA added a new definition for ``host employer'' in 
the final rule. OSHA determined that this definition was needed to 
clarify the requirements in Sec.  1915.89(l), Procedures for multi-
employer worksites. The definition is currently included in subpart P, 
Fire Protection for Shipyard Employment, and has been carried over into 
subpart F in this final rule. ``Host employer'' is an employer who is 
in charge of coordinating the shipyard-employment work of other 
employers, or who hires other employers to perform shipyard-employment 
work or to provide shipyard employment-related services at a multi-
employer worksite.
    Isolated location. For purposes of Sec.  1915.84, Working alone, 
OSHA has added a new definition for ``isolated location,'' as requested 
by many commenters (Exs. 101.1; 104.1; 105.1; 114.1; 115.1; 118.1; 124; 
125; 126; 128; 130.1; 198, p. 73). ``Isolated location'' is defined as 
an area where employees are working alone or with little assistance 
from others due to the type, time, or location of their work. Isolated 
locations include remote locations or other work areas where employees 
are not in close proximity to each other. Examples of isolated 
locations include an employee working alone on a job task at the far 
end of a vessel, vessel section, or shipyard; an employee working alone 
in a hold, sonar space, or tank; or an employee working in a confined 
space. OSHA intends to include situations where co-workers may be near 
an employee working alone but are not participating in the work of the 
lone worker. For example, an isolated location exists when two 
employees are working on either side of a metal partition, or when one 
employee performs hot work and a firewatch is on the other side of the 
bulkhead.
    Lock. OSHA has shortened the phrase ``lockout device'' from 
proposed Sec.  1915.89, Control of hazardous energy, by removing the 
word ``device,'' since ``device'' is not needed to explain what a lock 
is. A lock is self explanatory, although OSHA retained the definition 
of the term in this final rule. Throughout the standard, when the 
proposal required the employer to affix a ``lockout device,'' OSHA has 
simplified the term to ``lock.'' The term is defined as a device that 
utilizes a positive

[[Page 24582]]

means, either a key or combination lock, to hold an energy-isolating 
device in a ``safe'' position that prevents the release of energy and 
the startup or energization of the machinery, equipment, or system to 
be serviced.
    Lockout/tags-plus coordinator. OSHA has added a new requirement in 
Sec.  1915.89, Control of hazardous energy, to designate a lockout/
tagout coordinator in certain situations to verify each lockout/tagout 
system. Thus, OSHA has added the term ``lockout/tags-plus coordinator'' 
to the definition section. The lockout/tags-plus coordinator is an 
employee designated by the employer to coordinate all lockout and tags-
plus applications on vessels or vessel sections and at landside 
facilities when employees are performing multiple servicing operations 
on the same equipment at the same time, or on vessels and vessel 
sections when employees are servicing multiple machines, equipment, or 
systems at the same time. As explained in the summary and explanation 
of Sec.  1915.89, the employer may have more than one lockout/tags-plus 
coordinator, depending on the size of the shipyard and the scope of 
work being performed at any given time. The coordinator will also be 
responsible for maintaining a lockout/tagout log for each worksite.
    Lockout/tags-plus materials and hardware. A new definition for 
``lockout/tags-plus materials and hardware'' was added to clarify the 
requirements for controlling hazardous energy in Sec.  1915.89. This 
hardware includes locks, chains, wedges, blanks, key blocks, adapter 
pins, self-locking fasteners, or other hardware used to isolate, block, 
or secure machinery, equipment, or systems to prevent the release of 
energy or the startup or energization of the machinery, equipment, or 
system.
    Navy ship's force. A new term for ``Navy ship's force'' was added 
to clarify situations when naval vessels are in shipyards and the 
ship's force will maintain control of the lockout/tagout applications 
under Sec.  1915.89. ``Navy ship's force'' is the crew of a vessel, 
owned and operated by the U.S. Navy, other than a time- or voyage-
chartered vessel, that is under the control of a Commanding Officer or 
Master.
    Normal production operations. The term ``normal production 
operations'' was modified from proposed Sec.  1915.89 to include 
several examples of machinery or equipment that OSHA intends this 
phrase to encompass. These machines or types of equipment may include, 
but are not limited to, punch presses, bending presses, shears, lathes, 
keel press rollers, or automated burning machines.
    Readily accessible/available. In Sec.  1915.82, Lighting, Sec.  
1915.83, Utilities, Sec.  1915.87, Medical services and first aid, and 
Sec.  1915.88, Sanitation, OSHA uses the term ``readily accessible.'' 
Several commenters requested that OSHA clarify the term ``readily 
accessible'' for this final rule (Exs. 105.1; 121.1). OSHA agrees, and 
has defined ``readily accessible/available'' to mean capable of being 
reached quickly enough by an employee to ensure, for example, that 
medical services and first aid can be rendered effectively, or that 
employees can reach sanitation facilities in time to meet their health 
and personal needs.
    Servicing. The proposed term ``servicing and/or maintenance'' in 
Sec.  1915.89, Control of hazardous energy, has been shortened in the 
final rule to ``servicing'' because ``maintenance'' has been 
incorporated into the definition as one of the workplace activities 
that the term ``servicing'' encompasses. The definition now clarifies 
that servicing covers workplace activities that involve constructing, 
installing, adjusting, inspecting, modifying, testing, and repairing 
machinery, equipment or systems. Servicing also includes maintaining 
machines, equipment, or systems when performing these services would 
expose the employee to harm from the start-up or energization of the 
system being serviced or the release of hazardous energy. Servicing 
would not include the inspection of a space since that is not an 
inspection of a machine, piece of equipment or a system.
    Shield. As used in Sec.  1915.83, Utilities, ``shield'' means to 
install a covering, protective layer, or other effective measure on or 
around a steam hose or temporary steam-piping system, including metal 
fittings and couplings, to protect employees from coming into contact 
with hot surfaces or elements. This action would protect the employee, 
as well as the piping or hose. OSHA received comments requesting that 
this definition be added to the final rule (Exs. 106.1; 117.1).
    Short bight. In Sec.  1915.83 of the final rule, Utilities, OSHA 
added the new term ``short bight.'' NIOSH commented: ``[I]t would be 
useful to define the term `short bights''' (Ex. 129.1). OSHA agrees 
with this comment. ``Short bight'' is the loop that is created in a 
line or rope that is used to tie back or fasten hoses, wiring, or 
fittings. A short bight is not the rope, or the act of fastening the 
hose, but the loop in the rope that is being used.
    Tag. OSHA has shortened the phrase ``tagout device'' from proposed 
Sec.  1915.89, Control of hazardous energy, by removing the word 
``device,'' since ``device'' is not needed to explain what a tag is. 
The term ``tag'' is self explanatory, although OSHA retained the 
definition of this term in this final rule. Throughout the standard, 
when the proposal required the employer to affix a ``tagout device,'' 
OSHA has simplified the term to ``tag'' for the final rule. The term is 
defined as a prominent warning device that includes a means of 
attachment that can be securely fastened to an energy-isolating device 
in accordance with an established procedure to indicate that the 
energy-isolating device and the equipment being controlled must not be 
operated until the tag is removed by an authorized employee.
    Tags-plus system. A definition for ``tags-plus system'' was added 
to clarify the requirements of Sec.  1915.89, Control of hazardous 
energy. Although similar to the proposed ``tagout'' definition, it 
needed to be revised to be consistent with requirements in the final 
standard. Tags-plus is a system for controlling hazardous energy that 
is comprised of: An energy-isolating device with a tag affixed to it 
and an additional safety measure. It is imperative that employers and 
employees understand that the system is made up of two parts; without 
both components, employers will not meet the tags-plus requirements, 
and employees will not be fully protected.
    Verification of isolation. In Sec.  1915.89 of the final rule, a 
new term, ``verification of isolation,'' was added for clarification. 
The term refers to the means necessary to detect the presence of 
hazardous energy, which may involve the use of a test instrument, such 
as a voltmeter, a visual inspection, or a deliberate attempt to start-
up the machinery, equipment, or system. For electric shock protection, 
employers may not use a visual inspection or a deliberate attempt to 
start-up the machinery, equipment or system.
    Walkway. In Sec.  1915.81, Housekeeping OSHA included a single 
definition for ``walking and working surfaces'' in the proposal. Based 
on comments, that section was amended for clarity. As explained in the 
summary and explanation of Sec.  1915.81, OSHA split the requirements 
for walkways and working surfaces into separate provisions and added 
definitions for both of these terms in this final rule. A ``walkway'' 
is any surface where employees walk or pass through to perform their 
job tasks. This may be a vertical, slanted, or horizontal surface, and 
may include access ways, designated walkways, aisles, exits, gangways, 
ladders, ramps, stairs, and passageways. In addition, if an

[[Page 24583]]

employer has instructed employees to use an area such as a scaffold to 
gain access to other locations, the scaffold will also be considered a 
walkway.
    Work area. OSHA has defined two new terms--``work area'' and 
``worksite''--that are used throughout this subpart. These terms were 
added in response to the number of commenters asking for such 
definitions (Exs. 101.1; 104.1; 107.1; 124; 126; 128; 130). Richard 
Webster from Marine Industries Northwest testified: ``Work area is also 
an awkward definition. You've got work location and work area, but you 
really don't define what it is. * * * So it would be helpful to have 
work area * * * much better defined than it is right now'' (Ex. 198, p. 
195). The Agency agrees that defining terms will assist employers to 
better understand the intent of the provisions where the terms occur. 
Thus, a ``work area'' is defined as a specific area, such as a 
fabrication area, machine shop, tank, space, or hold, where one or more 
employees are working.
    Working surface. A ``working surface,'' as used in Sec.  1915.81, 
Housekeeping, encompasses any surface where work is occurring or any 
area where tools, materials, and equipment are being staged for 
performing work. This definition does not include storage areas where 
tools, materials, and equipment have been stored out of walkways, but 
it may include a walkway that is now being used to stage tools, 
materials, and equipment for a job in progress.
    Worksite. As discussed previously, this term was added in response 
to the number of commenters asking for a definition (Exs. 101.1; 104.1; 
107.1; 124; 126; 128; 130). A ``worksite'' is a general work location 
where employees are performing work, such as a shipyard, pier, vessel, 
vessel section, or barge.
Terms Not Defined and Definitions Deleted by OSHA
    The Agency has decided not to define ``adequate'' or ``adequate 
number,'' as used primarily in Sec.  1915.87, Medical services and 
first aid. Richard Webster of Marine Industries Northwest stated, ``You 
use the terminology over and over again, adequate, adequate. Adequate 
number of first aid kits, adequate number of--adequate supplies. * * * 
The term is just begging for [a] definition'' (Ex. 198, p. 194). Other 
commenters stressed the need to define ``adequate'' (Exs. 101.1; 124; 
126; 128; 130.1). OSHA believes that the employer, by considering the 
factors required in Sec.  1915.87(c)(3), will be able to determine the 
number of first aid providers they will need at their facility. These 
factors include the size and location of each shipyard worksite, the 
number of employees at each worksite, and the nature of the hazards 
present at each worksite. To determine first aid and CPR needs, 
employers must also consider the distance of each worksite from on-site 
infirmaries or clinics, or off-site hospitals. For sanitation 
facilities, employers must take into account the distance of each 
worksite from the sanitation facilities.
    OSHA has also deleted the following proposed definitions from the 
final rule: ``Energized,'' ``energy source,'' ``hot tap,'' and ``ship's 
systems.'' While no comments were received on these definitions, 
Electric Boat Corp. noted that proposed Sec.  1915.89(a)(2)(iii)(B) 
referred to ``hot-tapping'' even though 29 CFR 1915.14 ``requires a 
Marine Chemist certificate for hot work on pipelines that contain or 
have contained flammable or combustible liquids'' (Ex. 108.1). 
Furthermore, Electric Boat Corp. noted:

    NFPA Standard 306 (Control of Gas Hazards on Marine Vessels) 
does not permit the Marine Chemist to authorize hot tapping except 
in emergency situations where the vessel is in peril. If this work 
cannot be authorized in the marine environment why include it in the 
proposed standard. The practice of hot tapping in a shipyard should 
be removed to eliminate any confusion (Ex. 108.2).

OSHA agrees with the commenter and understands that hot tapping is an 
uncommon practice in shipyard employment. Therefore, the definition and 
related provisions have been removed from this final rule.
    The terms ``energized,'' ``energy source,'' and ``ship's systems'' 
are no longer used in the regulatory text of Sec.  1915.89 of this 
final rule and, therefore, need not be defined.
Definitions Included Without Change or With Minor Editorial Changes
    OSHA did not receive comments on the remaining definitions, and 
believes that all of the terms used in this subpart are ``terms of 
art'' in the industry and are universally recognized by shipyard 
employees and employers. In addition, some terms were carried forward 
into the final standard with only minor editorial changes. These terms 
include ``affected employee,'' ``capable of being locked out,'' 
``energy-isolating device,'' ``healthcare provider,'' ``lockout,'' 
``motor vehicle,'' ``portable toilet,'' ``potable water,'' ``sanitation 
facility,'' ``serviceable condition,'' ``sewered toilet,'' ``tagout,'' 
``vehicle safety equipment,'' and ``vermin.''

Section 1915.81--Housekeeping

    This section of the final rule covers housekeeping issues that are 
found throughout shipyard employment that, unless adequately addressed, 
can add to an already hazardous environment. The final rule, like the 
proposed rule, consolidates, revises, and reorganizes the housekeeping 
requirements applicable to shipyards (Sec.  1910.141(a)(3) and Sec.  
1915.91). However, in the final rule OSHA has changed the approach to, 
and the organization of, the housekeeping requirements.
    In the proposed rule, OSHA applied the housekeeping requirements 
uniformly to all ``walking and working surfaces'' rather than treating 
walking surfaces and working surfaces as two distinct areas having 
unique characteristics and warranting separate safety considerations 
and requirements. As mentioned in the discussion of Sec.  1915.80(b), 
the proposed rule defined walking and working surfaces as ``any surface 
on or through which employees gain access to or perform their job 
duties or upon or through which employees are required or allowed to 
walk or work in their workplace.'' The proposed definition also 
specified that the term included work areas, accessways, aisles, exits, 
gangways, ladders, ramps, stairs, steps, and walkways. OSHA applied 
this umbrella term to all of the housekeeping requirements in an 
attempt to make this section easier to understand.
    However, many commenters expressed concern that combining walking 
and working surfaces created a term that was too broad (Exs. 106.1; 
108.2; 117.1). For example, Electric Boat stated: ``Every location in a 
shipyard and on a vessel has the potential to be a working surface'' 
(Ex. 108.2). Bath Iron Works added that the term walking and working 
surfaces is so broad that it ``will include every square foot of a 
shipyard'' (Ex. 106.1).
    Stakeholders also said combining walking and working surfaces as 
one term could result in confusion since walking surfaces sometimes 
became working surfaces and vice versa (Exs. 121.1; 199, p. 102). 
Manitowoc Marine Group commented: ``During the construction and repair 
of a vessel, many operations take place simultaneously, and it could be 
easily very difficult to discriminate what is and what is not 
considered, quote, a `work area' '' (Ex. 168, p. 68). Commenters from 
the American Shipbuilding Association and the North Pacific Fishing 
Vessel Owners' Association requested that OSHA establish separate 
definitions for walkways and working surfaces to eliminate potential 
confusion (Exs. 117.1; 197).

[[Page 24584]]

    Northrop Grumman--Newport News pointed to the uniqueness of working 
surfaces in shipyard employment to support dividing walking and working 
surfaces into separate terms:

    Shipbuilding and repair, by nature, requires employees to access 
numerous small, awkward spaces, such as the catapult wing voids on 
aircraft carriers and vertical launch silos on submarines; 
therefore, working space is inherently limited even under the very 
best housekeeping practices (Exs. 116.2; 120.1).

    Based on the comments received and testimony heard, OSHA has 
decided to separate ``walking and working surfaces'' into two terms: 
``walkways'' and ``working surfaces.'' Section 1915.80(b)(35) of the 
final rule defines a ``walkway'' as any surface on which employees 
walk, including areas that employees pass through, to perform their job 
tasks. Walkways include, but are not limited to, accessways, designated 
walkways, aisles, exits, gangways, ladders, ramps, stairs, steps, 
passageways, and scaffolding. If an area is used or is intended to be 
used, to gain access to other locations, it is a walkway within the 
meaning of the final rule.
    The final rule defines ``working surface'' as any surface where 
work is occurring or any area where tools, material, and equipment are 
being staged for performing work (Sec.  1915.80(b)(37)).
    To make the distinction between walkways and working surfaces, OSHA 
has reorganized Sec.  1915.81 of the final standard into three 
paragraphs. Paragraph (a) covers general requirements that apply to 
both walkways and working surfaces; paragraph (b) includes specific 
requirements for walkways; and paragraph (c) includes specific 
requirements for working surfaces.
Paragraph (a)--General Requirements
    Paragraph (a)(1) requires the employer to establish and maintain 
good housekeeping practices to eliminate hazards to employees to the 
extent practicable. Proposed Sec.  1915.81(a) required that the 
employer maintain good housekeeping conditions ``at all times'' to 
ensure that walking and working surfaces ``do not create a hazard for 
employees.'' American Seafoods Company commented that this requirement 
was ``vague and impractical in that maintenance and cleaning operations 
at times necessitate that the walking and working surfaces be lifted 
from their frames'' (Ex. 105.1). In addition, the U.S. Navy stated that 
the term `` `[g]ood housekeeping' adds an ambiguity without apparent 
benefit'' (Ex. 132.2). Other stakeholders said that in shipyard 
employment it is not always possible to maintain good housekeeping 
conditions at all times (Exs. 99; 104.1; 107). For example, Steven 
Labreque of Electric Boat Corp. said: ``Maintaining a clean and dry 
condition in all these locations is simply not feasible'' (Ex. 108.2).
    After considering stakeholder comments and other information in the 
record, OSHA has modified the language in Sec.  1915.81(a) of the final 
rule in two ways. First, the final rule requires that employers 
establish good housekeeping practices. OSHA's intention in including a 
general housekeeping requirement has always been to ensure that 
shipyard employers develop and implement procedures for regular and 
systematic housekeeping to minimize hazards and protect employees from 
harm. In particular, OSHA believes that requiring employers to 
establish regular housekeeping practices will be effective in helping 
to reduce the large number of slip, trip, and fall injuries that occur 
in shipyard employment. As stated in the preamble to the proposed rule 
(72 FR 72458, December 20, 2007), according to the BLS data for 2002, 
slips, trips, and falls accounted for 19 percent of all injuries and 
illnesses involving days away from work in ship and boat building and 
repairing (Ex. 69).
    Second, OSHA has revised the language in paragraph (a)(1) to 
require that employer housekeeping practices eliminate hazards to 
employees ``to the extent practicable.'' The proposed rule would have 
required that employers ensure that they maintain good housekeeping 
conditions at all times in their workplaces so no hazard is created for 
employees. The revised language recognizes that, due to unique 
conditions inherent in shipyard employment, it may not be possible to 
maintain good housekeeping conditions in shipyard-employment workplaces 
at all times or ensure that workplace conditions never present a 
hazard. However, the rule requires employers to implement and maintain 
rigorous housekeeping conditions unless it is impracticable.
    Paragraph (a)(2) specifies that employers must eliminate slippery 
conditions on walkways and working surfaces ``as necessary.'' This 
provision, proposed as paragraph (g), would have required that slippery 
conditions, including snow and ice, be eliminated ``as they occur.''
    Northrop Grumman Shipbuilding--Newport News supported the proposal: 
``[E]liminating slippery conditions, including those associated with 
snow and ice, are important to minimizing the risk of an employee 
slipping and being injured'' (Exs. 116.2; 120.1). However, a number of 
other commenters were opposed to the proposed requirement. Trident 
Seafoods Corporation, the U.S. Navy, Bath Iron Works, the Shipbuilders 
Council of America, American Shipbuilding Association, and Sound 
Testing, Inc., said it is extremely difficult in shipyard-employment 
worksites to ensure that snow and ice are immediately eliminated (Exs. 
104.1; 106.1; 107.1; 114.1; 115.1; 117.1; 118.1; 119.1; 121.1; 125; 
132.2; 168, p. 68; 199, pp. 55, 80-83). For instance, Atlantic Marine 
said: ``It is not practical to eliminate snow and ice as they occur'' 
(Exs. 115.1; 118.1). Roy Martin testified that the proposed requirement 
``represents an unrealistic expectation. Removing snow and ice as they 
occur is not practical, considering, as I well know [from] firsthand 
experience on the Great Lakes, conditions such as this may last several 
days, making constant attention a major burden, if not infeasible'' 
(Ex. 168, p. 57). Dale Myer of Arctic Storm Management Group testified 
that requiring employers to clean slippery conditions as they occur 
would be impossible because such conditions were ``almost impossible to 
define. When is a surface slippery? * * * So is one flake going to be 
snow occurred? Is one inch going to be snow occurred? Is a trace of 
snow going to be as it occurs?'' (Ex. 199, p. 82).
    Stakeholders suggested alternative approaches. Atlantic Marine 
suggested that OSHA allow ``a practical amount of time'' to remove snow 
and ice (Exs. 115.1; 118.1). Dale Myer recommended:

    I believe that the phrases that you have in subsection D 
[proposed paragraph (d)], which talks about the dry conditions, as 
it reads it says, maintain so far as practical in dry conditions. I 
think that phrase, `so far as practical,' should actually be 
incorporated into G [proposed paragraph (g)] (Ex. 199, p. 83).

    To address stakeholders' concerns, OSHA has revised the language of 
the final rule to require that employers eliminate slippery conditions 
``as necessary.'' OSHA intends ``as necessary'' to mean that conditions 
are such that they can pose a hazard to employees. The revised language 
gives employers flexibility in determining whether the particular 
conditions may pose a hazard to employees or have deteriorated such 
that action is necessary. In addition, the performance-based approach 
gives employers flexibility in determining what method of eliminating 
slippery conditions will work most effectively for them.
    During the hearings, participants described some of the methods and

[[Page 24585]]

procedures they use at their shipyard facilities. For instance, Roy 
Martin described how Manitowoc Marine Group deals with ice and snow: